BAT LLC, Plaintiff, v. TD BANK, N.A., et al., Defendants 15 CV 5839 (RRM) (CLP) United States District Court, E.D. New York Signed March 22, 2021 Counsel Robert L. Rimberg, Goldberg & Rimberg PLLC, New York, NY, Joseph Zelmanovitz, Stahl & Zelmanovitz, New York, NY, Kelly Christine Griffin-Fromm, Goldberg Weg & Markus PLLC, New York, NY, Elliot Hahn, Hahn Eisenberger PLLC, Brooklyn, NY, Seth Eisenberger, Law Office of Seth Eisenberger, Brooklyn, NY, for Plaintiff. Andrew Hamelsky, Stradley Ronon Stevens & Young, LLP, New York, NY, Jenifer Ann Scarcella, White & Williams LLP, New York, NY, for Defendant TD Bank N.A. Huaou Yan, Philadelphia, PA, Michael David Silberfarb, Blank Rome, New York, NY, for Defendant Halifax Security, Inc. Patrick Stoltz, Kaufman Borgeest & Ryan LLP, Valhalla, NY, for Defendant Securecom Wireless LLC. Katie Anne Mabanta, Deborah A. Del Sordo, Ahmuty, Demers & McManus Esq., New York, NY, for Defendant Lydia Security Monitoring Inc. James D. Gassenheimer, Pro Hac Vice, Berger Singerman LLP, Miami, FL, Michel O. Weisz, Pro Hac Vice, Michel O. Weisz, P.A., Doral, FL, Deborah A. Del Sordo, Ahmuty, Demers & McManus Esq., New York, NY, for Defendant Integrated Security Systems. Pollak, Cheryl L., United States Magistrate Judge ORDER *1 Plaintiff BAT LLC (“BAT”) commenced this action on August 3, 2015 against defendant TD Bank, N.A. (“TD Bank”),[1] alleging breach of contract, gross negligence, and a violation of New York Banking Law § 338, stemming from the August 6, 2012 theft of items from a safe deposit box located at the TD Bank at 1602 Avenue U in Brooklyn (the “Avenue U branch”). (Compl. ¶¶ 4, 21-55).[2] The plaintiff amended the Complaint on three subsequent occasions, and the operative pleading now includes breach of contract and gross negligence claims against defendants Halifax Security, Inc. (“Halifax”), Integrated Security Systems (“Integrated”), and Lydia Security Monitoring Inc. (“Lydia”). (See FAC[3] ¶¶ 51-75). Discovery in this matter has been long and protracted, with plaintiff serving approximately 155 document requests, 46 interrogatories, and 512 requests for admission; eight (8) TD Bank witnesses have been deposed. During the course of the litigation, this Court has been required to intervene and rule on approximately nineteen discovery disputes to date, a number of which have been appealed to the district judge. Presently before the Court are three additional motions: 1) defendants’ motion to strike the Supplemental Expert Report of Donald Palmieri (“Palmieri”) (TD 5/3/2020 Ltr.[4]); 2) BAT's motion to compel non-party Ernst & Young to comply with a subpoena (BAT 7/31/2020 Ltr.[5]); and 3) a motion to strike the expert report prepared by plaintiff's liability expert, Jeffrey D. Zwirn, on the grounds that it goes beyond the scope of a supplemental report (“Zwirn”). (TD 10/14/2020 Ltr.[6]). Defendants Halifax, Integrated, and Lydia also join in TD's motion to strike the Zwirn Report. (See Halifax 10/15/2020 Ltr.; Integrated 10/14/2020 Ltr.).[7] BACKGROUND Following the filing of the plaintiff's initial Complaint, plaintiff sought and was given permission to amend the Complaint several times. In the Fourth Amended Complaint, plaintiff BAT alleges that it is the assignee of “all rights and claims” held by Chaya Bienenstock and Yaakov Bienenstock (the “Bienenstocks”) in connection with a contract to lease a safe deposit box at the Avenue U branch. (FAC ¶¶ 2, 15). BAT claims that at some time in June 2010, “valuables in excess of $250,000,” including approximately $7.2 million worth of diamonds, were placed into the safe deposit box at the Avenue U branch. (Id. ¶¶ 21). As detailed in this Court's Report and Recommendation (“R&R”), dated July 31, 2018, the origin of the diamonds and their very existence is a disputed issue of fact. (R&R at 4-5). To date, the burglary remains unsolved and the contents of the deposit box have not been recovered. (FAC ¶¶ 23, 27). Plaintiff claims that there were deficiencies in TD Bank's safeguarding of the box, Halifax's installation of the security system, and Integrated and Lydia's alarm monitoring and response, which allegedly caused plaintiff's damages. (FAC ¶¶ 30-34, 42-44, 52-55, 59-61, 64-68, 70-74). DISCUSSION I. Motion to Strike Palmieri Report A. The Parties’ Arguments *2 The first discovery dispute relates to the deposition of BAT's gemologist expert, Donald Palmieri, who provided an expert report, dated February 10, 2020 (the “initial Report”). According to TD Bank, it was agreed that Mr. Palmieri's deposition would be conducted by video to preserve his testimony for trial due to concerns related to the COVID-19 pandemic. (TD 5/3/2020 Ltr. at 1). The parties agreed that Palmieri would be deposed in the manner of a discovery deposition, followed by BAT's direct examination and TD Bank's opportunity for cross examination. (Id.) The deposition was conducted for a full day on April 21, 2020 and then adjourned, with the agreement that the direct and cross examination of Palmieri would continue the following week, on April 28, 2020. (Id.) According to TD Bank, “[j]ust 24 hours before the continuation of Palmieri's testimony,” BAT produced a “supplemental” expert report (the “Supplemental Report”), which TD Bank contends directly contradicts Palmieri's initial Report and much of his testimony. (Id. at 2). TD Bank contends that based on the questioning at the deposition which exposed deficiencies in the initial Report, BAT is now trying to improperly “fix” the expert report. (Id.) TD Bank contends that the Supplemental Report is not only untimely, in that it was provided after TD Bank's counsel had concluded his questioning, but it is also prejudicial because it will require counsel to re-ask many questions, causing a waste of time and resources. (Id.) In addition, the Supplemental Report now includes documents, such as the “Market Monitor Report,” which TD Bank had requested prior to the deposition, but which had not been provided. In its letter, TD Bank details areas in the Supplemental Report in which Palmieri allegedly alters or corrects statements made during his deposition. One example is his testimony regarding his reliance on RapNet to determine a discount on the valuation of the diamonds, even though there was no mention of RapNet in the initial Report. (Id. at 3 (citing Ex. 4[8] at 120)). According to TD Bank, Palmieri used a “15 percent discount” for round diamonds and a “20 percent discount” for fancy shapes. (Id. (citing Ex. 4 at 228)). Now in the Supplemental Report, he states that the “average ‘Discount’ for Round Diamonds was approximately 11-15% and approximately 19% for all other shaped diamonds.” (Id. at 4 (quoting Ex. 4 at 3)). Another example of a deficiency in Palmieri's initial Report and testimony that has now been corrected in the Supplemental Report is his failure to define wholesale value and his failure to explain his methodology in valuation, both of which defendant argues is required by the Uniform Standards of Professional Appraisal Practice (“USPAP”). (Id.) In the Supplemental Report, Mr. Palmieri now includes charts to explain his valuation methodology. (Id.) He also includes an “Approximate Retail Value” in the Supplemental Report, after testifying that the diamonds would be sold at wholesale price, not retail, and he was not asked to prepare a retail value. (Id. at 5 (citing Ex. 4 at 122-123, 127-128)). TD Bank further argues that when he was questioned at his deposition about the liquidation value of the diamonds, he testified that “nowhere in this report, and nowhere in my assignment, was the word ‘liquidation’ used, ever.” (Id. (quoting Ex. 4 at 251)). Now in the Supplemental Report, however, he includes an entire section entitled “Approximate Liquidation Value,” and he provides an opinion as to the liquidation value in 2012. (Id. at 5). *3 Defendant argues that although Fed. R. 26(a)(2)(B)(I) requires an expert to supplement his report if the disclosure is incomplete or incorrect, the duty to supplement should not be used to “bolster” an earlier submission or to “fix” problems in the initial report. (Id. (citing Powerweb Energy, Inc. v. Hubbell Lighting, Inc., No. 12 CV 0220, 2014 WL 1572746 at *3, 2014 U.S. Dist. LEXIS 52957 (D. Conn. Apr. 17, 2014))). Defendant argues that by supplementing Palmieri's initial Report, plaintiff has deprived TD Bank of the opportunity to question him on numerous topics, including documents that BAT withheld even though cited in the initial Report and requested by TD Bank's counsel. Accordingly, TD Bank urges the Court to strike the Supplemental Report and/or impose sanctions in the form of fees and costs, pursuant to Fed. R. Civ. P. 37(c)(1)(A). In response, BAT argues that supplements to expert reports are permitted by the Federal Rules and, in this instance, Mr. Palmieri's report is merely an “explanatory document that changes nothing of substance from the opinions expressed in the [initial Report].” (BAT 5/19/2020 Ltr.[9] at 1). Plaintiff contends that the Supplemental Report “merely adds further explanation” of areas covered by the original report and corrects “typos and similar immaterial errors.” (Id.) To the extent that Mr. Palmieri added valuations using retail and liquidation methods, he did so only because he was asked about those subjects at his deposition, but he makes it clear that he “stands by his opinion that the appropriate valuation method is the method used in his initial report: wholesale value.” (Id. (citing Ex. 2[10] at p. 6)). Plaintiff argues that there is no possible prejudice to allowing the Supplemental Report, and objects to both the motion to strike the report and the motion for costs and fees. (Id. at 2). Finally, counsel also objects to the request to review correspondence between Mr. Palmieri and plaintiff's counsel. (Id.) B. Expert Disclosure Obligations Rule 26(a)(2) of the Federal Rules of Civil Procedure provides that a party “shall disclose to other parties the identity of any person who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence.” Fed. R. Civ. P. 26(a)(2)(A). The Rule further requires the parties retaining an expert witness to provide “a written report prepared and signed by the witness.” Fed. R. Civ. P. 26(a)(2)(B). The expert's report must “contain a complete statement of all opinions to be expressed and the basis and reasons therefor,” along with the witness's qualifications, and any data considered by the witness in forming the opinions, and exhibits to be used in support of the opinions. Id. “It should be assumed that at the time an expert issues his report, that report reflects his full knowledge and complete opinions on the issues for which his opinion has been sought.” Sandata Techs., Inc. v. Infocrossing, Inc., No. 05 Civ. 9546, 2007 WL 4157163, at *4 (S.D.N.Y. Nov. 16, 2007). As the court in Cole v. Perry noted, “the interest served by requiring the disclosure of expert opinions is self-evident.” 217 F.R.D. 1, 4 (D.D.C. 2003). The Rule is designed “to prevent unfair surprise at trial and to permit the opposing party to prepare for the expert's cross-examination. By ‘locking’ the expert witness into what Fed. R. Civ. P. 26(a)(2)(B) calls ‘a complete statement of all opinions to be expressed and the basis and reasons therefor,’ the opposing party knows exactly what she is facing and can decide whether to take the deposition of the expert and to prepare for cross-examination and rebuttal.” Id.; see also Sandata Techs., Inc. v. Infocrossing, Inc., 2007 WL 4157163 at *8. *4 Rule 26(a)(2)(D)(ii) requires that expert rebuttal evidence “intended solely to contradict or rebut evidence on the same subject matter identified by another party” must be disclosed “within 30 days after the other party's disclosure.” Rule 26(e)(1) of the Federal Rules of Civil Procedure sets forth the obligation of a party to supplement its disclosures in a civil case: A party is under a duty to supplement at appropriate intervals its disclosure under subdivision (a) if the party learns that in some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. With respect of testimony of an expert from whom a report is required under subdivision (a)(2)(B), the duty extends to both information contained in the report and to information provided through deposition of the expert, and any additions or other changes to this information shall be disclosed by the time the party's [final pretrial disclosures] under Rule 26(A)(3) are due. Fed. R. Civ. P. 26(e)(1) (emphasis added). Rule 26(e)(1) does “not grant a license to supplement a previously filed expert report because a party wants to, but instead imposes an obligation to supplement the report when a party discovers the information it has disclosed is incomplete or incorrect.” Cole v. Perry, 217 F.R.D. at 3. “When the expert supplements her report by addressing a new matter after discovery has ended, the very purpose of the rule is nullified.” Id. at 4. “Put simply, experts are not free to continually bolster, strengthen, or improve their reports by endlessly researching the issues they already opined upon, or to continually supplement their opinions. If that were the case, there would never be any closure to expert discovery, and parties would need to depose the same expert multiple times.” Sandata Techs, Inc. v. Infocrossing, Inc., 2007 WL 4157163, at *6; see also Gyllenhammer v. Am. Nat'l Red Cross, No. 15 CV 1143, 2018 WL 1956426, at *4 (N.D.N.Y. Jan. 23, 2018). Defendant TD Bank seeks an Order precluding Palmieri's Supplemental Report, arguing that it has suffered “undeniable” prejudice as a result of this conduct by plaintiff. The defendant states that it has already spent a full day deposing Palmieri on his prior expert report, including hours of preparation time and expenses associated with taking the deposition. (TD 5/21/2020 Ltr.[11] at 3). Defendant also argues that the Supplemental Report is untimely given the numerous extensions granted by the Court for discovery. (Id.) C. Preclusion as a Sanction “The discovery provisions of the Federal Rules of Civil Procedure are designed to achieve disclosure of all the evidence relevant to the merits of a controversy.” Daval Steel Prods. v. M/V Fakredine, 951 F.2d 1357, 1365 (2d Cir. 1991). Rule 37(c)(1) sets forth the sanctions for violating Rule 26: If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard: (A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure; (B) may inform the jury of the party's failure; and (C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi). *5 Fed. R. Civ. P. 37(c)(1). The sanctions set out in Rule 37 serve three purposes, including ensuring “that a party will not benefit from its own failure to comply.” Update Art, Inc. v. Modiin Publ'g, Ltd., 843 F.2d 67, 71 (2d Cir. 1988). An Order of preclusion is one of the potential sanctions listed in Rule 37(b)(2)(A). Preclusion of an expert report can be a harsh sanction. See Rmed Int'l, Inc. v. Sloan's Supermarkets, Inc., No. 94 Civ. 5587, 2002 WL 31780188, at *3 (S.D.N.Y. Dec. 11, 2002). In Design Strategy, Inc. v. Davis, the Second Circuit stated: “A district court has wide discretion to impose sanctions, including severe sanctions, under Federal Rule of Civil Procedure 37, and its ruling will be reversed only if it constitutes an abuse of discretion.” 469 F.3d 284, 294 (2d Cir. 2006). In determining if a court has acted within its discretion, the Second Circuit has considered the following factors: “(1) the party's explanation for the failure to comply with the [disclosure requirement]; (2) the importance of the testimony of the precluded witness[es]; (3) the prejudice suffered by the opposing party as a result of having to prepare to meet the new testimony; and (4) the possibility of a continuance.” Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir. 2006) (quoting Softel, Inc. v. Dragon Med. & Scientific Commc'ns, Inc., 118 F.3d 955, 961 (2d Cir. 1997)). While “bad faith and callous disregard of the Federal Rules” can be considered in determining the appropriate sanction, they are not prerequisites to excluding evidence under Rule 37. See Design Strategy, 469 F.3d at 296. Although courts have held that orders of preclusion of evidence “should be imposed only in rare situations,” such orders serve as a “credible deterrent rather than a paper tiger” when imposed in certain limited circumstances. Update Art, Inc. v. Modiin Publ'g, Ltd., 843 F.2d at 71 (internal quotation marks omitted). See also Montefiore Med. Ctr. v. American Prot. Ins. Co., 226 F. Supp. 2d 470. 475 (S.D.N.Y. 2002) (noting that “precluding evidence that was not disclosed in discovery is a drastic remedy and will apply only in situations where the failure to disclose represents a flagrant bad faith and callous disregard for the rules” (internal quotations omitted)). In Lore v. City of Syracuse, No. 5:00 CV 1833, 2005 WL 3095506, at *4 (N.D.N.Y. Nov. 17, 2005), the court noted that “[t]he touchstone for determining whether to exclude an untimely expert report is whether the party opposing its admission is prejudiced.” (citing In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 791 (3d Cir. 1994))). TD Bank relies on the decisions in Sandata Techs., Inc. v. Infocrossing, Inc., 2007 WL 4157163, and Erazo v. SCM Group N. America, No. 16 CV 2386, 2019 WL 1044365 (E.D.N.Y. Mar. 1, 2019), to argue that Palmieri's Supplemental Report in this case should be disallowed. (TD 5/3/2020 Ltr. at 6). However, the expert report in Sandata was determined to be a rebuttal report that the court had explicitly ruled would not be permitted. 2007 WL 4157163 at *8 (stating: “More importantly, the expert schedule set by the Court did not contemplate reply expert reports; indeed, the Court explicitly prohibited them”). The court further found that the defendant had acted in bad faith by submitting two reply reports, which “it disingenuously termed ... supplemental reports,” and which were “untimely, unauthorized, and created under false pretenses” such as that the defendant needed more time to prepare for deposition. Id. at *9. Here, this Court has not prohibited reply reports nor has there been any false representation as to the creation of the report. Similarly, in Erazo, the expert submitted a report during the course of discovery and then, in response to the motion for summary judgment and in opposition to a motion to exclude his expert testimony, filed an affidavit, which the court found to be another “report,” filed beyond the deadline set for filing a revised report. 2019 WL 1044365 at *17-18. In this case, the defendant has not yet designated an expert so there is no possibility that this is a rebuttal report, nor is there a timeliness issue such as the one at issue in Erazo. Id. at *16. (noting that the rebuttal reports of experts were to be filed within 30 days of the adversary's expert disclosure). *6 More importantly, contrary to TD Bank's arguments, the Supplemental Report does not create such a material change as to require the entire deposition to be redone. The majority of the changes appear to be aimed at responding to certain questions raised by defendant's examination and providing clarification and a more detailed explanation as to how Mr. Palmieri calculated value based on different methodologies, some of which Palmieri continues to believe were inappropriate. (BAT 5/19/2020 Ltr. at 1-2). To the extent that the Supplemental Report allegedly “changes the valuation and discount” applied, the changes are minimal and appear to clarify, rather than contradict, the prior report. Where Mr. Palmieri previously said that valuation discounts ranged from 15 to 20 percent, and sometimes more or less, the Supplemental Report now states that the average discount was 11 to 15 percent for round diamonds, and 19 percent for other shapes. (TD 5/3/2020 Ltr. at 3-4). Mr. Palmieri's addition of a description of the methodology used and the addition of approximate retail and liquidation values, was in direct response to defendant's questions and would likely have been the subject of a rebuttal report in any event since Mr. Palmieri appears to take the position that neither of these methods of valuation were appropriate. (BAT 5/19/2020 Ltr. at 2-3). It is true that defendant should be given the opportunity to question Mr. Palmieri in light of the production for the first time of the Market Monitor report, which was requested in advance of the deposition and is only being produced now. Since the deposition was left open in any event with the agreement of both parties, TD Bank will be given an opportunity to follow up on the changes and additions made by Mr. Palmieri in his Supplemental Report, and question him thoroughly on the Market Monitor report. By the same token, the Court does not anticipate that the entire deposition will be repeated; instead, the Court directs the parties to work together to allow additional time for defendant to inquire regarding the new opinions and the documents not previously produced. D. Monetary Sanctions TD Bank urges that the Court should award defendant's costs and fees associated with the Palmieri deposition. (TD 5/3/2020 Ltr. at 6-7). Although plaintiff's last-minute disclosure of a Supplemental Report from its expert was not ideal, the Court finds no reason to believe that it was done in bad faith or to gain unfair advantage. Moreover, while it is true that production of the Supplemental Report prior to the expert deposition would have obviated the expense of preparing for and taking additional time to re-depose the expert on these revisions, the Court finds that this added expense does not rise to the level of prejudice that would warrant sanctions in the form of an order of preclusion. However, the failure to disclose the Market Monitor report prior to the deposition, coupled with the supplementation, convinces the Court that sanctions in the form of some portion of the fees and costs associated with the second deposition may be in order. The Court reserves decision on whether and in what amount fees and costs may be awarded to compensate TD Bank for the added expenses incurred in taking additional time now to re-depose Palmieri on certain aspects of his Supplemental Report. The Court cautions counsel, however, that if it is determined that time has been wasted during the second deposition on grounds previously reviewed with the expert in the first deposition that were not affected by the changes in the Supplemental Report, that will be taken into account in determining the amount of any sanction to be imposed. II. Motion to Compel BAT moves to compel Ernst & Young, LLP to respond to a non-party subpoena regarding TD Bank's document retention policies. (BAT 7/31/2020 Ltr.). TD Bank cross-moves to quash the subpoena and seeks entry of a protective order and sanctions against BAT.[12] (TD 8/7/2020 Ltr.[13]). *7 BAT's subpoena, which was returnable on July 31, 2020, requests a “copy of the written document retention policy and document destruction policy for TD Bank, N.A., for the years 2009 through the present.” (BAT 7/31/2020 Ltr., Ex. A). BAT argues that, because TD Bank maintains that it does not possess certain documents relating to the installation of its alarm system, BAT is entitled to know whether these documents were destroyed in violation of TD Bank's own policies. (BAT 8/12/2020 Ltr.[14] at 1). BAT argues that the request is relevant and not burdensome because it offered to narrow the scope of the subpoena, or to withdraw the subpoena if TD Bank would provide the documents itself. (BAT 7/31/2020 Ltr. at 1). TD Bank argues that the documents sought are irrelevant in that they cover many different services and countries where TD Bank operates. (TD 8/7/2020 Ltr. at 1). TD Bank further objects to the time span of documents requested, arguing that plaintiff does not need policies from after the burglary in August 2012, or from as far back as 2009. (Id. at 2). BAT had the opportunity to explore these issues at its 30(b)(6) depositions. (Id.) Further, TD Bank protests that BAT's purported “narrowing” of its request actually broadened the request, in that BAT now seeks a list of five categories of documents, rather than just document retention policies. (Id. at 4). Finally, the parties dispute whether the subpoena was untimely, with TD Bank arguing that discovery was limited to depositions (id. at 3), and BAT arguing that fact discovery was only limited as between the parties. (BAT 8/12/2020 Ltr. at 1). Plaintiff fails to establish that its subpoena is relevant and proportional to the needs of the case. Although BAT argues that the subpoenaed documents would “shed light as to the location or destruction” of documents regarding the installation of the alarm system, it fails to explain why such information is probative of any claim or defense in this case. (BAT 7/31/2020 Ltr. at 2). BAT does not allege a violation of any recordkeeping obligation. (See generally FAC). Plaintiff merely states that it is “entitled to know” if TD Bank violated its own policy without pointing to any disputed issue this would help resolve. (BAT 8/12/2020 Ltr. at 2). Even if the information sought was somehow relevant, it is disproportionate to the needs of the case, because BAT has had the opportunity to explore these questions at deposition. Accordingly, the Court denies plaintiff's motion to compel Ernst & Young's response to the subpoena, and grants TD Bank's motion for a protective order. III. Motion to Strike Zwirn Report Defendant TD Bank, joined by defendants Halifax, Integrated and Lydia, has filed a third motion to preclude the expert report of Joseph Zylberberg. One of the key issues that has been the subject of several discovery disputes in this case relates to the adequacy of the security systems and alarm systems in place at the TD Bank branch at the time of the robbery. On November 13, 2019, this Court set February 14, 2020 as the deadline for plaintiff's expert reports. On that date, plaintiff provided its expert disclosures, along with a report prepared by Joseph Zylberberg, a security professional, who opined on the adequacy of TD Bank's alarm system and security procedures. (Zylberberg Report[15]). However, at the time the Zylberberg Report was produced, the parties were engaged in a number of additional discovery disputes and, as a consequence, fact discovery, including three additional depositions, was not concluded until July 31, 2020. *8 According to defendants, they agreed to allow BAT to “update” its initial expert disclosure by September 11, 2020 to address the new information gained during the fact discovery that occurred after the Zylberberg Report was prepared. (TD 10/14/2020 Ltr. at 2). However, on September 15, 2020, plaintiff served a report prepared by a new liability expert, Jeffrey D. Zwirn. (Id. at 1, Ex. 4). Defendants now seek an Order striking the Zwirn Report, arguing that not only does this new report correct plaintiff's existing theories of liability, but it adds new theories, and relies on different statutory and regulatory authorities than those relied upon by Zylberberg in his Report. (Id.) Defendants contend that the Zwirn Report is not a supplemental report based on new evidence obtained during the discovery that occurred after February 2020, but rather is an entirely new report, by a new expert, designed to correct deficiencies in the Zylberberg Report. (Id.) Defendants argue that it was “exchanged in bad faith,” “an egregious violation of this Court's Rules and prior orders, and should be precluded as “untimely and prejudicial.” (Id. at 1-2). In their letter motion, defendants list a series of examples of statements in the Zwirn Report that were either duplicative or were not included in the Zylberberg Report, the latter of which defendants claim did not implicate any of the post February 14, 2020 discovery.[16] (Id. at 3-4). According to defendants, the Zwirn Report touches on each of the eleven conclusions reached in the Zylberberg Report and expands upon them based on information that defendants claim was available to plaintiff prior to the Zylberberg Report. (Id. at 4). Defendants further complain that Zwirn and Zylberberg rely on different regulations that govern the standard of care for this industry, with Zwirn citing the Bank Protection Act regulations, 12 U.S.C. § 1882, and the regulations promulgated thereunder, 12 CFR §§ 21 and 326, and Zylberberg relying on regulations promulgated by the FDIC, which defendants claim are not applicable here. (Id. at 5). Defendants claim that the Zwirn Report was designed to correct this issue. TD Bank asserts that it will be forced to “incur the further expense of evaluating an improper new report as BAT has substantially changed nearly all of the conclusions from their initial February 14, 2020 report.” (Id. at 8). In response, plaintiff notes that while the Court set a deadline in November 2019 for the submission of plaintiff's expert reports, critical fact discovery continued after the Zylberberg Report was provided in February 2020. (Pl.’s Resp.[17] at 3). Among other things, TD Bank had declined to be bound by the testimony of its fact witnesses. As a result of motion practice relating to several discovery disputes, TD Bank was Ordered to supplement its discovery responses and to designate a Rule 30(b)(6) witness to testify about a number of issues, including the Bank's alarm and security systems. (See Order dated February 20, 2020, at 11). Although defendant argues that plaintiff has delayed discovery in this matter, plaintiff correctly notes that information provided by TD Bank in discovery changed over time. For example, the alarm system was originally identified as having been installed in 2003; only recently in June was it disclosed that the system was in fact installed in 2009.[18] (Pl.’s Resp. at 1). Another example is the Bank's identification of its security officer. Originally, the Bank named John McClosky as the designated Security Officer at the time of the burglary, but after he denied during his deposition that he held this position at that time, the Bank indicated that the position was vacant. (Id. at 2). Then, in June 2020, the Bank indicated that Carol Osler was in fact the Security Officer at the time. Contrary to defendant's arguments, the Zylberberg Report rendered an opinion based on the representation that there was no Security Officer formally designated; this opinion had to be changed once it was determined that Osler was the designated officer. *9 Here, again, defendant relies on the decision in Sandata to argue that the Zwirn Report should be precluded. (See discussion supra at 10). However, the supplemental report in Sandata was produced after the expert had been deposed and the deadline for completing all expert discovery had passed. Indeed, one report was submitted while the expert was actually being deposed and the second one was submitted after the deposition had been completed. The court noted that to allow the report would mean that the plaintiff would not have been able to depose the expert on the revised and supplemental opinion, or, if permitted to take his deposition, would be forced to pay the expense connected with the second deposition. Here, neither Zwirn nor Zylberberg has been deposed at this point and thus, the prejudice found by the court in Sandata does not exist with respect to these witnesses. More importantly, unlike in Sandata where the court explicitly held that there could be no additional expert reports, this Court has not made any such rulings. In response to TD Bank's argument that the submission of the Zwirn Report was beyond the time set by the Court for plaintiff to produce its expert reports, plaintiff notes that TD Bank made additional document disclosures in June 2020, and additional depositions of fact witnesses were held during the summer, concluding in July 2020, long after the February 2020 Zylberberg Report. Although defendant takes issue with a list of statements made in the Zwirn Report to argue that it was not a supplemental report limited to the recently produced discovery, plaintiff disputes defendant's representation that the parties “agreed” that plaintiff would be limited to providing just a supplemental report. (Pl.’s Resp. at 3). In its response to defendant's letter motion to strike the Zwirn Report, plaintiff claims that it received an unsolicited email from defendant agreeing to allow plaintiff to update its expert discovery in light of the recent disclosures, but there was no agreement to limit this to a supplement to the Zylberberg Report. (Id.) Instead, plaintiff notes that all of the subsequent correspondence refers to “expert reports” and indeed, the September 8, 2020 letter to the Court setting forth a proposed schedule specifically refers to “experts” and “reports,” setting deadlines for “plaintiff's additional expert reports concerning bank security” and dates by which the depositions of plaintiff's security “experts” needed to be completed. (Id.) Even if defendants never intended to agree to the plaintiff's filing of a new expert report, this Court interpreted the status letter to agree to just that. Had the parties not agreed and had plaintiff requested the opportunity to submit a new report in light of the post-February discovery, this Court would have granted such a request. Here, defendants have not conducted the depositions of either Zwirn or Zylberberg, nor have they even produced their own reports in response. Accordingly, the Court denies the request to strike the Zwirn Report and finds no basis upon which to impose sanctions. CONCLUSION Having considered the arguments of all parties, the Court denies defendants’ motions to strike the Palmieri report and the Zwirn report, and denies plaintiff's motion to compel Ernst & Young to comply with the subpoena. The deposition of Mr. Palmieri is to proceed. The Court has scheduled a status conference for May 21, 2021 at 10:45 a.m., at which point the Court will address any additional discovery issues that arise between the parties. The conference will proceed via AT&T conference call. Please dial 877-336-1839 at 10:45 a.m., then enter access code: 380-1746 and security code: 15-5839. *10 SO ORDERED. Footnotes [1] ADT LLC was named as a defendant in the original complaint, but dismissed from the action on December 15, 2015. (See Notice of Voluntary Dismissal, Dec. 15, 2015, ECF No. 11). [2] Citations to “Compl.” refer to plaintiff's Complaint, dated August 3, 2015, attached as Exhibit 2 to the Notice of Removal filed by TD Bank, ECF. No. 1. [3] References to “FAC” refer to the Fourth Amended Complaint, filed September 15, 2016, ECF No. 46. [4] Citations to “TD 5/3/2020 Ltr.” refer to the letter motion to strike the Palmieri Report, filed by TD Bank, N.A., filed May 3, 2020, ECF No. 217. [5] Citations to “BAT 7/31/2020 Ltr.” refer to the letter motion to compel, filed by BAT on July 31, 2020, ECF No. 224. [6] Citations to “TD 10/14/2020 Ltr.” refer to the letter motion to strike the Zwirn Report, filed by TD Bank, N.A., dated October 14, 2020, ECF No. 229. [7] Citations to “Halifax 10/15/2020 Ltr.” refer to the October 15, 2020 letter filed by defendant Halifax, joining in the motion to strike the Zwirn Report, ECF No. 231; citations to “Integrated 10/14/2020 Ltr.” refer to the October 14, 2020 letter filed by Integrated and Lydia also joining in the motion to strike the Zwirn Report, ECF No. 230. [8] Citations to “Ex. 4” refer to the Deposition Transcript of Donald Palmieri, dated April 21, 2020, attached as Exhibit 4 to TD 5/3/2020 Ltr. [9] Citations to “BAT 5/19/2020 Ltr.” refer to plaintiff BAT's May 19, 2020 letter response in opposition to defendants’ motion to strike Palmieri's report. [10] Citations to “Ex. 2” refer to the Supplemental Report of Donald Palmieri, attached as Exhibit 2 to TD 5/3/2020 Ltr. [11] Citations to “TD 5/21/2020 Ltr.” refers to the May 21, 2020 letter submitted by TD Bank in reply to plaintiff's 5/19/2020 letter. [12] Although neither party addresses this issue, TD Bank does not meet its burden to show standing to quash the subpoena issued to Ernst & Young. See United States ex rel. Ortiz v. Mount Sinai Hosp., 169 F. Supp. 3d 538, 544-45 (S.D.N.Y. 2016) (stating that movant “must establish that it has standing to quash” a non-party subpoena). Since TD Bank's objections to the subpoena primarily concern relevance and proportionality, the appropriate relief is a protective order. See Allstate Ins. Co. v. All County, LLC, No. 19 CV 7121, 2020 WL 5668956, at *2 (E.D.N.Y. Sept. 22, 2020). [13] Citations to “TD 8/7/2020 Ltr.” refer to TD Bank's response in opposition to BAT's motion to compel, filed August 7, 2020, ECF No. 226. This docket entry appears duplicative of ECF No. 225, filed the same day, but the Court will rely on the last-filed version. [14] Citations to “BAT 8/12/2020 Ltr.” refer to BAT's reply in support of its motion to compel, filed August 12, 2020, ECF No. 227. [15] Citations to “Zylberberg Report” refer to the Report of Joseph Zylberberg, dated February 14, 2020, attached as Exhibit 1 to TD 10/14/2020 Ltr., ECF No. 229-1. [16] Defendants note that Zwirn's Report lists 204 documents that he reviewed and relied upon, arguing that if this were simply a supplemental report, it was unnecessary for him to review every single item of discovery. (TD 10/14/2020 Ltr. at 3). For example, defendants complain that Zwirn relied on TD's interrogatory responses which were served in October 2019, long before Zylberberg's Report. (Id. (citing Zwirn Report at 5)). The citation to the interrogatory responses was only to note that from the beginning of this lawsuit, TD Bank has over time as discovery has progressed provided numerous contradictory responses to a variety of critical questions, including whether and when the Bank changed its alarm system prior to the burglary. The Court observes that, in order to put into context the information gleaned from the post-February discovery, Mr. Zwirn would have had to review many of the original documents beyond the most recent testimony and any additional documents produced during that period. [17] Citations to “Pl.’s Resp.” refer to the October 27, 2020 letter submitted by plaintiff in response to defendant's motion to strike the Zwirn Report, ECF No. 233. [18] While the 2009 date was known to Zylberberg at the time his Report was prepared, the Court cites it as one of several examples where the Bank's lack of records, changes in information provided, and unwillingness to be bound by the statements of its own witnesses has made discovery in this case extremely difficult.