Justice Barbara Jaffe
TransCanada Energy (TE) sought an open commission to obtain deposition testimony from a corporate representative of Failure Analysis & Prevention (FAP), and Casey, Rhode Island residents. A crack was discovered in a generator's rotor and TE sought coverage from insurer Factory Mutual, who hired FAP and Casey to investigate. FAP and Casey found the crack started six months earlier, and was outside the policy period. Factory denied coverage. The parties agreed to permit expert depositions, but fact witness depositions would be completed before expert disclosures and depositions. Factory agreed to produce FAP and Casey's non-privileged documents, but objected to producing them both as fact and expert witnesses. Factory agreed to produce FAP and Casey for expert depositions, but not until after fact discovery was over. The court found TE would be prejudiced if they could not depose FAP and Casey during fact discovery, stating its experts would be deprived of relevant facts until after they drafted their expert disclosures. Hence, Factory must honor the scheduling order and ask FAP and Casey to voluntarily appear for depositions or an open commission will issue to compel their appearance.
