Gaudet & Company, Inc. v. ACE Fire Underwriters Insurance Company et al

Filing 166

ORDER ON MOTIONS TO COMPEL: 138 Motion to Compel and 139 Supplemental Motion to Compel are GRANTED in part and DENIED in part, as set out. Signed by Magistrate Judge P. Bradley Murray on 02/06/2024. (cjr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
GAUDET & COMPANY, INC.,
Plaintiff,
vs.
ACE FIRE UNDERWRITERS
INSURANCE COMPANY, et al.,
Defendants.

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CIV. A. NO. 21-372-JB-MU

ORDER ON MOTIONS TO COMPEL
This action is before the Court on the Motion to Compel (Doc. 138) and
Supplemental Motion to Compel (Doc. 139) filed by Plaintiff Gaudet & Company, Inc., the
Opposition filed by Defendants ACE Fire Underwriters Insurance Company and ACE
American Insurance Company (Doc. 145), and Plaintiff’s reply briefs (Docs. 147, 148).
These motions have been referred to the undersigned for pretrial disposition pursuant to
28 U.S.C. § 636(b)(3) and Local Rule 72.2(c)(1). For the reasons discussed below, the
Court finds the motions are GRANTED in part and DENIED in part.
BACKGROUND
This action arises from an underlying wrongful death lawsuit in which Gaudet, a
home healthcare services provider, was a defendant along with its franchisor, Right at
Home, LLC (RAH) (the Whitlow Lawsuit). In January 2019, the estate of a deceased
Gaudet client brought a wrongful death suit against Gaudet and RAH, alleging negligent
provision of services and negligent hiring, among other claims. Gaudet and RAH were
defended by separate insurers - Gaudet by ACE and RAH by Philadelphia Indemnity
Insurance Company (PIIC). On March 2, 2020, ACE denied RAH’s coverage demand

from PIIC, concluding, in part, that RAH was not an “additional insured” under the ACE
policy issued to Gaudet. RAH subsequently filed a crossclaim against Gaudet seeking
indemnification. The crossclaim was filed amid Gaudet and RAH consummating separate
settlements with the plaintiff in the Whitlow Lawsuit. RAH later obtained a judgment on
its crossclaim against Gaudet for $5.2 million – comprised of its approximately $5 million
settlement plus litigation expenses.
In this action, Plaintiff seeks to recover the amount of the judgment against it from
Defendants. Plaintiff asserts claims for negligent or wanton failure to settle; bad faith
failure to investigate, defend, and settle; and tortious interference. Among other aspects
of Defendants’ claim handling, Plaintiff takes issue with Defendants’ March 2, 2020,
decision to deny the RAH tender. With this summary of the underlying state court litigation
and this action, the Court turns to discuss the outstanding discovery motions.
LEGAL STANDARD
Fed. R. Civ. P 26(b)(1) provides that “[p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party's claim or defense and proportional to
the needs of the case[.]” The party seeking to compel discovery bears the initial burden
of establishing that the information sought is relevant. Peacock v. Merrill, No. CA 050377-BH-C, 2008 WL 176375, at *8 (S.D. Ala. Jan. 17, 2008). That party need only show
relevance; it does not bear the burden of proving proportionality. In re Bard IVC Filters
Prod. Liab. Litig., 317 F.R.D. 562, 564 (D. Ariz. 2016) (“The Advisory Committee Note
makes clear…that the [2015] amendment [to Rule 26(b)] does not place the burden of
proving proportionality on the party seeking discovery.”).
“Under the federal rules, relevancy is ‘construed broadly to encompass any matter

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that bears on, or that reasonably could lead to other matters that could bear on, any issue
that is or may be in the case.’” Coker v. Duke & Co., 177 F.R.D. 682, 685 (M.D. Ala. 1998)
(quoting Oppenheimer Fund, Inc., v. Sanders, 437 U.S. 340, 351 (1978)). “Courts are
required to accord discovery a broad and liberal scope in order to provide parties with
information essential to the proper litigation of all relevant facts, to eliminate surprise and
to promote settlement.” Id. Additionally, wider latitude is given to a bad-faith plaintiff
during the discovery process:
This Court has held that, because of the heavy burden the plaintiff carries
in proving…bad faith, and because the defendant in a…bad faith action is
usually the sole possessor of the information needed to meet the burden of
proof, wider latitude is given…a bad faith plaintiff during the discovery
process.
Ex parte O'Neal, 713 So. 2d 956, 959 (Ala. 1998). Thus, “[w]here there is a doubt over
relevancy, the court should still permit discovery.” Coker, 177 F.R.D. at 685.
Once the party seeking discovery makes his initial showing, the opposing party
bears the burden of establishing that the discovery is improper. Hibbett Patient Care, LLC
v. Pharmacists Mut. Ins. Co., No. CV 16-00231-WS-C, 2017 WL 4817992, at *2 (S.D. Ala.
Jan. 26, 2017). (“The party resisting discovery has a heavy burden of showing why the
requested discovery should not be permitted…to even merit consideration, an objection
must show specifically how a discovery request is overly broad, burdensome or
oppressive, by submitting evidence or offering evidence which reveals the nature of the
burden.”). Boilerplate claims that discovery is not proportional are insufficient; instead,
the party resisting discovery must specifically show how the requested discovery is not
proportional.

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DISCOVERY AT ISSUE
The Court will address the discovery requests at issue in the manner in which
Plaintiff presents them in its Motions to Compel.
A. Alleged Deficiencies with Ace’s Privilege Log
1. Information Redacted/Withheld on Claims of Confidentiality and
Relevance
Documents at Issue: ACE-Withheld-0010571, ACE-001870, 001803-69,
003018, 007779-80, 010387-89, 010488-89, 010490-92, 010493-95, 01049697, 010498-500, 010501-04, 010506-07, 010510, 010513, 010903-04,
011100-01, 011103-10, 011112-14, 011115-18, 011119-22, 011123-25, 01112629, 011130-32, 011231-33, 011234-37, 011238-39, 011240-41, 011242-43,
011245, 011247-49, 011425, 011427-28, 011431, 011433-35, 011803-04,
011806-07, 011809-10, 011815-16, 011847, 012008-10, 012015, 013785-87,
013821-22, 013879, 014180-85, 014200-04, 014217-21, 014234-38, 01425155, 014266-70, 014271, 014273-78, 014286-88, 014293-96, 014305-06,
014321-26, 014335-37, 014345, 014355-59, 014366, 014375, 014385-86,
014849-50, 014852, 014858, 014860.
Plaintiff objects to the large number of documents redacted by Defendants based
on confidentiality and/or relevance and states that Defendants’ privilege log is deficient,
as it does not distinguish which information is redacted on the basis of which claim.
Plaintiff further alleges that Defendants have “offered no factual support or other evidence
to support any of these claims.” (Doc. 138, PageID.2399). Defendants counter that they
are entitled to redact information that they contend contains “either information belonging
to other insureds or confidential business, privileged, technical information relating to
Defendants’ insurance operations.” (Doc. 145, PageID.3063). The disputed documents
were produced to the Court for in-camera review.
The Court has reviewed the documents provided, and although it does not claim

1

Plaintiff notes in its reply that ACE-Withheld-001057 has now been produced, but it contains a
redaction based on a claim of relevance. (Doc. 147; PageID. 3080, n. 4).

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to have undertaken a line-by-line review of each redaction made on the basis of
confidentiality and/or relevance, it finds that all of these documents should be produced
without such redactions. As to redactions based on confidentiality, this Court in WNE
Cap. Holdings ruled against redactions on that basis, explaining:
[i]t should go without saying that “it is well settled that confidentiality does
not act as a bar to discovery and is generally not grounds to withhold
documents from discovery. Confidentiality concerns in many cases may be
addressed with an appropriate protective order.”
WNE Cap. Holdings Corp. v. Rockwell Automation, Inc., No. CV 09-0733-WS-C, 2011 WL
13254691, at *5 (S.D. Ala. Aug. 4, 2011) (citing Barrington v. Mortgage IT, Inc., No. 0761304-CIV, 2007 WL 4370647, at *1 n.3 (S.D. Fla. Dec. 10, 2007)). The undersigned has
not seen any redacted information that would constitute confidential, proprietary business
information, and even if such information were present, no evidence has been presented
that the existing Protective Order would not adequately protect such sensitive information.
In WNE Cap. Holdings, this Court also addressed redactions based on relevance
in adopting the logic of Beverage Distributors, Inc. v. Miller Brewing Co., Nos. 2:08-cv827, et al., 2010 WL 1727640 (S.D. Ohio Apr. 28, 2010), in which that court “examined
the ostensibly conflicting precedent cited by the parties, synthesized it, and then cogently
laid out a general rule as to when it is proper to redact irrelevant information from
documents produced during discovery,” stating in relevant part:
These decisions are not necessarily irreconcilable. The themes which
pervade each of them are (1) that redaction of otherwise discoverable
documents is the exception rather than the rule; (2) that ordinarily, the fact
that the producing party is not harmed by producing irrelevant information
or by producing sensitive information which is subject to a protective order
restricting its dissemination and use renders redaction both unnecessary
and potentially disruptive to the orderly resolution of the case; and (3) that
the Court should not be burdened with an in camera inspection of redacted
documents merely to confirm the relevance or irrelevance of redacted

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information, but only when necessary to protect privileged material whose
production might waive the privilege.
In those cases cited by defendants where redactions were approved,
the number of redacted documents appeared to be small, and the
content of the redactions was readily apparent…In each of these
cases, there was little or no burden placed on the court to review a
large volume of redacted documents, and because the redactions
involved a single type of document and one or two discrete categories
of allegedly irrelevant information, both the opposing parties and the
courts were able to argue and resolve the legal issues in an intelligent
and expeditious fashion.
WNE Cap. Holdings Corp. v. Rockwell Automation, Inc., No. CV 09-0733-WS-C, 2011 WL
13254691, at *8 (S.D. Ala. Aug. 4, 2011) (citing Beverage Distributors, 2010 WL 1727640,
at *4-5) (emphasis in original). Those findings are equally appropriate here, as the
number of redacted documents at issue is not small and the content of the redactions are
not readily apparent. After reviewing these documents, the undersigned finds that
Defendants will not be harmed by producing unredacted versions of these documents
that may contain information on other insureds or the handling of other claims,2 which
Defendants assert is confidential and/or irrelevant, as all documents are covered by the
existing Protective Order. (Docs. 26 and 27).
Further, the Court agrees with Plaintiff’s argument that Defendants have previously
withheld and redacted information based on confidentiality and/or relevance that has now
been produced and is clearly relevant to the claims asserted by Plaintiff. Notably, this
includes the Large Loss Report, which has now been produced and was provided to Court
under seal in support of Plaintiff’s reply. (Doc. 150). The Report has a section entitled
“Claims Analysis” that discusses the handling of the claim at issue. The Court can find

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The undersigned did not see any instances of personally identifying information of individuals in
the redactions.

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no basis upon which it would have been appropriate to withhold this document and agrees
that it calls into question other redactions made by Defendants. The undersigned also
saw other examples of documents that appear relevant to the claims at issue that remain
redacted, including the email string contained in documents ACE-011112, 011115, and
011119, as well as certain entries in the spreadsheet contained in ACE-011109-011110.
In addition, there are many instances of inconsistent redactions among duplicative
documents/email chains.3 The inconsistent nature of these redactions undermines
Defendants’ position that these redactions are necessary to protect against the disclosure
of confidential business information and/or irrelevant information.
For these reasons, Plaintiff’s Motion to Compel is due to be GRANTED as to any
documents withheld or redactions made on the basis of confidentiality and/or relevance.
2. Additional Materials Withheld on Claims of Attorney-Client Privilege and
Work Product
Withheld Documents at Issue: ACE-Withheld-000055, 000056-57, 00005864, 000065-67, 000068-71, 000076-87, 000088-92, 000094-101, 000102-110,
000111-426, 000427-741, and 000742-1056.
Defendants state that ACE-Withheld-000055-0000934 are “identical copies of
materials this Court has already reviewed in-camera and determined to be privileged.”
(Doc. 145; PageID.3064). The undersigned has reviewed these documents and
compared them to those produced for in-camera review on June 30, 2023, and it agrees
that the documents appear to be duplicates of those reviewed in conjunction with the
Court’s previous Order on in Camera Review (Doc. 122). In that Order, the undersigned

3

For example, all of ACE-011232-011233 is redacted and portions of the subject line are redacted
in 011231, while this same information is unredacted in other documents (compare to ACE010387-88 and 011235-011237).
4
Defendants explained in providing materials for in-camera review that ACE-Withheld-000093
was inadvertantly included and has already been produced to Plaintiff.

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held that the documents “are protected and due to be withheld from production.” (Id.).
Accordingly, the Court stands by its previous Order,5 and Plaintiff’s Motion to
Compel is DENIED as to ACE-Withheld-000055-000092.
As to the remaining documents withheld based on attorney-client privilege and
work product protection, Defendants state in their response that they have produced ACEWithheld 000094-001056 “subject to redacting any communications seeking legal
advice,” and wholly unredacted versions have been provided to the Court for in-camera
review. (Doc. 145, PageID.3061).6 The Court notes that of this group of 962 documents
that had been withheld, Defendants have now produced a majority of these documents
to Plaintiff. Only a small handful of these documents, consisting of those that still contain
redactions, were produced to the Court for in-camera review. The Court understands
Plaintiff’s frustration that such a large number of documents were initially withheld in their
entirety by Defendants on the basis of privilege but have now been produced with limited
redactions after the filing of Plaintiff’s Motions to Compel.
Nonetheless, after reviewing the remaining redactions, the Court finds that they
are communications protected by the attorney-client privilege. The redactions pertain to
direct communications with Sheila O’Brian, whose email signature identifies her as
Managing Counsel, NA OGC – Commercial Insurance, and that appear to be for the
purpose of obtaining legal advice. “‘[T]he attorney-client privilege applies to corporations
and protects communications to corporate counsel for purpose of obtaining legal advice.”
United States ex rel. Heesch v. Diagnostic Physicians Grp., P.C., No. CV 11-00364-KD-

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Plaintiff filed an objection challenging this Order, but the Order was affirmed by the District Judge
(Doc. 162).
6
Defendants explained in providing materials for in-camera review that the redacted documents
were produced to Plaintiff as ACE-014864-015827.

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B, 2014 WL 12603513, at *2 (S.D. Ala. June 25, 2014) (citing In re Vioxx Prods. Liab.
Litig., 501 F. Supp. 2d 789, 796 (E.D. La. 2007)).

“The protection extends to

communications flowing from the client to the attorney, as well as to advice flowing from
the attorney to the client.” Id. Additional redactions pertain to communications between
non-lawyer employees conveying prior legal advice received from counsel to other
employees with a need to know, which are also privileged communications. “The
[attorney-client] privilege protects ‘communications between corporate employees in
which prior [legal] advice received is being transmitted to those who have a need to know
in the scope of their corporate responsibilities.’” Id. (citing United States, et rel BaklidKunz v. Halifax Hosp. Medical Center, 2012 WL 5415108, at *3 (M.D. Fla. Nov. 6, 2012)).
Accordingly, Plaintiff’s Motion to Compel is DENIED as to any remaining redactions
based on privilege in ACE-Withheld-000094-0001056 (produced as ACE-014864-015827).
3. Additional Documents Redacted on Claims of Attorney-Client Privilege
and Work Product
Redacted Documents at Issue: ACE-007708, 007723, 010906,7 011067,
011251, 011446, 012822-24
These documents have been reviewed by the Court in-camera, and the Court finds
that, for the reasons stated in the immediately preceding Section A.2, the majority of the
redactions are appropriate to shield communications among non-lawyer employees
conveying the prior advice of counsel. However, the Court also finds there are a few
redactions that should be removed, which are described below:
ACE-011446: The fourth paragraph in the email from Joseph Coray to Michelle

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The Court does not see any redactions on the “redacted” version of this document that was
provided for in-camera review. Further, this email only conveys attachments and does not contain
any text in the body of the email.

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Shaver at 5:35pm should not be redacted. These redactions concern reserves,
and information on reserves has been ordered to be produced, as set forth in
Section B.5 below.
ACE-012822-012824: The only information that should be redacted on these
pages is the communication directly related to prior advice of counsel in the email
from Joseph Coray to Karen Keyer at 7:21pm, i.e., only the end of the sentence
after “but was never asked…”. The sentence immediately following this one,
information regarding reserves, and the preceding emails in this chain should be
unredacted, as the Court does not see any basis for those redactions.
Therefore, regarding this request, Plaintiff’s Motion to Compel is GRANTED in part and
DENIED in part.
4. Tara Elliott’s Initial Draft of Ace’s Denial Letter Withheld on Claim of Work
Product
Withheld Document at Issue: ACE-Withheld-000072-75
Plaintiff alleges that Defendants have improperly withheld “what appears to be Tara
Elliot’s initial draft denial letter,” and Plaintiff asserts that this initial version of the letter
was not subject to the undersigned’s prior in-camera review. (Doc. 138, PageID.2412).
Defendants respond that this “Court has already reviewed the draft coverage letter and
determined that the letter is protected by privilege” in its previous Order on In Camera
Review (Doc. 122). (Doc. 145, PageID.3066). Defendants explain that ACE-Withheld
000072-75 “is merely a copy of one of the documents bates labeled ACE-Withheld
000002 to ACE-Withheld-0000054,” which are the documents that were produced for incamera review on June 30, 2023, and are the subject of the previous Order. (Id. at n.2).
Further, as noted in Section A.2 above, Defendants state that ACE-Withheld-000055-92

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are “identical copies” of ACE-Withheld 000002-54. (Id. at PageID.3064).
The undersigned has reviewed both sets of documents - ACE-Withheld 000002-54
and ACE-Withheld-000055-92 - and determined that ACE-Withheld-000072-75 is in fact
a duplicate of draft letters found in those documents. Because it is a duplicate of those
reviewed in conjunction with the Court’s previous Order on in Camera Review (Doc. 122),
the Court again stands by its finding that the documents “are protected and due to be
withheld from production,” which has now been affirmed by the District Judge (Doc. 162).
Accordingly, Plaintiff’s Motion to Compel is DENIED as to ACE-Withheld-000072-75.
B. Alleged Deficiencies with Ace’s Responses to Gaudet’s Discovery Requests
1. Supplemental RFP No. 3 – “Requirements” Document
Plaintiff seeks to compel the production of what is referred to in depositions with
Defendants’ employee and corporate representative Michelle Shaver as the
“Requirements” document. Among other information, Plaintiff states that Shaver testified
that the “document provides information concerning what forms need to be attached to a
policy to provide additional insured coverage if additional insured status is not conferred
simply by the language of the product itself.” (Doc. 138, PageID.2415). Defendants have
not produced this document to Plaintiff or to the court for in-camera review, arguing
instead that they “are entitled to protect highly technical business proprietary information,
especially given the lack of relevance to the interpretations of Gaudet’s Policy.” (Doc.
145; PageID.3068).
For the reasons stated above in Section A.1, Defendants’ arguments regarding
withholding this document based on confidentiality and/or relevance fail here where there
has been no showing that the Protective Order in place would be inadequate to protect

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the information at issue. Further, Plaintiff is entitled to this document as Gaudet has
produced testimony establishing that the Requirements document may contain
information relevant to Defendants’ affirmative defense that RAH was not an additional
insured under the policy at issue. Plaintiff’s Motion to Compel is GRANTED, and
Defendants are ordered to produce the Requirements document.
2. Supplemental RFP Nos. 4 & 5 – Marketplace/Fast Track Materials
Defendants have produced these documents after the filing of Plaintiff's Motion to
Compel. (Doc. 147, PageID.3092). As a result, this request is MOOT.
3. RFP Nos. 1, 2, 21 & 228 – Electronic Communications, Ace’s Computer
System, and Document Preservation Policies and Procedures
First, in response to RFP Nos. 21 and 22, Plaintiff seeks to compel Defendants to
produce its entire document entitled “Chubb Records Management Policies,” rather than
just the two sections it has produced - Section “RM-10: Email Management” (pages 2122 of 32) and Section “RM-13: Networking, Collaboration and Messaging Tools” (pages
26-28 of 32).9 (Doc. 139, PageID.2963). Defendants state that the two sections they
have produced comply with the Court’s prior discovery Order on these RFP Nos. (Doc.
112, PageID.1792-93), which they assert only required them “to produce records
management policies for e-mails and chat messages.” (Doc. 145, PageID.3068).
The undersigned disagrees with Defendants’ interpretation of its prior Order and
clarifies that the Order requires the production of the entire Records Management Policies
document, as it appears the document would be responsive to Plaintiff's RFP Nos. 21 and

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Plaintiff appears to have mistakenly listed RFP Nos. 20 and 21 (rather than 21 and 22) in its
motion headings on this topic.
9
These documents have been provided to the Court under seal in support of Plainitff’s
Supplemental Motion to Compel (Docs. 143-1, 143-2).

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22, which request “all manuals or written materials which address the claims database or
the computer system that contains information about previously submitted claims, how to
use said system, and its capabilities” and policies and procedures governing preservation
of ESI. In the Court’s prior Order, the undersigned found that “Plaintiff’s requests are
relevant and proportional, [and] seek discoverable material,” and ordered Defendants to
“respond fully” to all four of Plaintiff’s RFP Nos. 1, 2, 21 and 22. (Doc. 112, PageID.1792).
The instruction to “search for and produce any chat log/chat system communications
responsive in its possession” was not intended to limit the scope of Defendants’
responses to only information on chat or email communication but was simply intended
as an additional directive on specific searches Defendants must undertake.

(Id. at

PageID.1793).
Therefore, Plaintiff’s Motion to Compel is GRANTED as to this request, and
Defendants must produce the entire “Chubb Records Management Policies” document.
Plaintiff’s second request on this subject concerns whether Defendants’ corporate
representative was adequately prepared to testify regarding item No. 25 of its 30(b)(6)
notice, which requests “[t]estimony regarding the existence and location of any records
or materials of any type related to your handling of the underlying claim and litigation.”
(Doc. 139, PageID.2968). Defendants state that their corporate representative, Sandra
Sutton, “was prepared to testify regarding (1) how Defendants’ maintain documents in
their email and claims systems, (2) Defendants’ policies for saving emails to the claim file;
(3) the different means by which claim handlers communicate (letters, e-mail, chat,
telephone), and (4) where and how records are stored in the claims and email systems
by the claims handlers.” (Doc. 145, PageID.3071). However, Plaintiff argues that based

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on its request, Sutton should have been, but was not prepared, “to provide any testimony
relating to Ace’s ESI preservation policies or Ace’s searches for responsive emails,” and
further notes that she did not know anything about Ace’s Records Management Policy.
(Doc. 139, PageID.2968-69). Plaintiff also argues that Defendants’ responses to RFPs
Nos. 21 and 22 and its failure to prepare its corporate representative properly violate “the
parties’ agreed-to order relating to the production of ESI, including the parties’ agreement
to act ‘reasonably and cooperatively to comply with requests from the Requesting Party
for information about the reporting capabilities, structure, organization, query language
and schema of the database.’”

(Doc. 148, PageID.3150).

Plaintiff seeks an order

compelling Defendants to “present another corporate representative who is fully prepared
to provide ‘complete, knowledgeable and binding answers on behalf of [Ace]’ regarding
Ace’s email system, claims system, the databases it has searched for responses [sic]
electronic communications, the databases that Ace has not searched, when Ace
undertook said searches, the results of these searches, including whether materials
required to be preserved were not in fact preserved.” (Id. at PageID.3154).
Regardless of the interpretation of Plaintiff's request in its deposition notice,
Defendants should have produced, and have now been specifically ordered to produce,
their complete Records Management Policies, which should provide some of the
information Plaintiff is seeking with its RFP Nos. 21 and 22 and deposition notice. Further,
the undersigned agrees that Plaintiff is entitled, under the parties’ agreed upon ESI
Protocol (Doc. 15-1), to more complete responses to its RFP Nos. 1, 2, 21, and 22, which
Plaintiff has sought through numerous requests to Defendants (Docs. 138-4,
PageID.2609-10, 73-1, PageID.1169). Plaintiff is entitled to responses to these requests

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that provide information about the search capabilities of Defendants’ systems, the
databases Defendants have searched, as well as the databases Defendants have not
searched or are unable to search (for example, email accounts of employees no longer
employed by Defendants), including when the searches or attempted searches were
performed. Plaintiff’s Motion to Compel is GRANTED as described in the preceding
sentence. Defendants are not required, at this time, to produce another corporate
representative to testify as to request No. 25 in the 30(b)(6) notice.
4. RFP Nos. 1 & 2 – Ace’s Large Loss Report
Defendants have produced the Large Loss Report. As a result, this request is
MOOT. However, the Court notes that it appears the Large Loss Report has been
produced with a redaction on ACE-016213. If this redaction is based on confidentiality
and/or relevance, that redaction is ordered to be removed.
5. RFP No. 5 – Information on Reserves
Defendants state in their response that they will produce the “reserving log
referenced by Sandra Sutton in the 30(b)(6) deposition.” (Doc. 145, PageID.3061).
Plaintiff states in its reply brief that the Reserve Log produced by ACE “appears
incomplete and also appears to have the initial reserve set by Ace redacted.” (Doc. 148,
PageID.3155). Plaintiff further states it has requested a complete copy of the Reserve
Log but has not yet received a response from ACE. (Id.) Plaintiff's reply requests an
order compelling ACE to produce a complete, unredacted copy of the Reserve Log. (Id.).
As Plaintiff correctly notes, the Court has previously reviewed and issued an order
on the “Reserves Issue” and ordered that information regarding the reserve amounts
should be produced pursuant to a protective order. (Doc. 112, PageID.1788-89). ACE

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has not raised any objection to the sufficiency of the existing Protective Order entered in
this case, and it has not produced any information to support an argument that the reserve
information is privileged. The Court’s previous Order held that “reserve information is
relevant in this case which centers on claims of bad faith.”

(Id. at PageID.1789).

Accordingly, Plaintiff’s request is due to be GRANTED, and the complete, unredacted
Reserve Log is ordered to be produced by Defendants. Further, to the extent any
redactions regarding reserves are still at issue in other documents produced or due to be
produced by Defendants, those redactions are ordered to be removed and unredacted
versions produced to Plaintiff.10
6. RFP No. 9 – Performance Review Evaluations
Redacted Documents at Issue: ACE-014272-014400
Plaintiff seeks to compel Defendants to produce unredacted versions of year-end
performance reviews for employees involved in the handling of the claim at issue. (Doc.
139, PageID.2975-77).

Defendants do not specifically address this request in their

response and instead argue generally that they are entitled to redact documents based
on confidentiality and/or relevance. The Court has reviewed these documents in-camera
and notes that the redactions are not of personally identifying information of the
employees or other individuals. The redacted information consists of what appears to be
internal claim numbers assigned to other claims as well as information related to the
handling and resolution of other claims by the employee reviewed.
For the reasons stated above in Section A.1, Defendants’ arguments regarding

For example, the Court noted that documents ACE-001870 and ACE-011113 contain a redaction
concerning reserves that should have been removed. However, this redacted information was
produced on other duplicative documents (including ACE-007779), so this appears to be an
instance where redactions regarding reserves may inadvertently not have been removed.

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redactions based on confidentiality and/or relevance fail here where there has been no
showing that the Protective Order in place is inadequate to protect the redacted
information at issue. Further, as Plaintiff notes, Defendants were already ordered to
produce these documents in a previous Order issued by this Court, which found that the
information was relevant, held that “Ace must fully respond to these requests,” and stated
that “[t]o the extent Ace has privacy concerns about the production of these materials, the
Court orders the production to be made pursuant to the parties’ Protective Order.” (Doc.
112, PageID.1790-91). Plaintiff’s Motion to Compel is GRANTED, and Defendants are
required to produce unredacted versions of the employee performance reviews at issue.
7. RFP No. 7 – Financial Incentive Materials
Plaintiff seeks to compel Defendants to produce another corporate representative
“to provide ‘complete, knowledgeable, and binding answers on behalf of the corporation’
with respect to Ace’s financial incentive materials.”

(Doc. 139, PageID.2979).

Specifically, Plaintiff's RFP No. 7 requests documents regarding “any cost containment,
pay, bonus, or incentive programs,” while Plaintiff’s 30(b)(6) notice on this topic, No. 23,
similarly seeks “[t]estimony evidencing any cost containment, pay, bonus, or incentive
programs for the claims department and/or claims handling employees and supervisors
from 2016 to the present.” (Id. at PageID.2978). Plaintiff alleges that the corporate
representative designated to address this topic, Sandra Sutton, “was completely unable
to answer any question about business unit performance.” (Id.) (emphasis in original).
Plaintiff further alleges that Sutton should have been prepared to testify on “business unit
performance” because it was noted in one of the documents produced in response to
RFP No. 7 (the “Compensation Cycle U.S. Manager’s Guide”) as one of the factors used

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to determine variable compensation. (Id.). Defendants respond that Sutton gave six
hours of testimony regarding 25 of the 28 topics listed in the deposition notice and argue
that case law supports their position that a corporate representative’s testimony “does not
have to be perfect.” (Doc. 145, PageID. 3069-70).
After reviewing the documents produced by Defendants in response to RFP No. 7
and Ms. Sutton’s testimony, the Court does not find that Plaintiff is entitled to a second
30(b)(6) deposition on this topic. Sutton did provide testimony on the topic of variable
employee compensation, which was the subject of request No. 23 in the deposition notice.
While the “Manager’s Guide” to compensation produced in response to RFP No. 7 does
note on one page of a 17-page document that “business unit performance” is a
component of “delivering differentiated awards,”11 business unit performance is not
mentioned in the remainder of the document, while there are many other details
explaining how managers are to determine compensation to be awarded to their
employees. The fact that Sutton could not explain how business unit performance was
part of variable compensation determinations does not necessarily indicate that she was
inadequately prepared for her deposition.

Certainly, if additional documents exist that

would provide clarification on this point, Defendants are obligated to produce them, but in
reviewing the documents produced and the testimony given, the Court does not find that
Sutton’s testimony on topic No. 23 was inadequate for being unable to provide an answer
to one specific question.
Thus, Plaintiff’s Motion to Compel is DENIED as to this request, and Defendants
are not required to produce another corporate representative to testify as to request No.

11

See ACE-014207.

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23 in the 30(b)(6) notice.
CONCLUSION
For the reasons discussed above, the Court finds the Motions to Compel are
GRANTED in part and DENIED in part:
1. Plaintiff’s Motion to Compel is GRANTED as to any documents withheld or
redactions made on the basis of confidentiality and/or relevance;
2. Plaintiff’s Motion to Compel is DENIED as to ACE-Withheld-000055-000092;
3. Plaintiff’s Motion to Compel is DENIED as to any remaining redactions on the basis
of privilege in ACE-Withheld-000094-0001056 (produced as ACE-014864-015827);
4. Plaintiff’s Motion to Compel is GRANTED in part and DENIED in part as to ACE007708, 007723, 010906, 011067, 011251, 011446, 012822-24 as described
above;
5. Plaintiff’s Motion to Compel is DENIED as to ACE-Withheld-000072-75;
6. Plaintiff’s Motion to Compel is GRANTED, and Defendants must produce the
Requirements document;
7. Plaintiff’s Motion to Compel is MOOT as to the Marketplace/Fast Track Materials;
8. Plaintiff’s Motion to Compel is GRANTED, and Defendants must produce the entire
“Chubb Records Management Policies” document;
9. Plaintiff’s Motion to Compel is GRANTED as to RFP Nos. 1, 2, 21 & 22 as
described above;
10. Plaintiff’s Motion to Compel is MOOT as to the Large Loss Report;
11. Plaintiff’s Motion to Compel is GRANTED, and Defendants must produce the
complete, unredacted Reserve Log;
12. Plaintiff’s Motion to Compel is GRANTED, and Defendants must produce
unredacted versions of the employee performance reviews at issue;
13. Plaintiff’s Motion to Compel is DENIED, and Defendants are not required to

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produce another corporate representative to testify as to request No. 23 in the
30(b)(6) notice.
DONE and ORDERED this the 6th day of February, 2024.
s/P. BRADLEY MURRAY
UNITED STATES MAGISTRATE JUDGE

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