Worman v. Allstate Indemnity Company
Filing
41
ORDER granting in part and denying in part 35 Plaintiff's Motion to Compel AS SET FORTH.Signed by Honorable James R. Marschewski on July 30, 2012. (sh)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
AMANDA WORMAN
V.
PLAINTIFF/RESPONDENT
No. 11-3033
ALLSTATE INDEMNITY COMPANY
DEFENDANT/PETITIONER
ORDER
Before the court is the Plaintiff's Motion to Compel (ECF No. 35) filed May 23, 2012.
The matter was fully briefed, and a hearing was held on June 27, 2012, with counsel for both
parties in attendance. The Court hereby finds and orders as follows:
Plaintiff's Interrogatory No. 2 sought information concerning the Defendant's named
expert witnesses. The parties agreed that the Defendant produced the requested information
following the filing of the Plaintiff's motion to compel. The Court deems that the Defendant has
complied with this request.
Plaintiff's Interrogatory No. 9 sought the identity of the Defendant's corporate
representative for trial and Rule 30(b)(6) representative, if different. This request is denied as
premature, except the Defendant shall identify any non-testifying corporate representative at least
two weeks before the trial date of this matter.
Plaintiff's Motion to Compel regarding Interrogatory No. 14 sought entries for the
Defendant's medical experts, Dr. McAlister and Dr. Michael Morse, from the "Expert Consultant
Reference Catalog" or its successor database. The Defendant represents that it has not located
any such catalog entries and that no such catalog or expert tracking device was consulted in this
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case, as the experts were selected by counsel for the Defendant. As such, this request is denied.
Plaintiff's Interrogatory Nos. 19 and 20 sought authenticated discovery responses stating
the Defendant's total assets, liabilities, revenues, operating expenses, and net profits for the past
five years, claiming that such information was relevant to the Plaintiff's claim for punitive
damages stemming from a count in the Plaintiff's complaint alleging the tort of bad faith. The
Defendant argued that the Plaintiff must make a prima facie case of entitlement to punitive
damages before the Defendant is required to produce this type of financial information. The
Court notes that the Defendant has filed a motion for partial summary judgment on the bad faith
issue, which remains pending. Therefore, these requests will be denied without prejudice. The
Plaintiff must make a prima facie bad faith case before seeking to obtain the requested financial
information.
Plaintiff's Request for Production No. 4 seeks a detailed history of payments made to the
Defendant by or on behalf of the Plaintiff with regard to the insurance policies at issue in this
case. The Defendant claims that the information is cumulative, may be unobtainable, and in any
event, has already admitted that the insurance policy applies in this case. The Plaintiff responds
that under the precedent of Old Chief v. United States, 519 U.S. 172, 186-87 (1997), she is
entitled to present her case by evidence of her own choice, and the Defendant may not stipulate
around the Plaintiff's desired proof. The Court finds that this request is reasonable and should be
granted.
Plaintiff's Request for Production No. 12 seeks a full and complete computer printout
from the Defendant's computer program showing how the Plaintiff's underinsured motorist claim
was evaluated, to include a screenshot of each screen containing information relating to the
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claim. The Defendant responds that it has provided a summary of this information and further
information would be cumulative. Upon further questioning by the Court, the Plaintiff countered
that she seeks a complete picture of the information inputted into the Defendant's computer
system, and that the summary is not likely to contain all such information. The Court finds that
the Plaintiff is entitled to any information inputted into the Defendant's computer program in
association with this case, so this request is granted. To the extent that the "screenshots" exist to
document the information that was inputted into the program the Defendant is ordered to produce
the "screenshots".
Plaintiff's Request for Production No. 13 sought non-computerized claims evaluation
documents. The Defendant represents that paper copies of evaluations have been provided. The
Court deems that the Defendant has complied with this request.
Plaintiff's Request for Production Nos. 15 and 16 sought copies of the entire claims file
located at the Defendant's branch, regional, and home offices. The Defendant objected on the
basis of privilege, stating that many of the documents were produced after this litigation was
anticipated and/or commenced in 2007 in a non-suited state court matter. The Court must
determine whether the documents were prepared in the course of the Defendant's ordinary
insurance business, or whether they were produced in anticipation of litigation. To aid in that
determination, the Defendant produced a privilege log, and the Court made an in camera
inspection of the documents in controversy. The Court's findings are as follows:
1. Documents bearing bates labels 22-43 are portions of claim activity logs. The Court
has reviewed these documents and finds them to be privileged.
2. Documents bearing bates labels 84-95 comprise an "involved person statement"
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generated 1/18/2010 and handwritten notations on summaries of medical bills provided by the
Plaintiff. The Defendant agreed to produce these materials.
3. The document bearing bates label 482 is a 1/3/2008 request for copies of the claim
file, and the Defendant agreed to produce this document.
4. Documents bearing bates labels 559-561 consist of a Colossus Assessment for General
Damages generated April 27, 2010. The Defendant agreed to produce this document.
5. The document bearing bates label 599 are handwritten notes of a defense
representative. The Court finds that this document is work product prepared in anticipation of
trial and is shielded from production.
6. Documents bearing bates labels 652-654 are charts relating to Plaintiff's medical
treatment. The Court finds that these documents are work product prepared in anticipation of trial
and are shielded from production.
7. Documents bearing bates labels 919-924 are handwritten notations on summaries of
medical bills provided by the Plaintiff. The Defendant agreed to produce these materials.
8. The document bearing bates label 963 contains activity log notes between April and
October 2010. The Court finds that this document is work product prepared in anticipation of
trial and is shielded from production.
9. The document bearing bates label 1500 is a 1/3/2008 request for copies of the claim
file, and the Defendant agreed to produce this document.
Accordingly, Plaintiff's Request for Production Nos. 15 and 16 are granted in part, denied
in part.
Plaintiff's Request for Production No. 18 sought claims handling materials for under-4-
insured motorist claims. The Defendant represents that it produced the requested information
following the filing of the Plaintiff's motion to compel and the entry of an agreed Protective
Order. Therefore, the Court deems that the Defendant has complied with this request.
Plaintiff's Request for Production No. 19 seeks the systems operating manual for the
claims evaluation computer program. The Plaintiff asserts that this manual is needed to
determine whether the Defendant's claims representatives were properly trained and followed
internal guidelines for properly inputting information about the Plaintiff's claim into the
Defendant's computerized claims evaluation system. The Defendant responds that this
information is cumulative. The Court finds that this information is not relevant at this time and
that the request should be denied without prejudice to the extent that later discovery may open
the door to relevance of this information.
Plaintiff's Request for Production Nos. 20-21 sought any other claims handling materials
not covered by other discovery requests. The Defendant represents that it has produced the
requested information other than the information addressed above pertaining to Request for
Production No. 19. Therefore, the Court deems that the Defendant has complied with this
request.
Plaintiff's Request for Production No. 31 sought documents created for Allstate by
McKinsey & Company relating to claims adjustment. The Defendant agreed to produce
documents generated from a review it conducted in the mid-1990s with the assistance of
third-party consulting firm, McKinsey & Company. The Defendant agreed to produce these
documents, and as such the Plaintiff's request for this information will be granted. The
Defendant is further order to produce these documents in a reasonably usable form. The court
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makes no determination concerning whether the Defendant has complied with this requirement.
If the Plaintiff believes that the Defendant has failed to comply she should file a specific motion
explaining why she believes the Defendant has not complied.
The Plaintiff's Second Motion to Compel is, therefore, GRANTED in PART and
DENIED in PART.
IT IS SO ORDERED this 30th day of July 2012.
/s/ J. Marschewski
HONORABLE JAMES R. MARSCHEWSKI
CHIEF UNITED STATES DISTRICT JUDGE
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