Tucker v. AMCO Insurance Company

Filing 21

ORDER ON PLAINTIFF'S 13 MOTION TO COMPEL FURTHER DISCOVERY RESPONSES, signed by Magistrate Judge Sheila K. Oberto on 11/19/2018. (Kusamura, W)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:17-cv-01761-DAD-SKO

JENNIFER MARIE TUCKER,

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ORDER ON PLAINTIFF’S MOTION TO
COMPEL FURTHER DISCOVERY
RESPONSES

Plaintiff,

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v.

(Doc. 13)

AMCO INSURANCE COMPANY,
Defendant.
_____________________________________/

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I. INTRODUCTION
Plaintiff Jennifer Marie Tucker (“Plaintiff”), filed this action in Fresno County Superior

19 Court on November 17, 2017, and Defendant AMCO Insurance Company (“Defendant”) removed
20 the case to federal court, based on diversity jurisdiction, on December 28, 2017. (Doc. 1.) In her
21 complaint, Plaintiff alleges breach of contract and breach of the implied covenant of good faith and
22 fair dealing stemming from Defendant’s denial of Plaintiff’s insurance claim. (Doc. 1-2 at 17–20.)
23 According to Plaintiff, she is an “additional insured” under her deceased father’s insurance policy
24 and Defendant has improperly refused to pay any benefits related to the 2015 theft of tools
25 previously owned by her father. (Id. at 6–7, 16–17.)
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On October 9, 2018, Plaintiff filed the instant motion to compel responses to three

27 interrogatories. (Doc. 13.) On October 31, 2018, the parties filed a “Joint Statement of Discovery
28 Disagreement Re Plaintiff’s Special Interrogatories, Set Two” (“Joint Statement” or “Jnt. Stmt”)

1 pursuant to Rule 251(c) of the Local Rules for the United States District Court for the Eastern
2 District of California (“Local Rules”). (Doc. 18.) On November 2, 2018, having reviewed the
3 parties’ Joint Statement, the Court determined the matter was suitable for decision without oral
4 argument. Accordingly, pursuant to Local Rule 230(g), the Court vacated the motion hearing and
5 indicated a written order would follow. For the reasons set forth below, Court DEFERS RULING
6 IN PART and GRANTS IN PART Plaintiff’s motion.
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II. DISCUSSION

8 A.

Legal Standard

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Interrogatories may relate to any matter that may be inquired into under Rule 26(b) of the

10 Federal Rules of Civil Procedure (“Rules”), and an interrogatory is not objectionable merely
11 because it asks for an opinion or contention that relates to fact or the application of law to fact.
12 Fed. R. Civ. P. 33(a)(2) (quotation marks omitted).

Parties are obligated to respond to

13 interrogatories to the fullest extent possible under oath, and any objections must be stated with
14 specificity. Fed. R. Civ. P. 33(b)(3), (4). A responding party “is not generally required to conduct
15 extensive research in order to answer an interrogatory, but a reasonable effort to respond must be
16 made.” Gorrell v. Sneath, 292 F.R.D. 629, 632 (E.D. Cal. 2013).
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“If the party requesting discovery is dissatisfied with any of the responses, the party may

18 move to compel further responses by informing the court which discovery requests are the subject
19 of the motion to compel, and, for each disputed response, inform the court why the information
20 sought is relevant and why the opposing party’s objections are not justified.” United States v.
21 Baisden, 881 F. Supp. 2d 1203, 1205 (E.D. Cal. 2012) (internal quotations and alterations omitted).
22 “The party seeking to compel discovery has the burden of establishing that its request satisfies the
23 relevancy requirements of Rule 26(b)(1).” La. Pac. Corp. v. Money Mkt. 1 Institutional Inv.
24 Dealer, 2012 WL 5519199, at *3 (N.D. Cal. 2012). “[T]he party opposing discovery [then] has
25 the burden of showing that discovery should not be allowed, and also has the burden of clarifying,
26 explaining and supporting its objections with competent evidence.” Id. (citing DirectTV, Inc. v.
27 Trone, 209 F.R.D. 455, 458 (C.D. Cal. 2002)). The party opposing discovery is “required to carry
28 a heavy burden of showing” why discovery should be denied. Blankenship v. Hearst Corp., 519
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1 F.2d 418, 429 (9th Cir. 1975).
2 B.

Subject Interrogatories

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Interrogatory 11: “Identify by date of the loss, date of retention, and claim number,
each and every claim involving a property loss sustained by a policyholder, that
occurred on or after January 1, 2014 to the present, in which AMCO INSURANCE
COMPANY has retained Kevin Hansen to provide assistance to AMCO
INSURANCE COMPANY in connection with the handling of a claim.”

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Defendant’s Response to Interrogatory 11: “AMCO objects to this interrogatory on
the grounds that it is overbroad, oppressive, unduly burdensome, and vague and
ambiguous. AMCO also objects to this interrogatory to the extent it seeks
confidential information or information subject to privacy protection, including
pursuant to California Insurance Code Section 791.13. AMCO further objects to
this interrogatory on the ground that it seeks information which is neither relevant
nor reasonably calculated to lead to the discovery of admissible evidence.
Additionally AMCO objects to this interrogatory to the extent it seeks information
protected by the attorney client privilege, the attorney work product doctrine, or
any other judicially recognized privileged protection.”
Interrogatory 12: “Identify by date of the loss, date of retention, and claim number,
each and every claim involving a property loss sustained by a policyholder, that
occurred on or after January 1, 2014 to the present, in which AMCO INSURANCE
COMPANY has retained Kevin Hansen to perform an examination under oath
connection with AMCO INSURANCE COMPANY’s the handling of a claim.”
Defendant’s Response to Interrogatory 12: [Identical to the response to
Interrogatory 11.]
Interrogatory 13: “Please state the total amount each month AMCO INSURANCE
COMPANY has paid for legal services to the law firm McCormick Barstow LLP,
since January 1, 2014 to the present.”
Defendant’s Response to Interrogatory 13: [Identical to the response to
Interrogatory 11.]

22 In sum, Interrogatory 11 requests the 1) date of loss, 2) date of retention, and 3) claim number, for
23 every property loss claim since January 1, 2014, which Defendant retained Mr. Kevin Hansen, Esq.
24 to assist with handling the claim. Interrogatory 12 requests the same three facts for the same type
25 of claims, but only claims where Defendant retained Mr. Hansen to perform an examination under
26 oath. Interrogatory 13 seeks the monthly amount paid to Mr. Hansen’s law firm for legal services
27 since January 1, 2014, which is the year before the alleged loss of Plaintiff’s father’s tools in May
28 2015.
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Defendant objects to these interrogatories on five grounds: 1) they seek information which

2 is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence, 2) they
3 are oppressive and unduly burdensome, 3) they are overbroad, vague, and ambiguous, 4) they seek
4 information protected by the attorney client privilege, and 5) they seek information subject to
5 privacy protections under to California law including California Insurance Code section 791.13.
6 C.

Analysis

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1. Relevance

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“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any

9 party’s claim or defense and proportional to the needs of the case[.]” Fed. R. Civ. P. 26(b)(1).
10 “Information within this scope of discovery need not be admissible in evidence to be discoverable.”
11 Id. Evidence is relevant if, “it has any tendency to make a fact more or less probable than it would
12 be without the evidence; and the fact is of consequence in determining the action.” Fed. R. Evid.
13 401.
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“District courts have broad discretion in determining relevancy for discovery purposes.”

15 United States v. Baisden, 881 F. Supp. 2d 1203, 1205 (E.D. Cal. 2012) (citing Surfvivor Media,
16 Inc. v. Survivor Prods., 406 F.3d 625, 635 (9th Cir. 2005). Relevancy is interpreted “broadly to
17 encompass any matter that bears on, or that reasonably could lead to other matter that could bear
18 on any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351,
19 (1978); see also Thomas v. Cate, 715 F. Supp. 2d 1012, 1031 (E.D. Cal. 2010) (“[D]iscovery should
20 ordinarily be allowed under the concept of relevancy unless it is clear that the information sought
21 can have no possible bearing upon the subject matter of the action.”).
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In this case, Defendant asserts good faith reliance on the advice of counsel, Mr. Kevin

23 Hansen, Esq., as a defense to Plaintiff’s insurance bad faith and punitive damages claims. By
24 asserting the reliance on counsel defense, Defendant has put at issue whether its retention and
25 reliance on Mr. Hansen’s advice was reasonable. Medina v. Harco Nat'l Ins. Co., No. CV 15–
26 05595–BRO (MRWx), 2016 WL 7647680, at *2 n.3 (C.D. Cal. July 29, 2016) (overruling the
27 defendant insurer’s relevancy objection and finding the defendant’s counsel’s experience was
28 “relevant to whether Defendant reasonably relied on counsel’s advice” (citing State Farm Mut.
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1 Auto. Ins. Co. v. Superior Court, 228 Cal. App. 3d 721, 725 (1991)). Accordingly, to the extent
2 the three interrogatories seek facts that may bear on whether Defendant’s reliance on Mr. Hansen’s
3 advice was reasonable, the evidence would be relevant.
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i.

Interrogatories 11 and 12

The facts Plaintiff seek in Interrogatories 11 and 12––the date of loss, date of retention of

6 Mr. Hansen, and claim number of certain property loss claims––are relevant to the reasonableness
7 of Defendant’s reliance on Mr. Hansen’s advice because these facts help establish the scope and
8 extent of the relationship between Mr. Hansen and Defendant. Thus, the interrogatories may help
9 demonstrate whether Defendant retained Mr. Hansen in good faith or because it knew Mr. Hansen
10 was predisposed to handle claims in favor of Defendant and against insureds. See Hangarter v.
11 Provident Life & Acc. Ins. Co., 373 F.3d 998 (9th Cir. 2004) (acknowledging that when an insurer
12 uses the same expert on a continual basis, the expert may become bias because they lose their
13 independence); Eastman v. Allstate Ins. Co., No. 3:14–CV–00703–WQH–WVG, 2015 WL
14 4393287, at *9 (S.D. Cal. July 15, 2015) (“[T]he extent to which Bausley depends upon Allstate’s
15 business and thus goodwill may raise legitimate doubts about his objectivity[.]”); see also Smith v.
16 Allstate Ins. Co., 52 Fed. Appx. 349, 351 (9th Cir. 2002) (finding the district court abused its
17 discretion by excluding evidence not directly related to the plaintiff’s claim and holding: “Evidence
18 not directly related to Smith’s particular claim is still relevant and admissible provided that it tends
19 to establish Allstate’s ‘pattern of unfair practices’”). Additionally, Defendant asserts that it
20 declined coverage for Plaintiff’s insurance claim based in part on Mr. Hansen’s report that Plaintiff
21 failed to appear for an examination under oath (Jnt. Stmt 12), and Interrogatory 12 seeks to establish
22 whether hiring Mr. Hansen to perform such an examination was a regular practice of Defendant.
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Defendant makes two arguments regarding why the responses to Interrogatories 11 and 12

24 are not relevant. First, Defendant contends the information is not relevant because Plaintiff seeks
25 information involving different insurance claims “which necessarily involve different facts,
26 different issues, different advice, and different coverage determinations[.]”

(Jnt. Stmt 11.)

27 Defendant principally relies on the Southern District of California’s decision in Dobro v. Allstate
28 Ins. Co., No. 16cv1197-AJB (BLM), 2016 WL 4595149 (S.D. Cal. Sept. 2, 2016). In Dobro, the
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1 Court held information relating to other insurance claims was relevant to the plaintiff’s bad faith
2 insurance claim, but only to the extent the claims were similar based on six criteria that limited the
3 date, location, and specific type of claim. Id. at *6. Here, while Interrogatories 11 and 12 are not
4 limited to same extent as the interrogatories in Dobro, Plaintiff has limited the interrogatories to
5 only claims for property losses in the one year prior to the property loss in the instant case. Other
6 courts have found that similar limitations adequately limit the responsive claims such that only
7 relevant information is provided.

See e.g., Van Duyn v. Am. Sec. Ins. Co., No. CV 08-5748-

8 GW(CTX), 2009 WL 10672575, at *3 (C.D. Cal. Apr. 14, 2009) (overruling the defendant’s
9 relevancy objection to an interrogatory seeking certain claim information “involving a first party
10 homeowners property damage” and holding the plaintiff “established that discovery relating to the
11 non-party insureds is relevant to her claims in this action, insofar as the requests seek information
12 pertaining to similarly situated insureds.”); see also J & M Assocs., Inc. v. Nat'l Union Fire Ins.
13 Co. of Pittsburgh, PA, No. 06-CV-0903-W (JMA), 2008 WL 638137, at *5 (S.D. Cal. Mar. 4,
14 2008) (“[D]iscovery regarding other claims handled by National Union is relevant to J & M’s
15 claims in this action, insofar as the requests seek information pertaining to the same type of policy
16 at issue in this case[.]”). Accordingly, for purposes of Defendant’s relevancy objection, the Court
17 finds that Plaintiff has adequately limited the scope of Interrogatories 11 and 12 to information
18 relating to similar claims.
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Second, Defendant contends Interrogatories 11 and 12 seek irrelevant information because

20 expert bias cannot be based solely on the number of times an expert has been retained by an insurer.
21 (Jnt. Stmt at 13.) Defendant principally relies on Worth Bargain Outlet v. AMCO Ins. Co., No.
22 09CV839 DMS (WMc), 2010 WL 2898264, at *11 (S.D. Cal. July 21, 2010). In Worth Bargain,
23 the court determined that it would be unreasonable to conclude an expert was biased simply based
24 on the number of times the expert was retained by the defendant. 2010 WL 2898264, at *11.
25 However, the court reached this conclusion for purposes of a motion for summary a judgment,
26 which is an entirely different standard than whether evidence is relevant for purposes of discovery.
27 While Worth Bargain may support Defendant’s contention that the extent of its relationship with
28 Mr. Hansen cannot prove Mr. Hansen’s bias without other evidence, the Court will not speculate
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1 regarding what other evidence Plaintiff may offer in support of its claim that Defendant acted in
2 bad faith in hiring Mr. Hansen. The dispute before this Court is whether the extent of Mr. Hansen’s
3 relationship with Defendant is relevant to Plaintiff’s insurance bad faith and punitive damages
4 claims, and Worth Bargain offers no support to suggest it is not relevant. To be sure, information
5 relating to the claim number, date of retention, and date of property loss for certain claims handled
6 by Mr. Hansen may not in and of itself prove Defendant acted improperly in hiring Mr. Hansen,
7 but this evidence may be sufficient if offered in conjunction with other evidence. Thus, it would
8 be premature for this Court to deny the relevance of this evidence while speculating that Plaintiff
9 will not be able to offer any corroborating evidence.
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Plaintiff also attempts to distinguish the Ninth Circuit’s decision in Hangarter v. Provident

11 Life & Acc. Ins. Co., on which Plaintiff relies to support its position that the nature and extent of
12 Defendant’s relationship with Mr. Hansen is relevant to her bad faith insurance claim.

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13 Hangarter, the Ninth Circuit held that evidence showing that the same expert rejected the insureds’
14 claims of total disability thirteen out of thirteen times, along with other evidence, constituted
15 substantial evidence that the defendant insurer engaged in a bad faith investigation of insureds’
16 claims. 373 F.3d at 1011. Defendant contends Hangarter is distinguishable because Plaintiff has
17 “advanced no evidence to support any argument that AMCO retained Attorney Hansen because he
18 was predisposed to render advice to deny insurance claims.” (Jnt. Stmt 14.) However, the court in
19 Hangarter acknowledged when an insurer continually uses the same expert, the expert may become
20 biased. 373 F.3d at 1011. While the plaintiff in Hangarton offered evidence showing how many
21 times the expert agreed with the defendant as well as additional evidence to support its claim, the
22 additional evidence does not change the relevance of the facts regarding the relationship between
23 the expert and the insurer. Thus, regardless of what other evidence Plaintiff may ultimately offer
24 in support of her case, the nature and extent of Defendant’s relationship with Mr. Hansen is relevant
25 to the reasonableness of Defendant’s reliance on Mr. Hansen’s advice.
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In sum, the scope of relevancy during discovery is broad, and regardless of whether the

27 evidence is admissible at trial, the nature and extent of Defendant’s relationship with Mr. Hansen
28 could, at a minimum, lead to other evidence or be offered in conjunction with other evidence, to
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1 demonstrate whether Defendant’s reliance on Mr. Hansen’s advice was reasonable. Accordingly,
2 the Court OVERRULES Defendant’s relevancy objections to Interrogatories 11 and 12.
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ii.

Interrogatory 13

“Evidence regarding the amount of compensation paid to an insurer’s reviewers may be

5 considered as evidence of the insurer’s bias or conflicted decision making.” Kreeger v. Life Ins.
6 Co. of N. Am., No. CV 09–8262–GAF(OPx), 2010 WL 11549536, at *2 (C.D. Cal. July 14, 2010)
7 (citing Nolan v. Heald College, 551 F.3d 1148, 1155 (9th Cir. 2009)); see also Eastman, 2015 WL
8 4393287, at *9 (“If Bausley’s business relied on Allstate for only 2% of its revenue, the relationship
9 itself may hint at little of significance to the present matter.”). Additionally, an attorney’s
10 compensation is relevant to establishing bias in the insurance bad faith context. Kagan v. State
11 Farm Mut. Auto. Ins. Co., No. CV 08–04903 GAF (MANx), 2009 WL 10675116, at *4 (C.D. Cal.
12 Nov. 12, 2009) (acknowledging that the fees an attorney receives from an insurance company to
13 review cases is relevant to the attorney’s credibility, but limiting the evidence presented to the jury
14 to the percentage of the firm’s work that the firm did with the insurance company because of the
15 potential to prejudice and confuse the jury).
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Interrogatory 13 seeks the monthly amount Defendant paid to Mr. Hansen’s law firm for

17 legal services, which demonstrates the extent of the firm’s relationship with Defendant. To the
18 extent this is a significant amount or a substantial portion of the firm’s income, it would support an
19 inference that the firm is more inclined to reach decisions in Defendant’s favor. While this
20 evidence may not be admissible at trial or may be admissible only in a different form, the standard
21 for relevance at the discovery phase is broad and Plaintiff has satisfied her burden of showing that
22 the evidence may make it more likely that Defendant knew Mr. Hansen exhibited bias when
23 reviewing Defendant’s claims. Moreover, Defendant offers no authority to the contrary, except
24 one case that cautions courts not to “generously order disclosure of the private financial affairs of
25 nonparties without careful scrutiny of the real needs of the litigant who seeks discovery.” (Jnt.
26 Stmt 24 (citing Stony Brook I Homeowners Ass'n v. Superior Court, 84 Cal. App. 4th 691, 698
27 (2000)).)

The Court has considered the cautionary language in Stony Brook, but finds it

28 inapplicable to Defendant’s relevancy objection because in that case the requesting party sought
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1 detailed information about all litigation an expert worked on over a four-year period. In contrast,
2 here, Plaintiff’s request is much more tailored to the “real needs” of her case and has only requested
3 the total legal fees Defendant has paid to a single law firm. Accordingly, the Court OVERRULES
4 Defendant’s relevancy objection as to Interrogatory 13.
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2. Burdensomeness

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“In making a decision regarding burdensomeness, a court must balance the burden on the

7 interrogated party against the benefit to the discovering party of having the information.” Thomas,
8 715 F. Supp. 2d at 1032. “Discovery should be allowed unless the hardship is unreasonable in the
9 light of the benefits to be secured from the discovery.” Id. “The burden is on the responding party
10 to justify its objections or its failure to provide complete answers to interrogatories.” Collins v. JC
11 Penney Life Ins. Co., No. 02cv0674–L(LAB), 2003 WL 25945842, at *2 (S.D. Cal. May 6, 2003).
12 “Bare assertions that the discovery requested is overly broad, burdensome, oppressive or irrelevant
13 are ordinarily insufficient, standing alone, to bar production.” Id. (quoting Continental Ill. Nat'l
14 Bank & Trust Co. of Chicago v. Caton, 136 F.R.D. 682, 684 (D. Kan. 1991)).
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As a threshold matter, Defendant’s objections based on burdensomeness are insufficient as

16 they fail to adequately establish the burden of responding to the interrogatories with any specificity.
17 “For a burdensomeness argument to be sufficiently specific to prevail, it must be based on
18 declarations or other evidence.” Big Baboon Corp. v. Dell, Inc., 723 F. Supp. 2d 1224, 1229 (C.D.
19 Cal. 2010); Thomas, 715 F. Supp. 2d at 1032 (“[A]n objecting party must specifically establish the
20 nature of any alleged burden, usually by affidavit or other reliable evidence.”). Here, Defendant
21 has not offered any declarations or other evidence substantiating its burdensome objections.
22 Accordingly, on this basis alone, the Court may overrule Defendant’s objections to all three
23 interrogatories. McEwan v. OSP Grp., L.P., No. 14-cv-2823-BEN (WVG), 2016 WL 1241530, at
24 *5 (S.D. Cal. Mar. 30, 2016) (rejecting the defendant’s contention that responding to interrogatories
25 was overly burdensome where the declarant supporting the defendant’s response “fail[ed] to lay a
26 foundation for his opinion” and “d[id] not represent that he has a technical background or any
27 particular knowledge of [the defendant’s] information technology capabilities”).
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Notwithstanding Defendant’s failure to substantiate its burden of responding to Plaintiff’s

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2 interrogatories, the Court still evaluates Defendant’s claims of undue burden to the extent possible
3 based on the representations in the Joint Statement.
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i.

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Interrogatories 11 and 121

Defendant provides a limited and superficial description of the burden of identifying the

6 information sought by Interrogatories 11 and 12. Specifically, according to Defendant, it “would
7 require a burdensome review of the facts and circumstances of each particular claim far beyond the
8 scope of any discovery obligation” and “no click of a computer could reveal the information sought
9 by Tucker.” (Jnt. Stmt 16–17.) While these are more than just bare assertions of an undue burden,
10 the Court has no basis by which to balance Defendant’s burden against the benefit to Plaintiff and
11 determine whether the evidence is proportional to the needs of the case.

For example,

12 approximately how many claims could potentially be responsive? How long would it take to
13 review a claim file to identify the information sought by Plaintiff? How much would this review
14 cost? What are the specific obstacles to obtaining the potentially responsive claims from Mr.
15 Hansen’s firm and manually reviewing those claims? Without any facts substantiating how much
16 time and effort would be required to obtain the responses to the interrogatories, Defendant has
17 failed to satisfy its burden of setting forth its objections with specificity. Fed. R. Civ. P. 33(b)(4);
18 Campbell v. Facebook Inc., 310 F.R.D. 439, 445 (N.D. Cal. 2015) (holding the defendant failed to
19 “demonstrate[] that its burden outweighs the likely benefit” of the discovery request where the
20 defendant’s declarant “d[id] not explain how much time he realistically believes it will take him to
21 acquire the rest of the information Plaintiffs requested”).
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Moreover, in both cases on which Defendant relies in support of its objection, the objecting

23 party provided a declaration substantiating the extent of the burden before the Court found the
24 interrogatories imposed an undue burden on the responding party. For example, in Dobro v.
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The Court notes that while Defendant’s initial responses to all three interrogatories were identical, including an
objection that each interrogatory imposed an undue burden, Defendant does not separately argue in the Joint
Statement that Interrogatory 13 is unduly burdensome. Accordingly, because Defendant has not even attempted to
substantiate or explain the burden of responding to Interrogatory 13, the Court only addresses Defendant’s objections
to Interrogatories 11 and 12. See Collins, 2003 WL 25945842, at *2 (“Bare assertions that the discovery requested is
overly broad, burdensome, oppressive or irrelevant are ordinarily insufficient, standing alone, to bar production.”).
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1 Allstate, the defendant offered the declaration of a staff claims manager who was familiar with the
2 search capabilities and limitations of the defendant’s electronic records and was responsible for
3 performing searches of such electronic records for property claims. 2016 WL 4595149, at *6. The
4 declarant stated there were over 10,000 claims responsive to the initial search request and that it
5 would take at least three minutes per claim to narrow the claims based on certain limiting criteria.
6 Id. Similarly, in Collins v. JC Penney Life Ins. Co., the defendant offered a declaration from its
7 Vice President of Claims with the parties’ joint statement, estimating it would take over 2,600 hours
8 and cost over $78,000 to obtain the information sought by the plaintiff. 2003 WL 25945842, at *6
9 n.7. Here, Defendant has offered no such facts to substantiate its burden of responding to
10 Interrogatories 11 and 12.
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Despite Defendant’s failure to substantiate the burden of responding to Interrogatories 11

12 and 12, the Court recognizes that the burden may be significant enough such that responding to the
13 interrogatories is unreasonable. At the same time, the Court also acknowledges that Plaintiff is
14 entitled to conduct discovery to support its case. Accordingly, the Court DEFERS ruling on these
15 objections to Interrogatories 11 and 12, until Defendant supplements the record with evidence
16 demonstrating its burden of responding to Interrogatories 11 and 12. Specifically, by no later than
17 December 14, 2018, Defendant SHALL file on the docket, a statement with supporting declarations
18 or other evidence articulating with specificity the burden and costs of responding to Interrogatories
19 11 and 12, including an estimate of the potentially responsive claims it would have to manually
20 search and the estimated time required to search those claims. The statement shall also articulate
21 the search capabilities of its record keeping system to determine if there is any alternative means
22 of identifying the requested information or further narrowing the claims responsive to
23 Interrogatories 11 and 12, such as claims for theft or damage caused by fire or water or other types
24 of property loss, along with the costs and burden of doing so.
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The Court notes that the “fact that a responding party maintains records in different locations,

26 utilizes a filing system that does not directly correspond to the subjects set forth in [Plaintiff’s
27 interrogatories], or that responsive documents might be voluminous does not suffice to sustain a
28 claim of undue burden.” Thomas, 715 F. Supp. 2d at 1033. However, to the extent Defendant
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1 maintains that the information sought by Interrogatories 11 and 12 is not readily ascertainable from
2 its own records, Defendant shall further articulate with specificity the burden and costs of obtaining
3 the potentially responsive claims from Mr. Hansen’s firm and manually searching those claims for
4 the requested information.
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3. Overbroad, Vague, and Ambiguous

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“A party opposing discovery on the basis that the request is overbroad bears the burden of

7 showing why discovery should be denied.” Thomas, 715 F. Supp. 2d at 1032. In responding to
8 interrogatories, the “responding party shall use common sense and reason.” Nguyen v. Biter, No.
9 1:11–cv–00809–AWI–SKO, 2015 WL 366935, at *3 (E.D. Cal. Jan. 27, 2015).
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i.

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Interrogatories 11 and 12

Defendant contends the limitation in Interrogatories 11 and 12 to only claims that

12 Defendant has retained Mr. Hansen to “provide assistance . . .with,” is vague and ambiguous, and
13 the term “property loss” is overbroad. (Jnt. Stmt 15.) Defendant further asserts it is unclear to
14 what level of involvement Mr. Hansen must have before it rises to the level of “provid[ing]
15 assistance” with a claim and that there are many different types of claims that would be
16 considered a “property loss.” (Id.)
17

The parties are expected to use common sense in responding to discovery requests.

18 “Assist” means “to give support or aid.”2 Thus, the scope of these interrogatories is clear: to the
19 extent Mr. Hansen has provided support to Defendant in handling a claim, it would be included
20 within the scope of these interrogatories. Additionally, while the term “property loss”
21 encompasses claims that are different from the specific type of property loss at issue in this case,
22 such claims may still be relevant to the reasonableness of Defendant’s reliance on Mr. Hansen’s
23 advice because the information sought demonstrates the nature and extent of the relationship
24 between Mr. Hansen and Defendant. Accordingly, the Court OVERRULES these objections to
25 Interrogatories 11 and 12.
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2

Merriam-Webster, Assist, https://www.merriam-webster.com/dictionary/assist, (last visited Nov. 9, 2018).

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ii.

Interrogatory 13

In less than a half-page of the parties’ Joint Statement, and without citing any authority,

3 Defendant asserts Interrogatory 13 is overbroad because it requests information regarding
4 Defendant’s payments to Mr. Hansen’s firm regardless of the nature of payments, whether Mr.
5 Hansen was involved, or the nature of the claim or engagement. (Jnt. Stmt 24.) However, the
6 payments Mr. Hansen’s firm receives from Defendant––regardless of the nature of the payments–
7 –may prejudice Mr. Hansen’s judgement in favor of Defendant if those payments are significant.
8 As the responding party bears the burden of demonstrating this request is overbroad, and
9 Defendant has not cited a single federal or state court case finding a similar request to be
10 overbroad, the Court OVERRULES this objection to Interrogatory 13.
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4. Attorney-Client Privilege

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In a federal action such as this based on diversity of citizenship jurisdiction, state law

13 governs privilege claims. Fed. R. Evid. 501; Star Editorial, Inc. v. U.S. Dist. Court for the Cent.
14 Dist. of Cal., 7 F.3d 856, 859 (9th Cir. 1993). The attorney-client privilege attaches to
15 “confidential communication between client and lawyer” during the course of the attorney-client
16 relationship. Cal. Evid. Code § 952; Moeller v. Superior Court, 16 Cal. 4th 1124, 1130 (1997)
17 (“Once this relationship is established, the attorney-client privilege attaches to communications
18 made in confidence during the course of the relationship.”). “Confidential communications
19 include information transmitted between attorney and client, and ‘a legal opinion formed and the
20 advice given by the lawyer in the course of that relationship.’” Calvert v. State Bar, 54 Cal. 3d
21 765, 779 (1991) (quoting Cal. Evid. Code § 952). “However, the attorney-client privilege only
22 protects disclosure of communications between the attorney and the client; it does not protect
23 disclosure of underlying facts which may be referenced within a qualifying communication” or
24 “independent facts related to a communication; that a communication took place, and the time,
25 date and participants in the communication.” State Farm Fire & Cas. Co. v. Superior Court, 54
26 Cal. App. 4th 625, 639–40 (1997) (emphasis in original). “[D]ocuments prepared independently
27 by a party, including witness statements, do not become privileged communications or work
28
13

1 product merely because they are turned over to counsel.” Wellpoint Health Networks, Inc. v.
2 Superior Court, 59 Cal. App. 4th 110, 119 (1997).
3

i.

4

Interrogatories 11 and 123

Interrogatories 11 and 12 only seek a claim number, the date of a loss, and the date

5 Defendant retained Mr. Hansen for certain claims. These are “independent facts” that may be
6 referenced in communications between Mr. Hansen and Defendant, but that does not make these
7 facts privileged. State Farm Fire & Cas. Co., 54 Cal. App. 4th at 639–40. Defendant
8 mischaracterizes the information Plaintiff seeks by asserting the interrogatories require Defendant
9 to disclose “the content of the advice from and communications with Hansen in connection with
10 other claims.” (Jnt. Stmt 18.) However, Interrogatories 11 and 12 make no such request, and
11 accordingly Defendant’s objections based on the attorney-client privilege are OVERRULED.
12

5. Privacy Concerns Under California Law

13

California Insurance Code section 791.13 provides: “An insurance institution, agent, or

14 insurance-support organization shall not disclose any personal or privileged information about an
15 individual collected or received in connection with an insurance transaction” unless an exception
16 applies. The Insurance Code defines the terms “personal information” and “privileged
17 information,” which must include an individual’s personally identifiable information.4
18

i.

19

Interrogatories 11 and 12

Here, Interrogatories 11 and 12 only request the claim number, the date of loss, and the

20 date that Mr. Hanson was retained to assist Defendant in handling certain insurance claims.
21
22
23
24
25
26
27
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The Court notes that while Defendant’s initial responses to all three interrogatories were identical, including an
objection that each interrogatory infringed on the attorney-client privilege, and Defendant mentions the attorneyclient privilege in one of the headings in the parties’ Joint Statement, Defendant does not separately argue in the Joint
Statement that Interrogatory 13 requires the disclosure of any privileged communications. Accordingly, because
Defendant has not even attempted to argue how responding to Interrogatory 13 would infringe on the attorney-client
privilege, the Court only addresses Defendant’s attorney-client privilege objections to Interrogatories 11 and 12. See
Collins, 2003 WL 25945842, at *2.
4
The complete definitions of the terms are as follows: “Personal information” means “any individually identifiable
information gathered in connection with an insurance transaction from which judgments can be made about an
individual's character, habits, avocations, finances, occupation, general reputation, credit, health, or any other
personal characteristics.” Cal. Ins. Code § 791.02(s). “Privileged information” means “any individually identifiable
information that both: (1) Relates to a claim for insurance benefits or a civil or criminal proceeding involving an
individual, [and] (2) Is collected in connection with or in reasonable anticipation of a claim for insurance benefits or
civil or criminal proceeding involving an individual.” Cal. Ins. Code § 791.02(v).
3

14

1 Responding to the interrogatories does not require the disclosure of the identity of any
2 policyholder or the disclosure of any communications or writings between Defendant and Mr.
3 Hansen. Thus, no “individually identifiable,” “personal,” or “privileged” information as
4 statutorily defined is requested. Moreover, the only authorities Defendant cites in the Joint
5 Statement are in the context of a plaintiff seeking consent from non-parties to disclose
6 confidential communications. (Jnt. Stmt 19 (citing Mead Reins. Co. v. Superior Court, 186 Cal.
7 App. 3d 313, 317 (1986) and Colonial Life & Acc. Ins. Co. v. Superior Court, 31 Cal. 3d785, 792
8 (1982)). These authorities are inapplicable to this dispute because Interrogatories 11 and 12 do
9 not seek the disclosure of any communications. Therefore, Defendant’s objections to
10 Interrogatories 11 and 12 based on California Insurance Code section 791.13, are OVERRULED.
11
12

ii.

Interrogatory 13

Defendant does not contend California Insurance Code section 791.13 protects Defendant

13 from responding to Interrogatory 13. Instead, Defendant offers two cases in support of its
14 privacy objection to Interrogatory 13, but neither case establishes that there is a California law
15 protecting the information sought by Interrogatory 13. Defendant cites Hecht, Solberg, Robinson,
16 Goldberg & Bagley LLP v. Superior Court (2006) 137 Cal. App. 4th 579, which Defendant
17 contends “recogniz[es] the right of financial privacy as applied to corporations,” and Coito v.
18 Superior Court, 54 Cal. 4th 480 (2012), which Defendant contends “recogniz[es] privacy
19 concerns of nonparty witnesses.” (Jnt. Stmt 25.) Even if these cases stood for the propositions
20 Defendant contends they do, the cases do not establish that the amount of Defendant’s payment to
21 Mr. Hansen’s firm is privileged. At best, Hecht establishes that constitutional rights protecting an
22 individual’s right to privacy should not ignore corporations’ financial privacy. Similarly, Coito
23 recognizes that certain privacy rights may apply to nonparty witnesses. However, neither case
24 establishes a specific right that protects anyone, corporation or natural person, from disclosing
25 any specific information. As Defendant bears the burden of setting forth the law that protects the
26 response to Interrogatory 13, and Defendant has failed to do so, the Court OVERRULES
27 Defendant’s privacy objections to Interrogatory 13.
28
15

1

III. CONCLUSION

2

Accordingly, IT IS HEREBY ORDERED THAT:

3

1.

4

The Court DEFERS ruling on Plaintiff’s motion to compel further responses to
Interrogatories 11 and 12;

5

2.

By no later than December 14, 2018, Defendant SHALL supplement the record with

6

a statement supported by competent testimony or other evidence setting forth with

7

specificity the costs and burden of responding to Interrogatories 11 and 12, including

8

any alternative means of obtaining the requested information and the costs and

9

burden of obtaining the requested information from Mr. Hansen’s firm to the extent

10

the information is not readily ascertainable from Defendant’s own records. The

11

statement also shall articulate the processes available to Defendant for searching its

12

records for the requested information, including the search criteria that may be used

13

to narrow the scope of claims that may be responsive to Interrogatories 11 and 12

14

and the costs and burden of doing so;

15

3.

The parties are encouraged to meet and confer regarding Defendant’s responses to

16

Interrogatories 11 and 12 consistent with foregoing, and to the extent the parties can

17

reach an agreement, Defendant may file a notice of withdrawal of its motion to

18

compel instead of the statement ordered above; and

19

4.

Plaintiff’s motion to compel further responses to Interrogatory 13 is GRANTED.

20
21

IT IS SO ORDERED.

22 Dated:
23

November 19, 2018

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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