Vibal v. Geico Casualty Company

Filing 75

ORDER granting 56 Plaintiff's Motion to Compel Discovery. Defendant is ordered to provide supplemental responses to RFPs 4, 5, and 10 to Plaintiff on or before 2/9/2018. Signed by Magistrate Judge Barbara Lynn Major on 1/26/2018. (jdt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 17CV534-LAB(BLM)

JUAN VIBAL,

ORDER GRANTING PLAINTIFF’S
MOTION TO COMPEL DISCOVERY

Plaintiff,

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v.

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GEICO CASUALTY COMPANY,

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[ECF NO. 56]
Defendant.

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Currently before the court is Plaintiff’s December 29, 2017 “MOTION TO COMPEL

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DISCOVERY” [ECF No. 56 (“MTC”)], Defendant’s January 4, 2018 opposition to the motion [ECF

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No. 66 (“Oppo.”)], and Plaintiff’s January 16, 2018 reply [ECF No. 73 (“Reply”)]. For the reasons

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set forth below, Plaintiff’s motion is GRANTED.

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BACKGROUND

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The instant matter was removed to this Court on March 16, 2017 from the San Diego

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Superior Court. ECF No. 1 (Notice of Removal and Plaintiff’s Complaint). Plaintiff’s complaint

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alleges breach of contract and insurance bad faith - breach of the covenant of good faith and

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fair dealing.

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Defendant sold and issued to Plaintiff on or about March 4, 2016. Id. at 8. According to the

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policy, Defendant would “pay for collision loss to [Plaintiff's] auto for the amount of each loss

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less the applicable deductible." Id.

Id. at 7-13.

The complaint arises from an Automobile Insurance Policy that

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Plaintiff alleges that on May 27, 2016, he drove his car to Anaheim, California. Id. at 9.

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On May 28, 2016, Plaintiff parked his car near his father’s home in Anaheim. Id. On May 29,

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2016, a neighbor of Plaintiff’s father reported to police that he heard a crash. Id. The neighbor

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went outside and saw a gray Honda collide with Plaintiff’s car and flee. Id. A California Highway

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Patrol Officer came to the crash site, took a statement from the neighbor who had called, and

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had Plaintiff’s vehicle towed. Id. The officer concluded that Plaintiff’s vehicle had been “subject

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to a hit-and-run.” Id.

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On May 29, 2016, Plaintiff filed a claim with Defendant. Id. Defendant denied the claim

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in a letter dated July 21, 2016 stating that the damage occurred while the vehicle was in motion

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and not parked as alleged. Id. When Plaintiff’s counsel requested a copy of the report from

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Defendant on September 13, 2016, Defendant refused to provide the report. Id. Plaintiff has

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since returned to Arizona as his car sits unrepaired in Anaheim. Id. at 10.
PARTIES’ POSITIONS

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Plaintiff seeks an order from the Court compelling Defendant “to provide substantive

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discovery responses to Plaintiff’s First and Second Sets of Requests for Production of

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Documents.”

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Production (“RFP”) 4, 5 and 10. The RFPs request:

MTC at 1.

Specifically, Plaintiff seeks additional responses to Requests for

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REQUEST FOR PRODUCTION NO. 4

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For each and every employee, agent, and/or servant of Defendant who had
direct, supervisory, or managerial responsibility for handling, investigating,
processing, or adjudicating Plaintiff’s Claim produce all Documents that evaluate
the individual’s job performance for the period between January 1, 2015 and
the present.

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REQUEST FOR PRODUCTION NO. 5

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For each and every employee, agent, and/or servant of Defendant who had
direct, supervisory, or managerial responsibility for handling, investigating,
processing, or adjudicating Plaintiff’s Claim produce all Documents containing
criteria for evaluating the individual’s performance.

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REQUEST FOR PRODUCTION NO. 10

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For the claims personnel involved in Plaintiff’s Claim, produce all Documents
generated during the period given in Procedures ¶ C1 relating to report cards.2

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ECF No. 56-1 (“Exh. A”) at 7-8, and 15. Plaintiff argues that the information sought in the

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requests is discoverable and relevant. MTC at 5. Plaintiff also argues that courts “routinely

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order employee evaluations to be produced in insurance bad faith cases.” Id. Plaintiff notes

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that the relevancy of his requests are not contingent upon a connection between job

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performance and performance based incentive compensation (“PBI”).

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argues that the documents sought in the RFPs are not proprietary and that Defendant cannot

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satisfy its burden to show that they are. Id. at 7. Plaintiff notes that (1) even confidential

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documents are discoverable, (2) the Protective Order that is currently in place [see ECF Nos.

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17-18] “can sufficiently protect any truly proprietary information” and (3) the documents “do

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not seek information that is too sensitive to be adequately protected by a protective order.” Id.

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at 7-8. Finally, Plaintiff argues that RFP No. 10 is not vague, ambiguous, or overbroad. Id. at

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8.

Id.

Plaintiff further

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Defendant first contends that Arizona law governs the instant matter as privacy claims

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are governed by the applicable state law when state law supplies the rule of decision. Oppo. at

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5. Defendant notes that Arizona law establishes a high threshold for obtaining personnel records

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that Plaintiff has ignored and contends that Plaintiff's motion should be denied “as its supporting

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authority all turns on non-Arizona law.” Id. at 6-7. Defendant also contends that there are less

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intrusive means of obtaining information regarding PBI such as a well drafted interrogatory or

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deposition question. Id. at 9 - 10. Finally, Defendant contends that in camera review of the

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employment records “would demonstrate to the Court a lack of incentivization programs for

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[Defendant] adjustor employees. Id. at 11. Defendant requests that Plaintiff’s motion be

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Section C in Procedures states “TIME. Unless otherwise stated, these requests cover the period
between January 1, 2016 and the present.” MTC at Exh. A.

Plaintiff states that report cards “track, measure, and rate claims handlers based in part on
dollars paid out on claims (“severity”).” MTC at 3.
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denied.

Id. at 11.

Alternatively, Defendant requests that the Court require less intrusive

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discovery such as a tailored interrogatory or conduct an in camera review of the records at issue

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and apply Arizona's balancing test. Id.

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Plaintiff replies that Defendant’s choice of law analysis “is plainly and completely

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incorrect.” Reply at 2. Plaintiff notes that the Federal Rules of Evidence do not govern in the

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instant matter and that the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”) control. Id.

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Plaintiff also replies that the federal cases he has cited are relevant contrary to Defendant’s

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contention that Ninth Circuit law not applying Arizona state law is “irrelevant and specious.” Id.

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at 3. Plaintiff notes that even if Arizona law was controlling, it would not change the analysis

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as the Arizona Rules of Civil Procedure regarding discovery are identical to the Federal Rules.

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Id. at 3 and n.1. Plaintiff argues that it is unclear if California or Arizona state law will control

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this case, but that the issue is moot because both states have very similar substantive law

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regarding insurance bad-faith law. Id. at 3-4. In addition, because Defendant is not a public

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entity, “the standards applicable to public records requests in Arizona is utterly disconnected

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from the analysis.” Id. at 4. Finally, Plaintiff replies that Defendant has failed to meet its burden

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to withhold discovery as the performance evaluations are relevant and discoverable and that

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Defendant does not get to dictate the order in which Plaintiff conducts his discovery, meaning

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that Plaintiff does not have to first ask an interrogatory or conduct a deposition before seeking

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the requested documents. Id. at 5-6.

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LEGAL STANDARD

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1.

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The scope of discovery under the Fed. R. Civ. P. is defined as follows:

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Discovery

Parties 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,
considering the importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the issues, and whether
the burden or expense of the proposed discovery outweighs its likely benefit.
Information within this scope of discovery need not be admissible in evidence
to be discoverable.
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Fed. R. Civ. P. 26(b)(1).

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District courts have broad discretion to determine relevancy for discovery purposes. See

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Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). District courts also have broad discretion

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to limit discovery to prevent its abuse. See Fed. R. Civ. P. 26(b)(2) (instructing that courts must

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limit discovery where the party seeking the discovery “has had ample opportunity to obtain the

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information by discovery in the action” or where the proposed discovery is “unreasonably

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cumulative or duplicative,” “obtain[able] from some other source that is more convenient, less

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burdensome, or less expensive,” or where it “is outside the scope permitted by Rule 26(b)(1)”).

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A party may request the production of any document within the scope of Rule 26(b). Fed.

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R. Civ. P. 34(a). “For each item or category, the response must either state that inspection and

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related activities will be permitted as requested or state with specificity the grounds for objecting

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to the request, including the reasons.” Id. at 34(b)(2)(B). The responding party is responsible

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for all items in “the responding party’s possession, custody, or control.” Id. at 34(a)(1). Actual

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possession, custody or control is not required. Rather, “[a] party may be ordered to produce a

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document in the possession of a non-party entity if that party has a legal right to obtain the

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document or has control over the entity who is in possession of the document.” Soto v. City of

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Concord, 162 F.R.D. 603, 619 (N.D. Cal. 1995).

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2.

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Regarding the choice of state and federal law in a federal action, the rule is as follows:

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Choice of Law & Privacy

if federal claims are asserted, federal law controls; if state claims are asserted
(as in a diversity action), state law controls; in a case with mixed federal and
state claims, federal law is controlling. . . . However, matters going to discovery
procedural issues are entirely federal in nature. ‘Though a federal court in a
diversity action is to apply the substantive law of the forum in which it sits,
discovery, as a procedural matter, is governed in a federal court only by the
Federal Rules of Civil Procedure and state discovery practices are irrelevant. . .
.’ Determination of relevance, for example, is a federal matter.

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James v. Kiewit Infrastructure W. Co., 2013 WL 3863906, at *2 (E.D. Cal. July 24, 2013) (citing

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First Pacific Networks, Inc. v. Atlantic Mutual Ins. Co., 163 F.R.D. 574, 577 (N.D. Cal. 1995)).

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“Federal courts recognize a person's interest in preserving the confidentiality of sensitive
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information contained in personnel files.” Bernal v. United Parcel Serv., 2009 WL 10675955, at

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*2 (C.D. Cal. Oct. 27, 2009) (citing Detroit Edison Co. v. N.L.R.B., 440 U.S. 301, 319 n.16, 99

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S. Ct. 1123, 59 L.Ed. 2d 333 (1979) (noting recognition in both federal and state legislation

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governing the recordkeeping activities of public employers and agencies)).3 However, “[e]ven

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where strong public policy against disclosure exists, as in the case of personnel files, discovery

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is nonetheless allowed if the material sought is “clearly relevant,” and the need for discovery is

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compelling because the information sought is not otherwise readily obtainable.” Id. (citing

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Matter of Hawaii Corp., 88 F.R.D. 518, 524 (D.C. Hawaii 1980)); see also Beaver v. Delicate

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Palate Bistro, Inc., 2017 WL 4011208, at *2 (D. Or. Sept. 12, 2017) (“the courts of the Ninth

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Circuit generally allow discovery of employment records notwithstanding such privacy and public

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policy concerns where the material sought is clearly relevant to claims or defenses at issue and

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the information contained in the material is not otherwise readily available.”).

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DISCUSSION

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As an initial matter, the Court will be evaluating the instant dispute in accordance with

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the Federal Rules of Civil Procedure. The Court is not persuaded by Defendant’s argument that

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the Arizona Public Records Law is applicable to the instant matter. Plaintiff seeks documents

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from Defendant, an insurance company that is not a public entity. The case that Defendant

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cites to in support of its argument, Bolm v. Custodian of Records of Tucson Police Dep't, 193

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Ariz. 35, 37, 969 P.2d 200, 202 (Ct. App. 1998), “raises issues concerning the interplay between

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Arizona's Public Records Law, A.R.S. §§ 39–121 to 39–125, and Arizona common law relating to

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discovery of police records in the course of litigation” and reiterates “the firmly established rule

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that a public agency may deny or restrict access where recognition of the interests of privacy,

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See also Regan–Touhy v. Walgreen Co., 526 F.3d 641, 648–49 (10th Cir. 2008) (“[P]ersonnel
files often contain sensitive personal information... and it is not unreasonable to be cautious
about ordering their entire contents disclosed willy-nilly.”); Whittingham v. Amherst College, 164
F.R.D. 124, 127–28 (D. Mass. 1995) (“[P]ersonnel files contain perhaps the most private
information about an employee within the possession of an employer.”); Miles v. Boeing Co.,
154 F.R.D. 112, 115 (E.D. Pa. 1994) (personnel files are confidential and discovery of them
should be limited).
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confidentiality, or the best interest of the [public agency] in carrying out its legitimate activities

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outweigh the general policy of open access.” Id. at 42 (internal quotations omitted). Those

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issues are not relevant to this case which does not involve a public agency.

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Defendant also contends that in accordance with Federal Rule of Evidence (“Fed. R.

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Evid.”) 501, Arizona state law should supply the rule of decision here because privacy claims are

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given special status under Arizona state law. Fed. R. Evid. 501 states “in a civil case, state law

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governs privilege regarding a claim or defense for which state law supplies the rule of decision.”

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Fed. R. Evid. 501.

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confidential, not that they are protected by an evidentiary privilege such as attorney/client

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privilege. Accordingly, Fed. R. Evid. 501 does not apply. See Century Sur. Co. v. Saidian, 2015

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WL 12765555, at *2 (C.D. Cal. July 28, 2015) (finding that the work product doctrine in diversity

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cases is determined under federal law because the doctrine is not an evidentiary privilege) (citing

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Frontier Refining, Inc. v. Gorman–Rupp, Inc., 136 F.3d 695, 702 n.10 (10th Cir. 1998) and U.S.

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Inspection Services, Inc. v. NL Engineered Solutions, LLC, 268 F.R.D. 614, 617 n.2 (N.D. Cal.

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2010) (because the work product doctrine is not an evidentiary privilege “but rather, [a]

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procedural limitation[ ] on discovery, the scope of [the] asserted protection[ ] is determined by

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federal law, even when the federal court sits in diversity.”)).

Here, Defendant is claiming the documents at issue are private and

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A.

Requests for Production of Documents

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The Court finds that the documents requested in RFP Nos. 4, 5 and 10 are relevant and

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proportional to numerous issues in this bad faith litigation including the competence of the

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individuals involved in the handling of Plaintiff’s claim, the adequacy and enforcement of the

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employee’s training and any applicable corporate policies, and the existence or extent of any

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policies or practices relating to incentives to handle claims in a specific manner. See Am. Auto.

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Ins. Co. v. Hawaii Nut & Bolt, Inc. Moore, 2017 WL 80248, at *4–5 (D. Haw. Jan. 9, 2017)

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(granting request for personnel files and information for individuals who handled the insurance

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claim, permitting protected privacy information to be redacted, and noting that personnel files

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are routinely found to be relevant and discoverable “because [p]ersonnel files may reveal an

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inappropriate reason or reasons for defendant's action with respect to plaintiff's claim or an
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‘improper corporate culture.”) (internal citations omitted).4 The Court also finds the criteria used

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by Defendant to determine adjustor performance and documents that “track, measure, and rate

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claims handlers based in part on dollars paid out in claims” are relevant to Plaintiff’s claims. To

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the extent the requested documents contain confidential information, the Court finds the

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protective order issued in this case will adequately protect the information. See Id. at *4-5

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(finding that the parties’ protective order provided sufficient protection of the information

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contained in the personnel files.). Defendant does not object that the requests are unduly

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burdensome or irrelevant5 and the Court finds that the requests are neither vague nor

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ambiguous. Accordingly, Plaintiff’s motion is GRANTED and Defendant is ORDERED to provide

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supplemental responses to RFPs 4, 5, and 10 to Plaintiff on or before February 9, 2018.

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See also White Mountain Communities Hosp. Inc. v. Hartford Cas. Ins. Co., 2014 WL 6885828,
at *3-4 (D. Ariz. Dec. 8, 2014) (granting motion to compel personnel records of adjustors who
worked on plaintiff’s claim because the records “may disclose information showing that the
adjustors had reasons to ‘low-ball’ their evaluations, were not actually competent to adjust the
type of claim made by White Mountain, or did not process the claim in a reasonable manner”
which would be highly relevant to plaintiff’s claims and noting that redacting certain information
and producing the documents pursuant to a protective order would alleviate any privacy
concerns and that there is no expectation that incentives or assessments of work performance
to minimize payments on claims would be kept private.); and Ingram v. Great Am. Ins. Co., 112
F. Supp. 3d 934, 940 (D. Ariz. 2015) (ordering defendant to produce adjustor personnel files,
including participation in an incentive plan because “the potential probative value of the
information contained in those records outweigh any privacy concerns” and “[e]vidence
regarding whether Defendants ‘set arbitrary goals for the reduction of claims paid’ and whether
‘[t]he salaries and bonuses paid to claims representatives were influenced by how much the
representatives paid out on claims’ is relevant to whether Defendants acted unreasonably and
knew it.”). The Court disagrees with Defendant’s interpretation of Ingram as requiring an
advanced proven linkage between employee performance evaluations and incentivization and
proof that the material could not be obtained by other less intrusive means. Oppo. at 8-9. While
the Ingram court does note that the information was unavailable through less intrusive means
in support of its order, it does not state that the lack of less intrusive means for obtaining the
information was a prerequisite to granting plaintiffs’ motion or that plaintiffs were required to
establish a link between incentivization programs and employee evaluations prior to granting
their request to compel employee files. Ingram, 112 F. Supp. 3d at 940.
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Neither party attached Defendant’s objections to the requests as exhibits, but Defendant does
not mention these objection in its opposition. Oppo.
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Defendant may redact any employee addresses, phone numbers, personal email addresses, and

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social security numbers that may be contained in the records.

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B.

Less Intrusive Means

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Defendant argues that the instant motion could have been avoided if Plaintiff had simply

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requested the desired information through less intrusive means such as an interrogatory. Oppo.

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at 9-11. Plaintiff replies that the documents have relevance beyond what could be sought in a

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single interrogatory6 and that he is not required to conduct discovery in a particular order. Reply

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at 6; see also MTC at 5-6.

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interrogatory or ask deposition questions on the issues related to the contested RFPs prior to

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receiving a response to the RFPs. As Plaintiff has argued, there are reasons other than a link

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between performance reviews and the manner in which an adjustor handles a claim that make

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Plaintiff’s requests relevant and that would not be sufficiently handled by an interrogatory on

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performance reviews and the closing of a claim by an adjuster. MTC at 5-6; see also supra note

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6. In addition, this Court agrees with other courts that have found that deposition testimony is

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not a substitute for the information contained in a personnel file. See Am. Auto. Ins. Co., 2017

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WL 80248, at *5 (noting that “although Safeway may have deposed some of these individuals,

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depositions are not a substitute for the contemporaneous information that may be included in

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personnel files.”) (citing Liberty Mut. Ins. Co. v. Cal. Auto. Assigned Risk Plan, 2012 WL 892188,

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at *7 (N.D. Cal. Mar. 14, 2012) (“[E]x post facto deposition testimony of Mr. Hartman or other

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Liberty Mutual employees regarding his job performance will not prove as relevant or reliable as

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objective evaluations conducted outside this lawsuit. Further, the ‘personnel documents in Mr.

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Hartman's file prior to the Harlan/Ten Berge matter are the best illustration of what Liberty

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Mutual knew or believed—at the time of the [Underlying Action]—about Mr. Hartman's

The Court agrees and declines to order Plaintiff to serve an

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Specifically, Plaintiff argues that the requested information is relevant to “the adequacy or
inadequacy of [Defendant]’s claims-handling training, company policies or practices relating to
claims handling, and policies or practices that [Defendant] enforces or chooses not to enforce”
and to Defendant’s “training, policies, and the level of enforcement (or non-enforcement) of
those polices.” MTC at 5-6.
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competence,’ and therefore provide the best evidence of the reasonableness of the company's

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choice to rely on his advice.”)). Accordingly, the Court DENIES Defendant’s request that

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Plaintiff’s motion to compel be denied and Plaintiff be required to obtain such evidence via

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interrogatory or deposition.

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C.

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The Court finds no basis in federal law for Defendant’s request for the Court to conduct

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an in camera review of the documents at issue. There also is no factual basis or evidentiary

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need in this case to support such a request. As previously stated, the Court’s protective order

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provides adequate protection for the requested documents. Accordingly, Defendant’s request

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In Camera Review

for such a review is DENIED.
IT IS SO ORDERED.
Dated: 1/26/2018

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