Continental Materials Corporation v. Affiliated FM Insurance Company

Filing 91

ORDER re: 87 Discovery Hearing. ORDERED that Plaintiff's oral Motion concerning Plaintiff's Interrogatory No. 9 and Request for Production No. 39 is DENIED, by Magistrate Judge Kristen L. Mix on 7/30/12. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-02900-JLK-KLM
CONTINENTAL MATERIALS CORPORATION,
Plaintiff,
v.
AFFILIATED FM INSURANCE COMPANY,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s oral Motion to Compel Responses to
Plaintiff’s Interrogatory No. 9 and Request for Production No. 39 (the “Motion”). On
July 19, 2012, the Court held a hearing on the Motion and ordered Defendant to provide
certain documents to the Court for an in camera inspection no later than July 26, 2012,
which Defendant timely did.1 See Minute Entry [#87] at 1. The Motion is thus ripe for
review.
This matter pertains to Plaintiff’s insurance claim for property damage sustained in
connection with a landslide at its limestone quarry in Colorado Springs. See Am. Compl.
[#18]. The two written discovery requests at issue are Plaintiff’s Interrogatory No. 9 and
Plaintiff’s Request for Production (“RFP”) No. 39, each submitted to Defendant on June 13,

1

The Court notes that Defendant only submitted hard copies to Chambers and thus failed
to follow its instruction that these documents should be filed on the electronic docket pursuant to
D.C.COLO.LCivR 7.2 at a Level 3 access level, which limits access to the Court.

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2011.
Interrogatory No. 9 states: “If You have conferred with, discussed, corresponded or
otherwise communicated with Your reinsurers regarding Continental’s claim or the Lawsuit,
please identify each reinsurer and describe the substance of each such conference,
discussion, correspondence or communication.” Defendant responded: “No reinsurance
exists for this loss and thus reinsurance is irrelevant to this litigation. Information regarding
reinsurance would be provided in Affiliated FM’s files; such information has been redacted
as set forth in the privilege logs that Defendant has provided to Plaintiff previously.”
RFP No. 39 seeks: “All documents that reflect communications between You and
Your reinsurers that relate in any way to Continental’s claim or this Lawsuit.” Defendant
responded: “Objection. This seeks irrelevant information, as no reinsurance exists for this
loss. Information regarding reinsurance would be provided in Affiliated FM’s files; such
information has been redacted as set forth in the privilege logs that Defendant has provided
to Plaintiff previously.”
The specific documents sought by Plaintiff in this dispute have been Batesnumbered 23, 24, and 26 by Defendant. Defendant listed the documents in its privilege log
as “Irrelevant” and “Confidential.” All three of these documents were submitted to the Court
for in camera review. Bates Nos. 23 and 24 are documents dated December 10, 2008, and
Bates No. 26 is a document dated December 8, 2008. Defendant stated that Bates No. 23
represented the document storage location of reinsurance information for the insurance
claim at issue. Bates Nos. 24 and 26 were sent from Elisa Yaeger (“Yaeger”), an insurance
underwriter for Defendant, to other employees of Defendant. Defendant states that Bates
Nos. 24 and 26 represent that for the loss at issue in this lawsuit, there is no reinsurance.
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At the hearing, Defendant argued that there was no reinsurance for this period, and
thus that these documents are irrelevant. Defendant stated that near the end of each
insurance period, it would usually issue a new policy, i.e., a new contract. Defendant stated
that for some policy periods the customer—i.e., Plaintiff—was reinsured and in some policy
periods the customer was not, but the policy at issue in this case was not reinsured, and
that no reinsurance communications or documents apply to the particular policy at issue.
Based on this record and its in camera review of the underlying documents, the
Court finds that the documents at issue are relevant but not responsive to the written
discovery requests. The definition of relevance is broadly construed for purposes of
seeking discovery. See generally Cardenas v. Dorel Juvenile Group, Inc., 232 F.R.D. 377,
382 (D. Kan. 2005) (“Relevancy is broadly construed, and a request for discovery should
be considered relevant if there is ‘any possibility’ that the information sought may be
relevant to the claim or defense of any party.” (citations omitted)). “When the discovery
sought appears relevant, the party resisting the discovery has the burden to establish the
lack of relevancy by demonstrating that the requested discovery (1) does not come within
the scope of relevance as defined under Fed. R. Civ. P. 26(b)(1), or (2) is of such marginal
relevance that the potential harm occasioned by discovery would outweigh the ordinary
presumption in favor of broad disclosure.” Simpson, 220 F.R.D. at 359 (citations omitted);
see also Cont'l Ill. Nat'l Bank & Trust Co. of Chicago v. Caton, 136 F.R.D. 682, 685 (D. Kan.
1991) (stating that a party resisting discovery based on relevancy grounds bears the
burden of explaining how “each discovery request is irrelevant, not reasonably calculated
to lead to the discovery of admissible evidence, or burdensome”). Here, the issue of
whether Defendant had reinsurance in connection with Plaintiff’s insurance policy at issue
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is clearly relevant to the subject matter of this lawsuit.
However, in the Motion based on its written discovery requests, Plaintiff seeks
information relating to communications and documents exchanged between Defendant and
any reinsurer. The documents submitted for in camera review are internal documents
between one of Defendant’s own underwriters, Yaeger, and other employees of Defendant.
These documents were not sought by the explicit language of Plaintiff’s Interrogatory No.
9 (“If You have conferred with, discussed, corresponded or otherwise communicated with
Your reinsurers regarding Continental’s claim or the Lawsuit, please identify each reinsurer
and describe the substance of each such conference, discussion, correspondence or
communication.”) or RFP No. 39 (“All documents that reflect communications between You
and Your reinsurers that relate in any way to Continental’s claim or this Lawsuit.”).
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s oral Motion concerning Plaintiff’s
Interrogatory No. 9 and Request for Production No. 39 is DENIED.

Dated: July 30, 2012

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