Toy v. American Family Mutual Insurance Company

Filing 88

ORDER Granting in part and denying in part 67 Plaintiff's Motion to Compel and for Sanctions, as outlined in the order. Granting in part and denying in part 76 Plaintiff's Supplement to Motion to Compel and for Sanctions, as outlined in the order. Plaintiff's request for sanctions is denied. By Magistrate Judge Michael J. Watanabe on 4/1/2013.(mjwcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-01683-PAB-MJW
GREGORY TOY,
Plaintiff,
v.
AMERICAN FAMILY MUTUAL INSURANCE COMPANY,
Defendant.

ORDER ON
PLAINTIFF’S MOTION TO COMPEL AND FOR SANCTIONS (Docket No. 67)
and
PLAINTIFF’S SUPPLEMENT TO MOTION TO COMPEL AND FOR SANCTIONS
(Docket No. 76)

MICHAEL J. WATANABE
United States Magistrate Judge
This case is before this court pursuant to an Order Referring Case (Docket No. 8)
issued by Judge Philip A. Brimmer on July 5, 2012.
Now before the court is Plaintiff’s Motion to Compel and for Sanctions (Docket
No. 67) and Plaintiff’s Supplement to Motion to Compel and for Sanctions (Docket No.
76). The court has carefully considered the subject motions (Docket Nos. 63-1 & 72-1),
defendant’s response (Docket No. 79-1), plaintiff’s reply (Docket No. 82-1), and all
attached exhibits. In addition, the court has taken judicial notice of the court’s file, and
has considered the applicable Federal Rules of Civil Procedure and case law. The
court now being fully informed makes the following findings of fact, conclusions of law,
and order.

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Plaintiff’s motions seek an order from the court to compel defendant to produce
several documents. Specifically, the following documents are currently in dispute: (1)
the Colorado Business Plans; (2) American Family Newsletters; and (3) “Strategic Plan”
and “Reinventing Claims” documents. Defendant argues plaintiff’s requests for the
above documents are overbroad, irrelevant, and include confidential and trade secret
information.
“Parties may obtain discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense” and any information which “appears reasonably
calculated to lead to discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1).
“When a party files a motion to compel and asks the Court to overrule certain
objections, the objecting party must specifically show in its response to the motion to
compel, despite the broad and liberal construction afforded by the federal discovery
rules, how each request for production or interrogatory is objectionable.” Scotsman
Indus., Inc. v. Broadbent, No. 11-cv-01793-JLK-KLM, 2012 WL 3869183, at *3 (D. Colo.
Sept. 6, 2012) (citation omitted).
The Colorado Business Plans
The first disputed request is for defendant to produce Colorado Business Plan
documents from 2000 to the present time. Defendant argues the Colorado Business
Plans are irrelevant because plaintiff’s claim was handled out of defendant’s Phoenix,
Arizona office, and not a Colorado office. Defendant also argues that the request for
business plans spanning a thirteen year period is overbroad. In response, plaintiff
points out that the subject crash occurred in Colorado, the insurance policy was issued
in Colorado, plaintiff’s claim was submitted in Colorado, and the value of plaintiff’s claim

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was determined in Colorado. Plaintiff argues that these facts, along with the
Declaration of Gary Fye, render the Colorado Business Plan relevant to this matter.
The court agrees with defendant that the information contained in the Colorado
Business Plans are not reasonably calculated to lead to discovery of admissible
evidence. Plaintiff does not dispute defendant’s contention that plaintiff’s claim was
handled, in its entirety, by the Phoenix office. Further, defendant specifically states that
the Colorado Business Plans played no role in the Phoenix office’s actions regarding
plaintiff’s claim. While this statement is obviously conclusory, it may be sufficient to
meet defendant’s burden since defendant is otherwise faced with proving a negative,
i.e., showing the Phoenix office does not utilize out-of-state business plans. See, e.g.,
Winner v. Etkin & Co., Inc., No. 2:07-cv-903, 2008 WL 5429623, at *2 (W.D.Pa. Dec.
31, 2008) (noting that a party “cannot be required to ‘prove a negative’ by demonstrating
that non-existent documents do not exist”). Further, as noted by defendant, the Phoenix
Business Plan provides no indication that other business plans should be utilized or
referenced in handling claims. See Docket No. 79-2.
In addition, plaintiff does specifically explain how the business plan for an office
completely uninvolved in handling plaintiff’s claim is somehow relevant. Plaintiff
provides no direct indication that an out-of-state office handling a claim which originated
in a second state somehow references the second state’s business plan in handling the
claim. Further, Mr. Fye’s Declaration on the subject is vague and conclusory. See
Docket No. 63-3, at 2 (stating that “[i]t is preposterous to suggest that [because] a major
insurer . . . handles Colorado claims from another state, the business plan is somehow
nullified”). The court also notes that plaintiff provides no explanation as to why the

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(seemingly arbitrary) period of thirteen years worth of Colorado Business Plans is
relevant. In balance, then, the court finds that defendant has met its burden to show
that plaintiff’s request for the Colorado Business Plans is objectionable. Accordingly,
the court finds that the Colorado Business Plans are irrelevant, and therefore not
discoverable.
American Family Newsletters
The next disputed request is for defendant to produce “any and all company
newsletters for the years 2005 to the present from ‘All American,’ ‘Family Album’ and
‘Policy Holder News.’” Defendant argues the request is irrelevant and overbroad.
Specifically, defendant points out that the unreasonableness of defendant’s actions
must be determined on the specific circumstances surrounding plaintiff’s claim.
Accordingly, any alleged departure by defendant from “policies and goals” referenced in
the newsletters is irrelevant. Defendant also argues that given the limited timeframe of
plaintiff’s claim, plaintiff’s request for newsletters going back to 2005 is overbroad.
Finally, defendant argues that plaintiff could have never received any of the newsletters
and therefore could not have relied on anything therein.
In response, plaintiff argues that defendant’s own policies and goals can
obviously be considered when determining the reasonable insurer standard and in
considering the consistency of defendant’s own actions. Plaintiff also argues that there
does not need to be any showing of reliance on the part of plaintiff for the newsletters to
be relevant.
The court agrees with plaintiff that the information contained in the newsletters
may be relevant to determine the reasonable insurer standard and the consistency of

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defendant’s actions. Further, defendant cites to no case law concerning any kind of
reliance required in a situation such as this. Accordingly, the court finds that the
newsletters are relevant and discoverable.
However, the court agrees that the request in overbroad. Defendant will be
required to produce newsletters issued only doing the relevant time period as previously
defined by this court. See Docket Nos. 32, 47, & 71. Specifically, defendant is ordered
to produce all newsletters issued from the time of plaintiff’s incident up until the
arbitration demand was made.
“Strategic Plan” and “Reinventing Claims” Documents
The final disputed request involves defendant’s “Strategic Plan” and “Reinventing
Claims” documents. Defendant provides little argument to support its objection to this
request. Defendant states that the documents are irrelevant in determining whether it
acted as a reasonable insurer. Defendant further repeats the statement that only the
specific circumstances surrounding plaintiff’s claim is relevant.
The court finds defendant has failed to meet its burden to show how the request
is objectionable. Defendant’s argument consists of a handful of conclusory statements
and nothing more. In addition, as noted in the previous section, like the newsletters, the
information in the information “Strategic Plan” and “Reinventing Claims” documents may
be relevant to determine the reasonable insurer standard and the consistency of
defendant’s actions. Accordingly, the court finds that the “Strategic Plan” and
Reinventing Claims” documents are relevant and discoverable. The discoverable
documents shall be limited to those in effect during the relevant time period as defined
above.

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WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Plaintiff’s Motion to Compel and for Sanctions (Docket No. 67)
and Plaintiff’s Supplement to Motion to Compel and for Sanctions (Docket No. 76) are
GRANTED IN PART and DENIED IN PART as outlined above. It is further
ORDERED that plaintiff’s request for sanctions is DENIED.

Date: April 1, 2013
Denver, Colorado

s/ Michael J. Watanabe
Michael J. Watanabe
United States Magistrate Judge