Moss v. Geico Indemnity Company

Filing 50

ORDER granting in part and denying in part 43 Motion to strike defendant's objection to Request for Production No. 5. Signed by Magistrate Judge Thomas B. Smith on 3/2/2012. (Smith, Thomas)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
ELEANOR C. MOSS, as Personal
Representative of the Estate of Roy L. Moss,
deceased,
Plaintiff,
v.

Case No. 5:10-cv-104-Oc-10TBS

GEICO INDEMNITY COMPANY,
Defendant.
______________________________________
ORDER
Plaintiff filed this bad faith claim against the defendant, insurer following an
excess verdict in a state court under-insured motorist action. (Doc. 2). The case was
removed to this Court based upon diversity jurisdiction. (Doc. 1). During discovery,
Plaintiff asked Defendant to produce:
5.
Any and all personnel and/or training files, by whatever
name, in whatever form kept, for Mary Ellen Murphy, Claims
Manager and for each and every adjuster/claim
representative/claim examiner, including, but not limited to
Sallie Currie, who handled any aspect of the claim which gave
rise to this action.
(Doc. 43-1 at 2).
Defendant responded as follows:
GEICO’S RESPONSE: Objection. Plaintiff’s request number
five (5) is vague, ambiguous, and overly broad, as Plaintiff
does not specify the particular individuals whose personnel
and/or training files she seeks. Request number five (5) also
seeks materials that are not relevant to the issue presented in
the instant bad faith litigation–whether GEICO handled
Plaintiff’s claim for UM benefits in good faith.

In addition, GEICO objects to this request because the
information sought is confidential, sensitive, and not subject to
discovery. Further, Plaintiff must demonstrate that the
personnel file [sic] sought is relevant to the pending litigation
and that disclosure of same will not result in an undue
invasion of the privacy of GEICO’s employees.
(Doc 43-2 at 2).
Defendant did not ask for a protective order and although it asserted that some
of the requested information is confidential or otherwise sensitive it did not request the
entry of a confidentiality order or offer to redact the requested documents. Now
pending before the Court are Plaintiff’s Motion to Strike GEICO’s Objections to
Plaintiff’s Request for Production #5, to Compel an Answer Thereto, and/or in the
Alternative for an In-Camera Inspection (Doc. 43), and GEICO’s Response to
Plaintiff’s Motion to Strike GEICO’s Objections to Plaintiff’s Request for Production #5,
to Compel an Answer Thereto, and/or in the Alternative for an In-Camera Inspection
(Doc. 48).
The scope of discovery is broad “in order to provide parties with information
essential to the proper litigation of all relevant facts, to eliminate surprise and to
promote settlement.” Coker v. Duke & Co., Inc., 177 F.R.D. 682, 685 (M.D. Ala.
1998). The Federal Rules of Civil Procedure “strongly favor full discovery whenever
possible.” Farnsworth v. Proctor & Gamble Co., 758 F.2d 1545, 1547 (11th Cir.
1985). Federal Rule of Civil Procedure 26(b)(1) allows parties to “obtain discovery
regarding any nonprivileged matter that is relevant to any party’s claim or defense.
”Relevance is “construed broadly to encompass any matter that bears on, or that
reasonably could lead to other matter that could bear on, any issue that is or may be
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in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351(1978). A
discovery request “should be considered relevant if there is any possibility that the
information sought may be relevant to the subject matter of the action.” Roesberg v.
Johns-Manville Corp., 85 F.R.D. 292, 296 (E.D. Pa. 1980); see also Deitchman v. E.R.
Squibb & Sons, Inc., 740 F.2d 556 (7th Cir. 1984) (If Court is in doubt concerning the
relevancy of requested discovery the discovery should be permitted.).
Federal Rule of Civil Procedure 34(a) authorizes parties to serve upon each
other, document requests which relate to any matter that may be inquired into under
Rule 26(b). A party who objects to a request for production must include the reasons
for the objection. FED. R. CIV. P. 34(b)(2)(B). Objections to discovery must be “plain
enough and specific enough so that the court can understand in what way the
[discovery is] alleged to be objectionable.” Panola Land Buyers Assoc. v. Shuman,
762 F.2d 1550,1559 (11th Cir. 1985) (quoting Davis v. Fendler, 650 F.2d 1154, 1160
(9th Cir. 1981)). Objections to discovery on the grounds that it is over broad and not
relevant are not sufficient, the objecting party should state why the discovery is overly
broad or not relevant. Josephs v. Harris Corporation, 677 F.2d 985, 992 (3d Cir.
1982).
Rule 34(b)(1)(A) states that a request for production “must describe with
reasonable particularity each item or category of items to be inspected.” FED. R. CIV.
P. 34(b)(1)(A). Defendant contends that Plaintiff’s request falls short of the Rule’s
requirements and is vague, ambiguous and overly broad because Plaintiff failed to
specify whose files she is requesting. (Doc. 48 at 3, 12-17). This Court understands

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Rule 34(b)(1)(A) to mean the requesting party must describe the information it is
seeking in such a way that the responding party can understand what is being
requested. A request is vague and ambiguous if it is reasonably susceptible to
multiple interpretations. A request for production is overly broad when it asks for
documents that are not relevant to the action. The handbook titled Middle District
Discovery (2001) (“Discovery Handbook:)1 provides guidance in interpreting requests
for production. While lacking the import of a rule or order, it is an attempt to organize
and explain generally accepted discovery practices in the Middle District. The
handbook provides that “[a]n attorney receiving a request for documents or a
subpoena duces tecum shall reasonably and naturally interpret it, recognizing that the
attorney serving it generally does not have specific knowledge of the documents
sought[.]” Discovery Handbook at 10.
Here, Defendant claims it can only guess at whose files Plaintiff is requesting
and says request five can be read to include the files for every one of its employees
associated with this claim, including the person who logs in the mail. (Doc. 48 at 13).
The Court disagrees and for the following reasons, Defendant’s objections that the
subject request is vague, ambiguous and over broad are due to be OVERRULED.
Plaintiff’s fifth request is limited to the two named individuals and any other adjuster,
claim representative or claim examiner who worked on Plaintiff’s claim. (Doc. 43-1 at
2). It is apparent that in making this request Plaintiff seeks the files for employees
who have the duties generally associated with a claims adjuster, representative or
1

The Middle District Discovery (2001) handbook can be found on the Court’s main
website, http://www.flmd.uscourts.gov, under the “Forms & Publications” tab.
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examiner and that Plaintiff may not be familiar with the terminology Defendant uses to
identify these people. If Defendant had any doubt about whose files Plaintiff was
requesting, or if there are individuals who fall within the scope of Plaintiff’s request but
whose involvement in this matter is so limited that their participation is not material
then those issues should have been resolved during the conference counsel were
required to engage in before the motion to compel was filed. See M.D. FLA. R.
3.01(g). Either party’s unwillingness to confer in good faith would warrant Court
action. Even if this request had been vague or ambiguous these would not have been
valid objections with respect to the two employees named in the request. See
Huggins v. Federal Express Corp., 250 F.R.D. 404, 405 (E.D. Mo. 2008) (If a request
is vague and ambiguous, a responding party should still produce those documents it
knows are being requested.).
In its memorandum in opposition to the motion to compel Defendant argues, for
the first time, that the request to produce is also over broad because it is not limited to
a reasonable time frame. (Doc. 48 at 3). The time to make this argument was when
the objection was made, not after the motion to compel was filed. FED. R. CIV. P.
34(b)(2)(B). The defendant does not allege any special, compelling circumstances to
explain why it failed to include its complaint about the time frame in its objection and
consequently, this objection was waived. See Discovery Handbook at 11.
Plaintiff has requested personnel and training files which Defendant says it
should not be required to produce because they contain confidential, sensitive
information, and because Plaintiff has failed to demonstrate that they are relevant to

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this controversy. Plaintiff’s request for personnel files raises concerns about the
privacy rights of the non-party employees whose information it seeks to discover.
Defendant acknowledges that it is unaware of any Florida appellate court which has
discussed whether personnel files are discoverable in bad faith litigation and it says,
correctly, that the federal cases which have spoken to this issue have reached
differing results depending upon their facts. (Doc. 48 at 8) (citing Fullbright v. State
Farm Mutual Automobile Ins. Co., No. CIV-09-297-D, 2010 WL 300436 at *3 (W.D.
Okla. Jan. 20, 2010).
Defendant’s specific objection is that the files plaintiff is asking for hold
confidential, sensitive information that is not subject to discovery. (Doc. 43-2 at 4).
The Court is unaware of any statute, rule or case authority for the proposition that
documents are not discoverable simply because they contain confidential or sensitive
information. Defendant failed, in its objection, to explain why the information sought is
confidential or sensitive. Upon reading the objection the Court thought the defendant
was motivated by concerns that its personnel files contain information concerning its
employees compensation, health and disciplinary matters. While this is one of
Defendant’s concerns, the Court has learned from the memorandum in opposition to
the motion to compel that Defendant objects because its personnel and human
resources files contain confidential business information and trade secrets which it
believes are protected from disclosure by § 90.506 of the Florida Statutes. (Doc. 48
at 11). In its memorandum, Defendant states that the files in question contain
“information regarding the internal controls, training, finances, and general business

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operations of GEICO at the local and national level.” (Id.) It also says, “disclosure of
[this information] would harm GEICO’s standing in the competitive insurance market.”
(Id.). This claim of trade secrets is new, comes too late, and was waived because it
was not included in Defendant’s objections. Panola Land Buyers Assoc., 762 F.2d at
1559. The Court also notes that despite the alleged importance of this information
Defendant failed to seek a protective order and failed to support its argument with
affidavits or other evidence. Assuming for the sake of argument that what Defendant
says is true, it is “well settled that there is no absolute privilege for trade secrets[.]” 8A
Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure. § 2043 (3d
ed.);see also I.S.E.L., Inc. v. American Synthol, Inc., No. 3:08-cv-870-J-25TEM, 2009
WL 3367237 at *2 (M.D. Fla. Oct. 15, 2009) (“[T]here is no absolute privilege that
immunizes trade secrets and similar confidential information from discovery.”). For
these reasons, Defendant’s objections based upon the confidential, sensitive nature
of the requested information are due to be OVERRULED.
The general rule is that the party objecting to a request for production has the
burden to show specifically why the request is improper and not relevant. Adelman v.
Boy Scouts of America, 276 F.R.D. 681, 689 (S.D. Fla. 2011). In this case, Defendant
contends that the burden is on Plaintiff to show why Defendant’s personnel files are
relevant. (Doc. 48 at 7). As authority for this proposition, Defendant includes the
following language from Dean v. Anderson, No. 01-2599-JAR, 2002 WL 1377729 at
*2 (D. Kan. June 6, 2002), “the burden is on the party seeking discovery to show the
relevancy of the discovery request.” (Doc. 48 at 7) (emphasis in original.)

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Unfortunately, this quote is taken out of context. What the Dean court actually said is:
When the discovery sought appears relevant on its face, the party
resisting the discovery has the burden to establish the lack of
relevance by demonstrating that the requested discovery (1) does
not come within the broad 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. However, when
relevancy is not apparent, the burden is on the party seeking
discovery to show the relevancy of the discovery request.
Dean, 2002 WL 1377729 at *2 (citations omittited).
Defendant does not argue that the relevancy of its employee personnel files is
not apparent. The Court does not know what is in those files but drawing on its own
experience, assumes they contain information concerning each employee’s training,
competence, abilities, shortcomings, accolades and disciplinary history, if any, all of
which is relevant. See generally Simon Turner v. GEICO Indemnity Co., No. 1:1120546-civ-Martinez/McAliley (S.D. Fla. Sept. 8, 2011) (order granting motion to
compel documents relating to job performance). The Court also assumes the files
contain information regarding the employees’ compensation, health, benefits,
pensions and the like, the relevancy of which is not apparent to the Court.
On this record, the Court finds that Defendant had the burden to show why the
information in its personnel files concerning its employee’s training, competence,
abilities, shortcomings, accolades and disciplinary history is not relevant. The Court
also finds that Defendant has not met its burden and therefore, with regard to these
matters, its objection is OVERRULED. The Court finds that Plaintiff had the burden to
demonstrate the relevancy of all other information in the personnel files and it has not

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met its burden. Therefore, as to these matters, Defendant’s objection is SUSTAINED.
Next, the Court must consider the non-party employees interest in protecting
their own privacy. Under Florida law, Defendant does not have standing to object on
the basis of its employees’ privacy rights. See Alterra Healthcare Corp. v. Estate of
Shelley, 827 So. 2d 936, 940 (Fla. 2002). While Florida recognizes an individual’s
right of privacy in article I, section 23 of the Florida Constitution, the right is personal
to the individual. Id. at 941. The employees whose privacy interests are implicated in
this case have not objected to the disclosure of their personnel files. “This does not
necessarily mean, however, that such important nonparty rights should not be
considered, or that the right to privacy and the right to know should not be weighed,
during the discovery process.” Id. at 944.
Federal courts recognize that personnel files contain private information and
that they should exercise caution in permitting the discovery of information which may
embarrass non-party employees. This is particularly true when the information can be
obtained from other, less intrusive sources. Saldi v. Paul Revere Life Ins. Co., 224
F.R.D. 169,184 (E.D. Pa. 2004) (“Federal courts have recognized a ‘heightened
standard of relevance’ for discovery of information contained in personnel files.”);
Coker, 177 F.R.D. at 685 (Personnel files are only discoverable when the information
sought is clearly relevant and cannot be obtained from other sources.); see also
Fullbright, 2010 WL 300436 at *2 (While not categorically out of bounds, personnel
files are private and caution must be exercised in determining whether they should be
disclosed.).

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Defendant argues that if this Court determines its personnel files contain
relevant information then the Court should also find that the discoverable information
is limited and can be obtained through less intrusive means than production of the
files. (Doc. 48 at 17-18). While there is legal support for the defendant’s position, it
has not identified satisfactory, less private, alternate sources for the information.
While the employees and their supervisors can be deposed concerning these matters
the files may be the most reliable source for some of the information, they may be
helpful to refresh the witnesses memories and they might be used for impeachment.
While the Court has found that information in the personnel files concerning the
employee’s training, competence, abilities, shortcomings, accolades and disciplinary
history is relevant, it also concludes that it is appropriate to implement safeguards to
address the legitimate concerns raised by the defendant and the privacy rights of the
non-party employees.
This paragraph only applies to the employee personnel files. First, Plaintiff
may only have discovery from the files for Mary Ellen Murphy, Sallie Currie and those
claims adjusters, representatives and examiners who had more than minimal
involvement with this claim. If the parties are unable to resolve the meaning of
“minimal,” then upon motion, the Court will do it for them and the loser should
reasonably expect to be ordered to pay expenses. Second, Plaintiff shall only be
permitted to discover information from the personnel files concerning the employees’
training, competence, abilities, shortcomings, accolades and disciplinary history.
Third, this information shall only be permitted for the time period from January 1, 2004

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through December 31, 2011. Fourth, the information may only be used in the litigation
of this case and for no other purpose. Fifth, the information shall not be shared with
anyone who does not have a legitimate need to know the information on account of
their involvement in this case.
The Court also concludes that it is appropriate to enact certain safeguards with
respect to the training files. This paragraph only applies to Defendant’s training files.
First, this information shall only be permitted for the time period from January 1, 2004
through December 31, 2011. Second, the information may only be used in the
litigation of this case and for no other purpose. Third, the information shall not be
shared with anyone who does not have a legitimate need to know the information on
account of their involvement in this case.
These restrictions on Plaintiff’s right to obtain and use the information in
Defendant’s personnel and training files do not restrict, in any way, Plaintiff’s right to
make inquiry about personnel or training matters in any other manner or from any
other source. Any objections made by Defendant that have not already been
disposed of are OVERRULED. Defendant shall make its production within ten days
from the rendition of this Order.
Although the parties did not make specific requests for the award of their
expenses, Federal Rule of Civil Procedure 37(a)(5) requires the Court to award
expenses in connection with this motion unless it finds that one of the exceptions in
the Rule applies. Now, the Court finds that concerns about the privacy interests of the
non-party employees constitute “other circumstances mak[ing] an award of expenses

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unjust.” FED. R. CIV. P. 37(a)(5)(iii).
IT IS SO ORDERED.
DONE AND ORDERED in Ocala, Florida, on March 2, 2012.

Copies to all Counsel

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