Davalos et al v. The Princeton Excess and Surplus Lines Insurance Company et al

Filing 62

ORDER granting in part and denying in part 49 Motion to Compel discovery. Signed by Magistrate Judge Thomas B. Smith on 6/7/2021. (Smith, Thomas)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
MARIANA DAVALOS, JESSICA
BURCIAGA, IESHA MARIE
CRESPO, CLAUDIA SAMPEDRO, and
URSULA MAYES,
Plaintiffs,
v.

Case No: 6:20-cv-1082-CEM-GJK

THE PRINCETON EXCESS AND
SURPLUS LINES INSURANCE
COMPANY and JAMES RIVER
INSURANCE COMPANY,
Defendants.
ORDER
Pending before the Court is Plaintiffs’ Motion to Compel Better Responses to
Discovery Requests (Doc. 49). The motion seeks more illuminating responses to
Plaintiff’s interrogatories 5, 8, 16, and 21, and requests for production 2, 5, 9, 12, 13, 16,
and 25 (Id. at 2-3).
Defendant James River Insurance Company’s response to the motion states that it
has produced the information sought in response to interrogatories 5, 16, and 21 (Doc.
54 at 1; Doc. 54-1 at 4-5, 7). Based upon this representation, the motion is DENIED AS
MOOT as to interrogatories 5, 16, and 21.
Remaining are the following interrogatory and requests for production:
Interrogatory 8: Please identify the written procedures or
policies (including document(s) maintained in electronic
form) you maintained for your internal or third-party adjusters
to use in connection with the handling of claims made in the
Underlying Lawsuit, including but not limited to, the analysis

undertaken in making a determination that you would accept
or reject the Plaintiffs’ claims in the Underlying Lawsuit.
Request for Production 2: Copies of any and all
documents, correspondence, notices, letters, and the like
exchanged between you and Underlying Action Defendants,
whether exchanged before or after the filing of the
Underlying Lawsuit.
Request for Production 5: Copies of any and all
communications exchanged between you and any third
party, other than your attorneys, pertaining to the Underlying
Action Defendants and relating to the Underlying Lawsuit.
Request for Production 9: The electronic diary, including
the electronic and paper notes made by your claims
personnel, contractors, and third-party adjusters/adjusting
firms relating to the Plaintiffs’ claims.
Request for Production 12: The adjusting reports prepared
concerning Plaintiffs’ claims relating to the Underlying
Lawsuit.
Request for Production 13: The emails, instant messages
and internal correspondence pertaining to Plaintiffs’ claims
relating to the Underlying Lawsuit.
Request for Production 16: Documents containing the key
information on which you relied in making decisions on the
Plaintiffs’ claims, including any document containing
communications or interactions with any other non-party
insurance company, adjuster, or attorney.
Request for Production 25: The correspondence between
you and the any third-party adjusters/adjusting firms, thirdparty administrators, or subcontractors who worked on the
claim that pertain to the claim at issue.
(Doc. 49-1 at 11; Doc. No. 49-2 at 2, 6, 9, 12, 13, 17, 28).
Defendant objects to interrogatory 8 and requests to produce 9, 12, 13, 16, and
25, on the basis that they seek work-product protected information, attorney-client
privileged communications, proprietary and confidential protected trade secrets, and bad

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faith discovery that is not discoverable (Doc. 54 at 2-3). Defendant also objects that the
requests seek the claims file, which it argues is not discoverable in this coverage action
(Doc. 49-1 at 11-12, 16-17; Doc. 49-2 at 9-10, 12-14, 17-18, 28-30).
To the extent Defendant claims work-product protection and attorney-client
privilege, it did not comply with Judge Kelly’s Standing Order Regarding Privileged and
Protected Information, which requires the party making the claim to file a motion for
protective order (Doc. 1 at 4, 6:18-mc-20-GJK). The same is true regarding information
Defendant deems confidential, under Judge Kelly’s Standing Order Regarding
Confidential Information (Doc. 2 at 3, 6:18-mc-21-GJK). The Standing Order on
Discovery directs counsel to both Standing Orders (Doc. 7, ¶ 3).
There is no blanket protection of an insurer’s claims or underwriting file, or
prohibition on “bad faith discovery” in federal cases where coverage is disputed. See
Essex Builders Grp., Inc. v. Amerisure Ins. Co., No. 6:04–cv–1838–ACC–JGG, 2006 WL
1733857, at *2 (M.D. Fla. June 20, 2006). The prohibition on producing the claims file is
based on the work-product protection and attorney-client privilege. St. Joe Co. v. Liberty
Mut. Ins. Co., No. 305-CV-1266-HLA-MCR, 2006 WL 3391208, at *3 (M.D. Fla. Nov. 22,
2006), enforcement granted in part, denied in part, 2007 WL 141282 (M.D. Fla. Jan. 16,
2007) (“There is no all encompassing privilege which protects claims files; however,
courts have found the attorney-client privilege or work product doctrine protects certain
documents within an insurer’s claims file.”).
Under FED. R. CIV. P. 26(b)(5)(A)(ii):
When a party withholds information otherwise discoverable
by claiming that the information is privileged or subject to
protection as trial-preparation material, the party must:

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(i) expressly make the claim; and
(ii) describe the nature of the documents, communications,
or tangible things not produced or disclosed--and do so in a
manner that, without revealing information itself privileged or
protected, will enable other parties to assess the claim.
The Standing Order regarding Privileged and Protected Information requires the party
asserting the privilege or protection to “demonstrate[], through evidence such as affidavits
or testimony, that a privilege or the work-product protection applies.” (Doc. 1 at 4, 6:18mc-20-GJK). Defendant’s objections do not describe the nature of the documents,
communications, or tangible things not produced or disclosed. These descriptions may
be included in a privilege log, but Defendant did not file the privilege log with the Court.
And Defendant presents no evidence, by affidavit or otherwise, supporting its claims of
privilege or protection. Defendant’s objections based upon privilege and work product
protection are insufficient to meet its burden of establishing the privilege and protection,
to comply with Rule 26(b)(5)(A)(ii) and Judge Kelly’s Standing Order Regarding
Privileged and Protected Information. Consequently, the Court OVERRULES
Defendant’s objections to interrogatory 8 and requests to produce 9, 12, 13, 16, and 25.
Defendant also states that the discovery requests are either irrelevant or Plaintiffs
do not demonstrate how they are relevant (Doc. 54 at 2-3). Regarding requests to
produce 2 and 5, in addition to arguing relevancy, Defendant asserts that they are
overbroad and unduly burdensome (Id. at 3). In response to the requests to produce,
Defendant stated, “Subject to and without waiving these objections, see non-privileged
documents from the claims file produced in response to request number 1 above.” (Doc.
49-2 at 3, 6, 9, 12, 14, 17, 27).
Courts in this district and elsewhere have explained that producing documents (or

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saying that no responsive documents exist) “subject to and without waiving” objections
“preserves nothing and wastes the time and resources of the parties and the court.
Further, this practice leaves the requesting party uncertain as to whether the opposing
party has fully answered its request.” Martin v. Zale Del., Inc., No. 8:08-CV-47-JDW-EAJ,
2008 WL 5255555, at *2 (M.D. Fla. Dec. 15, 2008); see also Chambers v. The Sygma
Network, Inc., No. 6:12–cv–1802–RBD-TBS, 2013 WL 1775046, at *3 (M.D. Fla. Apr.25,
2013); Pepperwood of Naples Condo. Ass’n v. Nationwide Mut. Fire Ins. Co., No. 2:10–
cv–753–CEH-SPC, 2011 WL 3841557, at *2 (M.D. Fla. Aug. 29, 2011). Accordingly,
these objections are OVERRULED. The Court finds that, other than objections based on
privilege, Defendant waived any objections it may have had to requests to produce 2, 5,
9, 12, 13, 16, and 25.
The final issue is whether Plaintiff demonstrates the relevance of interrogatory 8,
which asks Defendant to
identify the written procedures or policies (including
document(s) maintained in electronic form) you maintained
for your internal or third-party adjusters to use in connection
with the handling of claims made in the Underlying Lawsuit,
including but not limited to, the analysis undertaken in
making a determination that you would accept or reject the
Plaintiffs’ claims in the Underlying Lawsuit.
(Doc. 49-1 at 11).
Plaintiffs allege claims against Defendant for breach of contract and declaratory
relief concerning Defendant’s refusal to provide insurance coverage for its insureds use
of Plaintiffs’ likenesses without their permission (Doc. No. 11 at ¶¶ 15-19). Defendant’s
written procedures or policies for handling such claims and its analysis in accepting or
rejecting Plaintiffs’ claims are relevant to whether Defendant breached the insurance

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policy with its insureds in rejecting coverage. Defendant offers no explanation as to how
the interrogatory is irrelevant (Doc. 54 at 2-3). Defendant’s relevancy objection to
interrogatory 8 is OVERRULED.
Now, the motion to compel is GRANTED as to interrogatory 8 and requests to
produce 2, 5, 9, 12, 13, 16, and 25. On or before June 15, 2021, Defendant must fully
respond to these discovery requests.
DONE and ORDERED in Orlando, Florida on June 7, 2021.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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