O'Connor v. Geico Indemnity Company

Filing 25

ORDER granting in part and denying in part 20 Plaintiff's Motion to Compel. Signed by Magistrate Judge Julie S. Sneed on 3/21/2018. (SMC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
KEVIN PAUL O’CONNOR,
Plaintiff,
v.

Case No: 8:17-cv-1539-T-27JSS

GEICO INDEMNITY COMPANY,
Defendant.
___________________________________/
ORDER
THIS MATTER comes before the Court on Plaintiff’s Motion to Compel (“Motion”) (Dkt.
20) and Defendant’s Response in Opposition to Plaintiff’s Motion to Compel (Dkt. 21). For the
reasons the follow, Plaintiff’s Motion is granted in part and denied in part.
BACKGROUND
On May 23, 2017, Plaintiff brought this bad faith action against Defendant GEICO
Indemnity Company (“GEICO”) in the Circuit Court of the Sixth Judicial Circuit in Pinellas
County, Florida. (Dkt. 2.) On May 23, 2017, GEICO removed this action to this Court pursuant
to 28 U.S.C. § 1332(a). (Dkt. 1.) Plaintiff alleges that GEICO acted in bad faith in its handling of
the bodily injury claim brought by Plaintiff against GEICO’s insured Paul Wedmore arising from
an automobile accident that occurred on January 26, 2012 (“underlying action”). (Dkt. 2.) After
the accident, GEICO rejected Plaintiff’s demand to tender the policy limits of Mr. Wedmore’s
policy on April 3, 2012. (Dkt. 20 at 2.) Plaintiff then sued Mr. Wedmore. (Id.) After a jury trial,
partial final judgment was entered against Mr. Wedmore and in favor of Plaintiff, followed by a
judgment for attorney’s fees and costs against Mr. Wedmore. (Dkt. 2 ¶¶ 11–13.) Plaintiff now
seeks a declaratory judgment against GEICO declaring that the insurance policy issued by GEICO

to Mr. Wedmore affords coverage for the judgment on attorney’s fees and costs entered against
Mr. Wedmore. (Id. ¶¶ 15–20.) Plaintiff also asserts claims for breach of contract and common
law bad faith against GEICO. (Id. ¶¶ 21–33.)
On August 4, 2017, Plaintiff served GEICO with an Initial Request for Production. (Dkt.
20-13.) Request Number 5 sought a complete copy of the personnel files, from date of employment
through 2013, of the following GEICO employees: (a) Altaira Hawkins; (b) any and all supervisors
who supervised Altaira Hawkins in 2012; (c) Marcy Jenkosfky; (d) any and all supervisors who
supervised Marcy Jenkofsky in 2012; (e) any other GEICO employees who evaluated or made
recommendations regarding the settlement of Plaintiff’s claims from the date of loss until January
2013. (Dkt. 20-13 at 3.) Additionally, Request Number 6 sought:
A complete copy of any and all portions of GEICO’s business plans for the
Lakeland, Florida office for the years 2011 through 2013 which in any way discuss
or relate to the following subject matter:
(a)
Average loss payments and/or severity for bodily injury liability coverages;
(b)
Evaluations, forecasts, and/or assumptions regarding conditions affecting
the severity of bodily injury claims;
(c)
Negotiating with claimants and/or claimants’ attorneys;
(d)
Good faith and/or bad faith claims handling;
(e)
Company profits and/or market share;
(f)
Evaluations of the quality of bodily injury liability claims handling; and
(g)
Bodily injury liability claims handling goals and methods to achieve those
goals.
(Id. at 3–4.) GEICO served its responses on September 14, 2017, objecting to Requests 5 and 6.
(Dkt. 20-14.) Plaintiff now seeks to compel the requested materials. (Dkt. 20.)
APPLICABLE STANDARDS
Courts maintain great discretion to regulate discovery. Patterson v. U.S. Postal Serv., 901
F.2d 927, 929 (11th Cir. 1990). The court has broad discretion to compel or deny discovery.
Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1306 (11th Cir. 2011). Through
discovery, parties may obtain materials that are within the scope of discovery, meaning they are
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nonprivileged, relevant to any party’s claim or defense, and proportional to the needs of the case.
Fed. R. Civ. P. 26(b)(1). The U.S. Supreme Court held that the term “relevant” in Rule 26 should
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 in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340,
351-52 (1978).
When the discovery sought appears relevant on its face, the objecting party carries the
burden to show why the requests are improper and irrelevant. Moss v. GEICO Indem. Co., 5:10CV-104-OC-10TBS, 2012 WL 682450, at *4 (M.D. Fla. Mar. 2, 2012) (“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.”); Nolan v. Integrated Real Estate Processing, LP, 3:08-CV-642-J34HTS, 2009 WL 635799, at *1 (M.D. Fla. Mar. 11, 2009) (stating that except where discovery is
irrelevant on its face, the party opposing a motion to compel has the burden to show that the
discovery request is improper, unreasonable, or burdensome); see also Gober v. City of Leesburg,
197 F.R.D. 519, 521 (M.D. Fla. 2000) (“The party resisting production of information bears the
burden of establishing lack of relevancy or undue burden in supplying the requested information.”)
However, when relevancy is not apparent, the burden is on the party seeking discovery to show
the relevancy of the discovery request. Moss, 5:10-CV-104-OC-10TBS, 2012 WL 682450, at *4.
ANALYSIS
Plaintiff contends the personnel files and business plans requested are relevant to his bad
faith claim. (Dkt. 20.) In response, GEICO argues that the requested documents are irrelevant
and that Plaintiff’s requests are overly broad in time and scope. (Dkt. 21.)

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A.

Personnel Files

In his Motion, Plaintiff withdraws part of Request Number 5 and his request for the
personnel files of Marcy Jenkofsky and her supervisor “since the opportunity to settle was gone
by the time she worked on the file.” (Dkt. 20 at 6.) Plaintiff argues that the remaining requested
personnel files are reasonably calculated to discover evidence of employee incentives, training,
and competence. (Id. at 8.) Plaintiff further states that he “has reason to believe the personnel
files will reveal that GEICO placed substantial emphasis on lowering claim payments, and its
employees’ performance was evaluated in significant part on their ability to maintain low claim
payments.” (Id. at 2.)
In support of his arguments, Plaintiff relies upon cases in which courts have granted similar
requests for personnel files in bad faith claims. (Id. at 9.) Indeed, courts have found personnel
files of insurance company employees who had more than a minimal involvement in adjusting a
claim relevant and subject to discovery as they may contain the history of the employees’ training,
competence, evaluation, compensation, discipline, educational background, work duties, and
hours of work. Wiggins v. Gov’t Employees Ins. Co., 3:16-CV-01142-TJC-MCR, 2017 WL
3720952, at *3 (M.D. Fla. July 10, 2017) (finding employee personnel files regarding job
performance, compensation, evaluation, discipline, training, educational background, work duties,
and hours of work discoverable and relevant to plaintiff’s bad faith claim); Maharaj v. GEICO
Cas. Co., 289 F.R.D. 666, 672–73 (S.D. Fla. 2013), aff’d, 12-80582-CIV, 2013 WL 1934075 (S.D.
Fla. Apr. 5, 2013) (granting plaintiff’s motion to compel as to the personnel file of the adjuster
who handled plaintiff’s claim, while denying it as to adjusters who did not have more than
incidental or minimal involvement in handling the claim); Moss, 5:10-CV-104-OC-10TBS, 2012
WL 682450, at *5 (allowing plaintiff to discover personnel files from adjusters who had more than

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minimal involvement with plaintiff’s claim and limiting the discovery to information “concerning
the employees’ training, competence, abilities, shortcomings, accolades and disciplinary history”);
Kafie v. Nw. Mut. Life Ins. Co., 11-21251-CIV, 2011 WL 4636889, at *2 (S.D. Fla. Oct. 6, 2011)
(granting plaintiff’s motion to compel personnel files of employees involved in the determination
of the denial of benefits, “including information related to those employees’ job performance,
compensation, evaluation, discipline, training, educational background, work duties and hours of
work”); Pepperwood of Naples Condo. Ass’n, Inc. v. Nationwide Mut. Fire Ins. Co., 2:10-CV-753FTM-36, 2011 WL 4596060, at *12 (M.D. Fla. Oct. 3, 2011) (compelling production of the
personnel files for adjusters and supervisors who worked on plaintiff’s claim); Turner v. GEICO
Indem. Co., No. 11–20546–CIV, 2011 WL 11769047, at *2 (S.D. Fla. Sept. 8, 2011) (finding “that
information in the personnel files of the employees responsible for adjusting the claim are
reasonably calculated to lead to the discovery of admissible evidence regarding the training,
supervision and control of those GEICO employees; the competence of the employees assigned to
this claim; GEICO’s knowledge of their professional abilities or shortcomings; and the standards
for evaluating an employee’s performance”).
In response, GEICO argues that Plaintiff is seeking personal and confidential information
that is irrelevant to his bad faith claim. (Dkt. 21 at 11.) GEICO contends that whether personnel
files are relevant and discoverable depends upon the facts of each case. (Id. at 13.) GEICO asserts
that here, the personnel files are not relevant because “there is virtually no training information,
and other than a reflection of raises in salary, there is nothing that discusses the criteria to be met
for raises or other financial incentives.” (Dkt. 21 at 16.) GEICO further contends that “the
documents which reveal how GEICO handled [Plaintiff’s] claim are contained in GEICO’s claim

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file and activity log, which have been produced to Plaintiff. The subject personnel files will not
shed any further light on the manner in which GEICO handled this claim.” (Id.)
Additionally, GEICO argues that performance reviews and evaluations would be
inadmissible as subsequent remedial measures or improper propensity evidence pursuant to
Federal Rules of Evidence 404(b) and 407. (Dkt. 21 at 18.) However, the Court finds this argument
unpersuasive. Federal Rule of Civil Procedure 26(b) provides that “[i]nformation within this scope
of discovery need not be admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1).
Therefore, Plaintiff’s Request Number 5 is not limited by whether or not the requested personnel
files are admissible. Turner, 11-20546-CIV, 2011 WL 11769047, at *1 (“[T]he fact that certain
responsive documents may not be admissible at trial under Federal Rules of Evidence 404(b) or
407 is irrelevant to the issue of whether they are discoverable.”).
Upon consideration, the Court finds GEICO has not met its burden to show why Plaintiff’s
request is not relevant. “In Florida, the question of whether an insurer has acted in bad faith in
handling claims against the insured is determined under the ‘totality of the circumstances’
standard.” Berges v. Infinity Ins. Co., 896 So.2d 665, 681 (Fla. 2005). Reasonable diligence and
ordinary care are material in determining bad faith. See Campbell v. Gov’t Employees Ins. Co.,
306 So. 2d 525, 530–31 (Fla. 1974). GEICO insists that there is no information in the requested
documents regarding training or financial incentives. (Dkt. 21 at 16.) However, GEICO does not
address precisely what is included in the personnel files other than admitting that the files contain
information regarding salary raises. (Id.) Salary raises reflect the employees’ compensation and
may be relevant to the employees’ competency and, therefore, are relevant to Plaintiff’s claim.
See Wiggins, 3:16-CV-01142-TJC-MCR, 2017 WL 3720952, at *3; Moss, 5:10-CV-104-OC10TBS, 2012 WL 682450, at *4; Kafie, 11-21251-CIV, 2011 WL 4636889, at *2; Turner, 11-

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20546-CIV, 2011 WL 11769047, at *2. The Court finds Plaintiff may discover information from
the personnel files concerning the employees’ competence, evaluation, compensation, discipline,
educational background, work duties, and hours of work. Id.
However, the Court finds Plaintiff’s request is overly broad in that it requests the personnel
files of all of Ms. Hawkins’ supervisors in 2012, without limitation to the claim at issue. (Dkt. 20
at 5.) Thus, Plaintiff’s request is limited to Ms. Hawkins and only her supervisors that may be
characterized as GEICO claims adjusters, representatives, and examiners who had more than a
minimal involvement with Plaintiff’s claim. See Maharaj, 289 F.R.D. at 672–73 (S.D. Fla. 2013),
aff’d, 12-80582-CIV, 2013 WL 1934075 (S.D. Fla. Apr. 5, 2013); Moss, 5:10-CV-104-OC10TBS, 2012 WL 682450, at *5; Kafie, 11-21251-CIV, 2011 WL 4636889, at *2; Pepperwood,
2:10-CV-753-FTM-36, 2011 WL 4596060, at *12.
With regard to the requested time period, Plaintiff originally requested personnel files from
the date of employment through 2013. (Dkt. 20 at 5.) In his Motion, Plaintiff limits the request
to a timeframe of “three years prior to the accident (2009) through the end of 2012, including any
performance reviews issued in 2013 which review performance for 2012.” (Dkt. 20 at 6.) The
Court finds Plaintiff’s requested timeframe appropriate. See Wiggins, 3:16-CV-01142-TJC-MCR,
2017 WL 3720952, at *3 (finding the timeframe of three years prior to the date of loss through the
year the policy limits tender was rejected a proper limit for the requested personnel files); Maharaj,
289 F.R.D. at 673 (S.D. Fla. 2013), aff’d, 12-80582-CIV, 2013 WL 1934075 (S.D. Fla. Apr. 5,
2013) (compelling defendant to produce personnel files for the time period of three years prior to
date of accident through the date of the underlying final judgment).
Last, GEICO argues that Plaintiff seeks “highly personal and confidential information.”
(Dkt. 21 at 18.) However, Plaintiff represents that the parties are negotiating a confidentiality

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agreement to protect confidential material from disclosure outside of this case. (Dkt. 20 at 14);
see also Wiggins, 3:16-CV-01142-TJC-MCR, 2017 WL 3720952, at *3 (overruling GEICO’s
objection to producing personnel files that could reveal confidential information and trade secrets
as the plaintiff represented that the parties agreed to enter into a confidentiality agreement).
Indeed, in the parties’ Case Management Report, the parties state that the “will work toward
agreeing to a proposed standing order of confidentiality for review and entry by the Court.” (Dkt.
13 at 7.) Further, GEICO may redact personal information in the personnel files not relevant to
the employees’ competence, evaluation, compensation, discipline, educational background, work
duties, and hours of work. This includes, but is not limited to, personal information such as
medical information, life insurance, and investment information to the extent it does not reflect the
compensation paid by GEICO to the employee. Kafie, 11-21251-CIV, 2011 WL 4636889, at *2.
To the extent redactions are required, GEICO is directed to provide a redaction log identifying the
author(s) of the document, the recipient(s) of the document, the subject matter of the information
redacted in the document, the date of the document, and a specific explanation of the nature of the
information. Id.
B.

Business Plans

In Request Number 6, Plaintiff seeks GEICO’s business plans from 2011 through 2013 for
the Lakeland, Florida office. (Dkt. 20 at 7.) Plaintiff specifically requests plans which in any way
discuss or relate to: average loss payments; evaluations, forecasts, and/or assumptions regarding
conditions affecting the severity of bodily injury claims; negotiating with claimants and/or
claimants’ attorneys; good faith and/or bad faith claims handling; company profits and/or market
share; evaluations of the quality of bodily injury liability claims handling; and, bodily injury

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liability claims handling goals and methods to achieve those goals. (Id.) In his Motion, Plaintiff
limits the request to the years 2011 and 2012 only. (Id.)
In his Complaint, Plaintiff alleges that GEICO put “its own interests ahead of the interests
of the insured.” (Dkt. 2 ¶ 30(d).) Plaintiff further alleges that GEICO based “adjuster, manager,
and supervisor salary raises, bonuses, and/or positive performance reviews on achieving average
loss payment goals targeted to achieve company profit, rather than making payments based on the
reasonably anticipated legal liability of the insured.” (Dkt. 2 ¶ 31(ii).) Plaintiff now argues that
the requested business plans are reasonably calculated to discover evidence of employee incentives
to reduce claim payments. (Dkt. 20 at 10.)
Notably, Plaintiff does not address all of the information sought in Request Number 6, but
instead only argues that GEICO’s goals for average loss payments (“ALP”) are relevant. Plaintiff
contends that this Court has “determined the relevance of GEICO’s business plans as they relate
to GEICO’s ALP goals and incentives.” (Id.) In support of his arguments, Plaintiff relies partially
on the bad faith case Hines v. GEICO Indemnity Company and the Court’s determination there that
GEICO’s ALP incentives and goals were admissible. 8:14-CV-1062-T-24-TGW, 2016 WL
688050, at *3 (M.D. Fla. Feb. 19, 2016). GEICO argues that Plaintiff inaccurately characterizes
the finding in Hines because the Court did not consider whether business plans were discoverable
but instead considered the relevancy of expert testimony regarding GEICO’s use of ALP metrics
to incentivize adjusters. (Dkt. 21 at 7.) However, in Hines, GEICO sought to exclude “argument,
testimony, and evidence regarding its alleged incentivizing of its adjusters to undervalue claims
through the use of [ALP] metrics.” Hines, 8:14-CV-1062-T-24-TGW, 2016 WL 688050, at *3.
Thus, the information Plaintiff seeks in its Motion, GEICO’s ALP goals and incentives, is the same
type of information at issue in Hines. (See Dkt. 20 at 10.)

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In its response, GEICO contends that its business plans are irrelevant to Plaintiff’s claims.
(Dkt. 21 at 5.) GEICO specifically argues that its business plans are inapplicable to the standard
of care GEICO owes to an insured and its plans do not create a duty under Florida law. (Id. at 6.)
GEICO also states that it documents ALP metrics to comply with administrative regulations and
reporting requirements for insurance companies. (Id. at 5–6.)
GEICO further asserts that “ALP metrics track only the amount that each claim is actually
settled for; it does not factor in the policy limits or the average settlement offer.” (Id. at 5.)
However, GEICO has previously made this argument to this Court. In Hines, GEICO argued that
ALP tracks “settlements,” not settlement offers, and because the claim at issue was not settled,
ALP was irrelevant. 8:14-CV-1062-T-24-TGW, 2016 WL 688050, at *5. The Court in Hines
found GEICO’s argument disingenuous because “in order for there to be a settlement tracked by
ALP, there must either be an offer made by GEICO or an offer accepted by GEICO, so ALP
actually tracks ‘accepted offers.’” Id. The Court found ALP metrics relevant since offers for
settlement were made in that case. Id. Similarly, here, both Plaintiff and GEICO made offers of
settlement prior to Plaintiff filing his complaint in the underlying action. (Dkt. 20 at 1–2.)
Therefore, the Court finds GEICO’s argument unpersuasive.
In light of the parties’ arguments, the Court finds the requested ALP metrics relevant to
Plaintiff’s claim that GEICO put its own interests above those of its insured and that GEICO based
employee compensation or reviews on achieving ALP goals targeted to achieve company profit.
(Dkt. 2 ¶¶ 30(d), 31(ii).) Accordingly, GEICO shall produce the Lakeland, Florida office business
plans reflecting ALP goals for the years 2011 and 2012. See Gonzalez v. GEICO Gen. Ins. Co.,
8:15-CV-240-T-30TBM, 2016 WL 7157551, at *3 (M.D. Fla. Dec. 8, 2016) (“Evidence of
GEICO’s business practices is also relevant under the totality of the circumstances.”); Gonzalez v.

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GEICO Gen. Ins. Co., 8:15-CV-0240-T-30TBM, 2016 WL 7732312, at *2 (M.D. Fla. Apr. 27,
2016) (compelling GEICO to produce business plans reflecting ALP targets spanning three years
as the information was relevant to plaintiff’s bad faith claim); Hines, 8:14-CV-1062-T-24-TGW,
2016 WL 688050, at *3 (finding evidence of GEICO’s alleged use of ALP metrics relevant in bad
faith case).
The additional documents Plaintiff seeks in Request 6 do not appear relevant on their face.
Plaintiff has not explained why the additional documents, aside from the documents related to
GEICO’s ALP metrics, are relevant and it appears to the Court that the additional documents have
no bearing on the matters at issue in the case. See Oppenheimer Fund, Inc., 437 U.S. at 351–52
(defining relevant evidence). Additionally, considering factors including 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, the
additional documents Plaintiff requests are not proportional to the needs of the case. See Fed. R.
Civ. P. 26(b)(1) (discussing the scope of discovery and limitations related to proportionality).
Finally, GEICO contends that the requested ALP business plans are proprietary, tradesecret, and confidential. (Dkt. 21 at 8–10.) It claims that the business plans are trade secrets under
Florida law and that Plaintiff has failed to make the requisite showing that his need for such
information outweighs GEICO’s need to maintain the confidentiality of its business plans. (Id.)
To establish that information is trade secret, the party seeking protection must show that the
information is consistently treated as closely guarded secrets, that the information represents
substantial value to the party, that it would be valuable to the party’s competitors, and that the
information derives its value by virtue of the effort of its creation and lack of dissemination.

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Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1313–14 (11th Cir. 2001).
While GEICO generally addresses its “business plans,” it does not specifically address whether
ALP metrics are trade secret. As such, GEICO fails to make a showing that its ALP metrics qualify
for trade secret protection. See Gonzalez, 8:15-CV-0240-T-30TBM, 2016 WL 7732312, at *2
(finding GEICO’s argument that its business plans reflecting ALP targets are trade secret without
merit). Nevertheless, the documents at issue may be the appropriate subject of a confidentiality
agreement. See Wiggins, 3:16-CV-01142-TJC-MCR, 2017 WL 3720952, at *3. If it is warranted,
the parties shall confer in an effort to reach an agreement to preserve the confidentiality of the
documents produced pursuant to this Order.
Accordingly, it is
ORDERED:
1. Plaintiff’s Motion to Compel (Dkt. 20) is GRANTED in part and DENIED in part, as
stated herein.
2. Defendant shall supplement its response to Request Number 5 and produce the
personnel files of Altaira Hawkins and only her supervisors that may be characterized
as GEICO claims adjusters, representatives, and examiners, who had more than a
minimal involvement with Plaintiff’s claim, concerning the employees’ competence,
evaluation, compensation, discipline, educational background, work duties, and hours
of work. Defendant’s production shall be limited to the timeframe from 2009 through
2012, including any performance reviews issued in 2013 which review performance
for 2012. To the extent redactions are required, Defendant is directed to provide a
redaction log identifying the author(s) of the document, the recipient(s) of the

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document, the subject matter of the information redacted in the document, the date of
the document, and a specific explanation of the nature of the information.
3. Defendant shall also supplement its response to Request Number 6 and produce the
Lakeland, Florida office business plans reflecting average loss payment goals for the
years 2011 and 2012. Plaintiff’s Motion is otherwise denied as to Request Number 6.
4.

Defendant shall supplement its discovery responses and produce all responsive
documents to Requests 5 and 6 as stated herein within twenty (20) days of this Order.

DONE and ORDERED in Tampa, Florida, on March 21, 2018.

Copies furnished to:
Counsel of Record

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