National Casualty Company v. United States Adult Soccer Association, Inc. et al
Filing
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POST-DISCOVERY HEARING ADMINISTRATIVE ORDER. Signed by Magistrate Judge Jonathan Goodman on 7/11/2016. (tr00)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 15‐24052‐CIV‐MARTINEZ/GOODMAN
NATIONAL CASUALTY COMPANY,
Plaintiff,
v.
UNITED STATES ADULT SOCCER
ASSOCIATION, INC., et al.,
Defendants.
_________________ /
POST‐DISCOVERY HEARING ADMINISTRATIVE ORDER
The Defendants filed two Notices of Hearing [ECF Nos. 31; 32] setting a
Discovery Hearing before the Undersigned concerning numerous discovery disputes.
The Court held a hearing on July 8, 2016 to address the issues.1 [ECF No. 35]. The
District Court referred all discovery matters to the Undersigned. [ECF No. 26].
For the reasons set forth at the hearing, the Undersigned ORDERED2 the
following:
1
Technically speaking, parties cannot file discovery motions, as the discovery
procedures order [ECF No. 26] prohibits written discovery motions. Rather, the parties
are directed to place the discovery dispute on the Undersigned’s discovery calendar if
they are unable to resolve the discovery dispute after conferring.
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If any party appeals this Order to the District Court by filing objections, then the
party will need to order the transcript as it outlines the Undersigned’s reasoning.
Concerning possible objections, magistrate judges “enjoy extremely broad
discretion in controlling discovery.” Jones v. City of Elkhart, 737 F.3d 1107, 1115 (7th Cir.
(1)
Concerning Plaintiff’s objections to Defendant Ruben Quetglas’ Federal
Rule of Civil Procedure 30(b)(6) notice of taking deposition of Plaintiff, the Undersigned
issued the following orders concerning the disputed areas of inquiry:
(a)
Area 1:
This area of inquiry shall be limited to underwriting
decisions relating to ambiguities identified by the parties (i.e., the legal liability to
participant endorsement and the “excess issue” ‐‐ whether the excess policy will drop
down if the limit on the primary policy is reduced).
(b)
Area 3:
This area of inquiry was agreed to when modified as
follows: “The authority given to K&K by National Casualty and the identities of the
individuals at National Casualty and K&K who were involved in issuing the policies at
issue.”
(c)
Area 4:
This area of inquiry was modified as follows: “All
non‐privileged communications between National Casualty and any retail broker,
wholesale broker or managing general agent regarding the Policies, the Association and
2013). Pursuant to Federal Rule of Civil Procedure 72(a), which governs objections to a
magistrate judge’s discovery rulings, the standard of review is “clearly erroneous” or
“contrary to law.” This is an extremely deferential standard of review, and this “high
bar” is “rarely invoked.” Cox Enters., Inc. v. News‐Journal Corp., 794 F.3d 1259, 1272 (11th
Cir. 2015). “To be clearly erroneous, a decision must strike [the reviewing court] as
more than just maybe or probably wrong; it must . . . strike us as wrong with the force
of a five‐week old, unrefrigerated dead fish.” Cox, 794 F.3d at 1272, n. 92 (citing Parts &
Elec. Motors, Inc. v. Sterling Elec. Inc., 866 F.2d 228, 233 (7th Cir. 1988)). See also Hiram
Walker & Sons, Inc. v. Kirk Line, R.B., 30 F.3d 1370, 1378, n.2 (11th Cir. 1994) (where Judge
Dubina, in a concurring opinion, invoked the “dead fish” analogy and described that
definition as “the best I have seen”).
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the Accident ‐‐ but only as they relate to the underlying lawsuit and the policies
involved.”
(d)
Area 7:
This area of inquiry was modified as follows: “All
non‐privileged communications between National Casualty and third parties (including
but not limited to reinsurers) concerning the Policies, the Association and the Accident ‐
‐ but only as they relate to the underlying lawsuit and the policies involved.”
(e)
Areas 8 and 9:
Areas 8 and 9 are not objected to as modified ‐‐
i.e., changing references to the denial of coverage to issuance of reservation of rights
position.
(f)
Areas 10 and 11:
Defendant shall send Plaintiff a more‐specific
list of areas of inquiry such that Areas 10 and 11 require interpretation of specific
ambiguous or potentially ambiguous primary and excess policy terms.
(g)
Area 12:
Plaintiff’s objection is overruled; Plaintiff shall be
prepared to address the area of inquiry as phrased.
(h)
Area 13:
This area of inquiry was modified as follows: “All
non‐privileged communications between National Casualty and the Association and/or
any of the Defendants regarding the Policies, the Association and the Accident ‐‐ but
only as they relate to the underlying lawsuit and the policies involved.”
(2)
Concerning Defendants’ requests for production 5 through 10 to Plaintiff,
Plaintiff’s objections based upon work product privilege are overruled. Plaintiff shall
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file the six documents on CM/ECF under seal by July 13, 2016. Plaintiff shall produce
the six documents to Defendants by July 15, 2016. If Plaintiff objects to this ruling, then
it shall file a notice of appeal by July 13, 2016, which will, temporarily, stay the
requirement that Plaintiff produce the documents to Defendants.
“Like assertions of attorney‐client privilege, the burden is on the party
withholding discovery to show that the documents should be afforded work‐product
immunity.” Milinazzo v. State Farm Ins. Co., 247 F.R.D. 691, 698 (S.D. Fla. 2007). There is a
rebuttable presumption “that documents or things prepared before the final decision on
an insuredʹs claim are not work product, and that documents produced after claims
denial are work product. The presumption may be rebutted ‘by specific evidentiary
proof of objective facts.’ Id. at 701 (quoting Essex Builders Grp., Inc. v. Amerisure Ins. Co.,
No. 6:04–CV–1838–Orl–22JGG, 2006 WL 1733857 at *2 (M.D. Fla. June 20, 2006) (internal
citations omitted).
The proponent of the privilege here, National Casualty, did not submit any
affidavits to support its claim, but, rather, supported its position with only attorney
rhetoric stating that the size of claim, in and of itself, triggered the contemplation of
litigation. Additionally, none of the individuals involved in the communications at
issue are attorneys. After reviewing the documents in camera at the hearing, I find that
the communications represent the normal business of evaluating a claim, not
necessarily the anticipation of litigation, so the work product objection is overruled.
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Plaintiff must produce the documents in accordance with the instructions above or file
an appeal within the specified time.
DONE AND ORDERED, in Chambers, in Miami, Florida, July 11, 2016.
Copies furnished to:
Hon. Jose E. Martinez
All Counsel of Record
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