Illiana Surgery and Medical Center LLC v. Hartford Fire Insurance Company
Filing
249
OPINION AND ORDER denying as moot 223 Motion for Leave to File a Supplement to the Record on Hartfords Motion to Quash Plaintiffs Guidance Software Inc. and Fisher Kanaris Subpoenas and Request for Protective Order; granting 227 Motion to Compel; denying 229 Motion for Protective Order. Signed by Magistrate Judge Andrew P Rodovich on 6/5/12. (kjp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ILLIANA SURGERY AND MEDICAL
CENTER LLC nka Heartland
Memorial Hospital LLC,
iHEALTHCARE, INC.,
Plaintiffs
v.
HARTFORD FIRE INSURANCE
COMPANY,
Defendant
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Case No. 2:07 cv 3
OPINION AND ORDER
This matter is before the court on the Motion for Leave to
Supplement Record on Hartford’s Motion to Quash Plaintiffs’
Guidance Software Inc. and Fisher Kanaris Subpoenas and Request
for Protective Order [DE 223] filed by the plaintiff, Illiana
Surgery and Medical Center LLC, on January 18, 2012; the Motion
to Compel Hartford to Designate a Witness for Deposition Pursuant
to FRCP 30(B)(6) [DE 227] filed by the plaintiff on February 15,
2012; and the Motion for Protective Order [DE 229] filed by the
defendant, Hartford Fire Insurance Company, on February 29, 2012.
For the reasons set forth below, the Motion for Leave to Supplement Record [DE 223] is DENIED AS MOOT; the Motion to Compel [DE
227] is GRANTED; and the Motion for Protective Order [DE 229] is
DENIED.
Background
On December 9 or 10, 2004, an unknown person accessed and
destroyed Illiana Surgery and Medical Center’s medical management
computer system.
Illiana held an insurance policy with Hartford
Fire Insurance Company that provided coverage for lost business
personal property and electronic vandalism.
Illiana tendered a
claim to Hartford which retained the law firm of Fisher Kanaris
to assist with the adjustment of the claim.
Fisher Kanaris
launched an investigation into the claim but never issued a
coverage determination letter.
Illiana filed a complaint on
December 7, 2006, alleging breach of the insurance contract and
bad faith.
The parties have battled throughout the course of discovery.
Illiana requested all documents related to the adjustment of its
claim.
The court first ordered Hartford to produce its insurance
policies, examinations under oath, and claim files at the April
4, 2007 status conference.
Hartford produced its insurance
policies, two EUOs, and a set of documents presented as its claim
file along with a privilege log, which it later supplemented.
Illiana filed a motion to compel on April 17, 2008, which resulted in the production of additional documents belonging to the
claim file.
While preparing to depose Hartford’s lead claims
adjuster, Steve Palazzolo, Illiana questioned whether the entire
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claim file had been produced and sent an additional document
request.
Hartford again supplemented the claim file with 797 new
documents on July 15, 2009, and 333 documents on July 22, 2009.
Illiana then requested the attachments to several emails that
were omitted from the file.
Although Hartford represented that
the entire file had been produced, it ultimately produced 53 new
documents consisting of 330 pages.
Hartford also produced an
additional 441 documents from the claim file days before Kevin
Pugliese’s deposition.
These documents were not listed in
Hartford’s privilege log.
The court sanctioned Hartford for
failing to comply with its April 4, 2007, June 30, 2008, and
November 18, 2008 Orders compelling production of the entire
claim file.
Judge Joseph Van Bokkelen re-opened discovery so
Illiana could gather the remaining information that it was not
able to discover because of Hartford’s misconduct.
In response to Judge Van Bokkelen’s order, Illiana issued
new discovery, including a notice of deposition to Hartford,
requesting to depose a representative of Hartford with knowledge
of how it maintained its electronic information.
Illiana repre-
sents that Hartford has refused to provide a representative and
to schedule the deposition, and it now moves to compel the
appointment of a representative.
Hartford responded that it
never refused to designate a witness.
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Rather, Hartford maintains
that the information Illiana seeks to elicit at a deposition is
irrelevant and would require it to appoint and prepare multiple
representatives. Hartford filed a motion for a protective order,
asking the court to exclude any questions concerning Hartford’s
electronically stored information (ESI) retention policy.
Discussion
A party may "obtain discovery regarding any matter, not
privileged, that is relevant to the claim or defense of any
party, including the existence, description, nature, custody,
condition and location of any books, documents, or other tangible
things."
Federal Rule of Civil Procedure 26(b)(1).
For discov-
ery purposes, relevancy is construed broadly to encompass "any
matter that bears on, or that reasonably could lead to other
matter[s] that could bear on, any issue that is or may be in the
case."
Chavez v. DaimlerChrysler Corp., 206 F.R.D. 615, 619
(S.D. Ind. 2002)(quoting Oppenheimer Fund, Inc. v. Sanders, 437
U.S. 340, 351, 98 S.Ct. 2380, 2389, 57 L.Ed.2d 253 (1978)).
Even
when information is not directly related to the claims or defenses identified in the pleadings, the information still may be
relevant to the broader subject matter at hand and meet the
rule’s good cause standard. Borom v. Town of Merrillville, 2009
WL 1617085, *1 (N.D. Ind. June 8, 2009) (citing Sanyo Laser
Prods., Inc. v. Arista Records, Inc., 214 F.R.D. 496, 502 (S.D.
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Ind. 2003)).
See also Adams v. Target, 2001 WL 987853, *1 (S.D.
Ind. July 30, 2001)("For good cause, the court may order discovery of any matter relevant to the subject matter involved in the
action."); Shapo v. Engle, 2001 WL 629303, *2 (N.D. Ill. May 25,
2001)("Discovery is a search for the truth.").
A party may seek an order to compel discovery when an
opposing party fails to respond to discovery requests or has
provided evasive or incomplete responses.
Procedure 37(a)(2)-(3).
Federal Rule of Civil
The burden "rests upon the objecting
party to show why a particular discovery request is improper."
Gregg v. Local 305 IBEW, 2009 WL 1325103, *8 (N.D. Ind. May 13,
2009)(citing Kodish v. Oakbrook Terrace Fire Protection Dist.,
235 F.R.D. 447, 449-50 (N.D. Ill. 2006)); McGrath v. Everest
National Insurance Co., 2009 WL 1325405, *3 (N.D. Ind. May 13,
2009)(internal citations omitted); Carlson Restaurants Worldwide,
Inc. v. Hammond Professional Cleaning Services, 2009 WL 692224,
*5 (N.D. Ind. March 12, 2009)(internal citations omitted).
The
objecting party must show with specificity that the request is
improper.
Cunningham v. Smithkline Beecham, 255 F.R.D. 474, 478
(N.D. Ind. 2009)(citing Graham v. Casey’s General Stores, 206
F.R.D. 253, 254 (S.D. Ind. 2002)).
That burden cannot be met by
"a reflexive invocation of the same baseless, often abused litany
that the requested discovery is vague, ambiguous, overly broad,
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unduly burdensome or that it is neither relevant nor reasonably
calculated to lead to the discovery of admissible evidence."
Cunningham, 255 F.R.D. at 478 (citing Burkybile v. Mitsubishi
Motors Corp., 2006 WL 2325506, *6 (N.D. Ill. Aug. 2, 2006))
(internal quotations and citations omitted).
Rather, the court,
under its broad discretion, considers "the totality of the
circumstances, weighing the value of material sought against the
burden of providing it, and taking into account society’s interest in furthering the truth-seeking function in the particular
case before the court."
Berning v. UAW Local 2209, 242 F.R.D.
510, 512 (N.D. Ind. 2007)(examining Patterson v. Avery Dennison
Corp., 281 F.3d 676, 681 (7th Cir. 2002))(internal quotations and
citations omitted).
See also, Hunt v. DaVita, Inc., ___ F.3d
___, 2012 WL 1560396, *4 (7th Cir. 2012)(explaining that the
district court has broad discretion in supervising discovery).
Similarly, a party may move for a protective order in order
"to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense . . . ." Rule 26(c)(1).
The party requesting the protective order carries the burden of
demonstrating good cause and can satisfy that burden by showing
an adequate reason for the order. 8 Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure §2035 (3d ed. 1998).
See also Gregg, 2009 WL 1325103 at *8 ("The burden rests upon the
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objecting party to show why a particular discovery request is
improper." (citing Kodish, 235 F.R.D. at 449-50; McGrath, 2009 WL
1325405 at *3; Carlson Restaurants Worldwide, 2009 WL 692224 at
*5).
Specific factual demonstrations are required to establish
that a particular discovery request is improper and that good
cause exists for issuing the order. See Felling v. Knight, 211
F.R.D. 552, 554 (S.D. Ind. 2003) ("To establish good cause a
party must submit 'a particular and specific demonstration of
fact, as distinguished from stereotyped and conclusory statements.'") (quoting Wilson v. Olathe Bank, 184 F.R.D. 395, 397 (D.
Kan. 1999)) (quoting Gulf Oil Co. v. Bernard, 452 U.S. 89, 102
n.16, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981)). See also Harrison-
ville Telephone Co. v. Ill. Commerce Comm'n, 472 F.Supp.2d 1071,
1078 (S.D. Ill. 2006) (stating that in order to establish good
cause, the movant must rely on particular and specific demonstrations of fact, rather than conclusory statements).
Illiana desires to depose a representative of Hartford who
can attest to the method in which Hartford maintained its electronic information over the course of Illiana’s claim. Hartford
complains that Illiana first requested the ESI in October 2011,
and because of the untimely request, Hartford cannot recover all
documents that relate back to 2004.
However, Illiana has been
requesting the claim file, in whatever capacity it was maintain-
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ed, for the duration of this suit.
Hartford has delivered the
documents in piecemeal fashion after being prodded repeatedly by
the court.
Despite its representations that the entire claim
file has been produced, Hartford has managed to supplement the
claim file on multiple occasions.
Hartford’s reluctance to
comply has rendered Illiana’s inquiry concerning the maintenance
of the claim file pertinent to both its discovery and bad faith
claim.
Hartford’s primary complaint is that the information may be
obtained by other less burdensome methods, including interrogatories.
Rule 26(b)(2)(c) grants the court discretion to limit
discovery that may be obtained by more convenient, less burdensome, or less expensive means.
In support of its claim that
discovery could have been conducted in a less burdensome manner,
Hartford relies on Berning, 242 F.R.D. at 510.
In Berning, the
pro se plaintiff sought to depose the president of her union
concerning "many issues" surrounding her termination.
The court
explained that the union president did not have any personal
knowledge concerning the plaintiff because he was not involved in
the appeal process of her grievance and that it would be unduly
burdensome to subject the union president to a deposition because
he supervises more than 600 full-time UAW staff members who
handled hundreds of grievances.
The court noted that the plain-
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tiff failed to attempt to elicit any information from the union
president by less burdensome means, including interrogatories.
The defendant offered to allow the plaintiff to depose three
staff members who had personal knowledge of the plaintiff’s
grievance, and the court viewed this as a reasonable alternative
because the staff members had direct knowledge of the plaintiff’s
grievance and preparing for the deposition would be less burdensome.
The information Illiana seeks bears on its bad faith claim
and may aid in determining whether it has the entire claim file,
which has been a contested issue throughout the course of discovery.
The maintenance of the ESI clearly is relevant to Illiana’s
claim.
Hartford contends that the information is marginally
relevant at best and that interrogatories would satisfy any need
Illiana has for the information.
However, the court will not
dictate the method in which discovery of relevant, pertinent
information is conducted.
Illiana may be able to elicit more
information by conducting a deposition than by serving interrogatories, especially considering Hartford's history of bad faith.
In Berning, on which Hartford relies, the defendants offered
more knowledgeable employees for the plaintiff to depose and did
not oppose the deposition in its entirety.
Hartford has not been
willing to make any such accommodation here, nor has Hartford
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demonstrated why the deposition request is overly burdensome or
expensive.
Hartford has done nothing more than make boilerplate
allegations that the deposition would cause it to incur additional expense.
The individuals Hartford identified do not
appear to be high ranking managers, and Hartford may elect representatives with direct knowledge of the ESI retention policies so
that the preparation time and cost would be minimal.
The accom-
modation Hartford has offered is not reasonable because the
amount and type of information that can be gathered through a
deposition differs significantly from that which can be gathered
through interrogatories.
Hartford also complains that the deposition should be
limited to the processes used to retain documents from 2006
forward because the Federal Rules of Civil Procedure did not
mandate discovery of ESI prior to 2006.
Hartford also states
that it will have problems finding documents created as far back
as 2004 because of Illiana’s late request.
point of Illiana’s request.
Hartford misses the
Illiana is seeking general informa-
tion about the method of locating and pre-serving electronic and
non-electronic documents pertaining to its claim, which dates
back to 2004.
It is irrelevant that the Federal Rules did not
require production of such information before 2006.
Illiana is
not asking Hartford to produce any documents or to punish Hart-
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ford for failing to retain any documents it was not required to
maintain.
Illiana simply is attempting to find out the methods
that were used to retain and store the information, which may
suggest whether it has all the information it has sought throughout the course of discovery or whether additional documents may
have existed.
The retention of documents also may be pertinent
to Illiana’s bad faith claim. The relevant time period begins
when Illiana first filed its claim in 2004.
Hartford next complains that the parties never agreed to a
protocol for retaining ESI when the suit first commenced, that it
would not be able to locate all the documents from 2004, and that
Illiana has not provided any ESI.
It is not clear why these
complaints are relevant to producing a representative to testify
about the retention policies of Hartford’s ESI.
Illiana has not
asked Hartford to produce any additional documents from 2004, nor
has Hartford complained that Illiana has refused to produce such
information, although this would have no bearing on Hartford’s
obligation to produce its own.
Because the information is
related to Illiana’s claim and Hartford has not shown that
producing it would be overly burdensome or could be obtained
through less burdensome methods, Hartford is ORDERED to designate
a witness to testify about its ESI retention policies from 2004
forward within 14 days.
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_______________
Based on the foregoing, the Motion for Leave to Supplement
Record on Hartford’s Motion to Quash Plaintiffs’ Guidance Software Inc. and Fisher Kanaris Subpoenas and Request for Protective
Order [DE 223] filed by the plaintiff on January 18, 2012, is
DENIED AS MOOT; the Motion to Compel Hartford to Designate a
Witness for Deposition Pursuant to FRCP 30(B)(6) [DE 227] filed
by the plaintiff on February 15, 2012, is GRANTED; and the Motion
for Protective Order [DE 229] filed by the defendant on February
29, 2012, is DENIED.
ENTERED this 5th day of June, 2012
s/ ANDREW P. RODOVICH
United States Magistrate Judge
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