INDIANAPOLIS AIRPORT AUTHORITY v. TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA
Filing
139
ORDER granting Defendant's 92 Motion to Quash and for a Protective Order (see Order for details). Signed by Magistrate Judge Tim A. Baker on 4/7/2015. (SWM)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
INDIANAPOLIS AIRPORT AUTHORITY,
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Plaintiff,
vs.
TRAVELERS PROPERTY CASUALTY
COMPANY OF AMERICA,
Defendant.
No. 1:13-cv-01316-JMS-TAB
ORDER ON DEFENDANT’S MOTION TO QUASH
AND FOR A PROTECTIVE ORDER
I. Introduction
Pending before the Court is Defendant Travelers’ motion to quash a non-party subpoena
to General Reinsurance that seeks copies of Gen Re’s claims and underwriting files. Travelers’
motion also seeks a protective order to prevent IAA from discovery of any reinsurance
documentation from any source. For the reasons set forth below, Travelers’ motion to quash
[Filing No. 92] is granted.
II. Discussion
IAA issued a subpoena for Gen Re seeking nine types of documents: (1) any reinsurance
agreements, policies, or treaties issued by Gen Re to Travelers regarding IAA, its New Midfield
terminal project, or insurance policies; (2) any reinsurance agreements, policies, or treaties
issued by Gen Re to Travelers maintained by Caroline Hinchey and Benjamin Owings; (3) all
documents regarding quotes for facultative reinsurance Gen Re sent to Travelers; (4) any
certificates of property facultative reinsurance, or declarations of property facultative reinsurance
issued to Travelers; (5) documents containing reinsurance analysis relating to IAA, the New
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Midfield terminal project, IAA’s insurance policies, or the steel tower collapse; (6) all
communications between Gen Re and Travelers’ representatives relating to IAA, the New
Midfield terminal project, IAA’s insurance policies, or the steel tower collapse; (7) any loss run
reports, detail loss reports, or similar documents related to IAA; (8) any notice letters or similar
documents Gen Re sent to Travelers relating to IAA; and (9) any updates or status reports
Travelers sent to Gen Re. [Filing No. 93-2, at ECF p. 2-8.] Travelers objects because reinsurer
documents are not relevant to the claims at issue, and IAA’s requests are overbroad, unduly
burdensome, and not discoverable.
Under Fed. R. Civ. P. 45(c)(3)(A), the Court has the discretion to modify or quash a
subpoena duces tecum where the moving party shows that the subpoena is unduly burdensome or
requires disclosure of attorney-client privileged information. Griffin v. Foley, 542 F.3d 209, 223
(7th Cir. 2008); CSC Holdings Inc. v. Redisi, 309 F.3d 988, 993 (7th Cir. 2002). To determine
whether a Rule 45 subpoena is unduly burdensome, the Court may weigh a number of factors
including “relevance, the need of the party of the documents, the breadth of the document
request, the time period covered by it, the particularity with which the documents are requested,
and the burden imposed.” WM High Yield v. O’Hanlon, 460 F.Supp.2d 891, 965-96 (S.D. Ind.
2006) (citing Goodyear Tire & Rubber Co. v. Kirk’s Tire & Auto Servicenter of Haverstraw,
Inc., 211 F.R.D. 658, 662-63 (D. Kan. 2003)). Non-party status is also a significant factor in
assessing whether a subpoena is unduly burdensome. Id.
A party has standing to object to a subpoena directed at a non-party only when the party
claims a personal right or privilege over the documents sought. Chaikin v. Fidelity and
Guaranty Life Ins. Co., No. 02-C-6596, 2003 WL 22715826, at *1 (N.D. Ill. Nov. 17, 2003)
(citing Minnesota School Boards Ass’n Ins. Trust v. Employers Ins. Co. of Wausau, 183 F.R.D.
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627, 629 (N.D. Ill. 1999)). Travelers has standing to object to IAA’s subpoena. IAA seeks
information regarding a private reinsurance contract between Gen Re and Travelers. As a party
to the reinsurance contract, Travelers has a claim of personal right to Gen Re’s documents.
Relying on National Union Fire Ins. Co. of Pittsburgh, PA v. Mead Johnson & Co., No.
3:11-cv-00015-RLY-WGH, 2014 WL 931947 (S.D. Ind. Mar. 10, 2014) and Cummins, Inc. v.
Ace American Ins. Co., No. 1:09-cv-00738-JMS-DKL, 2011 WL 130158 (S.D. Ind. Jan. 14,
2011), Travelers argues that the reinsurance documents IAA seeks contain sensitive business
information typically not relevant to coverage itself. To be sure, Indiana courts have ruled that a
reinsurance contract is a commercially sensitive contract separate and distinct from the original
insurance policy. State of Fla. Ex re. O’Malley v. Department of Ins., 291 N.E.2d 907, 913 (Ind.
Ct. App. 1973); see Cummins, 2011 WL 130158, at *10-11. Still, this Court found reinsurance
documents discoverable under Cummins to aid in construing ambiguous policy terms in a
coverage dispute. Cummins, 2011 WL 130158, at *10-11. In the same way, Mead Johnson held
that reinsurance communications were irrelevant in a coverage dispute that involved
unambiguous policy terms.1 Mead Johnson, 2014 WL 931947, at *4. IAA argues that Gen Re’s
reinsurance communications are discoverable because the Court may find the contested policy
terms ambiguous, and communications between the insured and reinsured would shed light on
Travelers’ interpretation of the terms.
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Travelers’ reliance on Mead Johnson to support its claim that reinsurance documents are
commercially sensitive in nature and thus considered protected trade secrets is misplaced. Mead
Johnson sustained a Rule 72 objection to the Magistrate Judge’s ruling that reinsurance
communications were discoverable. In making this determination, the Court relied on the policy
terms at issue. Concluding that the policy terms were not ambiguous, the Court determined that
the meaning of the claim terms in reinsurance communications were not relevant to the litigation.
Mead Johnson, 2014 WL 931947, at *4.
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While Cummins found reinsurance relevant and discoverable in some circumstances, it
set forth limitations on permissible discovery. IAA’s subpoena exceeds these limitations. IAA
seeks production of all documents relating to IAA, the New Midfield terminal project, or IAA’s
insurance policies, which would include all phases of construction and the related insurance
policies. In effect, IAA requests reinsurance discovery from 2005 through July 10, 2013, despite
the fact that the steel tower collapse at issue in this litigation occurred January 24, 2007. Under
Cummins, only reinsurance communications that discuss a contested policy would be relevant to
construe an ambiguous term and thus, discoverable. IAA’s requests span over eight years and
focus not only on communications related to the policy at issue, but also on pre-claim and prereinsurance policy issuance. These requests are unduly burdensome to Gen Re.
More important, Travelers asserts that communications between Travelers and Gen Re
provide no information that could construe any potentially ambiguous terms in IAA’s policy.
Four reinsurance documents exist that relate to the policy at issue. Two of the documents
Travelers has already produced, the remaining two documents Travelers filed with the Court for
in camera review. [Filing No. 113.] According to Travelers, these two remaining documents
contain information regarding reserve information, which the Court already precluded from
discovery. [See Filing No. 88.] After reviewing the documents in camera, the Court finds that
such documents are not relevant. The documents contain numerical data on the reinsurance
period and the amount of direct dollars incurred, paid, and outstanding. They do not speak to
Travelers’ intent and do not clarify any ambiguous terms of the policy. In other words, Gen Re
is a non-party in this matter and the overbroad communications IAA seeks contain commercially
sensitive information related to Gen Re, none of which is at issue in this case or relevant to
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potentially ambiguous terms in the policy.2 Travelers has proved that IAA’s subpoena unduly
burdens Gen Re. Thus, Gen Re’s documents are not discoverable, and Travelers’ motion to
quash is granted.
IAA argues that Travelers has not demonstrated good cause for its request for a protective
order to prevent IAA from obtaining any discovery of reinsurance documentation from any
source. Under Fed. R. Civ. P. 26(c)(1), the Court may issue an order to protect a party or person
from annoyance, embarrassment, oppression, or undue burden or expense by forbidding
discovery disclosure, among other things. The party seeking the protective order has the burden
to demonstrate good cause. Catt v. Affirmative Ins. Co., No. 2:08-cv-243-JVB-PRC, 2009 WL
1228605, at *3 (N.D. Ind. Apr. 30, 2009). Travelers has done just that. IAA’s subpoena is
unduly burdensome and seeks commercially sensitive information. In a separate order issued on
this date the Court has precluded IAA from discovering underwriting guideline provisions on
Travelers’ reinsurance documents. Likewise, IAA is precluded from seeking discovery of
Travelers’ reinsurance documents.
III. Conclusion
For these reasons Travelers’ motion to quash [Filing No. 92] is granted and IAA is
precluded from obtaining any discovery of reinsurance documentation.
Date: 4/7/2015
___________________________
Tim A. Baker
U.S. Magistrate Judge
Southern District of Indiana
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IAA seeks documents related to Gen Re’s internal underwriting, quotations, ratings, and
premiums, which is confidential and propriety information of economic value that is unique to
Gen Re. See Ind. Code § 24-2-3-2; Hamilton v. State Farm Mut. Auto. Ins. Co., 204 F.R.D. 420,
423 (S.D. Ind. 2001).
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Distribution:
Michele A. Chapnick
GREGORY AND MEYER P.C.
mchapnick@gregorylaw.com
Jenny R. Buchheit
ICE MILLER LLP
jenny.buchheit@icemiller.com
Nathaniel M. Uhl
ICE MILLER LLP
nate.uhl@icemiller.com
Rebecca J. Seamands
ICE MILLER LLP
rebecca.seamands@icemiller.com
Amanda M. Buishas
JOHNSON & BELL, LTD.
buishasa@jbltd.com
Rick L. Hammond
JOHNSON & BELL, LTD.
hammondr@jbltd.com
Samuel R. Stalker
JOHNSON & BELL, LTD.
stalkers@jbltd.com
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