Progressive Northwestern Insurance Company v. Gant
MEMORANDUM AND ORDER granting in part and denying in part 116 Motion to Compel. Signed by Magistrate Judge Kenneth G. Gale on 2/16/17. (df)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
GABRIEL GANT, et al.,
Defendants/Counterclaim Plaintiffs. )
ORDER ON DEFENDANT’S MOTION TO COMPEL
Now before the Court is Defendant’s Motion to Compel. (Doc. 116.) For
the reasons set forth below, Defendant’s motion is GRANTED in part and
DENIED in part as more fully set forth below.
This is a declaratory judgment action brought by Plaintiff Progressive
Northwestern Insurance Company (“Plaintiff” or “Progressive”). Plaintiff requests
a finding that its handling of an underlying claim and lawsuit, resulting from a
fatal automobile accident, “was appropriate, in good faith, and consistent with the
Progressive Policy and all duties imposed upon it by law or otherwise.” (See Doc.
1, at 5; Doc. 14, at 7.) Issues with the handling relate specifically to counsel
(Kevin McMaster) retained by Plaintiff for its insured, who were defendants in the
underlying action. McMaster is alleged to have engaged in conduct described as
“obstructionist,” “highly prejudicial,” and “to the extreme detriment” of the
defendants in the underlying lawsuit. (See generally Doc. 6-5.)
Additional facts relating to this case, as well as to the underlying lawsuit,
were summarized in the District Court’s Memorandum and Order granting
Defendants leave to answer out of time, Plaintiff’s motion to strike, and Plaintiff’s
motion to dismiss. (See Doc. 92, at 1-3.) That summary is incorporated herein by
The present motion relates to Plaintiff’s responses to Defendants’ first
Requests for Production and first Interrogatories. (Docs. 116, 117.) In response to
the discovery requests, Plaintiff initially agreed to engage in a rolling production
of documents. Defendants contend that the “production contained extensive
redactions and otherwise fell short of the production that was necessitated in
response to [Defendants’] First Requests.” (Doc. 117, at 4.) The parties met and
conferred as required by Fed.R.Civ.P. 37 and D. Kan. Rule 37.2 and also engaged
in a pre-motion telephone conference with the undersigned Magistrate Judge.
Even so, Defendants contend that “it is clear that certain documents and
information continue to be withheld by Progressive from production.” (Doc. 117,
Fed.R.Civ.P. 26(b) states that
[p]arties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense and
proportional to the needs of the case, considering the
importance of the issues at state 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. Information within this scope of discovery need
not be admissible in evidence to be discoverable.
As such, the requested information must be both nonprivileged and relevant to be
discoverable. Within this framework, the Court will review the contested
Progressive’s Knowledge of McMaster’s Conduct in Prior Claims
(Requests 9-16, Interrogatories 19-22).
Defendants argue that Progressive should be compelled to produce
“information and documentation demonstrating Progressive’s notice, prior to the
[underlying claim/lawsuit], of McMaster’s conduct in prior claims and cases that
put Progressive’s insureds at risk of excess exposure and unnecessary litigation
because such information falls within the permissible scope of discovery.” (Doc.
117, at 5.)
Requests Nos. 9-14 each reference a different case in which Progressive
retained McMaster in which McMaster is alleged to have engaged in behavior
ranging from uncooperative to inappropriate or unethical. (See Doc. 117-1, at 1523.) As to each specific case, Defendants request an extensive amount of
information, including pleadings, court orders, transcripts of hearings, all
discovery served in the case, all correspondence exchanged between counsel, and
all correspondence between Progressive and McMaster or his law firm.1 (Id.) As
to Request No. 14, Defendants also seek “[a] copy of any internal communication
and/or analysis of the issue of McMaster’s conflict of interest and/or perceived
conflict of interest.” (Id., at 23.)
Progressive objects that the Requests are overbroad, burdensome and
irrelevant as they seek information that is “completely unrelated” to the underlying
lawsuit. (Id., at 16-23.) Progressive also objects that the various cases identified
and the matters at issue therein “are not relevant to the instant cause of action and
this Request is not within the proper scope of discovery.” (Id.) Progressive
continues that the Requests are
overbroad, vague, indefinite and burdensome to the
extent it requires Progressive to search every computer
The Requests all specify that “[t]o the extent you contend the Documents contain
HIPAA protected material, such material may be redacted.” (Id.)
system and source of electronic and hard copy
information or all of its communication systems in
response to this Request. Progressive also objects to the
extent this Request poses an undue burden and seeks to
require the production of not reasonably accessible data,
including but not limited to, backup tapes. Further,
certain of the requested materials appear to be available
in the public record.
(Id., at 16-23.)2
The Court agrees that, generally, evidence of prior notice to the insurer of
McMaster’s previous bad conduct in other cases is relevant to Defendants’ theory
of Progressive’s potential negligence or bad faith in retaining McMaster to
represent its insureds. The Court also acknowledges Defendants’ argument that
the requests are proportional to the needs of the case pursuant to Fed.R.Civ.P. 26
given the significant outstanding judgment in this case. (Doc. 117, at 10-11.)
Even so, the Court finds the Requests at issue to be inherently overbroad
and unduly burdensome. This is especially true of the information that is available
to Defendants as public record (pleadings, court orders, etc.) or through other
sources (transcripts). Plaintiff’s objection as to pleadings, court orders, and other
documents of public record is sustained.
As to Requests 10-16, Progressive objects on the basis of the attorney-client
privilege, work product doctrine, “or any other privilege.” (Id., at 18-25.) The Court
notes that the issue of privilege as to these Requests is not raised in Defendants’ motion.
Defendants’ requests for all discovery, all correspondence exchanged
between counsel, and all correspondence between Plaintiff Progressive and
McMaster are also facially overbroad. Discovery exchanged and answered by
both parties on any and all topics relevant to other the lawsuits identified would
clearly encompass more information that was irrelevant than relevant. All of the
requested correspondence in these cases would equally encompass volumes of
documents that are entirely irrelevant to these proceedings.
Plaintiff’s overbreadth and burdensome objections are sustained as to the
requested discovery and correspondence sought in Requests Nos. 9-14.
Defendants’ motion is DENIED in regard to Requests Nos. 9-14. Because the
discovery requests are so broadly written, the Court cannot endeavor to rewrite or
narrow them to make them appropriate. To the extent Defendants want specific
information that is encompassed within these categories, Defendants are instructed
to serve revised discovery requests.
Request No. 15, Interrogatory No. 19.
Request No. 15 corresponds to Interrogatory No. 19, which seeks
information as to cases in which McMaster was sanctioned while retained to
represent one of Plaintiff’s insureds. (Doc. 117-1, at 24; Doc. 117-2, at 14.) As to
such cases, Defendants seek various subcategories of information, including the
case caption, the claims adjuster assigned, the insured represented by McMaster,
the sanction issued and relevant events, identities of other attorneys involved.
(Doc. 117-2, at 14.) Defendant also requests “all motions and orders related to the
issue of sanctions as well as transcripts of hearings where the issue of sanctions
was addressed.” (Doc. 117-1, at 24.)
Plaintiff objects that these discovery requests are overbroad, unduly
burdensome, and not within the proper scope of discovery as they seek
information unrelated to the underlying lawsuit as well as information that is at
least in part available in the public record. (Doc. 117-1, at 25.) Even so, Plaintiff
“has undertaken a laborious electronic search of past claims in which McMaster
was involved, and cannot find any additional claims in which McMaster,
Progressive, or a Progressive insured was actually sanctioned by a court” until the
underlying lawsuit. (Doc. 134, at 4, 6 (emphasis removed).) The Court finds that
Plaintiff’s additional investigatory efforts and offer to supplement its responses
sufficiently resolve the issues relating to Request No. 15 and Interrogatory No. 19.
Plaintiff’s objections are overruled and the responses are deemed amended as
Request No. 16, Interrogatory No. 20.
These discovery requests seek information “providing notification to
Progressive that McMaster was or may be acting with improper conduct and/or
had a history of acting with improper conduct with regard to his handling of a case
in which he was retained by Progressive to represent Progressive and/or a
Progressive Insured(s).” (Doc. 117, at 9; see also Doc. 117-1, at 25-26, Doc. 1172, at 16-17.) Defendants ask Plaintiff to provide identifying information as to each
such claim or case, as well as the adjuster assigned, the party insured, the attorneys
representing other parties, and the manner and date of notification. (Doc. 117-2, at
Plaintiff initially objected, in part, that the “identification of any such case
and Mr. McMaster’s conduct in same would be wholly irrelevant to the matters at
issue and would not be reasonably calculated to lead to the discovery of
admissible evidence as to whether Progressive breached the at issue contract.”
(Id., at 17.) In its brief in opposition, Plaintiff argues as to the vagueness of
various terms, including “improper conduct” and instances in which it had notice
that McMaster “may be” acting in such a manner. Defendant clarified “improper
conduct” to encompass instances where McMaster “may have” caused “increased
and/or unnecessary delay . . . [or] expenses,” “victimizing,” and “increasing the
risk of personal exposure to the insureds.” (Doc. 134, at 7.)
With these clarifications, the Court overrules Plaintiff’s objections to these
discovery requests. Defendants’ motion is GRANTED as to Request No. 16 and
Interrogatory No. 20.
Interrogatory No. 21.
In this interrogatory, Defendants ask Plaintiff whether it has “ever been sued
for bad faith, breach of contract, and/or negligence” as to a claim or case in which
McMaster represented it or its insureds. (Doc. 117-2, at 17.) As to any such claim
or case, Plaintiff was asked to provide identifying information as to each such
claim or case, as well as the attorney who filed such an action, the parties insured
by Plaintiff in any such underlying action, any attorney retained by Plaintiff in the
underlying action, the adjuster assigned, the party insured, and the disposition of
the claim. (Doc. 117-2, at 18.) Plaintiff objects as to overbreadth and relevance,
arguing that potential breaches of other contracts are “irrelevant as to whether or
not the Plaintiff breached the contract at issue.” (Id., at 19.)
The Court sustains Plaintiff’s objections in part and limits Interrogatory No.
21 to cases in which the resulting lawsuit was based on the conduct or
performance of McMaster. With these limitations, Defendants’ motion is
GRANTED as to Interrogatory No. 21.
Interrogatory No. 22.
This interrogatory asks Plaintiff to identify all claims or cases in which it
had “retained McMaster to represent [it and/or its insured(s)] and at a later time
retained new counsel . . . instead of McMaster.” (Doc. 117-2, at 19.) As to any
such claim or case, Plaintiff was asked to provide identifying information for the
claim or case, identify the adjuster assigned, the date McMaster was retained, the
party for whom he was retained, the date replacement counsel was retained,
whether a written request was made to McMaster to withdraw, and the reason for
the replacement. (Id., at 19-20.)
Plaintiff objects that the interrogatory is overly broad and irrelevant. (Id., at
20.) Plaintiff also argues that these occurrences are “wholly irrelevant . . . and
would not be reasonably calculated to lead to the discovery of admissible
evidence.” (Id., at 20.)
The Court finds the information requested to be relevant to the issues
between the parties and proportional to the case. The Court also finds that the
subparts are topically related and do not constitute separate and distinct
interrogatories. Plaintiff’s objections are overruled. Defendants’ motion is
GRANTED as to Interrogatory No. 22.
The Relationship between Plaintiff and McMaster.
Request No. 8 seeks “complete and unredacted billing statements” Plaintiff
received from McMaster or his law firm(s) in the underlying lawsuit. Plaintiff
initially objected that the bills contain “descriptions of work performed on behalf
of the insured” which are protected by the attorney-client privilege and work
product doctrine, that McMaster’s billing rates constitute “proprietary confidential
business information,” and that the requested documents are “not within the proper
scope of discovery.” (Doc. 117-1, at 14.) Based on Plaintiff’s responsive brief,
these objections are waived. As such, Plaintiff is ordered to provide any and all
billing statements that have not yet been produced. This portion of Defendants’
motion is GRANTED.
The date Plaintiff first had “concerns.”
Relying on Plaintiff’s prior representation that it had “concerns regarding
[McMaster’s] handling” of the underlying lawsuit, Defendant asked Plaintiff to
identify the date it first had such “concerns.” (Doc. 117-2, at 9, Interrogatory No.
12.) Defendant also asked Plaintiff to identify “who at or on behalf of Progressive
developed these ‘concerns,’ and identify any documents evidencing such
‘concerns.’” (Id.) Plaintiff attempts to distance itself from the statement as it was
contained in a motion that was “quickly withdrawn, and never ruled upon by the
underlying court . . .” (Doc. 134, at 16.) The Court is not persuaded by Plaintiff’s
attempts to put this cat back in the proverbial bag. It is uncontroverted that the
statement was made, regardless of what occurred with the motion in which it was
Plaintiff states, however, that “[t]o the extent [it] is in possession of
information relevant to this request, such as claims file materials and
correspondence, it has been produced and the Motion is moot on this point.” (Id.)
Defendants do not agree that Plaintiff has sufficiently responded as the responsive
documents fail to “identify the date [Plaintiff] developed concerns regarding Mr.
McMaster’s handling of the case.”
To the extent any document(s) previously produced are responsive to
Interrogatory No. 12, Plaintiff must specify, by Bates number, such responsive
documents. See Fed.R.Civ.P. 33(d). If no document specifically states the date on
which such concerns began to materialize and the individual(s) who developed
such concerns, Plaintiff is hereby ordered bo provide a narrative response to
Interrogatory No. 12 providing this information. Defendant’s motion is
GRANTED in regard to Interrogatory No. 12.
Files created and/or maintained on McMaster.
Request No. 20 succinctly asked Plaintiff to “[p]roduce any file you
maintain on Kevin M. McMaster.” (Doc. 117-1, at 28.) Although Defendants
refer to a particular evaluation of McMaster, Plaintiff argues in its responsive
brief, Plaintiff contends that it “does not maintain a specific ‘file’ on McMaster.”
(Doc. 134, at 16.) Rather, the document at issue is a part of Plaintiff’s “systematic
evaluation of all attorneys on its Kansas defense panel, relative to one another . . .
Although such a document could be contained in a “McMaster file” if
Plaintiff maintained such a file, Plaintiff has indicated that it does not maintain
McMaster-specific file(s). Defendants’ Request No. 20 does not seek Plaintiff’s
“systematic evaluation[s] of all attorneys on its Kansas defense panel.” If
Defendant wants such documents, it is directed to serve a request seeking such
documents.3 Defendants’ motion is DENIED as to Request No. 20.
Internal communications regarding McMaster.
Defendant’s Request for Production No. 21 seeks “all internal
communications among individuals at Progressive regarding Kevin
M. McMaster.” (Doc. 117-1, at 28.) Plaintiff argues that the request is “onerous”
and seeks “unfettered access to more than a decade of claim and litigation files
wholly irrelevant to the pending action.” (Doc. 134, at 17.) Plaintiff continues
that the request is not even limited by subject matter and does not “attempt to
The Court is not, however, opining as to whether or not such a hypothetical
request would be objectionable.
identify any other relevant connection to this action,” making “a response to this
request impossible.” (Id.) In their reply brief, Defendants counter that “internal
communications about McMaster, such as communications that occurred each
time an attorney informed Progressive that McMaster was acting in a matter that
prejudiced Progressive’s insureds, is relevant.” (Doc. 159, at 16.)
The Court acknowledges the potential relevance of internal communications
on this subject. Unfortunately for Defendants, however, the request, as written,
contains no such qualifiers or limitations. As such, it is facially overbroad.
Defendants’ motion is DENIED in regard to Request No. 21.
List of claims/cases for which McMaster was retained.
Request No. 19 asks Plaintiff to “[p]roduce a list of all claims/cases in
which Progressive retained Kevin M. McMaster to represent” it or an insured
“including the claim/case number and the Court where any such cases were
pending, if a case was filed.” (Doc. 117-1, at 27.) As to each such case/claim,
Plaintiff is asked to “produce a list showing the claim/case number, any claims
adjuster(s) who was and/or were assigned to the claim/case, and the Court where
any such cases were pending and case number, if a case was filed.”4
In their motion, Defendants discuss Request No. 19 with Interrogatory No. 21, in
which Plaintiff was asked to provide similar information for each time it has been “sued
for bad faith, breach of contract, and/or negligence with regard to a claim and/or case in
Plaintiff objects that “this request is merely another foray into irrelevancy
via an attempt to identify decades’ worth of legal work by McMaster wholly
unrelated to the pending action.” (Doc. 134, at 17.) The Court does not agree.
Although it is possible that not all of this information will be admissible at trial
(which is a determination to be made by the District Court at a later time), the
undersigned Magistrate Judge finds that the information requested is both relevant
and proportional to the needs of the case. Defendants’ motion is GRANTED in
regard to Request No. 19.
Potential Waiver of the Attorney-Client Privilege.
Defendants contend that Plaintiff’s filing the present declaratory judgment
action requesting a finding that it acted reasonably in the defense of the underlying
lawsuit, Plaintiff has “waived any claim to the attorney-client privilege.” (Doc.
117, at 16-17. Defendants as the Court to “compel Progressive to release internal
communications and other documents that address Progressive’s handling of the
which it had, at any point, retained Kevin M. McMaster to represent itself and/or its
Insureds[.]” (See Doc. 117, at 15-16; Doc. 117-2, at 17.) The Court surmises that the
reference to Interrogatory No. 21 in conjunction with Request No. 19 may have been a
clerical error as the interrogatory is much more specific (dealing with being sued for bad
faith, breach of contract and/or negligence) as opposed to Request No. 19 (which simply
relates to any case for which McMaster was retained, regardless of whether lawsuits or
legal claims were resulting therefrom). Further, Interrogatory No. 21 has been previously
analyzed by the Court, supra.
internal lawsuit.” (Doc. 117, at 16.)
The relevant three-part test to determine whether a party has waived the
attorney-client privilege was enumerated in Hearn v. Ray, 68 F.R.D. 574 (E.D.
Wash. 1975), a decision from the Eastern District of Washington that has been
frequently cited in this District. Therein, the Court held that
the party asserting the privilege placed information
protected by it in issue through some affirmative act for
his own benefit, and to allow the privilege to protect
against disclosure of such information would have been
manifestly unfair to the opposing party. The factors
common to each exception may be summarized as
follows: (1) assertion of the privilege was a result of
some affirmative act, such as filing suit, by the asserting
party; (2) through this affirmative act, the asserting party
put the protected information at issue by making it
relevant to the case; and (3) application of the privilege
would have denied the opposing party access to
information vital to his defense. Thus, where these three
conditions exist, a court should find that the party
asserting a privilege has impliedly waived it through his
own affirmative conduct.
Id., at 581.
Defendants argue that Plaintiff should be compelled to release its internal
communications regarding the handling of the underlying lawsuit because these
communications were placed in issue by allegations contained in the Amended
Complaint. (Doc. 117, at 16.) By example, Defendants refer to Plaintiff’s
allegation that its “handling of the underlying claim and lawsuit was appropriate,
in good faith, and consistent with the Progressive policy and duties imposed upon
it by law or otherwise.” (Id., citing Doc. 14, at ¶ 42.)
Filing a lawsuit does not waive the privilege of a plaintiff in
communications with its attorneys about the subject matter of the lawsuit. Waiver
does not occur when, as in the present case, “the attorney-client communications
are merely relevant to claims” rather than “integral” to the claim itself. AKH Co.
Inc. v. Universal Underwriters Ins. Co., 300 F.R.D. 684, 694 (D. Kan. 2014)
(citing Cincinnati Insurance Company v. Serrano, No. 11-2075-JAR-KGG, 2011
WL 6304086 (D.Kan. Dec. 16, 2011)). To hold otherwise would be dangerously
close to finding an automatic waiver of the attorney-client privilege whenever this
type of declaratory judgment action is filed. This could change, however, if
Plaintiff interposes these communications in its defense of Defendants’ claims.
This is not to say whether certain, more specific categories of otherwise
protected information are“integral” to the claims at issue. In their supporting
memorandum, however, Defendants have not argued waiver of the privilege
regarding particular types or categories of information let alone specific
documents themselves. Rather, Defendants merely argue that the attorney-client
privilege should be deemed waived as to all “internal communications and other
documents that address Progressive’s handling of the underlying lawsuit.” (Doc.
117, at 16.) Defendants have not provided adequate justification for such a
blanket waiver. As such, this portion of Defendants’ motion is DENIED.
The Protective Order entered in this case allows a party producing records
to designate them as “Confidential Information.” (See generally Doc. 95.)
Documents that have been so designated are afforded certain protections by the
Order, including a limitation on who may view the documents and seeking
permission to file such documents under seal when submitting them as exhibits to
motions filed with the Court. (Id., at 4-6.) “Confidential Information” is defined
by the Protective Order “as information that the Producing Party designates in
good faith has been previously maintained in a confidential manner and should be
protected from disclosure and use outside the litigation because its disclosure and
use is restricted by statute or could potentially cause harm to the interests of
disclosing party or nonparties.” (Doc. 95, at 1-2.)
The Protective Order then goes on to limit the types of documents that can
be so designated to a list of categories, including attorney-client communications
or work product, specific types of proprietary and/or trade secret information,
claim face sheet notes with regard to any claim in which discovery is agreed or
ordered by the Court, medical records, tax records, personnel records, and
financial records. (Id., at 2-3.) The Order states that “[i]nformation or documents
that are available to the public may not be designated as Confidential
Information.” (Id., at 3.)
Defendants complain that Plaintiff “has continually failed to use good faith
in the application of its confidential designations” pursuant to the Protective
Order. (Doc. 117, at 28.) This, according to Defendant, has “required [Defendant]
to file numerous motions for leave to file under seal because of improper, liberally
applied, confidential designations, and [Defendant] will be required to file further
motions if Progressive continues in its refusal to remove such confidentiality
designations.” (Id.) Plaintiff responds that it “has limited the application of the
‘confidential information’ designation to proprietary information which has been
previously maintained in a confidential manner, and which, if disclosed could
result in significant damage to [Plaintiff’s] business,” such as its “corporate
strategy for claim management” including “claim documentation, to expert
retention, and to methods of litigation overview.” (Doc. 134, at 31.)
Defendants’ motion includes a list of examples of documents that Plaintiff
has designated as confidential but that, in Defendants’ opinion, “should not be
entitled to protection.” (Doc. 117, at 27.) The Court will review each of these
documents in turn.
This document consists of communication between “Additional Counsel for
the Birk Defendants, Jean Kelly, and Courtney Schroeder (Progressive Claims
Specialist) describing Additional Counsel’s review of the Birk Lawsuit, his
opinions on proposed briefing . . . , and his opinions on the status of the . . ..
Lawsuit in light of its defense prior to his involvement.” (Doc. 128-7, sealed.)
This document does not consist of proprietary, claims-handling information. As
such, it should not be marked “confidential” pursuant to the Protective Order.
This is an internal message between Progressive Claims Specialist and
Progressive Claims Director regarding conference call on the Birk Lawsuit. (Doc.
128-8, sealed.) This document does not consist of proprietary, claims-handling
information. As such, it should not be marked “confidential” pursuant to the
This consists of communication between counsel for the defendants in the
underlying lawsuit sent to Progressive Claim Specialist regarding insurance
applicable to the underlying lawsuit. (Doc. 128-9, sealed.) Although discussing
the underlying claim, the Court finds nothing proprietary about this
communication. It, therefore, should not be marked “confidential” pursuant to the
This document is communication between Hansel (Progressive Claims
Adjuster assigned to the underlying lawsuit) and McMaster regarding the
underlying lawsuit. (Doc. 128-10, sealed.) This document also discusses the
underlying claim. Even so, the Court finds nothing proprietary about this
communication. It, therefore, should not be designated as “confidential.”
PROGRESSIVE 28859-28860 and PROGRESSIVE 0012765.
The former document is an e-mail from an expert retained by Plaintiff to the
claims adjuster assigned to the underlying lawsuit. (Doc. 128-11, sealed.) It
encloses the expert’s CV and cost estimate for expert work on the underlying
lawsuit. The latter document is an invoice from an expert retained by Plaintiff for
work on the underlying lawsuit. (Doc. 128-12, sealed.) The documents include
pricing and budgeting information that may be considered proprietary. The Court
finds the confidential designation was appropriate for this document.
This is correspondence from McMaster to Plaintiff’s claims adjuster
assigned to the underlying lawsuit outlining the status of discovery and budgeting
in the underlying lawsuit. (Doc. 128-13, sealed.) Included therein is pricing and
budgeting information that may be considered proprietary. The Court finds the
confidential designation was appropriate for this document.
PROGRESSIVE 0016107 and PROGRESSIVE 0016314.
The former is correspondence between Plaintiff’s claims adjuster assigned
to the underlying lawsuit and his non-attorney supervisor regarding the events in
the underlying lawsuit. (Doc. 128-14, sealed.) The latter is e-mail between
non-attorney employees of Plaintiff authorizing payment to additional counsel
retained in the underlying lawsuit and briefly describing why this counsel was
retained. (Doc. 128-15, sealed.) There is nothing proprietary about these
communications. Therefore, they should not be marked “confidential” pursuant to
the Protective Order.
Defendants next submit e-mail between outside legal counsel retained in the
underlying lawsuit and Plaintiff’s claims adjuster assigned to that case regarding
an expert retained in the underlying lawsuit. The e-mail was also forwarded to one
of Plaintiff’s non-attorney claims supervisors. (Doc. 128-16, sealed.) Included
therein is pricing and budgeting information that may be considered proprietary.
The Court thus finds the confidential designation was appropriate for this
Representative sampling of Plaintiff’s “face sheet notes” and
claims sheet notes specific to the underlying lawsuit.
Finally, Defendants list a sampling of Plaintiff’s “face sheet notes” and
claims sheet notes from the underlying lawsuit. (Doc. 128-1, sealed.) The
documents contain notations regarding litigation developments in the underlying
lawsuit. The Court does not, however, find any of the information contained
therein to be proprietary. As such, the documents should not have been designated
Defendants also request that, in addition to a review of the above-listed
documents, the Court “provide further direction to [Plaintiff] as to what can – and
cannot – properly be designated as [confidential], and that the Court order
[Plaintiff] to produce clean copies of any such documents previously and
improperly marked as ‘confidential.’” (Doc. 117, at 28.)
The Court hopes its discussion of the documents enumerated herein will
provide additional guidance to Plaintiff regarding the appropriateness of
confidential designations pursuant to the Protective Order in place. The Court will
not, however, order Plaintiff to engage in a wholesale review of all documents
previously marked as confidential in this case and make a revised determination as
to the appropriateness of each specific confidential designation. To do so would
invite disagreement between the parties as to hundreds of documents that may
never need to be filed with the Court or seen by anyone other than counsel and the
parties. Counsel are, however, instructed to meet and confer, as necessary,
regarding any disagreements in the future about previously designated
document(s) that counsel intends to use as an exhibit in this case.
IT IS THEREFORE ORDERED that Defendants’ Motion to Compel
(Doc. 116) is GRANTED in part and DENIED in part as more fully set forth
herein. Supplemental responses shall be served on or before March 16, 2017.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 16th day of February, 2017.
S/ KENNETH G. GALE
KENNETH G. GALE
United States Magistrate Judge
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