Great Plains Ventures, Inc. v. Liberty Mutual Fire Insurance Company
Filing
62
ORDER granting 57 plaintiff's motion to compel. Signed by Magistrate Judge James P. O'Hara on 01/29/2015. (mb)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
GREAT PLAINS VENTURES, INC.,
Plaintiff,
v.
Case No. 14-1136-JAR
LIBERTY MUTUAL FIRE INSURANCE
COMPANY,
Defendant.
ORDER
The plaintiff, Great Plains Ventures, Inc., alleges in this declaratory judgment and
breach of contract action that the defendant, Liberty Mutual Fire Insurance Company,
improperly denied a property insurance claim for hail damage to several commercial
buildings. Specifically, plaintiff alleges defendant refused to pay the replacement value
of the damaged roofs. The case is before the undersigned U.S. Magistrate Judge, James
P. O’Hara, on plaintiff’s motion to compel defendant to produce responsive documents to
plaintiff’s first set of requests for production (ECF doc. 57). For the reasons discussed
below, plaintiff’s motion is granted.
Plaintiff served its first set of production requests on September 29, 2014.1
Defendant served its responses on October 30, 2014.2 Plaintiff made four requests in its
1
ECF doc. 57-1
2
ECF doc. 57-2.
O:\ORDERS\14-1136-JAR-57.docx
first set of requests for documents.3 In addition to producing certain documents in
response to plaintiff’s document requests, defendant responded with general objections,
specific objections, and two answers subject to objections. Several of the documents
defendant produced were redacted to eliminate “irrelevant” and “proprietary”
information. However, defendant provided a “privilege log” to identify which documents
were withheld or redacted “as proprietary and irrelevant reserves information.” 4 On
December 29, 2014, plaintiff filed its motion to compel defendant to “provide documents
responsive to its discovery requests, and to produce un-redacted copies of non-privileged,
responsive documents.”5
With respect to Requests for Production Nos. 1-2, plaintiff asserts that it seeks a
third-party’s insurance documents because they are “highly relevant” to this case.
3
Request for Production No. 1: “All documents and communications, including the
adjuster’s file – related to claim number 80520330 made by Cullum and Brown of
Wichita under Liberty Mutual Policy number 1004498.”
Request for Production No. 2: “Liberty Mutual policy number 1004498 issued to
Cullum and Brown of Wichita.”
Request for Production No. 3: “The adjuster’s file – including all materials from any
3rd party adjuster – and/or any claims file related to an claims made by GPV arising out
of the Occurrence or the dispute outlined in the Petition except for the adjuster’s notes
reflecting his/her mental impressions concerning reserves or dollar value of the claim.”
Request for Production No. 4: “All underwriting files for all policies Liberty Mutual
has issued to GPV in the past 5 years.”
4
See ECF doc. 59 at 8.
5
ECF doc. 57 at 3.
O:\ORDERS\14-1136-JAR-57.docx
2
Plaintiff seeks supplementation with respect to Request for Production Nos. 3-4 because
defendant’s responses leave it guessing whether defendant has produced all responsive
documents, or has produced only some documents but withheld others on the basis of its
objections. Further, plaintiff asserts that there is no basis for defendant to withhold or
redact documents on the basis of relevancy or confidentiality since a protective order has
been entered in this case.
Defendant responds that plaintiff’s motion is unfounded. Defendant asserts that
third-party insurance documents are irrelevant to this case. With respect to the “privilege
log,” defendant argues that the redaction and withholding of certain documents is proper
because the information withheld is irrelevant and/or proprietary. Further, defendant
argues that the “privilege log” provided allows plaintiff to “assess the applicability of the
protection, and consequently, satisfies Rule 26(b)(5).6
Fed. R. Civ. P. 26(b)(1) provides that generally the scope of discovery is limited to
the parties’ pleaded claims and defenses, but that “[f]or good cause, the court may order
discovery of any matter relevant to the subject matter involved in the action.” When a
party files a motion to compel and asks the court to overrule objections, the objecting
party must specifically show in its response to the motion how each discovery request is
objectionable.7 Objections initially raised but not supported in response to the motion to
6
ECF doc. 59 at 9.
7
Sonnino v. Univ. of Kan. Hosp. Auth., 221 F.R.D. 661, 670-71 (D. Kan. 2004).
O:\ORDERS\14-1136-JAR-57.docx
3
compel are deemed abandoned.8 However, if the discovery request appears facially
objectionable in that they are overly broad or seek information that does not appear
relevant, the burden is on the movant to demonstrate how the requests are not
objectionable.9 With these standards in mind, the court addresses defendant’s objections
and responses to the disputed requests.
I.
General Objections
Defendant made ten general objections in response to plaintiff’s requests.10 In the
District of Kansas, general objections are considered “overly broad and worthless unless
the objections are substantiated with detailed explanations.”11 Our courts disapprove of
the practice of asserting a general objection “to the extent” it may apply to particular
requests for discovery.12 Defendant, as the party resisting discovery, has the burden of
supporting all of its objections, including its general objections.13 The court finds that
defendant has made no meaningful effort to show how any of the general objections
8
In re Bank of Amer. Wage & Emp’t Practices Litig., 275 F.R.D. 534, 538 (D. Kan.
2011).
9
Id.
10
See ECF doc. 57-2 at 1-2.
11
Terracon Consultants Inc. v. Drash, No. 12-2345, 2013 WL 1633572, at *1 (D. Kan.
Apr. 16, 2013).
12
See Swackhammer v. Sprint Corp. PCS, 225 F.R.D. 658, 660-61 (D. Kan. 2004).
13
High Point SARL v. Sprint Nextel Corp., No. 09-2269, 2011 WL 4036424, at *10
(D. Kan. Sept. 12, 2001) (citing Johnson v. Kraft Foods N. Am., Inc., 236 F.R.D. 535,
538 (D. Kan. 2006)).
O:\ORDERS\14-1136-JAR-57.docx
4
apply to a specific request for production. Defendant’s general objections are listed “to
the extent” that they apply to any of the set of requests for production, rendering them
meaningless and hypothetical because they are not applied to specific requests.
Therefore, the court finds that defendant’s “general objections” to plaintiff’s first set of
requests for production are overruled.
II.
Objections to Requests
Under Rule 34(b)(2)(B) of the Federal Rules of Civil Procedure, the party
responding to requests for production must “either state that inspection and related
activities will be permitted … or state an objection to the request, including the reasons.”
Of the four requests for production, defendant objected to all four, but answered and
objected to Requests for Production Nos. 3 and 4. The court has substantial discretion to
determine the propriety of such requests and the sufficiency of responses.14 An objection
and answer preserves nothing and serves only to waste the time and resources of both the
parties and the court.15
Answering discovery requests “subject to” objections is
“manifestly confusing (at best) and misleading (at worse), and has no basis at all in the
Federal Rules of Civil Procedure.”16 The court could find “whenever [defendant’s]
14
Audiotext Commc’ns Network Inc. v. US Telecom, Inc., No. 94-2395, 1995 WL
625744, at *1 (D. Kan. Oct. 5, 1995).
15
Consumer Electronics Ass’n v. Compras & Buys Magazine, Inc., No. 08-21085,
2008 WL 4327253, at *3 (S.D. Fla. Sept. 18, 2008).
16
Sprint Commc’ns Co., L.P. v. Comcast Cable Commc’ns, LLC, No. 11-2684, 2014
WL 545544, at *2 (D. Kan. Feb. 11, 2014).
O:\ORDERS\14-1136-JAR-57.docx
5
answer accompanies an objection, the objection is deemed waived and the answer, if
responsive, stands.”17 Nonetheless, the court will address the validity of defendant’s
objections.
A.
Requests for Production Nos. 1-2
Initially, defendant objected to Requests for Production Nos. 1-2 to the extent that
they seek information protected by the attorney-client privilege or work-product doctrine,
or seek information pertaining to any protected business or trade secret, or any
confidential, proprietary or otherwise protected business or commercial information.
Initially and in response to plaintiff’s motion, defendant objected to the requests as
seeking irrelevant information. As earlier explained, when ruling upon a motion to
compel, the court generally considers those objections which have been timely asserted
and relied upon in response to the motion. The court generally deems objections initially
raised but not relied upon in response to the motion as abandoned. 18 Because defendant
only relies upon its relevancy objection in response to this motion, the court will only
address that objection. Other objections initially raised but not supported in response to
the motion to compel are deemed abandoned.
At the discovery stage, relevancy is broadly construed, and a request for discovery
should be considered relevant if there is “any possibility” that the information sought
17
Id. (citations omitted).
18
Sonnino, 221 F.R.D. at 670 (citing Cotracom Commodity Trading Co. v. Seaboard
Corp., 189 F.R.D. 655, 664 (D. Kan. 1999)).
O:\ORDERS\14-1136-JAR-57.docx
6
may be relevant to the claim or defense of any party. 19 When the discovery sought
appears relevant on its face, the party resisting discovery has the burden to establish the
lack of relevance by demonstrating that the requested discovery does not come within the
broad scope of relevance as defined under Rule 26(b)(1), or is of such marginal relevance
that the potential harm the discovery may cause would outweigh the presumption in favor
of broad disclosure.20 Conversely, when relevancy is not apparent on the face of the
interrogatory or request, the party seeking the discovery has the burden to show the
relevancy of the information or documents sought.21 The court finds that the information
requested (“all document and communications, including the adjuster’s file – and all
materials from any 3rd party adjuster – related to claim number 80520330 made by
Cullum and Brown of Wichita under Liberty Mutual policy number 1004498” and
“Liberty Mutual policy number 1004498 issued to Cullum and Brown of Wichita”) is not
information that appears relevant on its face. Thus, plaintiff has the burden to show the
relevancy of the information sought.
Plaintiff argues that the third-party insurance information is relevant to its claims
and defendant’s affirmative defenses. Plaintiff asserts that Cullum & Brown of Wichita
(“Cullum & Brown”) owns a commercial building just yards away from the covered
19
DIRECTV, Inc. v. Pucinelli, 224 F.R.D. 677, 684 (D. Kan. 2004) (citing McCoy v.
Whirlpool Corp., 214 F.R.D. 642, 643 (D. Kan. 2003)).
20
Id.
21
Id.
O:\ORDERS\14-1136-JAR-57.docx
7
buildings at issue with metal roofs virtually identical to plaintiff’s buildings. Plaintiff
alleges the Cullum & Brown roofs were damaged in the same hail storm that damaged
plaintiff’s buildings in May 2013. Plaintiff insists that Cullum & Brown’s building is (or
was) covered by an insurance policy issued by defendant with policy language similar, if
not identical, to the policy at issue in this case. Because Cullum & Brown’s insurance
claim was allegedly paid and the roof replaced, plaintiff seeks discovery of defendant’s
records related to Cullum & Brown’s claim. Plaintiff argues that this information is
probative of whether its policy provides coverage for damage caused by the hail storm.
Further, plaintiff asserts that these requests lead to the discovery of admissible
evidence about “whether a hail storm occurred in May of 2013, the size of the stones
produced by that storm, and the damage that the storm caused to the Covered Properties
based on its proximity to Cullum & Brown.”22 Finally, plaintiff argues that whether
defendant paid for the replacement of Cullum & Brown’s roof is relevant to whether
plaintiff’s policy requires replacement of its damaged property.
Defendant responds that this is a breach of contract case involving the application
of plaintiff’s insurance policy to the unique facts and circumstances of plaintiff’s
insurance claim and property conditions. Defendant asserts that the Cullum & Brown
claim involved a different insured, a different insurer (The Netherlands Insurance
Company), a different contract written on different forms, different buildings with
22
ECF doc. 57 at 6.
O:\ORDERS\14-1136-JAR-57.docx
8
different roofs built at different times, and different independent and in-house adjusters.
Thus, defendant argues that the information plaintiff seeks has no probative value and its
production is not likely to lead to the discovery of admissible evidence.
Although
defendant admits that Cullum & Brown owns a building relatively close to the plaintiff’s
buildings, defendant insists that plaintiff’s claims regarding similarities between the
properties are speculative and completely unsupported.
In its reply, plaintiff claims to have requested these documents “to learn why a
Liberty Mutual adjuster determined that the hail damage to Cullum & Brown’s flat metal
roof was covered by its insurance policy, while Liberty Mutual has denied coverage for
damage to GPV’s flat metal roofs.”23
Plaintiff argues these documents should be
produced because they’re relevant to plaintiff’s bad faith claim and the burden of
producing them is not an issue in this case.
The court agrees with plaintiff.
Although documents concerning Cullum &
Brown’s insurance claim ultimately might be deemed inadmissible at trial, the court is
persuaded that those documents are discoverable given the standards discussed above.
Therefore, defendant’s relevancy objection is overruled.
B.
Requests for Production Nos. 3-4
Request for Production No. 3 asks defendant to produce “the adjuster’s file –
including all materials from any 3rd party adjuster – and/or any claims file related to any
23
ECF doc. 60 at 8.
O:\ORDERS\14-1136-JAR-57.docx
9
claims made by [GVP] arising out of the Occurrence or the dispute outlined in the
Petition except for the adjuster’s notes reflecting his/her mental impressions concerning
reserves or dollar value of the claim.”24 Initially, defendant objected “to the extent [this
request] seeks information protected by the attorney-client privilege or work-product
doctrine and to the extent this Request seeks information pertaining to any protected
business or trade secret, or any confidential, proprietary or otherwise protected business
or commercial information.”25 Request for Production No. 4 asks for “[a]ll underwriting
files for all policies Liberty Mutual has issued to GPV in the past 5 years.” Initially,
defendant objected to this request as “vague, overly broad, unduly burdensome, irrelevant
and not reasonably calculated to lead to the discovery of admissible evidence.”26
Defendant also objected “to the extent it seeks information protected by the attorneyclient privilege or work-product doctrine, or seeks information pertaining to any
protected business or trade secret, or any confidential, proprietary or otherwise protected
business or commercial information.”27
Plaintiff argues that defendant “has no valid basis for refusing to produce
documents responsive to Request for Production No. 3” and its “motion to compel
24
ECF doc. 57-1.
25
ECF doc. 57-2.
26
Id. at 5.
27
Id.
O:\ORDERS\14-1136-JAR-57.docx
10
documents responsive to this request should be granted.”28 Plaintiff asserts that the
documents sought in Request for Production No. 4 are reasonable in scope, specific, and
relevant. Plaintiff cites the recent questions asked by defendant’s counsel at depositions
regarding roof damage from earlier storms as proof of the relevance of the underwriting
files for five years prior. Plaintiff insists that its request is “obviously calculated to lead
to the discovery of admissible evidence about [defendant’s] knowledge of the condition
of the Covered Property prior to and after the hail storm, the damage caused to the
Covered Property, and Liberty Mutual’s bad faith in denying coverage for that
damage.”29
With respect to the privilege log, plaintiff asserts that the redacted
information can’t be withheld on the basis of irrelevance or confidentiality. And, because
defendant has not stated a valid reason for redacting or withholding information, plaintiff
argues the court should order defendant to produce these documents in unredacted form.
Defendant responds that its redactions and accompanying privilege log are proper.
The only objection defendant reiterates in support of its redactions and withholdings is
that the information sought is irrelevant. Defendant also makes a vague reference to the
fact that the information withheld may be proprietary. In a footnote, defendant states
“Should GPV change its current position as expressed in its motion and argue in its reply
that it is legally entitled to discovery of the reserve, reinsurance, billing or banking
28
ECF doc. 57 at 8.
29
Id. at 9.
O:\ORDERS\14-1136-JAR-57.docx
11
information that has been withheld or redacted, Liberty respectfully requests that it be
given an opportunity to respond to any such argument in a sur-reply.”30 Defendant’s
request is denied. It is clear from plaintiff’s motion that the withheld information is
exactly what plaintiff is seeking—whether it be redacted or withheld in its entirety. As
the court already explained, the court generally deems objections initially raised but not
relied upon in response to the motion as abandoned.31 Therefore, the court will only
address defendant’s relevancy and confidentiality objections and the propriety of its
redactions based on the current record.
Irrelevancy.
Defendant, as the party redacting information on otherwise
discoverable documents, has the burden to show why its redactions are proper.32
Defendant explains that its redactions and withholdings were solely related to reserves,
reinsurance, billing and banking and thus, are irrelevant. Defendant has not pursuaded
the court that plaintiff should not be allowed to review this redacted information.
Defendant cites no authority other than Fed. R. Civ. P. 26(b)(5) 33 to support its redaction
30
ECF doc. 59.
31
Sonnino, 221 F.R.D. at 670 (citing Cotracom Commodity Trading Co., 189 F.R.D. at
664).
32
McNabb v. City of Overland Park, No. 12-2331, 2014 WL 1152958, at *4 (D. Kan.
Mar. 21, 2014).
33
Rule 26(b)(5) does not mention withholding information based on irrelevance. That
rule provides “[w]hen a party withholds information otherwise discoverable by claiming
that the information is privileged or subject to protection as trial-protection material, the
party must: (i) expressly make the claim; and (ii) describe the nature of the documents,
communications, or tangible things not produced or disclosed—and do so in a manner
O:\ORDERS\14-1136-JAR-57.docx
12
of claimed irrelevant information. But, it is defendant’s burden to establish lack of
relevance to support its redactions. “There is no express or implied support in either Rule
34 or Rule 1 for a party to insert the expensive and delay-causing step of redaction of
irrelevant [] information into the process of producing documents.”34 This court is in
agreement with other cases in this district, which have held that “[i]t is at least implicit
[in Rule 34] that the duty to ‘produce documents as they are kept in the usual course of
business’ includes the substantive contents of those documents.”35 Defendant has not
met its burden to justify its redaction of “irrelevant” information. Therefore, defendant’s
relevancy objection is overruled. All documents withheld or redacted in response to
Requests for Production Nos. 3 and 4 on the basis of irrelevancy shall be produced in
their entirety except for Bates Nos. LM00650-51 and LMOO654.36
Confidentiality. Originally, defendant objected “to the extent [the requests] seek[]
… any confidential, proprietary or otherwise protected business or commercial
that, without revealing information itself privileged or protected, will enable other parties
to assess the claim.”
34
McNabb, 2014 WL 1152958, at *4 (citing Orion Power Midwest, L.P., v. Am. Coal
Sales Co., No. 05-555, 2008 WL 4462301, at * 2 (W.D. Pa. Sept. 30, 2008)).
35
Id. (citing Orion Power, 2008 WL 4462301, at *2) (citing Fed. R. Civ. P.
34(b)(2)(E)(ii) (party must produce information “in a form or forms in which it is
ordinarily maintained”)).
36
Plaintiff no longer seeks discovery of the redacted portions of these documents. See
ECF doc. 57 at 10.
O:\ORDERS\14-1136-JAR-57.docx
13
information.”37 In addition, defendant submitted a privilege log describing its basis for
withholding documents as “proprietary and irrelevant reserves [or reinsurance]
information.”38 After reviewing defendant’s response to plaintiff’s motion, it is still
unclear what documents are being redacted or withheld on the basis of confidentiality
alone. The only support defendant makes for its confidentiality objection is reference to
the privilege log.
In the privilege log, defendant described redacted documents as one of the
following: email communication, property loss report, serious case notice, NHI reports
(2-5), invoice, bank account information, and “Form RM 9999 BPAP Coding and
Distribution Report.” Defendant also withheld three documents in their entirety and
described them as “account premium and loss,” binder cover, and spreadsheet. The only
reference to confidentiality in the privilege log is under the heading “Basis for
Withholding Document,” where defendant writes “proprietary.” Defendant’s description
of the documents withheld is inadequate to assess their claimed protection. Regardless, a
general concern for protecting confidentiality does not equate to privilege.39
Thus,
information and documents are not shielded from discovery merely because they are
confidential.40 Defendant does not address or explain why the agreed protective order41
37
ECF doc. 57-2 at 4-5.
38
ECF doc. 57-3.
39
DIRECTV, Inc., 224 F.R.D. at 684-85 (citing Sonnino, 220 F.R.D. at 642).
40
Id.
O:\ORDERS\14-1136-JAR-57.docx
14
already entered in this case does not provide sufficient protection. Nor does defendant
meaningfully attempt to support its “proprietary” objection. In consideration of the
foregoing, the court finds that defendant has failed to meet its burden to show its
redaction or withholding of documents on the basis of confidentiality is proper.
Therefore, the court grants plaintiff’s motion to compel with respect to Requests for
Production Nos. 3 and 4. Defendant shall produce un-redacted copies of all documents
listed on its “privilege log.”
IT IS THEREFORE ORDERED:
1. Plaintiff’s motion to compel (ECF doc. 57) is granted.
All responsive
documents that defendant has been ordered to produce shall be served by February 9,
2015.
2. The parties shall bear their own expenses and attorney fees incurred in
connection with this motion.
But the court respectfully suggests that counsel, in
particular defense counsel, review again paragraph 3(k) of the scheduling order (ECF
doc. 18), i.e., the parties are forewarned that if they assert bogus discovery objections
such as those involved in the present motion, the court intends to impose stiff sanctions,
including but not limited to attorney fees, under Fed. R. Civ. P. 26(g).
41
See ECF doc. 21.
O:\ORDERS\14-1136-JAR-57.docx
15
Dated January 29, 2015 at Kansas City, Kansas.
s/ James P. O’Hara
James P. O’Hara
U. S. Magistrate Judge
O:\ORDERS\14-1136-JAR-57.docx
16
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?