Lambert et al v. Liberty Mutual

Filing 28

RULING granting in part and denying in part 26 Motion to Compel Depositions and Production of Un-Redacted Documents. Under Rule 37(a)(5), the parties shall bear the respective costs incurred in connection with this motion. Signed by Magistrate Judge Stephen C. Riedlinger on 11/22/2013. (JDL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

DANNY P. LAMBERT, ET AL
CIVIL ACTION
VERSUS
NUMBER 13-23-BAJ-SCR
LIBERTY MUTUAL FIRE INSURANCE
COMPANY
RULING ON MOTION TO COMPEL
Before

the

Depositions

and

court

is

Production

document number 26.

the

Plaintiff’s

of

Un-Redacted

Motion

to

Documents.

Compel
Record

The motion is opposed.1

Plaintiffs Danny and LaDonna Lambert sued defendant Liberty
Mutual Fire Insurance Company to recover additional amounts for
damage to their home and its contents as a result of a fire that
occurred on September 6, 2010.

Plaintiffs also alleged claims

under state law for the defendant’s alleged violation of the duty
of good faith and fair dealing, under LSA-R.S. 22:1973, and its bad
faith, under LSA-R.S. 22:1892.

Plaintiffs moved for an order to

compel the defendant to cooperate with their request for the
defendant to provide contact information and depose adjusters Roy
Burns and Ernie Pounders, and to produce portions of its claim file
without redacting pre-litigation claim notes or claim expense
reserve information.

1

Plaintiffs’ motion is resolved as follows.

Record document number 27.

Contact Information and Depositions of Burns and Pounders
Burns
assigned

and

to

Pounders

the

were

plaintiffs’

contents

and

claim.

On

dwelling
September

adjusters
5,

2013,

plaintiffs’ counsel sent a letter requesting dates to schedule
their depositions.2

Defendant informed the plaintiffs that these

adjusters no longer worked for it, but it would request their last
known

contact

depositions.

information
Plaintiffs

and
noted

attempt
that

to

in

a

schedule
later

their

telephone

conversation between counsel, it was agreed that the defendant
would have until September 26, 2013 to locate the two former
adjusters and provide dates for their depositions, and if the
defendant was unable to accomplish to so by that date, then the
plaintiffs requested that the defendant provide them with the
adjusters’ last known contact information.

According to the

plaintiffs, the defendant has so far refused to provide this
information.

Plaintiffs requested that the defendant be compelled

to produce any and all contact information it has for Burns and
Pounders and cooperate in taking their depositions.
In its opposition memorandum the defendant noted that the
plaintiffs had the claim file identifying Burns and Pounders for
more than three months, but waited until September 6 to make their
request.

Defendant stated that it was not able to obtain the

information and schedule the depositions before the October 1, 2013

2

Record document number 26-3, Exhibit 1.
2

fact

discovery

deadline,3

depositions to be taken.

so

it

is

too

late

now

for

these

Defendant argued that the court should

deny the plaintiffs’ request to order it to cooperate in allowing
the plaintiffs to depose its former employees because taking their
depositions would amount to an extension of the time for fact
discovery, which the court has already denied.

Furthermore, the

defendant argued that the plaintiffs are not prejudiced because
they

have

already

taken

a

lengthy

corporate

deposition,

questioning its representative on every step in the adjustment of
the claim; and they also deposed Tracey Burks, who is one of the
contents claim adjusters, for several hours.
Insofar as the plaintiffs argued that the defendant should be
ordered to cooperate in scheduling the depositions of its former
employees

Burns

unsupported.

and

Pounders,

the

plaintiffs’

position

is

As noted by the defendants, the period for fact

discovery has expired and the plaintiffs have not established good
cause to extend it to take these depositions. Nevertheless, if the
defendant possesses any last known contact information for its
former

employees,

plaintiffs.

it

should

provide

that

information

to

the

Therefore, the defendant will be given a date to

provide the contact information or state that it does not have any
such information to produce.

3

Record document number 12, Scheduling Order, item A.
3

Redacted Claim Notes and Claim Expense Reserves
Plaintiffs also moved to compel the defendant to produce the
pre-litigation4 claim handling notes and claim expense reserve
information that was redacted on Bates numbered pages 56 through
132.

Plaintiffs argued this information is relevant to its bad

faith claims.

In its opposition, the defendant stated that is has

now produced unredacted copies of four of the pages containing
redacted pre-litigation claim notes, and the only pages remaining
in dispute are LM-Lambert 85 and 86.5

Defendant maintained its

objection as to these pages based on work product protection,
explaining that the notes were prepared when it mistakenly believed
the claim was in litigation.

Defendant also maintained that it

properly redacted the claim expense reserve information because it
has

no

relevance

to

the

plaintiffs’

allegation

that

it

handled/denied their claim in bad faith.
With regard to the pre-litigation claim notes, the defendant’s
argument is supported by its privilege log and the surrounding
entries.6

Therefore, as to the redacted information remaining in

dispute found on LM-Lambert 85 and 86, the plaintiffs’ motion will
not be granted.

Similarly, there is no basis to compel the

4

Plaintiffs filed this suit on September 6, 2012.

5

number

Record
document
Memorandum, p. 3.
6

27,

Defendant’s

Record document number 26-4, pp. 30-31.
4

Opposition

defendant

to

produce

unredacted

records

that

reflect

the

defendant’s claim expense reserve, which the reserve set to cover
the fees and costs of the litigation. Plaintiffs failed to explain
how this information is reasonably calculated to lead to admissible
evidence relevant to their bad faith claim.
Accordingly, the Plaintiff’s Motion to Compel Depositions and
Production of Un-Redacted Documents is granted in part.
Liberty

Mutual

Fire

Insurance

Company

shall

Defendant

produce

to

the

plaintiffs, within 10 days, the last known contact information it
has for Ernie Pounders and Roy Burns, or a statement that it does
not possess this contact information. The remaining aspects of the
plaintiffs’ motion are denied.
Under Rule 37(a)(5), the parties shall bear the respective
costs incurred in connection with this motion.
Baton Rouge, Louisiana, November 22, 2013.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

5