Bradley v. Liberty Mutual Group, Inc. et al

Filing 23

ORDER: IT IS HEREBY ORDERED that Defendant Safeco Insurance Company of America must produce to Plaintiff the withheld documents discussed in this Order by 5:00 p.m., 7/24/2013. Signed by Magistrate Judge Richard L. Bourgeois, Jr on 07/24/2013. (SMG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
JOSHUA A. BRADLEY

CIVIL ACTION

VERSUS

NO. 13-100-SDD-RLB

LIBERTY MUTUAL GROUP, INC.,
ET AL.
ORDER
The issue before the Court is whether Defendant Safeco Insurance Company of America
(“Safeco”) must provide the Plaintiff with certain documents requested in discovery prior to his
deposition scheduled on July 25, 2013. 1 Safeco contends that the documents have impeachment
value and request delayed disclosure until the deposition is concluded. For the following
reasons, the Court concludes that Safeco must produce the documents prior to the deposition.
Background
Plaintiff filed this action in state court alleging that Safeco arbitrarily and capriciously
refused to tender payment to the Plaintiff under his insurance policy #OF2032536 (“the Policy”)
following damages sustained to the insured residence due to Hurricane Isaac. (R. Doc. 1-2.) As
a defense to the claims against it, Safeco has asserted, among other things, that the “Policy does
not provide coverage for plaintiff’s alleged loss, because plaintiff did not reside in the insured
property on the date of loss.” (R. Doc. 10, at 1.) Safeco denies that the Plaintiff’s claim has been
denied, stating that it has only issued a reservation of rights letter pending further investigation of
the claim. (R. Doc. 10, at 5.) Safeco also asserts that the Plaintiff “has engaged in concealment

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The Court has not been provided or reviewed any of the documents at issue. Any description of the nature of their
contents has come from representations made by Safeco.

or fraud” and also “failed to cooperate in Safeco’s investigation of the claim. . . .” (R. Doc. 10, at
3.)
Plaintiff propounded discovery on Safeco requesting production of its claims file, which
includes (1) two transcribed statements of third-party witnesses and (2) other investigative
materials including reports of Safeco’s Special Investigations Unit. Safeco has disclosed to the
Plaintiff the existence of these materials, but withheld the actual documents based on their
“unique impeachment value.” (R. Doc. 22.) Safeco seeks to withhold the documents until after
the deposition of the Plaintiff. In support of its position, Safeco relies on various decisions
where courts have allowed a defendant to withhold certain surveillance materials with
impeachment value until after a plaintiff’s deposition. 2
In response, the Plaintiff argues that the documents requested prior to his deposition are
subject to discovery under Rule 26(b)(1) of the Federal Rules of Civil Procedure. Plaintiff
argues that the materials generated by Safeco’s Special Investigations Unit should be produced
because they are relevant and non-privileged. Plaintiff further argues that the transcribed
statements by the two third-party witnesses are distinguishable from the materials discussed in
the cases relied upon by Safeco because they do not consist of “surveillance.”
The parties jointly requested a telephone status conference prior to the deposition of the
Plaintiff scheduled on July 25, 2013. The court held a telephone status conference on July 23,
2013. During the telephone conference, Safeco argued that the materials withheld from the
Plaintiff include materials with impeachment value. Safeco conceded, however, that the
documents are not being withheld on grounds of privilege and they contained at least some value

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The Court notes that the decisions cited by Safeco are not binding on this court and all are factually distinguishable
from the instant case.

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as substantive evidence. 3 Safeco further acknowledged that the substance of these materials is
relevant to the central question in this lawsuit – whether the plaintiff resided at the residence at
the time of the alleged damages. Nevertheless, Safeco argued that the withheld documents have
unique impeachment value similar to surveillance conducted in personal injury claims.
Analysis
Rule 26(b)(1) of the Federal Rules of Civil Procedure provides that “[p]arties may obtain
discovery regarding any non-privileged matter that is relevant to any party’s claim or defense. . .
.” Safeco acknowledges that the materials at issue are both non-privileged and also relevant to
both the plaintiff’s claim and Safeco’s defense.
There is nothing in the Federal Rules that permits a party to refuse to produce
impeachment evidence that is responsive to an opponent’s discovery requests. Although the
rules pertaining to initial and pretrial disclosures allows a party to withhold such evidence, see
Fed. R. Civ. P. 26(a)(1) and (3), the rules regarding the discovery of evidence, see Fed. R. Civ. P.
26(b), do not preclude impeachment materials from being subject to a discovery request. See
Wright, Miller, Kane, Marcus, & Steinman, Federal Practice and Procedure § 2015 (3d ed.
1998) (“[T]he intention of the party from whom discovery is sought to use materials for possible
impeachment does not narrow discovery of items that are relevant. The initial disclosure
requirements exclude items that the disclosing party may use “solely for impeachment,” but no
such categorical limitation applies to material sought through discovery.”).

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This order does not concern documents redacted or withheld by Safeco solely on the ground that they are
privileged. In his July 21, 2013 letter, counsel for Plaintiff submitted a list of Bates numbered pages produced by
Safeco that contained “redacted” materials and questioned the grounds for the redactions. (R. Doc. 22.) Counsel for
Safeco explained that the redacted materials included (1) documents requiring redaction because of claims of
privilege and (2) documents requiring redactions on the ground that they contain impeachment value (i.e., the
Safeco’s Special Investigations Unit reports). Counsel for Safeco advised the court that she is working on a
privilege log detailing the grounds for the redactions of privileged material. She also advised the court that the two
third-party witness statements have been withheld in their entirety and are not included in the list of redacted
documents.

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As reflected in the cases cited by Safeco dealing with surveillance footage, some courts
have allowed for delayed production in circumstances where the materials consist of items to be
used for impeachment purposes. 4 As an initial point, the Court notes that not all federal courts
within the State of Louisiana have agreed on the premise that surveillance videos and related
materials may be withheld on impeachment grounds until after a plaintiff’s deposition. Compare
Romero v. Chiles Offshore Corp., 140 F.R.D. 336 (W.D. La. 1992) (surveillance evidence may
be withheld from production prior to plaintiff’s deposition and need not be disclosed until ten
days prior to trial if used solely for impeachment purposes), with Karr v. Four Seasons Mar.,
Ltd., 2004 WL 797728 (E.D. La. Apr. 12, 2004) (surveillance evidence must be produced prior
to deposition of plaintiff as the court could not conclude that it was limited exclusively to
impeachment purposes). The Fifth Circuit has held that regardless of whether surveillance video
has some impeachment value, it must be produced if it contains any substantive evidence.
Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513, 517-18 (5th Cir. 1993) (concluding that
surveillance tape that did not necessarily impeach plaintiff’s testimony regarding her injuries
was at least in part substantive, and should been disclosed prior to trial).
Even if the Court were to agree that delayed disclosure may be appropriate in cases
involving surveillance footage used solely for impeachment, this case is significantly different.
The requested items include (1) two transcribed statements of third-party witnesses and (2) other
investigative materials including reports of Safeco’s Special Investigations Unit. There is no
dispute that the documents withheld or redacted by Safeco are non-privileged and relevant to the
substantive validity of the Plaintiff’s claims.

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One source of this authority could be found in the court’s discretion under Rule 26(c)(2) to designate a “time and
place” of discovery when a protective order is sought. Such relief requires “good cause” and is wholly within the
court’s discretion.

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That the materials may contain some impeachment value is insufficient grounds for the
court to allow Safeco to withhold the materials until after the Plaintiff’s deposition. Federal civil
discovery is not a game of surprise. The federal rules promote broad discovery so that all
relevant evidence is disclosed as early as possible, allowing each side to knowledgeably evaluate
the strength of its evidence and chances of success. Safeco seeks an exception, allowing it to
withhold substantive discovery that it has determined is helpful to its case so it can first depose
the plaintiff without revealing this evidence. Allowing parties to withhold their best evidence –
substantive and impeachment – until after depositions would nullify the discovery process.
Every party would request such relief. While the court may have discretion to allow such a
practice under certain circumstances more analogous to the cases cited by Safeco, it will not do
so in this case.
At the telephone conference, counsel for Plaintiff has advised the court that he will have
sufficient opportunity to review the withheld documents prior to the Plaintiff’s currently
scheduled deposition if he receives the documents by close of business on July 24, 2013.
Counsel for Safeco has advised the court that it will be possible to produce the withheld
documents by that deadline if ordered to do so.
Accordingly, IT IS HEREBY ORDERED that Defendant Safeco Insurance Company of
America must produce to Plaintiff the withheld documents discussed in this Order by 5:00 p.m.,
July 24, 2013.
Signed in Baton Rouge, Louisiana, on July 24, 2013.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE

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