Shaf-Land, L.L.C. v. Sunbelt Chemicals Corp. et al

Filing 69

ORDER granting in part and denying in part 44 Motion to Compel. Signed by Magistrate Judge Erin Wilder-Doomes on 03/08/2017. (ELW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

SHAF-LAND, L.L.C.

CIVIL ACTION

VERSUS

NO. 15-588-JJB-EWD

SUNBELT CHEMICALS CORP., ET AL.

RULING AND ORDER ON MOTION TO COMPEL
Before the Court is a Motion to Compel ASIC’s Discovery Responses (the “Motion”), filed
by defendant Sunbelt Chemicals Corp. (“Sunbelt”).1 The Motion is opposed2 and Sunbelt has filed
a Reply.3 For the reasons that follow, the Motion is GRANTED in part.4
I.

Background
This matter arises out of a dispute relating to alleged damage to commercial property

owned by Shaf-Land, L.L.C. (“Shaf-Land”) and leased to Sunbelt. On or about July 30, 2015,
Shaf-Land filed a Petition for Damages and Breach of Contract against Sunbelt and its insurer,
AIG Specialty Insurance Company (“ASIC”), in the 18th Judicial District Court for the Parish of
West Baton Rouge, Louisiana, asserting that Sunbelt’s business operations caused excessive

1

R. Doc. 44.
R. Doc. 45.
3
R. Doc. 58. ASIC has also filed a Sur-Reply Memorandum in Opposition to Sunbelt’s Motion to Compel (R. Doc.
67), and Sunbelt has filed a Supplemental Memorandum in Support of Motion to Compel (R. Doc. 68).
4
Magistrate judges may “hear and determine” non-dispositive pre-trial motions pursuant to 28 U.S.C. § 636(b)(1)(A).
“A motion to compel is a nondispositive, pretrial discovery motion.” State Farm Mut. Auto. Ins. Co. v. Friedman,
2002 WL 649417, at *1 (N.D. Tex. Jan. 14, 2002) (citing Castillo v. Frank, 70 F.3d 382, 385 (5th Cir. 1995)). See,
Turner v. Hayden, 2016 WL 6993864, at *1 (W.D. La. Nov. 29, 2016) (“The decision by Magistrate Hornsby to deny
Turner’s Motion to Compel Discovery is a non-dispositive matter.”); U.S. v. Toney, 2012 WL 2952768, at *1 (W.D.
La. July 19, 2012) (“The Court must apply a ‘clearly erroneous’ or ‘contrary to law’ standard of review to a magistrate
judge’s ruling on a nondispositive pre-trial motion, such as a motion to compel.” (citations omitted)); In re Bumper
Exchange, Inc., 333 B.R. 135, 138 (Bankr. W.D. Tex. 2005) (holding bankruptcy court’s order granting motion to
compel discovery was an interlocutory order as the order concerned a nondispositive discovery issue and did not
dispose of the merits of litigation).
2

damages to the property.5 The matter was removed to this Court on March 9, 2016, on the basis
of diversity jurisdiction pursuant to 28 U.S.C. § 1332(a).6
On May 10, 2016, ASIC filed a Motion for Summary Judgment, asserting that no coverage
is available under the ASIC policy issued to Sunbelt because Sunbelt failed to provide proper
notice of a claim for property damage.7 ASIC claimed that Shaf-Land first made a demand against
Sunbelt for property damage and/or clean-up costs on or about March 3, 2015, but that Sunbelt did
not advise ASIC of the claim in writing.8 ASIC asserted that it first received notice of Shaf-Land’s
claims against Sunbelt when ASIC was served with the lawsuit on or about August 4, 2015.9 After
obtaining an extension of time to file a response to the Motion for Summary Judgment, 10 Sunbelt
filed a Motion to Continue ASIC’s Motion for Summary Judgment on June 27, 2016.11 In the
Motion to Continue, Sunbelt asserted that notice of the claim was timely provided by Shaf-Land
to Wells Fargo Insurance Services USA, Inc. (“Wells Fargo”), the “producer” of the ASIC policies
at issue.12 Thus, Sunbelt claimed there was a material factual dispute regarding whether Wells
Fargo is an agent of ASIC for the purpose of receiving notice of claims. 13 Sunbelt asserted that a
continuance was necessary to allow for additional discovery regarding the relationship between
ASIC and Wells Fargo.14

5

R. Doc. 1-2.
R. Doc. 1 at ¶ 2.
7
R. Doc. 17.
8
R. Doc. 17-1 at 5 (citing R. Docs. 17-4 and 17-5).
9
R. Doc. 17-1 at 5 (citing R. Doc. 17-5).
10
See, R. Docs. 19 and 20.
11
R. Doc. 23.
12
R. Doc. 23-1 at 1.
13
R. Doc. 23-1 at 1.
14
The Court notes that Sunbelt propounded its First Set of Interrogatories, Requests for Production of Documents,
and Requests for Admissions, which are the subject of the instant Motion, upon ASIC by filing it with its Motion to
Continue on June 27, 2016. (R. Doc. 23-7). The discovery requests seek information and documents regarding ASIC’s
relationship with Wells-Fargo and ASIC’s claims-handling practices. (Id.).
6

2

On June 28, 2016, District Judge James J. Brady issued an Order granting Sunbelt’s Motion
to Continue, dismissing ASIC’s Motion for Summary Judgment and reserving ASIC’s right to renotice the motion “following discovery on the relevant issues.”15
On October 24, 2016, Sunbelt filed the instant Motion, seeking to compel ASIC’s
discovery responses with respect to three topics: (1) ASIC’s claims-handling history with respect
to its other insureds; (2) ASIC’s claims-handling history with respect to Sunbelt; and (3) ASIC’s
relationship with Wells Fargo.16 Although ASIC objected to the discovery requests as seeking
irrelevant information and documents,17 Sunbelt contends that information regarding how ASIC
accepts notice of claims and whether notice to Wells Fargo constitutes notice to ASIC is relevant
because it would show the extent to which ASIC’s past claims-handling actions undermine its
current position regarding whether it received timely notice of Shaf-Land’s claims against
Sunbelt.18 Sunbelt also asserts that by granting its Motion to Continue, Judge Brady implicitly
recognized that the discovery it seeks is relevant to Sunbelt’s coverage claim.19
With respect to the first category of discovery requests, Sunbelt asserts that it asked ASIC
to admit whether in the last five years it had accepted notice of claims on claims-made-andreported policies even when that notice was given (1) to ASIC by a producer, agent, or broker; (2)
to ASIC by a party making a claim against the insured; (3) orally; (4) to Wells Fargo; or (5) to
ASIC in a manner other than as specified in its policy,20 and asked ASIC for additional information
and documents related to any such admission.21 Although ASIC objected to the discovery requests

R. Doc. 25. Judge Brady also granted Shaf-Land’s Expedited Motion for Extension of Time to File Opposition to
ASIC’s Motion for Summary Judgment With Incorporated Memorandum In Support. (R. Docs. 22, 25).
16
R. Doc. 44.
17
R. Doc. 44-1 at 12 (citing R. Doc. 44-2 at 5-16).
18
R. Doc. 44-1 at 12.
19
R. Doc. 44-1 at 12.
20
R. Doc. 44-1 at 9 (citing R. Doc. 44-2 at 5-9).
21
R. Doc. 44-1 at 9 (citing R. Doc. 44-2 at 11-12, 15).
15

3

as seeking irrelevant information,22 Sunbelt contends that the information is relevant to defend
against ASIC’s claim that the only way Sunbelt could have provided timely notice of Shaf-Land’s
demand is by written notice from Sunbelt.23 Sunbelt further asserts that the discovery requests are
limited to a five-year period, the information sought is not privileged, and any concerns regarding
confidentiality can be cured by the protective order currently in place. 24 Sunbelt contends that
ASIC’s remaining boilerplate objections to these discovery requests are meritless.25
With respect to the second category of discovery requests, Sunbelt asserts that it asked
ASIC to (1) describe how Sunbelt has given notice of claims that ASIC previously covered; (2)
provide communications between ASIC and Wells Fargo relating to Sunbelt; (3) provide
documents evidencing how Sunbelt provided notice of prior claims; and (4) produce ASIC’s full
underwriting file for both Sunbelt policies at issue.26 Sunbelt asserts that the way ASIC has
accepted notice on past Sunbelt claims, especially if that notice was provided through Wells Fargo,
is directly relevant to the question of whether ASIC received proper notice in this case.27 ASIC
objected to these discovery requests, asserting that they seek information already in Sunbelt’s
possession, request irrelevant information, and are vague and ambiguous.28 Sunbelt asserts that
these are boilerplate and invalid objections.
With respect to the third category of discovery requests, Sunbelt asserts that it asked ASIC
to describe the relationship between ASIC and Wells Fargo and to produce documents and

22

R. Doc. 44-2 at 5-12, 15).
R. Doc. 44-1 at 13.
24
R. Doc. 44-1 at 13 (citing R. Doc. 31).
25
R. Doc. 44-1 at 14.
26
R. Doc. 44-1 at 9 (citing R. Doc. 44-2 at 13, 14, 16). Although Sunbelt refers to “both policies at issue,” Request
for Production No. 8, to which Sunbelt refers, only requests the underwriting file for ASIC Policy No. EG 4068312,
which is the only policy mentioned in the discovery requests. (R. Doc. 44-2 at 16; See also, R. Doc. 44-2 at 6-11, 13,
15).
27
R. Doc. 44-1 at 16.
28
R. Doc. 44-2 at 13, 14, 16).
23

4

communications regarding the relationship and regarding Wells Fargo’s authority to act on ASIC’s
behalf.29 Sunbelt claims that ASIC should be compelled to respond to these requests because its
objections do not justify its failure to provide full and complete responses.30 Sunbelt points out
that ASIC objected to Interrogatory No. 1, which asked ASIC to describe the relationship between
ASIC and Wells Fargo, as calling for a legal conclusion.31 Sunbelt argues this objection is
unfounded because the interrogatory asks for a factual description of the relationship, not a legal
conclusion.32 Sunbelt asserts that ASIC’s remaining objections to the requests as being overly
broad and vexatious are similarly unfounded because Judge Brady implicitly recognized the
relevance and importance of discovery into the relationship between ASIC and Wells Fargo when
he continued ASIC’s Motion for Summary Judgment.33 Sunbelt contends that these discovery
requests are tailored to obtain that information by asking for documents that evidence the
relationship between ASIC and Wells Fargo and asserts that the request is not unduly burdensome
merely because it may result in the production of a large number of documents.34
In the Opposition, ASIC asserts that the discovery sought by Sunbelt is not relevant in this
case because there is no evidence to support Sunbelt’s “baseless and false assertion” that notice of
Shaf-Land’s claim was timely provided to Wells Fargo and that Wells Fargo has authority to accept
notice on behalf of ASIC.35 ASIC claims the Wells Fargo corporate representative testified that
Wells Fargo did not receive notice of Shaf-Land’s demand prior to suit being filed against Sunbelt
and ASIC36 and that the earliest communication in Wells Fargo’s file related to this claim is

29

R. Doc. 44-1 at 10 (citing R. Doc. 44-2 at 11, 13, 15).
R. Doc. 44-1 at 14.
31
R. Doc. 44-1 at 14 (citing R. Doc. 44-2 at 11).
32
R. Doc. 44-1 at 14.
33
R. Doc. 44-1 at 15.
34
R. Doc. 44-1 at 15.
35
R. Doc. 45 at 3-4.
36
R. Doc. 45 at 4 (citing R. Doc. 45-1 at 13-20, 25-26, 29-32).
30

5

October 22, 2015, after this suit was filed.37 ASIC points out that it has produced the entirety of
the underwriting files for the two Sunbelt policies at issue (the 2014-2015 and 2015-2016 ASIC
policies), as well as the non-privileged portions of its claim file relating to this claim38 and that
Wells Fargo has similarly produced its entire file related to Sunbelt.39 ASIC also asserts that the
discovery requests are overly broad, unduly burdensome, and not proportional to the needs of this
litigation.40
With respect to Sunbelt’s discovery requests regarding how ASIC accepts notice of claims
by other insureds, ASIC asserts that the way ASIC accepted notice of claims submitted on behalf
of non-party insureds under policy language that may be different from the policy language at
issue in this litigation is irrelevant to Sunbelt’s failure to comply with the claims-made-andreported requirement at issue here.41 ASIC contends that even if Sunbelt’s request is limited to
one and a half years, ASIC would be required to review almost 4,000 claims files to determine
how notice was provided, which is an objectively unreasonable request and not proportional to the
needs of this case.42 ASIC also asserts that these discovery requests seek confidential information
regarding claims submitted by non-party insureds that should be protected from discovery. ASIC
further claims that the information sought is irrelevant because it has never taken the position that
notice must be received in writing from Sunbelt.43
With respect to the second category of discovery requests, ASIC asserts that information
regarding how Sunbelt has provided notice of other claims is irrelevant in this case, especially
because Sunbelt did not report Shaf-Land’s claim to ASIC or Wells Fargo until after this suit was

37

See, R. Doc. 45-1 at 13-16, 25-26, 29-32.
R. Doc. 45 at 5.
39
R. Doc. 45 at 4.
40
R. Doc. 45 at 7-8.
41
R. Doc. 45 at 8.
42
R. Doc. 45 at 8-9.
43
R. Doc. 45 at 9-10.
38

6

filed.44 ASIC asserts that Sunbelt seeks to compel ASIC to produce years’ worth of underwriting
files and years’ worth of claims files regarding policies and claims not at issue in this case. ASIC
argues that whether it received notice of other claims from Wells Fargo, Sunbelt, or from another
entity is irrelevant to the claim at issue in this case and amounts to nothing more than a fishing
expedition. ASIC further contends that Wells Fargo has already produced its entire file relating to
the Sunbelt account, so the information regarding Sunbelt’s claims history is already in Sunbelt’s
possession.45
Finally, ASIC asserts that the discovery sought regarding the relationship between ASIC
and Wells Fargo is irrelevant because there is no evidence that Wells Fargo received notice of the
claim before this suit was filed, mooting Sunbelt’s claim that notice to Wells Fargo constituted
notice to ASIC.46 ASIC asserts that Wells Fargo has no authority to accept notice on behalf of
ASIC47 and has no authority to act on ASIC’s behalf, so there are no documents that evidence
Wells Fargo’s authority to act on ASIC’s behalf.48 ASIC points out that Wells Fargo has already
produced its entire file related to Sunbelt, which contains no evidence that Wells Fargo has either
explicit or implicit authority to accept notice of claims on ASIC’s behalf.49 As such, ASIC asserts
the Court should deny the Motion.
In response, Sunbelt asserts that contrary to ASIC’s assertions, it is “hotly disputed”
whether Wells Fargo received notice of Shaf-Land’s claim against Sunbelt and whether Wells
Fargo served as ASIC’s agent for receipt of notice of claims.50 Sunbelt asserts that its corporate
representative, Tim Capp, testified that he spoke with a Wells Fargo representative about this claim

44

R. Doc. 45 at 11.
R. Doc. 45 at 12.
46
R. Doc. 45 at 10.
47
R. Doc. 45 at 10 (citing R. Docs. 45-1 and 45-2).
48
R. Doc. 45 at 10.
49
R. Doc. 45 at 10-11 (citing R. Doc. 45-1).
50
R. Doc. 58 at 4.
45

7

in May 2015.51 Sunbelt also asserts that Shaf-Land’s counsel sent written notice of the claim to
Wells Fargo, through Louisiana’s Commissioner of Insurance, on May 5, 2015,52 and that Sunbelt
has an outstanding public records request to the Commissioner of Insurance seeking evidence that
his department forwarded that notice to Wells Fargo.53 Sunbelt further asserts that the evidence
shows Wells Fargo was vested with apparent authority to receive notice on ASIC’s behalf because
Sunbelt was not allowed to interact with ASIC directly when coverage was placed, Wells Fargo
sold Sunbelt only AIG-group policies for seven years, Wells Fargo was compensated by ASIC
directly, and in several instances, Sunbelt reported claims to Wells Fargo that AIG ultimately
covered.54 Because there are genuine issues of material fact on these issues, Sunbelt asserts that
additional discovery is needed.
Turning to the three categories of discovery requests at issue, Sunbelt asserts that discovery
regarding how ASIC receives notice of claims is necessary unless ASIC is willing to (1) forego
any argument that notice of a claim must be received in writing from Sunbelt and (2) stipulate that
if Wells Fargo received notice of the claim, orally or in writing, and Wells Fargo is found to be
ASIC’s agent for receipt of claims, there was proper notice under the ASIC policy in this case. 55
Although ASIC claims the discovery requests involve a lot of claims, Sunbelt notes that ASIC
makes no mention of whether the claims files can be electronically searched and the effort involved
in doing so, and further asserts that ASIC likely has a system to retrieve information from its claims

R. Doc. 58 at 5. In the Reply, Sunbelt asserts that, “We have not yet received the representative’s deposition
transcript, but will supplement this memorandum with it when it is received.” (R. Doc. 58 at 5, n.1). The Court notes
that although Sunbelt subsequently included a portion of the deposition transcript from the deposition of Timothy
Capp, Sunbelt’s corporate representative, with its Supplemental Memorandum in Support of Motion to Compel (See,
R. Docs. 68 and 68-1), as of the date of this Ruling and Order, Sunbelt has not provided a complete copy of Capp’s
deposition transcript.
52
R. Doc. 58-2 at 3.
53
R. Doc. 58 at 5 (citing R. Doc. 58-3).
54
R. Doc. 58 at 5-6 (citing R. Doc. 59 at 3, 6-22).
55
R. Doc. 58 at 1.
51

8

files because its parent company, AIG, is one of the largest insurance groups in the United States.56
With respect to Sunbelt’s claims history, Sunbelt asserts that Wells Fargo’s production and
corporate deposition show that Sunbelt previously reported claims to Wells Fargo that were
covered by ASIC.57 Sunbelt contends that ASIC’s documents should confirm that not only were
these claims covered, but there was never a question of whether notice was proper in those
instances. Thus, Sunbelt argues the documents sought are relevant and should be produced.
Finally, Sunbelt contends that the discovery requests regarding the relationship between ASIC and
Wells Fargo go to the heart of the case. Sunbelt asserts that ASIC should be compelled to respond
to its question regarding what Wells Fargo is authorized to do on ASIC’s behalf, since it is clear
that at the very least, Wells Fargo is authorized to sell ASIC’s policies to insureds like Sunbelt.58
Sunbelt further asserts that ASIC should also be required to produce all documents that govern,
evidence, comprise, or discuss its relationship with Wells Fargo.59
On December 7, 2016, the undersigned issued a Notice and Order regarding the Motion,
requiring the parties to meet and confer as required by Federal Rule of Civil Procedure 37(a)(1)
and requiring Sunbelt to file a supplemental certification for the Motion detailing the parties’
efforts to reach a resolution regarding these discovery disputes.60 Sunbelt filed a Supplemental
Certification on December 16, 2016, explaining that while the parties were unable to reach a
resolution regarding any of the issues, they were still attempting to reach a resolution and that
Sunbelt would file a supplemental certification with the Court once the issues were resolved or

56

R. Doc. 58 at 8.
R. Doc. 58 at 7.
58
R. Doc. 58 at 6.
59
R. Doc. 58 at 6-7. The Court notes that although the Reply only mentions Request for Production No. 1, Sunbelt
clarified in its Second Supplemental Certification Regarding Motion to Compel that Request for Production No. 4,
which also concerns this issue, is still in dispute. (R. Doc. 63 at 2).
60
R. Doc. 60.
57

9

discussions reached an impasse.61 When nothing further was communicated to the Court, the
undersigned issued a second Notice and Order on January 27, 2016, requiring the parties to file a
second supplemental certification for the Motion regarding the status of the discovery dispute.62
On February 10, 2017, Sunbelt filed a Second Supplemental Certification Regarding
Motion to Compel, asserting that the parties were able to resolve some of the issues raised in the
Motion.63 Sunbelt claims that the parties were unable to resolve their dispute regarding the
discovery requests concerning the way ASIC receives notice of claims and the relationship
between ASIC and Wells Fargo. According to Sunbelt, “ASIC has indicated it has found no
documents that evidence that relationship, but that it is continuing to search for them in one
additional location,” although Sunbelt doubts whether ASIC will provide a satisfactory response
to the request.64 Sunbelt further asserts that the parties have resolved their dispute regarding the
documents sought pertaining to Sunbelt’s claims history, as ASIC has agreed to produce
documents evidencing and discussing notice of previous claims Sunbelt made under its ASIC
policy and ASIC’s communications with Wells Fargo regarding notice of Sunbelt claims. Thus,
with respect to this category of requests, Sunbelt merely asks the Court to set a reasonable deadline
by which those documents should be produced.65 Sunbelt further asserts that the Court may want
to defer ruling on the Motion because the parties are discussing mediation.66

61

R. Doc. 61
R. Doc. 62.
63
R. Doc. 63.
64
R. Doc. 63 at 2. Sunbelt also noted that although its first supplemental certification referred only to Interrogatory
No. 1 and Request for Production No. 1, Request for Production No. 4, which also concerns this topic, was mistakenly
omitted. (R. Doc. 63 at 2, n. 4).
65
R. Doc. 63 at 3.
66
R. Doc. 63 at 3.
62

10

Thereafter, on February 24, 2017, ASIC filed a Motion for Leave to File Its Sur-Reply
Memorandum in Opposition to Sunbelt’s Motion to Compel,67 which the Court granted.68 While
the Sur-Reply re-urges the arguments previously raised in ASIC’s Opposition to the Motion,69
ASIC further asserts that Sunbelt’s corporate representative, Timothy Capp, has testified that
Sunbelt did not report Shaf-Land’s claim to ASIC before this suit was filed.70 Although a complete
copy of Capp’s deposition transcript was not provided, ASIC attached portions of the deposition
transcript to the Sur-Reply.71 ASIC asserts that although Capp testified that he discussed ShafLand’s claim with someone at Wells Fargo in May 2015, Capp further testified that he never
directed Wells Fargo to report the claim to ASIC.72 Because there is no evidence that Sunbelt ever
provided notice to Wells Fargo prior to October 2015, ASIC maintains the Motion should be
denied because the information and documents sought are irrelevant.
The Court also granted73 Sunbelt’s Ex Parte Motion for Leave to File Supplemental
Memorandum in Support of Motion to Compel,74 which was filed on March 1, 2017. In the
Supplemental Memorandum, Sunbelt asserts that ASIC omitted the portion of Timothy Capp’s
deposition during which Capp testified that when he first spoke to someone at Wells Fargo about
Shaf-Land’s claim in May 2015, he did not think anything further needed to be done to put
Sunbelt’s insurers on notice of the claim because Capp was under the impression that Wells Fargo
was a representative of the insurance company.75 Sunbelt further asserts that ASIC’s Sur-Reply
mistakenly asserts that La. R.S. § 22:1564 recognizes that an agency relationship between a

67

R. Doc. 64.
R. Doc. 66.
69
R. Doc. 45.
70
R. Doc. 67 at 3-4.
71
R. Doc. 67-1 at 1-23.
72
R. Doc. 67 at 4.
73
R. Doc. 66.
74
R. Doc. 65.
75
R. Doc. 68 at 2 (quoting R. Doc. 68-1 at 3-4).
68

11

producer like Wells Fargo and an insurer like ASIC is only established for the collection of
premiums.76 Sunbelt asserts that the statute describes a general situation and says nothing about
the specific relationship between ASIC and Wells Fargo. Sunbelt maintains its position that the
Motion should be granted because information and documents regarding the relationship between
ASIC and Wells Fargo are clearly relevant to the coverage issues presented in this case.
II.

Law and Analysis
Under Rule 26 of the Federal Rules of Civil Procedure, parties 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 stake 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. Fed. R. Civ. P. 26(b)(1). “For purposes of
discovery, relevancy is construed broadly to encompass ‘any matter that bears on, or that
reasonably could lead to other matters that could bear on, any issue related to the claim or defense
of any party.’” Fraiche v. Sonitrol of Baton Rouge, 2010 WL 4809328, at *1 (M.D. La. Nov. 19,
2010) (quoting Coughlin v. Lee, 946 F.2d 1152, 1159 (5th Cir. 1991); Fed. R. Civ. P. 26(b)(1)).
However, the Court must limit discovery if it determines that:
(i)
the discovery sought is unreasonably cumulative or
duplicative, or can be obtained from some other source that is more
convenient, less burdensome, or less expensive;
(ii)
the party seeking discovery has had ample opportunity to
obtain the information by discovery in the action; or
(iii) the burden or expense of the proposed discovery outweighs
its likely benefit, considering the needs of the case, the amount in
controversy, the parties’ resources, the importance of the issues at

76

R. Doc. 68 at 2 (quoting R. Doc. 67 at 5).
12

(iv)
stake in the action, and the importance of the discovery in
resolving the issues.
Fed. R. Civ. P. 26(b)(2)(C). Motions to compel discovery responses are governed by Rule 37(a)
of the Federal Rules of Civil Procedure. “Rule 37(a)(3)(B) provides that a party seeking discovery
may move for an order compelling production or answers against another party when the latter has
failed to produce documents requested under Federal Rule of Civil Procedure 34 or to answer
interrogatories under Federal Rule of Civil Procedure 33.” Gondola v. USMD PPM, LLC, 2016
WL 3031852, at *2 (N.D. Tex. May 27, 2016) (citing Fed. R. Civ. P. 37(a)(3)(B)(iii)-(iv)). “The
party resisting discovery must show specifically how each discovery request is not relevant or
otherwise objectionable.” Gondola, 2016 WL 3031852 at *2 (citing McLeod, Alexander, Powel
& Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990)).
A. Discovery regarding how ASIC receives notice of claims.
In the Motion, Plaintiff seeks to compel ASIC to respond to the following discovery
requests regarding how ASIC receives notice of claims:
REQUEST FOR ADMISSION NO. 1:
Please admit that, during the past 5 years, you have accepted notice
on a claims-made-and-reported policy when that notice was
provided to you, not by your insured, but by a producer, agent, or
broker.
REQUEST FOR ADMISSION NO. 2:
Please admit that, during the past 5 years, you have accepted notice
on a claims-made-and-reported policy when that notice was
provided to you, not by your insured, but by a party making a claim
against your insured.
REQUEST FOR ADMISSION NO. 3:
Please admit that, during the past 5 years, you have accepted notice
on a claims-made-and-reported policy when that notice was made
orally.

13

REQUEST FOR ADMISSION NO. 4:
Please admit that, during the past 5 years, you have accepted notice
on a claims-made-and-reported policy when that notice was
provided not to you, but to Wells Fargo.
REQUEST FOR ADMISSION NO. 5:
Please admit that, during the past 5 years, when your insured had a
policy that included form you have accepted notice under Coverage
D when that notice was not sent to either:
Manager, Pollution Insurance Products Dept.
AIG Property Casualty Claims, Inc.
Attn.: CID
101 Hudson Street, 31st Floor
Jersey City, NJ 07302
Fax: [phone]
E-mail: [e-mail]
or another address you substituted in writing.
INTERROGATORY NO. 2:
If your response to Request for Admission No. 1 was an admission
(in whole or in part), please provide for each such instance: (i) the
name of the insured, (ii) the specific language of the provisions of
the insured’s policies that governed notice, (iii) the manner in which
notice was provided (including, without limitation, how it was
provided and who it was provided to), and (iv) the identity of the
ASIC (or any of its affiliated companies’) personnel involved in the
adjustment of the claim.
INTERROGATORY NO. 3:
If your response to Request for Admission No. 2 was an admission
(in whole or in part), please provide for each such instance: (i) the
name of the insured, (ii) the specific language of the provisions of
the insured’s policies that governed notice, (iii) the manner in which
notice was provided (including, without limitation, how it was
provided and who it was provided to), and (iv) the identity of the
ASIC (or any of its affiliated companies’) personnel involved in the
adjustment of the claim.
INTERROGATORY NO. 4:
If your response to Request for Admission No. 3 was an admission
(in whole or in part), please provide for each such instance: (i) the
name of the insured, (ii) the specific language of the provisions of
the insured’s policies that governed notice, (iii) the manner in which
notice was provided (including, without limitation, how it was
provided and who it was provided to), and (iv) the identity of the
ASIC (or any of its affiliated companies’) personnel involved in the
14

adjustment of the claim.
INTERROGATORY NO. 5:
If your response to Request for Admission No. 4 was an admission
(in whole or in part), please provide for each such instance: (i) the
name of the insured, (ii) the specific language of the provisions of
the insured’s policies that governed notice, (iii) the manner in which
notice was provided (including, without limitation, how it was
provided and who it was provided to), and (iv) the identity of the
ASIC (or any of its affiliated companies’) personnel involved in the
adjustment of the claim.
INTERROGATORY NO. 6:
If your response to Request for Admission No. 5 was an admission
(in whole or in part), please provide for each such instance: (i) the
name of the insured, (ii) the specific language of the provisions of
the insured’s policies that governed notice, (iii) the manner in which
notice was provided (including, without limitation, how it was
provided and who it was provided to), and (iv) the identity of the
ASIC (or any of its affiliated companies’) personnel involved in the
adjustment of the claim.
REQUEST FOR PRODUCTION NO. 5:
For any claim identified in your responses to Interrogatories 2
through 6, please produce: (i) the policy the claim was made under
and (ii) any documents that comprise, evidence, or discuss the notice
provided of that claim.77
ASIC objected to Request for Admission Nos. 1-5 by asserting that the information sought
is irrelevant, that the requests seek information regarding insureds who are not parties to this
litigation, and that the requests are vague, ambiguous, overly broad, unduly burdensome, vexatious
and/or intended solely for the purpose of harassment.78 Subject to these objections, ASIC admitted
that in order for coverage to apply in this case, “the claim for bodily injury or property damage
[must] first be made against the insured [Sunbelt] and reported to us in writing during the policy
period or any extended reporting period if applicable” and that ASIC first received notice of ShafLand’s claims against Sunbelt when it was served with a copy of this lawsuit on or about August

77
78

R. Doc. 44-2 at 5-9, 11-12, 15.
R. Doc. 44-2 at 5-10.
15

4, 2015.79 ASIC objected to Interrogatory Nos. 2-6 by referring back to its responses to Request
for Admission Nos. 1-5.80 ASIC similarly objected to Request for Production No. 5 by referring
to its objections and responses to Request for Production Nos. 2-6, in which ASIC asserts that the
documents sought by Sunbelt are (1) irrelevant; (2) already in Sunbelt’s possession; and (3) seek
information regarding entities, policies, and insureds that are not parties in this case,81 and that the
requests are vague, ambiguous, overly broad, unduly burdensome, vexatious and/or intended
solely for the purpose of harassment.82 Subject to these objections, ASIC responded that it first
received notice of Shaf-Land’s claims on or about August 4, 2015,83 that it agreed to produce the
non-privileged portion of any claim files related to Sunbelt’s policy in accordance with the parties’
protective order,84 and that Wells Fargo was Sunbelt’s agent.85
The Court agrees that Sunbelt’s requests are overbroad and unduly burdensome to the
extent that they seek information and documents regarding claims made under any claims-madeand-reported policies of other insureds for the last five years, seek the name of the insureds
involved in those claims, and seek the identity of the personnel at ASIC or any of its affiliated
companies who were involved in the adjustment of those claims. Such requests encompass a large
amount of possible documents and information, not all of which is reasonably calculated to lead
to the discovery of admissible evidence. Parties are not required to produce discovery if it would
be unduly burdensome. Fed. R. Civ. P. 26(b)(2)(C). Sunbelt has not demonstrated that such
additional information and documents sought by its discovery requests are reasonably calculated
to lead to the discovery of admissible evidence.

79

Id.
R. Doc. 44-2 at 11-12.
81
R. Doc. 44-2 at 14-16.
82
R. Doc. 44-2 at 14-15.
83
R. Doc. 44-2 at 14, 16.
84
R. Doc. 44-2 at 15.
85
R. Doc. 44-2 at 15.
80

16

Although the parties dispute whether Wells Fargo received notice of Shaf-Land’s claim
against Sunbelt86 and whether Wells Fargo served as ASIC’s agent for receipt of notice of claims,
the Court finds that some of the information and documents sought by Sunbelt’s discovery requests
are directly relevant to that issue, which is at the heart of this litigation. However, the Court finds
it appropriate to limit Sunbelt’s Request for Admission Nos. 1-5 to how ASIC received notice of
property damage claims from other insureds under identical policy language, which requires that
“the claim for . . . property damage is first made against the insured and reported to us in writing.”87
Further, the information provided shall be limited to notice of claims made within a one-year
period preceding the filing of this suit. The Court also finds it appropriate to limit Sunbelt’s
Interrogatory Nos. 2-6 to the manner in which notice was provided, including how and to whom it
was provided, which information shall also be limited to notice of claims made within a one-year
period preceding the filing of this suit. Subject to the foregoing limitations, the Court will direct
ASIC to provide supplemental responses to Request for Admission Nos. 1-5 and Interrogatory
Nos. 2-6. The Court finds that Sunbelt has not shown that the documents sought by Request for
Production No. 5 are relevant to this litigation. The Court further finds that Sunbelt is not
foreclosed from seeking additional information and documents, if any, after reviewing the
supplemental responses provided pursuant to this Ruling and Order. Upon seeking such relief,
however, Sunbelt must articulate a particular need for any additional information or documents
needed.

86

While ASIC asserts that the corporate representative for Wells Fargo testified that Wells Fargo did not receive
notice of Shaf-Land’s claims against Sunbelt until after this suit was filed (R. Doc. 45 at 4; R. Doc. 45-1 at 20), Sunbelt
asserts that its corporate representative testified that he spoke with a Wells Fargo representative about the claim in
May 2015 and that Shaf-Land’s counsel sent written notice of the claim to Wells Fargo through Louisiana’s
Commissioner of Insurance on May 5, 2015. (R. Doc. 58 at 5; R. Doc. 58-2 at 3). Thus, the Court notes that there is
clearly a factual dispute in this case regarding whether Wells Fargo received notice of Shaf-Land’s claims against
Sunbelt before this suit was filed.
87
See, R. Doc. 17-7 at 19.
17

B. Discovery regarding the relationship between Wells Fargo and ASIC.
Sunbelt also seeks to compel ASIC to respond to the following requests for information
and documents regarding the relationship between Wells Fargo and ASIC:
INTERROGATORY NO. 1:
Please describe the relationship between ASIC and Wells Fargo,
both in general and particularly with regard to Policy No. EG
4068312 issued to Sunbelt. Please include in your answer a
description of the things that Wells Fargo is authorized to perform
on ASIC’s behalf, and a listing of the documents in which that
authority is granted.
REQUEST FOR PRODUCTION NO. 1:
Please produce any documents that govern, comprise, evidence, or
discuss the relationship between Wells Fargo and ASIC (or any of
its affiliated companies), both in general and particularly with regard
to Policy No. EG 4068312 issued to Sunbelt.
REQUEST FOR PRODUCTION NO. 4:
Please produce any communications between Wells Fargo and
ASIC (or any of its affiliated companies) regarding the authority of
Wells Fargo to act on behalf of ASIC (or any of its affiliated
companies).88
ASIC objected to Interrogatory No. 1 by asserting that it calls for a legal conclusion.89 Subject to
that objection, ASIC responded that Wells Fargo was the surplus lines producer on the Sunbelt
policy at issue in this case and that, “as already admitted by Sunbelt, Wells Fargo was Sunbelt’s
agent.”90 ASIC objected to Request for Production No. 1 by asserting that it seeks irrelevant
information, is overly broad and vexatious, it incorporates the term “affiliated companies,”91 and
ASIC refers to its objections and response to Interrogatory No. 1.92 ASIC similarly objected to

88

R. Doc. 44-2 at 11, 13,15.
R. Doc. 44-2 at 11.
90
Id.
91
ASIC also refers to General Objection No. 13, in which ASIC “objects to the definition of and use of the term
‘affiliated companies’ to the extent it renders any discovery request overly broad inasmuch as it seeks information
from entities which are not parties to this litigation and seeks information from entities not within the control of ASIC.”
(R. Doc. 44-2 at 4).
92
R. Doc. 44-2 at 13.
89

18

Request for Production No. 4 by asserting that it seeks irrelevant information, information
regarding policies, claims, and insureds not at issue in this litigation, and it incorporates the term
“affiliated companies.”93 Subject to those objections, ASIC responded that Wells Fargo was the
surplus lines producer on the Sunbelt policy at issue in this case and that Wells Fargo was Sunbelt’s
agent.94
With respect to Interrogatory No. 1, the Court finds that the information requested by
Sunbelt is clearly relevant in this litigation. As previously stated, whether Wells Fargo received
notice of Shaf-Land’s claim against Sunbelt and whether Wells Fargo served as ASIC’s agent for
receipt of notice of claims is at the center of the dispute between Sunbelt and ASIC.95 In its
Opposition to the Motion, ASIC asserts that, “When a claim is reported to [Wells Fargo], [Wells
Fargo] must report the claim to the insurer.”96 ASIC also concedes in its discovery responses that
Wells Fargo was the “surplus lines producer” on the Sunbelt policy at issue in this litigation.97
Further, as Sunbelt points out, the corporate representative for Wells Fargo testified that Sunbelt
was not allowed to communicate directly with ASIC regarding placement and procurement of
coverage, which must be done by Wells Fargo on Sunbelt’s behalf,98 and that Wells Fargo was
compensated by ASIC whenever it was a producer on a policy sold to one of ASIC’s clients.99
Thus, there is clearly a relationship between Wells Fargo and ASIC with respect to the Sunbelt
policy at issue in this case and the parameters of that relationship are relevant to this litigation. As
such, the Court will direct ASIC to provide a supplemental response to Interrogatory No. 1.

93

R. Doc. 44-2 at 15.
Id.
95
See, supra, note 76.
96
R. Doc. 45 at 6 (citing R. Doc. 45-1 at 23-24, 27-28, 34).
97
R. Doc. 44-2 at 11, 15.
98
R. Doc. 58 at 5 (citing R. Doc. 59 at 3).
99
R. Doc. 58 at 6 (citing R. Doc. 59 at 9).
94

19

With respect to Request for Production Nos. 1 and 4, the Court agrees that Sunbelt’s
requests are overbroad and unduly burdensome to the extent that they seek documents regarding
ASIC’s “affiliated companies,” the definition of which has not been provided to the Court, they
request documents regarding entities that are not parties to this litigation, and they are not limited
to a particular time frame. A request for documents that govern, evidence, or discuss the
relationship between Wells Fargo and ASIC’s “affiliated companies” and for communications
between Wells Fargo and ASIC’s “affiliated companies” regarding Wells Fargo’s authority to act
on behalf of ASIC or any of its “affiliated companies” may encompass a large array of documents
and information, not all of which is reasonably calculated to lead to the discovery of admissible
evidence. Parties are not required to produce discovery if it would be unduly burdensome. Fed.
R. Civ. P. 26(b)(2)(C). Sunbelt has not demonstrated that these discovery requests are reasonably
calculated to lead to the discovery of admissible evidence.
However, the Court finds it appropriate to limit Sunbelt’s discovery requests to documents
that govern, comprise, evidence, or discuss the relationship between Wells Fargo and ASIC, only
with respect to ASIC policies purchased by Sunbelt, and communications between Wells Fargo
and ASIC regarding the authority of Wells Fargo to act on behalf of ASIC with respect to ASIC
policies purchased by Sunbelt. Further, the documentation provided shall be limited to documents
created and communications sent and received within an eight-year period preceding the filing of
this suit.100

Subject to the foregoing limitations, the Court will direct ASIC to provide

supplemental responses to Interrogatory No. 1 and Request for Production Nos. 1 and 4. To the
extent that there are no documents that evidence the authority of Wells Fargo to act on behalf of

The Court notes that in its Reply Memorandum in support of the Motion, Sunbelt asserts that, “Wells Fargo sold
Sunbelt only AIG-group policies for 7 years.” (R. Doc. 58 at 6) (citing R. Doc. 59 at 6-8). In light of this
representation, it is possible there could be communications immediately preceding the issuance of the first AIGgroup policy.
100

20

ASIC, as ASIC asserts in its Opposition,101 ASIC is directed to supplement its response to Request
for Production No. 4 to specify that no such documents exist. The Court further finds that Sunbelt
is not foreclosed from seeking additional information and documents, if any, after reviewing the
supplemental responses provided pursuant to this Ruling and Order. Upon seeking such relief,
however, Sunbelt must articulate a particular need for any additional information or documents
needed.
C. Discovery regarding notice of previous claims Sunbelt has made under its ASIC
policy.
Although Sunbelt initially sought to compel ASIC to produce information and documents
regarding how ASIC received notice of previous claims made by Sunbelt under its ASIC policy,102
Sunbelt’s Supplemental Certification Regarding Motion to Compel103 provides that the parties
have resolved this dispute. According to Sunbelt, ASIC has agreed to produce documents
evidencing and discussing notice of previous claims Sunbelt made under its ASIC policy and ASIC
communications with Wells Fargo regarding notice of Sunbelt claims, in response to Request for
Production Nos. 3 and 7.104 As such, the Court will set a reasonable deadline by which those
documents shall be produced.
III.

Conclusion
For the reasons set forth herein, Sunbelt’s Motion to Compel105 is GRANTED in part,

such that, within fourteen (14) days of this Ruling and Order, ASIC shall supplement its responses

101

R. Doc. 45 at 10.
R. Doc. 44-1 at 9, 15-16.
103
R. Doc. 63.
104
See, R. Doc. 44-2 at 14, 16.
105
R. Doc. 44.
102

21

to Sunbelt’s discovery requests by providing to Sunbelt:
(1) supplemental responses to Request for Admission Nos. 1-5 and Interrogatory Nos. 26, which requested information regarding how ASIC receives notice of claims made by
other insureds. ASIC is advised that this information may be limited to prior notices
involving claims for property damage under policies that require that the claim be
reported to ASIC in writing, and may also be limited to a one-year period preceding
the filing of this lawsuit. ASIC is advised that it need not provide the name of the
insured on such other policies, the specific language in such other policies that
governed notice, or the identity of the personnel at ASIC or any of its affiliated
companies involved in adjustment of such other claims, but should include information
regarding the manner in which such notice was given and who it was provided to.
(2) supplemental responses to Interrogatory No. 1 and Request for Production Nos. 1 and
4, which requested information and documentation regarding the relationship between
Wells Fargo and ASIC. ASIC is advised that this information and documentation may
be limited to documents pertaining to the relationship between Wells Fargo and ASIC
with respect to ASIC policies purchased by Sunbelt and may be limited to an eightyear period preceding the events complained of herein.
IT IS FURTHER ORDERED that within fourteen (14) days of the date of this Ruling
and Order, ASIC shall supplement its responses to Request for Production Nos. 3 and 7 by
producing documents evidencing and discussing notice of previous claims Sunbelt made under its
ASIC policy and ASIC communications with Wells Fargo regarding notice of Sunbelt claims, as
previously agreed by the parties.106

106

See, R. Doc. 63 at 3.
22

IT IS FURTHER ORDERED that Sunbelt’s Motion to Compel107 is OTHERWISE
DENIED. As such, Sunbelt is not entitled to an award of reasonable expenses under Federal Rule
of Civil Procedure 37. See, Fed. R. Civ. P. 37(a)(5)(C).
IT IS FURTHER ORDERED that Sunbelt shall seek additional authorization from this
Court prior to seeking to compel additional information and documents from ASIC. Such request
must be made no later than thirty (30) days after supplemental responses are provided. Any request
for additional information or documents beyond those authorized by this Ruling and Order shall
be accompanied by specific facts that articulate the need for the additional documentation.
Signed in Baton Rouge, Louisiana, on March 8, 2017.

S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE

107

R. Doc. 44.
23