Prudhomme et al v. Geico Insurance Co et al

Filing 145

MEMORANDUM ORDER granting in part and denying in part 99 Sealed Motion to Compel Discovery. Signed by Magistrate Judge Carol B Whitehurst on 10/10/2019. (crt,Thomas, T)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
Prudhomme et al

Civil Action No. 15-CV-00098

Versus

Judge Terry A Doughty

Geico Insurance Co et al

Magistrate Judge Carol B Whitehurst

MEMORANDUM ORDER
Before the Court is Plaintiffs’ Motion To Compel Discovery [Rec. Doc. 99]
fled by Plaintiffs, Eric Prudhomme and Elvin Jack, individually and on behalf of
others similarly situated. Defendants, Government Employees Insurance Company
and GEICO General Insurance Company (collectively “GEICO”), have filed a
Memorandum in Opposition to Plaintiffs’ Motion. [Rec. Doc. 113].
Plaintiffs filed this Motion To Compel contending that Plaintiffs’ attempts to
obtain discoverable information have been “thwarted” by GEICO. They seek an
order compelling GElCO “to produce documents responsive to Plaintiffs'
Requests for Production, to produce corporate representatives who are
knowledgeable about the topics they have been designated to testify and to
produce deponents who are not unreasonably evasive and uncooperative during
depositions.” R. 99.1
In its Opposition, GEICO initially argues that Plaintiffs’ Motion is untimely and that Plaintiffs failed to exercise due
diligence. R. 113, pp.1 – 6. The Court has addressed these contentions issuing an order allowing Plaintiffs an extension
of the scheduling order deadlines. R. 137. Accordingly, these contentions are moot.
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Plaintiffs’ Motion provides the following:
1. GEICO’s 30(b)(6) WITNESS
Plaintiffs contend that Troy Don Penry was designated by GEICO as their
30(b)(6) corporate representative to testify on the following topic requested by
Plaintiffs 30(b)(6) deposition Notice:
3. The process by which you identified the need for the CCC Valuescope
system and the process by which the CCC Valuescope system was
ultimately used;
4. Your communications with any employee, agent, or representative of
CCC Valuescope regarding your use of the CCC Valuescope system
prior to its implementation by you and the factors relating to your
decisions to use the CCC Valuescope system.
5. The definition of the type of system that the CCC Valuescope system
is, and how it reaches its values (e.g., a used motor vehicle industry
source, a comparable vehicle search or a combination of both).
...

7. Comments and feedback given to CCC Valuescope by GEICO
GENERAL INSURANCE COMPANY and GOVERNMENT
EMPLOYEES INSURANCE COMPANY on the product before,
during, or after its purchase and implementation at GEICO
GENERAL INSURANCE COMPANY and GOVERNMENT
EMPLOYEES INSURANCE COMPANY.
R. 99, Exh. A.
Plaintiffs state that when asked about Topics 3 and 5, specifics as to the CCC
Valuescope system, Penry indicated he had no knowledge of the topic and could not
speak as to it. R. 99-2 , Depo. Of Penry, 20:21-23, 22:5-23:8, 33:15-34:16, 46:22

47-4, 47:5-1. As to Topics 4 and 7, Plaintiffs represent that Penry stated that he
wasn’t with the company when the decision to use Valuescope was made and he
was not part of such conversations. Id. at 34:24-35.4. Specifically as to Topic 7
Penry stated he could not say with any certainty whether GEICO provided any
comments or feedback on the CCC valuation product to CCC. Id at 41:22-42:16,
43:12-16, 44:12-17. Thus, Plaintiffs contend, GEICO produced a 30(b)(6) witness
to testify as to the corporation’s knowledge who was not given any of that
knowledge or adequately prepared in any way to testify on behalf of GEICO.
Plaintiffs move the Court to compel GEICO to produce an adequately-prepared
30(b)(6) designee, at GEICO’s cost, for a repeated deposition.
In GEICO’s opposition to the motion, it contends that Plaintiffs’ requests
outlined above seek information related to GEICO’s initial purchase and
implementation of CCC’s valuation product. As testified by Penry, “GEICO
believes the process started sometime during the 1990’s.” Generally, GEICO
states that its initial implementation of CCC’s product for valuing total loss
vehicles occurred more than 20 years ago. It further states that Plaintiffs’ claim
is that GEICO’s use of the CCC product violated LSA-R.S. 22:1892B(5) and
that statute was not enacted until June 2010, at least ten years after GEICO
began using the CCC product. 2010 La. Sess. Law. Serv. Act 1032 (H.B. 1011).

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GEICO further contends because it does not centrally or uniformly store
documents from before 2003, there is no easy way to determine what, if
anything exists from before 2003, where it is located, or how to restore it to a
usable format. Post-2003 data is stored on Magnetic Data Tapes held by thirdparty vendors. The tapes capture a snapshot of data at a specific point in time,
and include data from thousands of employees. Meaning, a tape from April 18,
2005 would capture a snapshot of the data for thousands of employees as it
existed on April 18, 2005. In its explanation to the Court, GEICO describes the
arduous and time consuming process of restoring the data on each tape. R. 1131, p. 9.
GEICO objects to Plaintiffs’ motion to compel another 30(b)(6)
deposition as irrelevant because the “yet-to-be-enacted-for-at-least-a-decade
statute” “was not... nor could not” have been a factor in the decision of why
GEICO chose the product. GEICO further objects contending that the age of the
data and information requested in the 30(b)(6) deposition, post-2003, would be
difficult to locate and access, and at best reveal marginally relevant information.
GEICO argues that any production of such data is far outweighed by the
substantial burden the process would place on GEICO.

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GEICO also contends that Penry’s affidavit related to his employment
history with GEICO and knowledge of the CCC products, provides proof that
Penry gave Plaintiffs “the best possible chance to obtain the information covered
by the Notice.” R. 113-15. GEICO confirms Penry’s testimony as to his
preparation for the deposition and states that he spent “at least fifteen hours over
five days reviewing relevant documents and meeting with counsel.” GEICO
contends that Penry knew that he did not have additional information available
“without a substantial and burdensome search.” As to Topic 7 specifically,
GEICO cites Penry’s testimony which it contends provides that Penry states he
would have known of discussions with CCC, but he was not aware of
discussions with CCC about the product. R. 133-13 at 40:13 – 45:15, 51:13-21,
66:14-67:24. As to Topic 5, GEICO states that Penry correctly responded to
Plaintiffs’ questioning by stating that he could not speak to the specifics in Topic
5 because he does not have the confidential, proprietary information about the
CCC product. GEICO states that in its February 12, 2016 Responses to Plaintiffs
Interrogatories it responded, “GEICO does not know the actual calculations,
algorithms and/or formulas that CCC uses in determining value, as those are
CCC's proprietary software.” R. 133-7, Response to Interrog. 8 and 9. It
contends that Plaintiffs served a subpoena duces tecum and a notice of 30(b)(6)

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deposition on CCC two weeks before Penry’s deposition. R. 99-16. R. 113-1, p.
7.
Federal Rule of Civil Procedure 30(b)(6) governs the issuance of
subpoenas to “a public, or private corporation, a partnership, an association, a
governmental agency, or other entity.” Fed.R.Civ.P. 30(b)(6). The named entity
must designate one or more persons to testify on its behalf. Id. The designated
person(s) “must testify about information known or reasonably available to the
organization.” Id. Rule 36(b)(6) “allows parties to obtain testimony from [an
entity], provided the party describes with reasonable particularity the mattes for
examination.” Mike Hooks Dredging Co., Inc., v. Eckstein Marine Service, Inc.,
2011 WL 2599821 at *1 (E.D. La June 28, 2011).
As the Fifth Circuit has explained:
the deponent must make a conscientious good-faith endeavor to
designate the persons having knowledge of the matters sought by
[the party noticing the deposition] and to prepare those persons in
order that they can answer fully, completely, unevasively, the
questions posed ... as to the relevant subject matters. [T]he duty to
present and prepare a Rule 30(b)(6) designee goes beyond matters
personally known to that designee or to matters in which that
designee was personally involved. The deponent must prepare the
designee to the extent matters are reasonably available, whether
from documents, past employees, or other sources.

Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 432–33 (5th Cir. 2006).
That obligation, however, does not require a party to “make extreme efforts to
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obtain all information possibly relevant to the requests.” In re JDS Uniphase
Corp. Sec. Litig., 2007 WL 219857, at *1 (N.D. Cal. Jan. 29, 2007).
“The mere fact that an organization no longer employs a person with
knowledge on the specified topics does not relieve the organization of the duty
to prepare and produce an appropriate designee.” A corporation in this scenario
has an obligation to prepare an individual by having him or her review available
materials or talk to others with knowledge. A corporation, therefore, must
“create an appropriate witness” from information available. Aldridge v. Lake
County Sheriff's Office, 2012 WL 3023340, at *2 (N.D.Ill.,2012) “‘If a
corporation genuinely cannot provide an appropriate designee because it does
not have the information, cannot reasonably obtain it from other sources and still
lacks sufficient knowledge after reviewing all available information, then its
obligations under the Rule cease.” QBE Ins. Corp. v. Jorda Enters., Inc., 277
F.R.D. 676, 690 (S.D. Fla. 2012)); Cuervo v. Airport Services, Inc., 2014 WL
12802522, *4 (S.D. Fla. Mar. 4, 2014); Aldridge v. Lake County Sheriff's Office,
2012 WL 3023340, at *2 (N.D.Ill.,2012).
In Barron v. Caterpillar, Inc., the court denied the plaintiff’s motion to
compel the defendant to produce an additional designee to testify as to the
design of a machine twenty-five years before the litigation. 168 F.R.D. 175, 177

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(E.D.Pa.,1996). The court held that the defendant provided the plaintiff “with
their best chance of obtaining any information” concerning the machine by
designating the employee most likely to possess responsive information and
requiring the defendant to produce an additional corporate designee was “an
inappropriate remedy to cure the discovery problems presented in this case.” Id.
The Court has no way of knowing to what extent Defendants could, or
could not, prepare an appropriate designee on the reasons for using a system that
was implemented over twenty years earlier. Penry has testified and GEICO
represents, however, that some due diligence in obtaining answers to Plaintiffs’
requests was done. Based on the transcript of Penry’s testimony, the Court
cannot say that Penry was not Plaintiffs’ “best chance” of obtaining the data and
information. The Court will not compel GEICO to provide another corporate
designee.
2. GEICO’s Adjuster
Plaintiffs deposed GEICO damage adjuster, Jeremy Louviere. They
contend that during his deposition Louviere was evasive and non-responsive
throughout the deposition. As examples they state that when asked about
whether he was trained to use CCC during GEICO’s three-month long training
program, Louviere initially testified he couldn’t remember, then stated he was

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trained but could not remember any details. R. 99-2, Depo. Of Louviere, 12:21,
13:8-9, 14:21-25, 15:16-16:19. Louviere also initially testified that he didn’t
know whether or not he had done more than ten total losses during the seven
years he was an adjuster. Id at 30:5-32:6. After a brief break Plaintiffs represent
he “corrected the record” and stated he had seen more than a hundred total loss
claims in his career. Id.at 32:21-24. After 40 minutes of this alleged behavior
Plaintiffs contend they adjourned the deposition.
In its opposition GEICO contends that “Louviere was not being evasive
but instead did not understand the terminology used by counsel.” They further
contend that that Louviere’s inability to recall specifics from seven years before
his deposition is not evasiveness.
The Court finds Louviere’s responses regarding the number of total loss
claims he has adjusted during his career with GEICO to be most telling of the
characterization of his level of cooperation in the deposition. Based on his
deposition testimony, the Court finds Louviere was evasive and uncooperative.
The Court will allow Plaintiffs to retake Louviere’s deposition.

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3. GEICO’S PRODUCTION RESPONSES
a. Production No. 12 – Plaintiffs requested GEICO documents "which
detail the accuracy and/or cost saving benefits of CCC Valuescope
Value Report valuation system as compared to NADA, Kelley Blue
Book, or any other vehicle valuation program or system." R. 99-3, p. 18.
In its Response, GEICO objected to this Request as “vague and ambiguous
and may improperly label a product” and “overbroad, unduly burdensome and
seeks documents that are not relevant to Plaintiffs' claims.” GEICO also objected
that such documents were “confidential, proprietary, and/or competitively
sensitive information,” GEICO stated that the documents were “not relevant to
Plaintiffs’ claims because the issue in this suit is if Plaintiffs’ claims were
underpaid not if one valuation system was more accurate or saved money as
opposed to another system.” Id. Ultimately, it stated that it is not aware of any
documents it has that are responsive to this Request. Id. at 18-19. In its
opposition GEICO repeats this statement. R. 113-1.
b. Production No. 142 – Plaintiffs requested documents “which discuss/
address whether CCC Valuescope Value Report valuation system
complies with Louisiana law." R. 99-3, p. 20.
In its Response, GEICO again objected as “vague and ambiguous and may
improperly label a product” and “overbroad, unduly burdensome as it was not

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Plaintiffs excluded Production No. 13 from this Motion because GEICO responded that they have no documents
responsive to that request.

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limited to the Louisiana law at issue ... nor ... to the time period of Plaintiffs’
claim.” Id. at 20-21. GEICO further objected that such documents were
“confidential, proprietary, and/or competitively sensitive information” because
the Request called for the disclosure of documents “protected by the attorneyclient privilege, work product privilege, or any other applicable privilege.” Id.
GEICO stated it was not searching for responsive documents and that it “does
not have information at this time to determine if any documents are withheld on
the basis of this objection.” Id. at p. 21. Finally, GEICO stated that Plaintiffs’
requested documents and/or information were “created or obtained after the
filing of the Initial Complaint.... [which] are therefore privileged and will not be
produced nor a privilege log created” for such documents. GEICO then referred
Plaintiffs to “documents previously produced pursuant to the Protective
Order entered in this case with Government Employees' RFP Responses.
GEICO-PRUDHOMME000734-740.” Id.
In its opposition to the motion GEICO further objects to the request to
the extent it requests internal evaluation of state legal requirements (GEICO’s
counsel’s opinion) as protected by the attorney-client privilege. R. 113-1.

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c. Production No. 15 – Plaintiffs requested “documents, data and/or
analyses” provided by GEICO to CCC detailing their intended uses of
the CCC valuation product. Id. at p. 21.
In its Response, GEICO again objected as “vague and ambiguous and may
improperly label a product” and “overbroad, unduly burdensome as it is not
limited to the Plaintiffs’ claims, the timeframe of Plaintiffs’ insurance claims,”
any class period nor to the use of CCC Valuescope Value Reports related to the
total loss claims. Id. at 21-22. Finally, it objected that such documents were
“confidential, proprietary, and/or competitively sensitive information.” Id. at 2122.
d. Production No. 16 – Plaintiffs requested every CCC valuation report
generated for GEICO's Louisiana insureds, including the amount
paid to each insured for each total loss claim. Id. p. 22.
GEICO also objected to this request as ‘vague and ambiguous” and
seeking “confidential, proprietary and/or competitively sensitive information”
in that it “seeks personal information of GEICO claimants and insureds.” It
again asserted the request was “overbroad, unduly burdensome” seeking
documents not relevant because it was not limited to Plaintiffs’ claims, the
timeframe of claims, nor “to any potentially relevant class period.” GEICO
further objected that Plaintiffs’ Request was compound in that it also asks for
the “the amount paid to each insured to satisfy each individual total loss vehicle
claim, which is not found in a CCC Valuescope Value Report.” GEICO
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contends that it evaluated and paid each total loss claim on a case-by-case basis
based on a number of factors. GEICO stated that the Request is not proportional
to the litigation for these reasons and it “is not searching for and is withholding
documents.” Id. at p. 22-23. GEICO refers Plaintiffs to “documents previously
produced pursuant to the Protective Order entered in this case with
Government Employees' RFP Responses.

GEICO-PRUDHOMME000734-

740.” Id.
In their motion, Plaintiffs state that they recognize these objections as
“valid— to a point.” They contend, however, “[i]f and when a class is certified,”
the information will be necessary for the identification of class members and the
determination of the damages. They request that, should a class be certified,
this Court compel the production of these documents.
e. Production No. 17 – Plaintiffs request “all solicitation, promotion,
and/or sales materials, electronic or otherwise, provided to [GEICO]
by [CCC] prior to [GEICO]'s purchase and implementation of
the CCC Valuescope Value Repot System. (This should include the
CCC Valuescope Value Report Conditioning Guide, Projected Sold
Adjustment defining document). Id. at 24.
GEICO objected to this request as ‘vague and ambiguous and may
improperly label a product” and “overbroad, unduly burdensome as it is not
relevant to the Plaintiffs’ claims, limited to the timeframe of Plaintiffs’ insurance
claims,” “any relevant class period,” nor to the use of implementation of CCC
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Valuescope Value Reports related to the total loss claims. Such documents
would be from “more than ten years ago and possibly more than twenty years
ago” and therefore not proportional to the litigation. Id. at 24-25. GEICO stated
“it is not searching for and may be withholding documents on this basis. Finally
it objected that the request sought “confidential, proprietary and/or
competitively sensitive information” and was “vague and ambiguous” because
“Conditioning Guide” and “Projected Sold Adjustment” were not defined and
could not be discerned.
f. Production No. 18 – Plaintiffs request documents provided to GEICO
by CCC, prior to GEICO's implementation of the CCC system, that
explain and/or demonstrate how the CCC valuation product works.
Id. at 25.
GEICO objected to this request stating most of the same objections to
those in its response to Production No. 17. Id. at 25-26.
g. The Check Writer Program
Plaintiffs contend they learned the existence of the Check Writer Program
during the deposition of GEICO's corporate representative, Daniel Stelly.
Because Stelly lacked detailed information about the program Plaintiffs issued
additional written discovery to obtain information about what data that
program gathered and stored and whether the collection of information was
retained in an insured's claim file. R. 99-3, p. 32. Plaintiffs state that the
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information “is likely to shed important light on issues and evidence on this case
like whether the Defendants have the NADA values of their insured's vehicles
and whether the checks that are ultimately issued to insureds correlate with the
CCC program being used to determine the value of those claims.” Id.
GEICO objected to the terms “describe,” “applications” and "CCC
program" and the phrases "whether a vehicle meets or exceed seventy-five
percent of the market value as determined by the current NADA Handbook" and
"other information" as being “vague and ambiguous.” Id. GEICO further
objected that Plaintiffs’ request was “overbroad, unduly burdensome and
irrelevant” because it was not limited to the timeframe of Plaintiffs' claims, any
relevant class period, nor to first party claims from Louisiana insureds.
Finally it objected as seeking “confidential, proprietary and/or competitively
sensitive information.” Id.
As to Topic 12, GEICO states in its objections to Plaintiffs’ Requests that it
“is not aware of any documents it has that are responsive to this Request.” Further,
GEICO cites the deposition of David Antonacci, a GEICO Technical Supervisor for
20 years, who stated that he was not involved in any analysis which compared total
loss values from CCC to any other valuation source, and would have been aware had
they been conducted. 113-17 at 8:20–9:6, 18:19–19:5, 104:1–106:15. Plaintiffs’
motion is denied as to Topic 12.
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As to Topic 16, Plaintiff’s motion states, “If and when a class is certified in
this matter, the information contained in the CCC reports requested by the Plaintiffs
here will be necessary for the identification of class members and the determination
of the damages suffered by the class. This information is imminently relevant, and
should a class be certified this Court should compel the production of the documents
requested by Plaintiffs' Request No. 16.” As this matter has not been certified as a
class action, no response from GEICO is necessary at this time. Rule 34 requires the
production of documents or ESI responsive to document requests that are “in the
responding party's possession, custody, or control.” Fed. R. Civ. P. 34(a)(1).
Plaintiffs’ motion is denied as to Topic 16.
GEICO objects to production of documents under Topics 14, 15, 17, and 18
as “confidential, proprietary, and/or competitively sensitive.” In order to assert such
privilege(s), the Court will require GEICO to prepare a privilege log that complies
with the requirements of Federal and local rules, including FRCP Rule 26(b)(5)(A),
and shall be narrowly tailored to specific documents or topics, as appropriate.
GEICO shall identify whether individuals named on the privilege log are employed
by GEICO and whether the individuals are attorneys. GEICO must also provide a
brief description of the subject matter of each withheld document sufficient enough
to access the claim of privilege. GEICO must also specifically identify the basis on

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which the document has been withheld from production. The Court will order that
GEICO produce a privilege log to plaintiffs.
GEICO objects to Topics 15, 17 and 18 as “not proportional to the litigation
in that it seeks documents from when GEICO implemented CCC Valuescope
Value Reports, which is more than ten years ago and possibly more than twenty
years ago.” Under Federal Rule of Civil Procedure 26(b)(1), “[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.” Fed. R. Civ.
P 26(b)(1). The Court finds that the data requested from GEICO involving
implementation of the CCC Valuescope Value Reports which were created at
least a decade before existence of the claims in this action exceed both the
relevance and the proportionality components of the scope of permissible
discovery.
Finally, as to the Check Writer Program which Plaintiff learned of in the
Stelly deposition, the parties are to participate in a Rule 37 conference wherein
the parties are to attempt to confer in good faith. The Court expects the parties
to cooperate with each other using this ruling as guidance in order to resolve the
issues in this request without intervention by the Court.
Accordingly,

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IT IS ORDERED that the Motion To Compel [Rec. Doc. 99] filed by
Plaintiffs is GRANTED IN PART AND DENIED IN PART as follows: (1)
GEICO is to provide dates to Plaintiffs for the continuation of the deposition
(not to exceed 2 hours) of Mr. Louviere within the next 30 days, (2) GEICO is
to serve its privilege log on Plaintiffs, in compliance with this order, no later than
November 8, 2019, (3) the parties are to confer in a Rule 37 conference regarding
Plaintiffs’ requests for production of the Check Writer System within 30 days.
Plaintiffs’ motion is denied with regard to Requests 15, 17 and 18 to the extent
that those Requests seek the production of documents or data involving the
implementation of the CCC Valuescope Value Reports which were created at
least a decade before existence of the claims in this action.
THUS DONE AND SIGNED at Lafayette, Louisiana on this 10th day of
October, 2019.

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