Allstate Insurance Company v. Warns
Filing
90
MEMORANDUM OPINION. Signed by Magistrate Judge Stephanie A Gallagher on 11/15/12. (mps, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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ALLSTATE INSURANCE COMPANY
Plaintiff,
v.
JENNIFER WARNS,
Defendant.
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Case No.: CCB-11-1846
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MEMORANDUM OPINION
Plaintiff Allstate Insurance Company (“Allstate”) has filed suit against Defendant
Jennifer Warns (“Ms. Warns”).1 From February 28, 1977 to July 2, 2010, Ms. Warns was
employed by Allstate, managing the defense of Allstate’s insureds in lead paint litigation. Ms.
Warns now works for a direct adversary of Allstate and its insureds, a law firm named Bennett &
Albright, P.A. (“Bennett & Albright”). The Complaint alleges that Ms. Warns was and is
disclosing Allstate and its insureds’ confidential and privileged information in violation of her
fiduciary duties and Allstate’s Code of Ethics. See Compl. ¶ 1-4. This Memorandum Opinion
addresses Allstate’s Motion to Compel, [ECF No. 56], the opposition, and the reply thereto.
Specifically, Allstate filed this Motion to obtain additional responses to its document requests
numbered 3-5, 7-11, 13, and 15, and to its interrogatories numbered 2-4. I find that a hearing is
unnecessary in this case. See Local Rule 105.6 (D. Md. 2011). For the reasons stated herein,
Allstate’s Motion to Compel is GRANTED IN PART and DENIED IN PART.
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This case has been referred to me by Judge Blake to resolve discovery disputes and related
scheduling matters. [ECF No. 83].
Allstate served discovery requests2 on Ms. Warns on April 13, 2012. Allstate received
Ms. Warns’s responses and objections to its requests on May 18, 2012. On June 4, 2012, the
parties spoke by telephone regarding Ms. Warns’s responses and objections, and Ms. Warns
notified Allstate that she would not provide additional documents or answers to interrogatories.
As a result, Allstate served Ms. Warns with the instant Motion to Compel on June 18, 2012. The
parties conferred again regarding the disputed discovery requests on June 25, 2012, and were
unable to resolve the dispute. Allstate filed its motion with the Court on July 25, 2012. Each
disputed document request and interrogatory is addressed below.
Document Requests
All document requests must seek information within the scope of permissible discovery.
Fed. R. Civ. P. 34(a). The Federal Rules of Civil Procedure permit parties to “obtain discovery
regarding any nonprivileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ.
P. 26(b)(1). For good cause, “the court may order discovery of any matter relevant to the subject
matter involved in the action.” Id. The relevant information sought “need not be admissible at . .
. trial if the discovery appears reasonably calculated to lead to the discovery of admissible
evidence.” Id. Additionally, the Federal Rules require that “all permissible discovery must be
measured against the yardstick of proportionality.” Victor Stanley, Inc. v. Creative Pipe, Inc.,
269 F.R.D. 497, 523 (D. Md. 2010). This court must limit discovery if
(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
stake in the action, and the importance of the discovery in resolving the issues.
2
Allstate’s Motion to Compel relates to its First Request for Production of Documents and First
Set of Interrogatories. [ECF No. 56-1].
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Fed. R. Civ. P. 26(b)(2)(C)(i)-(iii).
1. Document Requests # 3, 4, 5, 7, 8, and 9
In Document Requests # 3, 4, 5, 7, 8, and 9, Allstate essentially seeks all documents and
communications that Ms. Warns retained from her time of employment at Allstate, or has in her
possession from her work at Bennett & Albright, relating to Allstate or its insureds. Many of
Ms. Warns’s responses to the document requests constitute boilerplate objections. The Federal
Rules of Civil Procedure, see Fed. R. Civ. P. 34(b)(2)(B), this Court’s Local Rules, see Loc. R.
104.6, and governing case law prohibit non-specific and boilerplate objections to discovery
requests. Adams v. Sharfstein, Civil Case No. CCB-11-3755, 2012 WL 2992172, at *4 (D. Md.
July 19, 2012).
In response to Document Requests # 3, 4, and 5, Ms. Warns stated that she “objects to
this request on the basis that it is overly broad, unduly burdensome and not reasonably calculated
to lead to the discovery of admissible evidence.” Def.’s Resp. to Interrog. 4-5. She also objects
“on the basis that the request[s are] vague and/or ambiguous.” Id. In response to Document
Requests # 7, 8, and 9, Ms. Warns repeats the above objections, and objects “on the basis that
[the requests] seek[] information that is confidential and/or privileged.” Id. at 6-7. Ms. Warns
never explains how the document requests are overly broad, unduly burdensome, vague,
ambiguous, or not calculated to lead to discovery of admissible evidence. As such, Ms. Warns’s
objections are insufficient, and Allstate’s Motion to Compel responses to Document Requests #
3, 4, 5, 7, 8, and 9 is GRANTED. See Adams, 2012 WL 2992172, at *4 (granting defendants’
motion to compel for certain document requests because plaintiff’s boilerplate objections
asserting vagueness, burdensomeness, and privilege were not particularized, in contrast with the
Federal Rules of Civil Procedure, Local Rules, and case law); see also Mezu v. Morgan St. Univ.,
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269 F.R.D. 565, 573-74 (D. Md. 2010) (holding that defendant waived objections to discovery
requests because defendant failed to provide specific objections supported by particularized
facts).
Of course, litigants may only obtain relevant information in discovery. See Fed. R. Civ.
P. 26(b)(1). Here, Allstate alleges that Ms. Warns has and is disclosing confidential information
about Allstate’s insured clients. Pursuant to these requests, therefore, Allstate may only obtain
documents that Ms. Warns still possesses from her time of employment at Allstate relating to
Allstate or its insureds and lead paint litigation, and information that Ms. Warns sent or received
while at Bennett & Albright relating to Allstate or entities that Ms. Warns knew to be insured by
Allstate. To the extent that any of this information is privileged, Ms. Warns should create a
privilege log denoting each document withheld, the nature of the privilege claimed, the name of
the person making and receiving the communication, the date and place of the communication,
and the document’s general subject matter.
2. Document Request # 10
In Document Request # 10, Allstate seeks “[a]ll documents [Ms. Warns] obtained during
the course of [her] employment with Allstate.” Mot. to Compel 13. Although Ms. Warns’s
boilerplate objections to the request are deficient, the Court has an independent obligation to
limit discovery if the discovery sought is unreasonably cumulative, or the burden or expense of
the proposed discovery outweighs its benefit. Fed. R. Civ. P. 26(b)(2)(c). Both are true here.
First, the burden and expense to comply with the request as worded would be enormous.
To fully respond to the request, Ms. Warns would have to produce every document she received
between 1977 and 2010, including documents entirely unrelated to her work at Allstate. Even if
the request is construed more narrowly to only include documents she obtained directly as a
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result of her work at Allstate, she would still be required to produce countless irrelevant
documents generated by (and likely also maintained by) Allstate, including her paystubs,
personnel records, and tax documents.
Second, the relevant portion of the request is cumulative of other document requests.
Allstate’s other requests require Ms. Warns to produce all documents relating to the subject
matter of the action (Document Request No. 6) and all documents relating to Ms. Warns’s
declaration denying liability (Document Request No. 11). In light of the cumulative nature of
the overbroad request, and the burden and expense required to respond in full, Allstate’s motion
to compel a response to Document Request # 10 is denied.
3. Document Request # 11
Allstate’s Document Request # 11 seeks “[a]ll documents that support, refer, or relate to
any statement [Ms. Warns] made in [her] declaration filed in this action on August 10, 2011.”
Mot. to Compel 15. Ms. Warns’s declaration denies the allegations made by Allstate that she has
disseminated confidential or proprietary information, and provides a description of many events
mentioned in Allstate’s complaint. [ECF No. 15-1]. In response to Document Request # 11, Ms.
Warns asserts that she has produced the only documents that she retained when she left Allstate.
Def.’s Resp. to Interrog. 7-8. It is unclear whether Ms. Warns has produced any documents that
she relied upon in making her August 10, 2011 declaration, or if any such documents exist. If
Ms. Warns possesses any documents that support or relate to her August 10, 2011 declaration,
they are relevant, and must be produced. If any such documents are privileged, Ms. Warns must
compile a privilege log in the manner described above.
4. Document Request # 13
Allstate’s Document Request # 13 seeks
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All policies and procedures in place at Bennett and Albright designed to shield
disclosure of confidences any lawyer or paralegal now employed at Bennett and
Albright learned at their prior employment at any law firm defending Lead Paint
Litigation, including without limitation all correspondence, memorandum, emails
or other documents that refer or relate to such policies and procedures.
Mot. to Compel 17 (emphasis added). Ms. Warns objects, noting that she was not employed at
“any law firm” prior to working at Bennett & Albright, and therefore this document request is
not relevant to the case against her. Def.’s Resp. to Interrog. 9. Allstate seemingly argues that if
Bennett & Albright has a written policy or procedure to shield the disclosure of confidential
information to conflicted attorneys (“a written policy”), Ms. Warns’s assertion that Mr. Albright
verbally told her that she could not work on cases involving Allstate’s insureds is less likely to
be true.
As stated above, evidence is relevant if it has any tendency to make a fact of consequence
more or less probable than it would be without the evidence. See Fed. R. Evid. 401. Here,
determining whether Mr. Albright told Ms. Warns that she could not work on Allstate cases, and
whether Bennett & Albright properly shielded Ms. Warns from cases against Allstate’s insureds,
are facts of consequence to Allstate’s claim that Ms. Warns is working on cases against Allstate.
If Bennett & Albright has a written policy, Allstate could argue that Bennett & Albright puts
screening policies in writing, making it less likely that Bennett & Albright verbally told Ms.
Warns that she was to be screened from Allstate’s insureds. To be clear, this Court makes no
ruling on the weight of such written policies and procedures, if they exist. However, under the
low bar of relevance, any such written policy must be produced.
While its request for a written policy may meet the low bar of relevance, Allstate’s
request for all correspondence, emails, or other documents referring or relating to such a policy
does not. Allstate has not explained, and this Court is unable to discern, how correspondence
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referring or relating to a written policy would be relevant to the claims and defenses in this case.
Courts must limit discovery if the burden or expense of the proposed discovery outweighs its
benefit. Fed. R. Civ. P. 26(b)(2)(C). This Court will not force Ms. Warns to search for countless
internal emails and correspondence at great expense to recover documents making reference to a
policy that expressly would not apply to Ms. Warns. In sum, Allstate’s motion to compel a
response to Document Request # 13 is granted in part and denied in part. Ms. Warns must
produce any existing written policy, but she need not produce any correspondence, memoranda,
emails, or other documents referring or related thereto.
5. Document Request # 15
In its Document Request # 15, Allstate seeks all documents, to the extent not otherwise
produced, upon which Ms. Warns intends to rely to support her defenses and affirmative
defenses. See Mot. to Compel 18. Ms. Warns essentially argues that she does not have enough
information to fully respond to this request. See Def’s Resp. to Interrog. 10-11. As in every
case, the parties will continue to develop their litigation strategies as discovery proceeds.
However, the evolving nature of litigation does not invalidate Allstate’s request. Ms. Warns
must produce documents she currently intends to use to support her defenses. As discovery
progresses and the issues and arguments crystalize, Ms. Warns must supplement her responses.
Interrogatories
Interrogatories may relate to any nonprivileged matter that is relevant to any party’s
claims or defenses. See Fed. R. Civ. P. 33(a)(2). Each interrogatory, to the extent not objected
to, must be “answered separately and fully in writing under oath.” Fed. R. Civ. P. 33(b)(3).
Objections to interrogatories “must be specific, non-boilerplate, and supported by particularized
facts where necessary to demonstrate the basis for the objection.” Lynn v. Monarch Recovery
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Mgmt., Inc., Civil No. WDQ-11-2824, 2012 WL 2445046, at *2 (citing Hall v. Sullivan, 231
F.R.D. 468, 470 (D. Md. 2005)); see Fed. R. Civ. P. 33(b)(4). Unless good cause is shown, a
party waives its objections if the grounds for the objections are not stated with specificity. Lynn,
2012 WL 2445046, at *2 (citing Fed. R. Civ. P. 33(b)(4)).
1. Interrogatory # 2
Allstate’s interrogatory # 2 asks Ms. Warns to “[i]dentify any person at Bennett and
Albright or associated with any Lead Paint Litigation you now work on for Bennett and Albright
with whom you have communicated about Allstate or any person or entity insured by Allstate.”
See Mot. to Compel 20. Ms. Warns responds by stating that “it is common knowledge that Ms.
Warns worked for Allstate and worked with lead paint claims at Allstate,” that there is a
“tremendous quantity of information” about Allstate’s insureds in the public domain, and that
she does not believe that she has any confidential or privileged information or a duty not to
disclose such information. See Def’s Resp. to Interrog. 13. As noted above, interrogatories must
be answered “separately and fully in writing under oath.” See Fed. R. Civ. P. 33(b)(3). Ms.
Warns’s response completely avoids the question of whether and with whom she has
communicated about Allstate or any entity insured by Allstate. Because such information is
relevant to determining whether Ms. Warns divulged confidential information, Allstate’s motion
is GRANTED.
2. Interrogatory # 3 and # 4
Allstate’s interrogatories # 3 and # 4 seek to determine which cases Ms. Warns has
worked on and discussed with others at Bennett & Albright, and a description of Ms. Warns’s
involvement in each case. In response to both interrogatories, Ms. Warns stated that “[w]ithout
waiving any objections, Ms. Warns objects that the information sought is not relevant to
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Allstate’s claims against her and/or it seeks information protected by the attorney-client
privilege.” Def’s Resp. to Interrog. 13-14. As stated above, objections to interrogatories “must
be specific, non-boilerplate, and supported by particularized facts where necessary.” Lynn, 2012
WL 2445046, at *2. Ms. Warns fails to specify how the disputed interrogatories are irrelevant or
seek privileged information. As such, Ms. Warns’s objections are insufficient.
Moreover, these interrogatories seek information relevant to Allstate’s claims. Allstate’s
interrogatories # 3 and # 4 seek to determine whether Ms. Warns has worked on any case
involving Allstate’s insureds, or has discussed any case against Allstate’s insureds with anyone
at Bennett & Albright. The information sought is directly relevant to Allstate’s allegations that
Ms. Warns is working on cases against Allstate’s insureds, or is divulging the confidential
information of Allstate’s insureds to Bennett & Albright.
Additionally, requiring Ms. Warns to disclose the names of cases she has worked on at
Bennett & Albright, whether they have been publicly filed or not, does not force her to reveal
confidential information. A client’s identity is “normally not protected by the attorney-client
privilege
because
such
information
ordinarily
reveals
no
confidential
professional
communications between attorney and client.” In re Grand Jury Subpoena, 204 F.3d 516, 519
(4th Cir. 2000) (citing Chaudhry v. Gallerizzo, 174 F.3d 394, 402 (4th Cir. 1999); In re Grand
Jury Matter, 926 F.2d 348, 352 (4th Cir. 1991)) (internal quotations omitted). A client’s identity
is privileged “only if disclosure would in essence reveal a confidential communication.” In re
Grand Jury Subpoena, 204 F.3d at 520. Here, Ms. Warns may potentially disclose a client’s
name when she responds to Interrogatories # 3 and # 4 by listing the cases she has worked on at
Bennett & Albright, but in doing so, Ms. Warns would not reveal any confidential
communications.
Revealing a client’s name, in this instance, reveals nothing about legal
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strategy, why the client sought legal services, and what was communicated between client and
attorney. Similarly, by giving a general description of her work on these cases, such as “intake”
or “paralegal,” Ms. Warns would not be disclosing confidential communications.3 As such, Ms.
Warns must respond to Interrogatories # 3 and # 4, providing the full names of the cases she has
worked on and discussed at Bennett & Albright, and providing any information regarding the
nature of her work on these cases that does not reveal client confidences.
An implementing order is entered herewith.
Dated: November 15, 2012
/s/
Stephanie A. Gallagher
United States Magistrate Judge
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Certainly, Ms. Warns need not provide any information that would reveal confidential
communications. For example, Ms. Warns cannot be compelled to provide information that
would reveal the motive of a client in seeking representation, legal strategy, or the specific nature
of services provided. See Chaudhry, 174 F.3d at 402-03. However, if Ms. Warns can provide a
general description of her duties without revealing confidential information, she must do so. If
she cannot, she should prepare an appropriate privilege log.
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