Busch Properties, Inc. v. National Union Fire Insurance Company of Pittsburgh, PA

Filing 105

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that defendant's motion for additional depositions (ECF #49) is GRANTED in part and DENIED in part. The motion is granted to the extent that National Union shall be allowed to take the deposition of David Bowen. BPI shall produce David Bowen within ten days of this Order. In all other respects, the motion is denied as set forth above. Signed by District Judge Stephen N. Limbaugh, Jr on 10/7/2014. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BUSCH PROPERTIES, INC.,
Plaintiff,
v.
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA.,
Defendant.

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Case No. 4:12CV2318 SNLJ

MEMORANDUM AND ORDER
This case involves a dispute over coverage for Busch Properties, Inc. (BPI) under
commercial general liability policies that National Union Fire Insurance Company of
Pittsburgh, Pa. (National Union) issued. This matter is before the Court on defendant’s
motion for additional depositions. The motion has been briefed and is ripe for
disposition. For the following reasons, the Court will grant the motion in part and deny it
in part.
In May 2013, this Court ordered that the presumptive limits of ten depositions per
side would apply in accordance with the parties’ agreement. In June 2013, BPI provided
its Rule 26 initial disclosures to National Union. Pursuant to Civil Rule 26(a)(1)(A)(i),
BPI identified six witnesses employed or retained by BPI and its affiliates that BPI may
use to support its claims or defenses. These witnesses were Bill Voliva, Paula Fitch,
Joseph Lstiburek, Thomas Knupp, Anthony Taylor, and Mike Roche.

Both sides proceeded with factual and expert discovery. Document production
ensued. In March 2014, BPI identified seven fact witnesses as non-retained experts upon
whose testimony it intended to rely. Thereafter, National Union deposed BPI experts
Joseph Lstiburek, David Bailey, and Michael Matthews, as well as BPI fact witnesses
Colleen Becker, Dick Glidden, Tim O’Conner, and Tom Dunn. At the time of the filing
of this motion, a corporate deposition of BPI was scheduled and National Union was
working to schedule depositions of BPI fact witnesses Tim Henderson, John Tiffany, and
Anthony Taylor. Based on these depositions, National Union would reach the
presumptive limit of ten depositions.
Two weeks before the scheduled close of discovery, BPI served on National
Union supplemental Rule 26 disclosures identifying thirty-one BPI-affiliated witnesses.
Of those thirty-one witnesses, BPI had previously identified five of the witnesses as fact
witnesses in its initial disclosures and six of the witnesses as “non-retained” experts.
Thereafter, National Union filed this motion seeking leave to depose six witnesses –
David Bowen, Karen Wallace, Bill Voliva, Patrick Kerr, Bill Pennock, and Mike
Shannon. In the alternative, National Union requested that the Court preclude witnesses
that were not timely disclosed.
National Union seeks leave to depose the witnesses because to depose any one or
more of the witnesses would exceed the limit of ten depositions per side and the date for
completion of all discovery has passed. In support of its position, National Union argues
that if BPI had provided these disclosures earlier, National Union would have been able
to more appropriately prioritize its taking of depositions, and would have been able to
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seek appropriate relief sooner to the extent the ten deposition limit unreasonably curtailed
necessary fact discovery. National Union argues it was entitled to rely upon BPI’s
representation that the original six BPI witnesses disclosed were the six witnesses most
important to BPI in making its case. In that regard, National Union contends it relied
upon this information in making its decisions as to which witnesses to depose.
In response, BPI argues there is no valid basis to permit National Union to depose
any of these allegedly untimely disclosed witnesses because National Union was aware of
all of the witnesses prior to BPI serving its supplemental initial disclosures. BPI points
out that Bill Voliva, one of the witnesses National Union now seeks to depose, was
included on BPI’s initial disclosures. Further, for each of the six witnesses at issue, BPI
cites to documents produced during discovery and deposition testimony that identify the
witnesses.
Moreover, BPI maintains that National Union’s own interrogatory responses and
expert reports reveal that there was no surprise and that any purported late disclosure was
harmless because National Union had previously learned of these individuals during
discovery. In fact, National Union identified five of the six witnesses in its own
interrogatory responses as persons with knowledge of the facts of this case. Specifically,
National Union identified Karen Wallace, Bill Voliva, Patrick Kerr, Bill Pennock, and
Mike Shannon in its answers dated December 26, 2013 to BPI’s first set of
interrogatories to National Union.
The Court finds that National Union was aware that Karen Wallace, Bill Voliva,
Patrick Kerr, Bill Pennock, and Mike Shannon had knowledge of the facts of this case
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through BPI’s initial disclosure (Bill Voliva) or document production and deposition
testimony (Karen Wallace, Bill Voliva, Patrick Kerr, Bill Pennock, and Mike Shannon)
and as evidenced by National Union’s own discovery responses in December 2013.
Further, the Court does not find it credible that National Union relied solely on BPI’s
disclosures to believe there were only six fact witnesses and seven non-retained experts
with important or material information. The parties had been involved in this matter for
nearly ten years when discovery was conducted in this case. According to BPI, it alone
has produced 84,456 documents. BPI seeks reimbursement for $11.3 million from
National Union. Based on these facts and the filings in this matter, this Court assumes
National Union has conducted a thorough investigation of BPI’s claim and did not, in its
discovery efforts, rely merely on BPI’s initial and expert disclosures. For the foregoing
reasons, the Court will deny National Union’s request to depose Karen Wallace, Bill
Voliva, Patrick Kerr, Bill Pennock, and Mike Shannon following the close of discovery
and in excess of the ten deposition limit. Further, the Court will not exclude testimony
from these witnesses.
However, as to David Bowen, it is clear that he was not included in the initial
disclosures and he was not named by National Union in its discovery responses as a
person with knowledge of the facts. According to National Union, prior to June 30,
2014, BPI had principally disclosed that Bowen was someone for whose communications
and files BPI claimed attorney-client privilege and attorney work product protection. In
BPI’s supplemental disclosures, BPI identified Bowen as an “Anheuser-Busch/BPI
Corporate” witness with knowledge of BPI’s 2003 mold investigation, potential mold
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claims against BPI, remediation efforts, relationships between BPI and various
homeowners’ associations, and “the legal exposure BPI faced due to the mold problem.”
Because BPI previously appeared to be claiming privilege with regard to matters dealing
with Bowen and then included him in its supplemental disclosures as a witness with
knowledge of significant issues in this matter, the Court will allow National Union to
depose Bowen following the close of discovery and in excess of the ten deposition limit.
Accordingly,
IT IS HEREBY ORDERED that defendant’s motion for additional depositions
(ECF #49) is GRANTED in part and DENIED in part. The motion is granted to the
extent that National Union shall be allowed to take the deposition of David Bowen. BPI
shall produce David Bowen within ten days of this Order. In all other respects, the
motion is denied as set forth above.
Dated this 7th day of October, 2014.

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STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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