Fountain, Jr. d/b/a Eastbrook Apartments v. Zurich American Insurance Company, a New York corporation et al

Filing 104

ORDER regarding 26 Motion for Protective Order; 32 Motion to Compel Better Responses to Plaintiff's First Request for Production of Documents; (2) For a Ruling of Defendant's Waiver of Attorney Privilege and/or Work Product Protec tion or Confidentiality Over Improperly Withheld Documents; and For Leave to Exceed Page Limitations; 48 Motion for Protective Order and To Enforce Confidentiality Agreement; and, 24 Motion to Quash - Defendant's Motion to Quash 24 is DISMISSED as moot and Defendant's Motion for Protective Order 26 is DISMISSED as moot. Having carefully considered the parties arguments concerning Plaintiff's motion, the court finds that a temporary, non-prejudicial protective order is warranted in this matter. On September 22, 2014, Plaintiff filed a notice of his objections to the protective order proposed by Defendants. The parties shall confer concerning Plaintiff's objections to the proposed protective order and , on or before November 17, 2014, submit a joint proposed protective order for the court's consideration. No later than two weeks after the court's entry of a protective order, Defendants shall review their responses to those interrogatorie s and production requests that are the subject of Plaintiff's motion to compel and make such further or supplemental response as may be appropriate. With regard to any discovery requests to which Defendants assert there are no responsive docume nts or all responsive documents have been previously produced, Defendants shall respond by so stating. Additionally, if in response to any discovery requests related to interrogatories #21 and #24, Defendants object on the basis that disclosure of t he requested information would be unduly burdensome or expensive, Defendants shall provide the court with an affidavit or declaration from an appropriate official within Defendants' information technology department explaining the burden or expense involved. Signed by Magistrate Judge Kimberly A. Swank on 11/7/2014. (Tripp, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
NO. 4:13-CV-120-D(2)
REGINALD M. FOUNTAIN, JR.,
d/b/a Eastbrook Apartments, LLC,

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Plaintiff,
v.
FARMERS INSURANCE EXCHANGE
and MARYLAND CASUALTY
COMPANY, a Maryland corporation,
Defendants.

ORDER

This matter is before the court on the following motions:
1.

Defendants’ Motion to Quash [DE #24];

2.
Defendant Maryland Casualty Company’s Motion for
Protective Order [DE #26];
3.
Plaintiff’s
[DE #32]; and

Motion

to

Compel

Discovery

Responses

4.
Defendants’ Motion for a Protective Order and to Enforce
Confidentiality Agreement [DE #48].
The parties have fully briefed the issues, and a hearing was held on September 19,
2014, at which time the court heard the arguments of counsel.
BACKGROUND
Following Hurricane Irene in August 2011, Plaintiff filed an insurance claim
for damages to commercial property covered under his policy with Defendant
Maryland Casualty Company.

Following resolution of Plaintiff’s claim, Plaintiff

filed this action in state court asserting claims for unfair claims handling and bad

faith adjustment of Plaintiff’s claim. Defendants subsequently removed the action
to this court.
A.

Motion to Quash
This motion concerns two subpoenas duces tecum served on a third party,

Madsen, Kneppers and Associates, Inc. At the hearing of this matter, the parties
agreed that the third party had since produced the documents subpoenaed.
Accordingly, Defendant’s Motion to Quash [DE #24] is DISMISSED as moot.
B.

Motion for Protective Order
In this motion, Defendants Maryland Casualty Company requests a

protective order with respect to Rule 30(b)(6) deposition notices served by Plaintiff.
Maryland Casualty argues that the individuals designated are not competent to
address all areas set forth in the deposition notices, that the notices require them to
attend the deposition away from their principal place of business and that the areas
of inquiry do not describe with reasonable particularity the matters for
examination. Maryland Casulaty further complains that the notices did not provide
it with thirty days to produce the documents requested in the notices.
At the hearing of this matter, the parties advised the court that the Rule
30(b)(6) depositions were conducted, although the deponents did not bring with
them the documents requested in the notices. As a consequence, Plaintiff contends
that he is in need of additional time to depose the individuals. Defendant’s Motion
for Protective Order [DE #26] is, therefore, DISMISSED as moot.

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C.

Motion to Compel & Motion for Protective Order
Plaintiff moves to compel further responses to a number of interrogatories

and document production requests made by Plaintiff. Defendants raise a number of
objections to the information sought, including that much of the information is
confidential business information. Although the parties previously entered into a
confidentiality agreement concerning the disclosure and use of certain information
during mediation, the parties are not in agreement concerning the existence of a
confidentiality agreement or the applicability of confidentiality as to certain
information. Plaintiff, for example, argues that much of the information for which
Defendants seek protection is not proprietary or confidential business information
and further that Defendants have waived any right to assert the confidentiality of
certain information by filing it with the court.
Having carefully considered the parties’ arguments concerning Plaintiff’s
motion, the court finds that a temporary, non-prejudicial protective order is
warranted in this matter. On September 22, 2014, Plaintiff filed a notice of his
objections to the protective order proposed by Defendants. The parties shall confer
concerning Plaintiff’s objections to the proposed protective order and, on or before
November 17, 2014, submit a joint proposed protective order for the court’s
consideration.
No later than two weeks after the court’s entry of a protective order,
Defendants shall review their responses to those interrogatories and production
requests that are the subject of Plaintiff’s motion to compel and make such further

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