Fifth Third Bancorp et al v. Certain Underwriters at Lloyd's Subscribing to Policy Numbers B0509QA048710, B0509QA051310, and 81906760 et al

Filing 107

MEMORANDUM OPINION AND ORDER granting in part and denying in part 98 Defendants AXIS Insurance Company, Certain Underwriters at Lloyd's Subscribing to Policy Numbers B0509QA048710, B0509QA051310, and 81906760 and Federal Insurance Company' ;s Motion for Protective Order. The Underwriters' separate request for additional protection to prevent duplicative discovery is DENIED AS MOOT, and the request for an award of costs and fees is also DENIED. Signed by Magistrate Judge Stephanie K. Bowman on 3/1/2017. (km)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

RLI INSURANCE CO.,

Case No. 1:14-cv-802

Plaintiff

Beckwith, J.
Bowman, M.J.

v.
FIFTH THIRD BANKCORP,
Defendant.
……………………………………………………………

FIFTH THIRD BANCORP, et al.,
Plaintiffs,

Case No. 1:14-cv-869
Beckwith, J.
Bowman, M.J.

v.
CERTAIN UNDERWRITERS AT LLOYD’S, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
The above two cases initially were consolidated solely for purposes of discovery
and pretrial proceedings. On January 9, 2017, the case was reassigned to U.S. District
Judge Timothy S. Black for all further proceedings. Although the cases were previously
set for trial on different dates, (see Docs. 27, 70 in Case No. 14-802, Docs. 33, 77 in
Case No. 14-869), Judge Black’s most recent order sets the both cases for trial on
October 23, 2017. 1

1

RLI previously opposed consolidation of the cases for trial.

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Currently before the undersigned are three extensively briefed motions. 2 Two of
the motions have been filed by Fifth Third to amend its pleadings in both Case No. 1:14cv-869, and in Case No. 1:14-cv-802. For the convenience of this Court, those two
motions will be addressed by separate Order. This Order will discuss the third pending
motion – a Motion for a Protective Order filed by a group of insurers in Case No. 1:14cv-869.
I.

Background

The background of the two related cases has been summarized in prior orders,
but is repeated herein for the convenience of this Court.
Case No. 1:14-cv-802 was first filed by RLI Insurance Company (“RLI”), one of
several insurers participating in a financial bond policy issued to Fifth Third Bancorp
(“Fifth Third”). RLI’s complaint seeks a declaratory judgment that it owes nothing under
its bond due to the fact that Fifth Third was aware of the loss prior to the purchase of the
bond, and failed to timely present its claim. Fifth Third filed a counterclaim for breach of
contract, seeking coverage under the bond. A month after RLI initiated its declaratory
judgment action, Fifth Third filed Case No. 14-cv-869 against a number of other insurers
that also issued and/or participated in additional financial bonds purchased by Fifth
Third, and under which Fifth Third also seeks to recover.
Both cases arise from the actions of a Fifth Third loan officer, Matthew Ross, who
was formerly employed in the bank’s structured finance group. Fifth Third alleges that it
has suffered losses in excess of $100 million due to Mr. Ross’s misconduct, exceeding
the policy limits of all of the financial bonds issued by the various entities. As Senior
District Judge Beckwith previously noted in consolidating the two cases for pretrial
2

Approximately 1200 pages have been filed in the electronic record pertaining to these three motions
alone, not including additional pages filed seeking extensions of briefing time and/or permission to file
certain documents under seal.

2

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proceedings, the Defendants in Case No. 14-cv-869 “raise many defenses similar to
those raised by RLI, such as lack of timely notice of loss, and Fifth Third’s discovery of
the fraudulent conduct prior to the inception of the policy period.” (Case No. 1:14-cv802, Doc. 27 at 3).

In both suits, Fifth Third seeks no damages other than those

recoverable under the alleged breach of contract claims, the “insured losses” up to the
policy limits. However, Fifth Third has suggested that it is likely to seek an award of
attorney’s fees under Ohio law, assuming that it can demonstrate that the Insurers
acted in bad faith in denying coverage.
On March 12, 2015, the Court entered an initial joint Calendar Order for both
cases, providing a September 30, 2015 deadline for motions to amend the pleadings.
While that deadline was not amended, other pretrial deadlines, including deadlines
relating to discovery and the filing of dispositive motions, have been repeatedly
extended since entry of that initial order. In the Court’s most recent Calendar Order of
February 10, 2017, the last day on which either party may serve written discovery is
April 14, 2017, with any discovery-related motions to be filed by May 15, 2017, which
also marks the close of discovery. The dispositive motion deadline, for motions that
pertain to the underlying breach of contract claim, is June 3, 2017.
On July 27, 2016, the undersigned granted the motion of a group of insurers
(hereinafter “Insurers”) that sought bifurcation of discovery on Fifth Third’s bad faith
allegations. 3 Judge Beckwith overruled Fifth Third’s objections to that Order, and the
stay of discovery related to “bad faith” allegations remains in effect through at least June
3, 2017.

3

Fifth Third’s “bad faith”” allegations are wholly included in its breach of contract claim; Fifth Third has
never pleaded a separate and distinct tort claim for bad faith. Although Fifth Third previously expressed
an intent to amend to add a separate bad faith claim, (see Doc. 64 at 10, n. 6), its current motions to
amend its pleadings do not attempt to do so.

3

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The Insurers who sought and obtained the earlier bifurcation order have now filed
a motion seeking a protective order to prevent Fifth Third from obtaining discovery that
they believe exceeds the scope of the bifurcation order. Fifth Third insists that the
contested discovery is relevant to the underlying breach of contract claim, independent
of any relevance to its derivative bad faith allegations.

For the reasons discussed

below, I conclude that the Insurers are entitled to most, but not all, of the protection that
they seek. 4
II.

Analysis of the Motion for Protective Order

On January 23, 2017, Defendants Certain Underwriters at Lloyd’s subscribing to
Policy Numbers B0509QA048710 and B0509QA051310 (Lloyd’s Syndicates 2488
(“ACE”), 2007 (“Novae”), 1182 (“Talbot”), and 1084 (“Chaucer”), collectively “Lloyds”);
AXIS Insurance Company (“AXIS”); and Federal Insurance Company (“Federal”)
(Lloyd’s, AXIS and Federal are collectively referred to as “Underwriters”), filed a motion
seeking a protective order concerning identical Rule 30(b)(6) Deposition Notices served
by Fifth Third Bancorp and Fifth Third Bank (collectively “Fifth Third”) on each of the
Lloyd’s Syndicates, AXIS and Federal. In part, the Underwriters seek an order striking
Topic Nos. 1-6, 11-12, and 14-17 from the 30(b)(6) Notices. (Doc 98). On January 26,
2017, Continental Insurance Company, Fidelity and Deposit Insurance Company of
Maryland, and St. Paul Mercury Insurance Company (collectively, the “Second Excess
Insurance Carriers”) joined the Underwriters’ motion as to the Rule 30(b)(6) Notices,
based upon the fact that Fifth Third served the Second Excess Insurance Carriers with
4

The Underwriters point out that Fifth Third spends much of its brief “arguing in favor of a non-existent
motion to compel documents from Underwriters.” (Doc. 105 at 6). The Underwriters urge this Court to
ignore Fifth Third’s “procedurally improper” arguments. (Id.) Technically, the Underwriters are correct, in
that Fifth Third has not cross-moved for relief. Therefore, arguments that primarily challenge the Insurers’
claims of attorney-client or work product privileges in productions of documents will not be addressed.
On the other hand, to the extent that Fifth Third’s arguments overlap with the Rule 30(b)(6) Topics as to
which the Underwriters seek a protective order, the arguments have been fully considered.

4

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virtually identical Notices, including topics on which the Second Excess Insurance
Carriers believe to be improper expansions of discovery into bad faith. (Doc. 99).
For the convenience of this Court, the Underwriters and the Second Excess
Insurance Carriers are collectively referred to as “the Insurers” where their positions
align in favor of the requested protective order. Because the Second Excess Insurance
Carriers have joined the motion only in part, however, the Court will separately address
the portion of the Underwriters’ motion that the Second Excess Insurance Carriers have
not joined.
A. The Scope of the Existing Bifurcation Order and Stay
To place the current dispute in context, it is necessary to review this Court’s prior
Memorandum Order bifurcating discovery. In that Order, the undersigned wrote:
Based upon the referenced allegation of bad faith, Fifth Third seeks very
broad discovery of many documents that otherwise would be subject to
privilege and/or potentially irrelevant to the underlying breach of contract
claim. The Insurers’ motions seek either a protective order or a stay and
bifurcation of discovery that would include the production of claims files,
including
otherwise
privileged
material,
RLI’s
attorney-client
communications, privileged communications with other insurers, and fee
bills for services rendered by outside counsel. In addition, the Insurers
seek protection from disclosure to Fifth Third of their internal reserves
related to the Fifth Third Claim, and object to disclosure of claims
submitted by other insureds over a four-year period.
(Case No. 1:14-cv-802, Doc. 62 at 5-6, emphasis added). Ultimately, the undersigned
agreed with the Insurers that
[A] stay of discovery and bifurcation on any bad faith issues… is advisable
in the above-captioned cases. In addition to the privilege issue, the
undersigned is persuaded that a bifurcation of discovery on any “bad faith”
issues furthers the interests of judicial economy. Thus, the undersigned
will grant the Insurers’ motions to stay and/or bifurcate discovery on the
bad faith issues until at least following the filing of any dispositive motions
on the underlying breach of contract claims. Accord Warren v. Federal
Ins. Co., 358 Fed. Appx. 670 at *6 (6th Cir. 2009) (affirming bifurcation
with stay of discovery on bad faith claim); Smith v. Allstate Insur. Co., 403
F.3d 401 (6th Cir. 2005) (affirming stay of discovery on bad faith claim
5

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while contract claim was pending); Ferro Corp. v. Continental Cas. Co.,
2008 WL 5705575 (N.D. Ohio Jan. 7, 2008) (finding bifurcation of
discovery and trial to be appropriate in case involving numerous lawsuits
and coverage claims against multiple insurers; Scotts Co. LLC v. Liberty
Mut. Ins. Co., 2007 WL 4365695 (S.D. Ohio, Dec. 12, 2007) (affirming
order of magistrate judge to bifurcate discovery and trial on bad faith claim
that magistrate judge deemed was not an independent cause of action);
Libbey Inc. v. Factory Mut. Ins. Co., 2007 U.S. Dist. LEXIS 45160 (N.D.
Ohio June 21, 2007) (bifurcating discovery and trial on bad faith claim).
Although the Insurers also seek bifurcation of any bad faith issues for
purposes of trial, that issue is reserved to the presiding trial judge. It is
likely that the trial judge will be in a better position to review the potential
bifurcation or consolidation of trial concerning bad faith issues following
the disposition of any dispositive motions on the underlying breach of
contract claims. Therefore, the undersigned will deny, without prejudice to
renew, that portion of the Insurers’ motion.
In objecting to the proposed bifurcation of discovery, Fifth Third makes
much of the fact that in the parties’ Rule 26(f) discovery plans, the Insurers
affirmatively agreed that discovery would need to be conducted on all
issues raised, and that discovery need not be bifurcated. Likewise, the
issue of bifurcation did not come up during initial pretrial conferences.
Fifth Third also complains that RLI already has engaged in some
discovery concerning the issue of bad faith, including a portion of the
discovery served by RLI on Fifth Third, and therefore should be “estopped
from refusing to participate” in Fifth Third’s attempt to delve more deeply
into issues relating to bad faith. Having examined the record, the
undersigned does not agree. Fifth Third significantly overstates the
amount of “bad faith” discovery conducted to date, as well as the scope of
the Insurers’ alleged Rule 26(f) “agreement.” Viewing the course of this
litigation as a whole, the undersigned finds the parties’ prior Rule 26(f)
agreements should not be used to foreclose the extremely broad “bad
faith” discovery sought by Fifth Third at this point in time.
The Insurers argue that if Fifth Third cannot prove its underlying breach of
contract claims in this case, then no separate action for bad faith can be
maintained by Fifth Third. Although the final arbiter of claims and
defenses will be the trial judge assuming that the parties file dispositive
motions, the undersigned finds the Insurers’ argument to be a persuasive
factor weighing in favor of bifurcation of discovery at this stage.
*****
Millions of pages have already been exchanged between the parties on
the breach of contract claim (with limited bad faith overlap) to date. The
parties already have sought the intervention of this Court to resolve
discovery-related disputes. The complexity of discovery to date, coupled
with the firm dispositive motion deadline of October 3, 2016, also favors
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staying the extremely broad expansion of discovery that Fifth Third seeks
to support its “bad faith” allegations.
(Id., at 6-9, internal footnotes omitted).
On December 29, 2016, Judge Beckwith overruled Fifth Third’s objections to the
Order, agreeing with the stay of discovery on Fifth Third’s bad faith allegations, and that
Fifth Third was not entitled to discovery of “privileged attorney-client materials, work
product materials, and claims file materials.” (Doc. 81 at 3, PageID 1139). In finding no
clear error that would require modification of any portion of the Order, Judge Beckwith
determined that the undersigned magistrate judge had “applied and analyzed the facts
under the appropriate standard of law to determine whether bifurcation would further the
purposes of Fed. R. Civ. P. 42(b).” (Doc. 82 at PageID 1140).
B. Whether Fifth Third’s Rule 30(b)(6) Topics Fall Within the Existing Stay
In their motion, the Insurers argue that Topics 1-6, 11-12, and 14-15 in Fifth
Third’s 30(b)(6) Notices seek testimony that is precluded by the existing stay of
discovery on bad faith issues. In its response in opposition, Fifth Third maintains that
the existing stay should be viewed as precluding discovery at this phase only as to
privileged attorney-client materials, consistent with Boone v. Vanliner Ins. Co., 744
N.E.2d 154 (Ohio 2001).
Although the Boone holding was focused on the disclosure of otherwise
privileged materials when a separate bad faith claim is alleged, Boone was not a case in
which discovery had been bifurcated, and the undersigned’s July 27, 2016
Memorandum Order is not limited in the manner that Fifth Third suggests. Instead, the
bifurcation order sought to stay all discovery on bad faith. The bifurcation and stay was
imposed in this very complex insurance case in part for reasons of judicial economy

7

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under Rule 42(b). 5 The factors previously considered were not only the avoidance of
prejudice, which could occur through disclosure of otherwise privileged information, but
also convenience, expediency, and economy. See Rule 42(b).
Not surprisingly given the high dollar value of the bonds at issue, discovery to
date has included the exchange of millions of pages on the breach of contract claims
alone, with relatively little overlap with bad faith issues. This Court has been called
upon to resolve several discovery-related disputes, but continues to believe that those
disputes would be greater without the existing stay. 6 As the presiding district judge has
already upheld the broad stay and bifurcation order, the undersigned declines to
reconsider the scope of the July 2016 Order. Reviewing Fifth Third’s requests in light of
that Order, the undersigned finds the requested protective order to be appropriate as to
most of the disputed Topics in the Rule 30(b)(6) Notices.
The Insurers generally argue that all of the contested Topics are relevant only to
bad faith allegations. Fifth Third argues that the same Topics are also relevant to the
underlying breach of contract claim.
For example, Fifth Third seeks a great deal of information that relates to the
drafting of the Bonds, as well as general claims “handling” practices by all Insurers.
Topics 1-5 in particular seek a witness or witnesses to testify about every aspect of the
“underwriting, renewal, or issuance” of the Bonds. (See 98-2 at 6-8). The precise
relevance of the broadest reading of the identified Topics is not clear to the Court. Fifth
5

Rule 42(b) speaks to the bifurcation of (or consolidation of) claims for trial, but the same factors were
considered in the bifurcation of discovery in this case. Although the Court granted a stay and bifurcation
of discovery on bad faith allegations, the Court denied the Insurers’ motion to bifurcate trial, without
prejudice to the Insurers’ right to renew that portion of their motion before the trial judge.
6
In Fifth Third’s objections to the July 2016 order, Fifth Third argued the opposite – that more discovery
disputes like the instant one would ensue based upon the parties’ disagreement as to whether discovery
relevant to bad faith allegations might also be relevant to the underlying breach of contract claim. (Doc.
64 at 14). However, the presiding district judge rejected Fifth Third’s position and concurred with the
undersigned’s analysis that overall, judicial economy favored bifurcation.

8

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Third has never alleged any ambiguity in the contractual language. Instead, the primary
dispute between the parties hinges upon the timing of the discovery of Fifth Third’s loss,
and notice of that loss to Fifth Third and to its Insurers. 7 To date, the Court has not
been made aware of any issue that relates to any alleged ambiguity in the language of
the Bonds.
Absent a showing of actual relevance to a claim or defense, it is unclear how
general drafting or generic claims “handling” practices (other than limited information
responsive to Topics 12(a)–(c)) 8 would be pertinent to the issue of whether Fifth Third’s
claim falls within or outside of the coverage of the respective contracts of insurance.
The undersigned is not persuaded by Fifth Third’s argument that it is entitled to
extremely broad discovery in hopes of finding evidence that would support some new
claim of ambiguity or an as-yet unidentified “disputed” term in the Bonds.

In the

absence of any claim or defense that any of the terms of the Bonds are ambiguous,
such parol evidence is irrelevant.
Fifth Third’s argument that all of the requested discovery is “potentially relevant,”
(Doc. 101 n.15 at PageID 1788, emphasis added), fails to persuade.

Fifth Third

hypothesizes that more information could become relevant if Fifth Third eventually can
identify any specific term or terms that are ambiguous. But if followed, this type of
circular reasoning would allow discovery on any number of irrelevant issues in an
endless fishing expedition. Of course, there is little doubt that the drafting of the Bond
language and “handling” and processing of Fifth Thirds’ claim by the Insurers may be
relevant to Fifth Third’s bad faith allegations. However, in light of the existing bifurcation

7

The Lloyds insurers rely heavily upon facts alleged in their letters of April 23, 2014 and August 6, 2014.
See infra at 11-12.

8

9

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order, the relevancy of discovery on those derivative allegations will be considered only
after resolution of the underlying breach of contract dispute.
That said, to the extent that portions of Topics 1-5 may be construed as seeking
information about the Insurers’ affirmative defenses concerning the discovery and notice
provisions of the Bonds, the Insurers are not entitled to a protective order. For example,
portions of Topics 2, 3, and 5 appear to seek relevant information about the notice and
discovery provisions.
With respect to other specific Topics as to which the Insurers seek a protective
order, Topic 6 seeks “claims handling, investigation, adjustment or determination of
coverage for claims submitted by other …insureds under any Financial Institution
Bonds…or any other type of bond or policy that provide the same or similar coverage as
the Bond or Prior Bonds….” Fifth Third has failed to demonstrate the relevance of this
information to the underlying breach of contract claim. Therefore, the Insurers need not
produce a witness to respond to Topic 6.
Topic 11 seeks someone to testify about the “organizational structure of the
department(s) or group(s) within [Insurer] that had or have any role or responsibility in
connection with the adjustment, handling, processing, review, investigation, or
evaluation of the Claim, including the identity and role of each person in such
department(s) or group(s) who had any role or responsibility in connection with the
Claim,” Fifth Third contends the information is “critical…to discern where and how the
Insurers’ files may be kept and to identify individuals that may possess potentially
discoverable information.” (Doc. 101 at PageID 1779). Limited to the identities and
roles and responsibilities of persons who adjusted, handled, processed, reviewed,

10

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investigated, or evaluated the claim(s) at issue, Fifth Third is entitled to testimony on
this topic.
In Topic 12, Fifth Third seeks testimony about the Insurers’ claims files. More
specifically, Topics 12(a) through (c) seek testimony about the Insurers’ “handling,
adjusting, processing, reviewing, investigating, and/or evaluation and assessment of the
Claim, including but not limited to: a. Persons involved; b. Steps or actions taken, claim,
or diary notes, decisions made, and bases for those decisions; c. Information learned or
obtained.”

(Doc. 99-1 at PageID 1741). Fifth Third explains that it is seeking

“statements and admissions regarding the scope and extent of available insurance
coverage, the meaning or the Insurers’ construction of the disputed Bond terms, as well
as statements regarding the validity and factual underpinnings of the Insurers’ defenses
to coverage,” including statements “that are inconsistent with their litigation positions
[that] would establish alternative interpretations of the Bond and/or constitute
admissions regarding the Insurers’ coverage positions or the scope of coverage.” (Doc.
101 at PageID 1770). In support of the relevancy of Topics 12(a)-(c), Fifth Third cites
two unpublished cases from Washington and Nevada courts, in which portions of claims
files were ordered to be produced as relevant to the insurers’ affirmative defenses
and/or the underlying coverage issue. See Teck Metals, Ltd. v. London Market Ins.,
2010 WL 4813807 at *3 (E.D. Wash. Aug. 25, 2010); Olin Corp. v. Continental Cas. So.,
2011 WL 3847140 (D. Nev. Aug. 30, 2011). Similarly here, Fifth Third argues that the
claims files are directly relevant to the Insurers’ affirmative defenses concerning the
timing of Fifth Third’s discovery of its loss and notice of its loss. Fifth Third argues that it
needs the non-privileged portion of the claims files to understand “the Insurers’

11

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expectations, interpretations, understanding and application of the terms and conditions
of the Bond.” (Doc. 101 at PageID 1780).
While general discovery into the Insurers’ “handling” of all claims is not
necessarily relevant to any claim or defense at issue (excluding bad faith), the Insurers’
will be required to produce a witness for the portion of Topics 12(a)-(c) that relate to
non-privileged information that has already been produced in discovery. In their reply
memorandum, the Underwriters state that ACE, AXIS, and Federal have already
produced the non-privileged portions of their claims files as well as corresponding
privilege logs. (Doc. 15 at PageID 1991, 1996). Additionally, the Insurers have agreed
to produce a witness on their affirmative defenses, including Topics 7 and 10, which
include the “bases for and the principal or material facts and documents supporting any
affirmative defenses and/or contention stated in [Insurer’s] Answer” as well as the
“bases for and the principal or material facts and documents supporting [Insurer’s]
reservation of rights letters.” (Doc. 99-1, PageID 1740). Thus, as to non-privileged
information in the claims files, Fifth Third has adequately demonstrated the relevance of
Topics 12(a)-(c) to the underlying breach of contract claims, and the Insurers’ request
for a protective order on those Topics will be denied.
For similar reasons, the undersigned will deny in part the Insurers’ motion for a
protective order on Topics 12(d) and (e), which seek testimony on the Insurers’
communications “with Fifth Third, brokers, other insurers, reinsurers, or any other
person or entity,” and the “scope and nature of the work done by any law firms,
accountants, adjusters, consultants, investigators, or any other person or entity retained
by [the Insurer].” To the extent that Topics 12(d)-(e) can be construed as limited to
relevant and non-privileged information concerning the Insurers’ communications
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regarding their discovery and notice defenses, Fifth Third is entitled to discover the
requested discovery.
Topic 14 seeks a witness to testify about “claims handling, investigation,
adjustment, or assessment manuals, policies, rules, or guidelines that relate to Financial
Institution Bonds, Fidelity Bonds, or any other type of bond or policy, or any provisions
thereof, that provide the same or similar coverage as the Bond.” (Doc. 99-1 at PageID
1741). Fifth Third argues that such information is relevant to show “how the insurer
applied the standard language” in the Bonds at issue. (See Doc. 101 at PageID 1781)).
However, the “straightforward” insurance case on which Fifth Third relies is
distinguishable. See Silgan Containers v. Nat’l Union Fire Ins., 2010 WL 5387748 (N.D.
Cal. Dec. 21, 2010)(additional internal citations omitted, allowing discovery on “policy
interpretation and application issues” and the “nature and origin” of the insured’s
damages in furtherance of a breach of contract issue, where the plaintiff had alleged
that policy terms were ambiguous). Limited inquiry will be permitted only as it relates to
the underlying breach of contract claim and affirmative defenses relating to the exact
bonds at issue. By contrast, Fifth Third is not entitled to a witness to testify more
broadly about manuals, policies, rules, or guidelines that relate to any bonds ever
issued by the Insurers for “similar coverage.”
Topic 15 seeks testimony concerning the Insurers’ “promotion, advertisements,
or marketing of Financial Institution Bonds, Fidelity Bonds, or any other type of bond or
policy that provides the same or similar coverage as the Bond.”
PageID1741).

(Doc. 99-1 at

Fifth Third contends that the relevance of this information to the

underlying breach of contract claim goes to “the scope of insurance coverage the
Insurers promised and intended to provide,” and may show “what risks each insurer
13

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believed and/or represented it underwrote.” (Doc. 101 at 15). Absent any more specific
allegation that any terms are in fact ambiguous, Topic 15 does not appear to be relevant
to any claim or defense in the current phase of litigation. Therefore, the Insurers need
not produce a witness to testify to Topic 15.
Topic 16 seeks testimony about the “loss reserves” that the Insurers set for the
claims at issue. This issue was addressed in the July 2016 Order. Indeed, Fifth Third
concedes as much in its response and states that it no longer seeks this information. 9
In Topic 17, Fifth Thirds seeks a witness able to testify about “all documents
produced,” which the Insurers argue is either overbroad (to the extent that it seeks
someone to testify about the content of all documents) or inappropriate for a deposition
topic to the extent it seeks to authenticate documents. In response to the motion, Fifth
Third has clarified that topic 17 “relates to the sources of the documents produced and
the scope of the Insurers’ searches for relevant documents and information.” (Doc. 101
at 24). While Underwriters might prefer that Fifth Third seek such information through
interrogatories, the Insurers are not entitled to a protective order on this issue.
C. The Underwriters’ Separate Arguments
1. Protection from Duplicate Discovery
In addition to seeking a protective order striking portions of Fifth Third’s Rule
30(b)(6) Notices, the Underwriters seek an order requiring Fifth Third to refrain from
9

Citing this now-moot issue by way of example, Fifth Third strongly criticizes the Insurers for
“unnecessarily burden[ing] the Court with discovery issues that could have (and should have) been
resolved through the good faith meet and confer process” mandated by both Federal and Local Rules of
Procedure and by the undersigned’s General Standing Order on discovery disputes. (Doc. 101, PageID
1775). The correspondence attached to the Insurers’ motion, together with the course of proceedings on
prior disputes, confirms that the parties had exchanged multiple communications on the issues presented
but appeared to be at an impasse. If Fifth Third believed further communication could have resolved the
pending disputes, counsel should have communicated that fact instead of simply reiterating Fifth Third’s
general disagreement on all disputed topics, and stating that counsel would “review the motion you
[intend to] file Monday and respond accordingly.” (Doc. 98-2 at PageID 1727). Moreover, Fifth Third
remained free to continue to work to narrow and/or resolve the pending issues even after the Insurers
filed their motion.

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seeking duplicative discovery from “non-lead” Lloyd’s Syndicates subscribing to the
policies at issue: Chaucer, Novac, and Talbot. The Underwriters cite an agreement
among counsel made in May 2015 to take “leader-only” discovery for all of the Lloyd’s
Syndicates from ACE, as the party with primary responsibility on behalf of Lloyd’s for
investigating claims under the policies. All of the referenced entities are represented by
the same counsel, and “have always taken the same coverage position…on behalf of all
Underwriters.” (Doc. 98-1 at PageID 1706). The Underwriters strongly object to what
they perceive as a “harassing” departure from the agreement, to the extent that Fifth
Third noticed all four Lloyd’s entities separately. Witnesses for the entities are located
in London, England, requiring expensive international travel.
In response, Fifth Third states that it will in fact abide by the prior agreement and
permit ACE to respond to discovery on behalf of all of the Lloyd’s Syndicates, “so long
as discovery as to one would be discovery as to all.” (Doc. 101 at 22). While both the
Underwriters and Fifth Third spend time assigning blame for the failure of counsel to
resolve this issue prior to the filing of the Insurers’ motion, such assignment of blame
concerning a now-moot issue does not serve the interests of the parties, the public, or
this Court.
2. Costs and Fees Relating to the Motion for Protective Order
The Underwriters seek an award of their costs and fees in filing the motion for
protective Order. In light of the rulings made herein, the Underwriters’ request will be
denied.
III.

Conclusion and Order

Accordingly, IT IS ORDERED:

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Case: 1:14-cv-00869-TSB-SKB Doc #: 107 Filed: 03/01/17 Page: 16 of 16 PAGEID #: 2039

1. The Insurers’ motion for a protective order (Doc. 98 in Case No. 1:14-cv-869)
is GRANTED IN PART and DENIED IN PART consistent with the above
discussion;
2. The Underwriters’ separate request for additional protection to prevent
duplicative discovery is DENIED AS MOOT, and the request for an award of
fees costs and fees is also DENIED.

s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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