Foraker v. USAA Casualty Insurance Company

Filing 63

Order by Judge Anna J. Brown. Any party wishing to file any motion to compel discovery from Harding must file such motion no later than 08/08/2014. Any opposition to such motion, including any cross-motion by any party or Harding, is due no later than 08/13/2014. Any response to any cross motion is due no later than 08/20/2014. No replies will be permitted. The Court will hear oral argument on such motions on 08/28/2014 at 9:00 a.m. The Court directs the Clerk to ensure Hardings counsel, Ms. Deanna Wray, receives a copy of this Order. No later than 08/08/2014, the parties shall file a jointly proposed case-management schedule. See attached Order for full text. Signed on 08/04/2014 by Judge Anna J. Brown. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

PEGGY FORAKER,

3:14-CV-00087-BR

Plaintiff,
ORDER
v.
USAA CASUALTY INSURANCE
COMPANY ,
Defendant.

HEATHER A. BRANN
Attorney at Law
P.O. Box 11588
Portland, OR 97211
[phone]
JAMES R. JENNINGS
James R. Jennings, P.C.
1550 N.W. Eastman Parkway
Suite 275
Gresham, OR 97030
[phone]
Attorneys for Plaintiff

1 - ORDER

JOSHUA N. KASTAN
Hayes Scott Bonino Ellingson & McLay, LLP
203 Redwood Shores Parkway
Suite 480
Redwood City, CA 94065
[phone]
ROBERT S. MCLAY
Hayes Scott Bonino Ellingson & McLay, LLP
203 Redwood Shores Parkway
Suite 480
Redwood City, CA 94065
[phone]
MATTHEW C. CASEY
Bullivant Houser Bailey, PC
300 Pioneer Tower
888 S.W. Fifth Avenue
Portland, OR 97204
[phone]
Attorneys for Defendant

BROWN, Judge.
This matter comes before the Court on the discovery disputes
as set forth in the Joint Status Report (#55), Supplemental Joint
Status Report (#58) of Plaintiff Peggy Foraker and Defendant USAA
Casualty Insurance Company, Plaintiff’s Supplement Letter (#60)
Containing Authority Per the Court's Request, and Defendant’s
First Supplement Response (#61) to Court's Request for Oregon
Authority Applying Work-Product Protection.
The Court heard oral argument on the parties’ discovery
disputes on July 31, 2014.

For the reasons stated on the record

and in the exercise of its case-management authority, the Court
confirms the following rulings it made on the record:
2 - ORDER

1.

Discovery re Simon Harding

After engaging in meaningful conferral with counsel for
nonparty Simon Harding and opposing counsel, any party wishing to
file any motion to compel discovery from Harding must file such
motion no later than August 8, 2014.

Any opposition to such

motion, including any cross-motion by any party or Harding, is
due no later than August 13, 2014.

Any response to any cross-

motion is due no later than August 20, 2014.
permitted.

No replies will be

The Court will hear oral argument on such motions on

August 28, 2014, at 9:00 a.m.

The Court directs the Clerk to

ensure Harding’s counsel, Ms. Deanna Wray, receives a copy of
this Order
2.

Defendant’s Claim File

Counsel for Defendant is directed to certify to Plaintiff’s
counsel no later than August 8, 2014, that all material in
Defendant’s “claim file” (as that term was defined by Defendant’s
counsel on the record) has been produced to Plaintiff with the
exception of the 12 pages of documents over which Defendant
claims work-product privilege and which are further subject to
the Court’s ruling herein and as stated on the record.
3.

Defendant’s Assertion of Work-Product Privilege over 12
pages of Discovery

Having taken ex parte argument from Defendant’s counsel as
noted on the sealed record and having reviewed all of the
redacted and withheld material, the Court makes the following
3 - ORDER

rulings:
a.

FORAKER CF 0006 - The Court overrules Defendant’s
claim of privilege and orders Defendant to produce
to Plaintiff an unredacted version of this
document.

b.

FORAKER CF 0137 - The Court sustains Defendant’s
redaction of this document on the ground of workproduct privilege.

c.

FORAKER CF 0140-41.

The Court sustains

Defendant’s redaction of this document on the
ground of work-product privilege.

The Court,

however, directs counsel for Defendant to reassess
whether Defendant has an obligation to produce
this document following the deposition of Harding.
d.

FORAKER CF 0697-98 - The Court overrules in part
and sustains in part Defendant’s redaction of this
document on the ground of work-product privilege.
The Court directs counsel for Defendant to
unredact portions of this document as directed by
the Court in the sealed portion of the record and
to reproduce the newly redacted document to
Plaintiff.

e.

FORAKER CF 1768-1773 - The Court sustains
Defendant’s redaction of this document on the

4 - ORDER

ground of work-product privilege.
f.

Defendant’s counsel shall make the productions
ordered here no later than August 8, 2014.

4.

Plaintiff’s Interrogatories Directed to Defendant re
Valuation of Claim

The Court sustains Defendant’s objection to submitting a
response to any interrogatory that would require Defendant to
disclose its reserves and valuation opinions with respect to
Plaintiff’s claim, and the Court denies Plaintiff’s request to
compel discovery on this issue.
5.

Radiological Films and Conduct of James Jennings

For the reasons stated on the record, the Court directs
Plaintiff’s counsel, James Jennings, to provide counsel for
Defendant with a certification under oath and subject to the
penalties of perjury that reestablishes the chain of custody
regarding the radiological film materials Jennings took and
returned.

To the extent that Defendant, nevertheless, wishes to

rely on new copies of this material, the Court will not issue any
order requiring Plaintiff to pay for any such new copies.

With

respect to any attorneys’ fees that Plaintiff has incurred in
reviewing the radiological film material and in dealing with
Defendant’s well-founded objections to Jennings having removed
the material in violation of the parties’ agreement, Plaintiff
shall not include such fees in any attorneys’-fee petition
submitted by Plaintiff.
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6.

Future Conferral Between Parties

In the exercise of its discretion the Court requires counsel
to engage in real-time communication whenever a matter for
conferral arises.

In particular, Counsel must speak to each

other long enough to ensure each understands the positions of the
other.

Unilateral written submissions of a party’s position on a

matter subject to conferral is not sufficient to meet the
requirement of Local Rule 7.1(a).
7.

Case Management Schedule
No later than August 8, 2014, the parties shall file a

jointly proposed case-management schedule.

As discussed with the

parties on the record, the proposal shall include the possibility
that the Court will bifurcate proceedings to require the
resolution of Plaintiff’s claim for the UIM policy limits before
the Court resolves disputes about discovery and other matters
related to Plaintiff’s claim for breach of the contractual
covenant of good faith and fair dealing.
IT IS SO ORDERED.
DATED this 4th day of August, 2014.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge

6 - ORDER