Barnard v. Liberty Mutual Insurance Company et al

Filing 57

MEMORANDUM OPINION AND ORDER re: production of ducuments. Signed by Magistrate Judge Martin C. Carlson on February 6, 2019. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

PAIGE BARNARD,
Plaintiff,
v.
LIBERTY MUTUAL
INSURANCE CORP., et al.,
Defendants.

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Civil No. 3:18-CV-01218
(Judge Mariani)

(Magistrate Judge Carlson)

MEMORANDUM OPINION AND ORDER
I.

Statement of Facts and of the Case
This case arises out of an automobile accident involving the plaintiff, Paige

Barnard, in December 2015. At the time of the accident, Barnard was insured by the
defendant, Liberty Mutual, under her parents’ auto insurance policy. Pursuant to that
policy, Barnard received first party medical benefits and income loss benefits after
the accident. Subsequently, in December 2016, Liberty Mutual sent Barnard a letter
notifying her that her benefits were being terminated as of February 11, 2016. This
decision was made after Liberty Mutual sent Barnard’s case to a peer review
organization (“PRO”), which determined that Barnard’s treatment was no longer
appropriate, necessary, or reasonable.

After her request for reconsideration of the PRO’s decision was denied,
Barnard filed this suit in state court, and Liberty Mutual subsequently removed the
case to federal court. After the parties engaged in initial discovery, disputes arose
with respect to the plaintiff’s request for production of documents, answers to
interrogatories, and the sufficiency of Liberty Mutual’s privilege log as it pertained
to a number of redactions in the documents produced by the defendant. The court
held a telephone conference to discuss these issues, and the parties were directed to
brief their respective positions. Liberty Mutual was also directed to produce its
documents alleged to contain privileged information to the court for in camera
inspection.
For her part, Barnard contends that she is entitled to all the documents she
requested and to answers to her interrogatories. With respect to the claim file,
Barnard argues that any responsive documents existing prior to March 14, 2017,
were not prepared in anticipation of litigation, and thus there would be no privilege
and no basis for redacting the information. She also contends that she is entitled to
the entirety of the claim file, including the information related to her underinsured
motorist (“UIM”) claim, which was settled prior to the instant lawsuit.
Liberty Mutual objects to several of Barnard’s requests for production of
documents, as well as to several of Barnard’s interrogatories, claiming the
information is either privileged or not relevant to the instant matter. Additionally,
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with respect to the redacted documents, Liberty Mutual asserts that the redacted
information in the claim file is covered by the attorney-client and/or work product
privileges, and that any documents created after February 6, 2017, were prepared in
anticipation of litigation. Liberty Mutual also claims that any other information
redacted is outside the scope of Federal Rule of Civil Procedure 26.
II.

Discussion
Issues relating to the proper scope and nature of discovery rest in the sound

discretion of the Court. Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 90 (3d
Cir. 1987). A court’s decisions regarding the conduct of discovery, therefore, will
be disturbed only upon a showing of an abuse of discretion. Marroquin-Manriquez
v. I.N.S., 699 F.2d 129, 134 (3d Cir. 1983). This far-reaching discretion extends to
rulings by United States Magistrate Judges on discovery matters. In this regard:
District courts provide magistrate judges with particularly broad
discretion in resolving discovery disputes. See Farmers & Merchs.
Nat’l Bank v. San Clemente Fin. Group Sec., Inc., 174 F.R.D. 572, 585
(D.N.J. 1997). When a magistrate judge’s decision involves a
discretionary [discovery] matter ..., “courts in this district have
determined that the clearly erroneous standard implicitly becomes an
abuse of discretion standard.” Saldi v. Paul Revere Life Ins. Co., 224
F.R.D. 169, 174 (E.D. Pa. 2004) (citing Scott Paper Co. v. United
States, 943 F.Supp. 501, 502 (E.D. Pa. 1996)). Under that standard, a
magistrate judge’s discovery ruling “is entitled to great deference and
is reversible only for abuse of discretion.” Kresefky v. Panasonic
Commc'ns and Sys. Co., 169 F.R.D. 54, 64 (D.N.J. 1996); see also
Hasbrouck v. BankAmerica Hous. Servs., 190 F.R.D. 42, 44-45
(N.D.N.Y. 1999) (holding that discovery rulings are reviewed under
abuse of discretion standard rather than de novo standard); EEOC v.
Mr. Gold, Inc., 223 F.R.D. 100, 102 (E.D.N.Y. 2004) (holding that a
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magistrate judge’s resolution of discovery disputes deserves substantial
deference and should be reversed only if there is an abuse of discretion).
Halsey v. Pfeiffer, No. 09-1138, 2010 WL 3735702, *1 (D.N.J. Sept. 17, 2010).
Liberty Mutual objects to many of the plaintiff’s discovery requests, arguing
that the information requested is protected by the attorney-client and/or work
product privileges, contains confidential trade secrets and proprietary information,
is overly broad or burdensome, and is not relevant. Additionally, because these
disputes arose while a motion to dismiss was pending in this case, Liberty Mutual
argues that some of the information requested—pertaining to the plaintiff’s bad faith
claim—was premature pending the outcome of that motion.
At the outset, we note that the plaintiff’s statutory bad faith claim was
dismissed without prejudice on December 12, 2018. (Doc. 49). However, the
plaintiff filed an Amended Complaint on December 28, 2018, which includes an
amended statutory bad faith claim. (Doc. 51). Thus, any argument regarding the
premature nature of bad faith discovery is now moot. We will address the
defendant’s remaining arguments in turn.
A. Plaintiff’s Request for Production of Documents
The plaintiff requested that Liberty Mutual produce the following: (1) a copy
of the peer review section of Liberty Mutual’s policy manual, including updates,
notices,

bulletins, and

communications regarding

such

policy;

(2)

all

communications of any nature regarding the matters in the plaintiff’s complaint and
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those raised in initial disclosures; (3) the entirety of Liberty Mutual’s claim files
related to Barnard, including logs and notes; (4) copies of the policies and procedures
from 2015-2017 that govern the way Liberty Mutual’s employees handle inquiries;
and (5) all employment files of Aimee Johnson.1 Barnard concedes that the
employment file of Aimee Johnson is not discoverable at this stage, but argues that
the other requests must be produced in order for her to make a determination whether
to seek Ms. Johnson’s employment file in the future. (Doc. 50, at 13).
For its part, Liberty Mutual objects to the plaintiff’s requests on the bases of
the attorney-client privilege or work product, relevance, and maintains that the
requests are overbroad, unduly burdensome, and vague. With respect to the
plaintiff’s request for the claim file, the defendant submitted redacted and unredacted
versions of the file, along with its privilege log, to the court for in camera review so
that we can determine whether the information is being withheld appropriately.
Additionally, Liberty Mutual supplemented its answer to the request for
communications with six pages of communications. (Doc. 47, Def. Ex. 4, Bates
3223-3228).
First, with respect to any peer review portion of Liberty Mutual’s policy
manual and the employee policy or procedures for handling inquiries, it is our view

The plaintiff originally requested a copy of the Shareholders’ Rights policy but
has since rescinded that request after her motion for remand was denied. (Doc. 50,
at 12).
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that this information must be produced. The plaintiff alleges that Liberty Mutual
specifically selected a biased PRO to review her claim so that it could cut off her
benefits. Thus, how Liberty Mutual handles its peer review process is directly
relevant to the plaintiff’s bad faith claim and her claim under § 1797 of the Motor
Vehicle Financial Responsibility Law (“MVFRL”) for abuse of the review process.
Similarly, the policy or procedures that govern the way Liberty Mutual’s employees
handle inquiries about insurance policies is also relevant to the bad faith claim. See
Consugar v. Nationwide Ins. Co. of America, 2011 WL 2360208, at *6 (M.D. Pa.
June 9, 2011) (Munley, J.) (finding that Nationwide’s policy manuals “would allow
plaintiff to compare defendant’s standards for evaluating claims with the conduct of
defendant’s agents in this matter. A failure to follow established policy could make
it more likely that defendant acted in bad faith in denying plaintiff’s [] claim”); see
also Robertson v. Allstate Ins. Co., 1999 WL 179754, at *6 (E.D. Pa. March 10,
1999) (holding that information regarding a departure from established procedures
“is probative evidence for plaintiff to demonstrate bad faith”) (internal quotations
and citations omitted). Therefore, we will overrule the defendant’s objections and
order the defendant to produce both the peer review section of Liberty Mutual’s
manual, if one exists, and the policies and procedures governing the way Liberty
Mutual’s employees handle inquiries. To the extent that these policies or manuals
contain confidential trade secrets or proprietary information, the plaintiff is directed
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to keep these materials confidential. See Adams v. Allstate Ins. Co., 189 F.R.D. 331,
333 (E.D. Pa. 1999) (permitting the discovery of claims manuals and company
policy and ordering the plaintiff to keep such materials confidential).
Regarding the plaintiff’s request for “all communications of any nature
whatsoever” regarding matters in her complaint and raised in initial disclosures, we
agree with the defendant that this request is too vague and overbroad. The plaintiff’s
request for communications regarding “any matters raised by Plaintiff’s and
Defendants’ Initial Disclosures” is particularly vague, as the plaintiff does not reveal
what matters were raised by the disclosures. Thus, the defendant has no way of
knowing what communications to produce. See Lofton v. Wetzel, 2015 WL
5761918, at *2 (M.D. Pa. Sept. 29, 2015) (Conner, C.J.) (finding that document
requests for “all incident reports” from the prison and “any and all records” of
inspection was overbroad and vague). In its current form, the plaintiff’s request is
overly broad and vague as to the communications she seeks, and thus the defendant
will not be required to produce documents related to that request.
Finally, the plaintiff’s request for the entirety of the claim file is intertwined
with the in camera review undertaken by the court to determine whether the
documents contain privileged information. Among these documents are claim notes,
financial information, and claim status reports. Liberty Mutual has redacted a
significant amount of information from this file based on the attorney-client
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privilege and as work product, reserve information, and the contention that the
information is outside the scope of Rule 26. Additionally, Liberty Mutual contends
that any information regarding Barnard’s UIM claim that is redacted is not relevant
to her claim for first party medical benefits.
With respect to the privileges asserted by Liberty Mutual,2 the work-product
doctrine is governed by a uniform federal standard that is set forth in Rule 26(b)(3)
of the Federal Rules of Civil Procedure. United Coal v. Powell Constr. Co., 839 F.2d
958, 966 (3d Cir. 1988). The doctrine “shelters the mental processes of the attorney,
providing a privileged area within which he can analyze and prepare his client’s
case.” In re Cendant Corp. Sec. Litig., 343 F.3d 658, 661-62 (3d Cir. 2003). As the
Third Circuit has explained:
The purpose of the work-product doctrine differs from that
of the attorney-client privilege . . . . [T]he attorney-client
privilege promotes the attorney-client relationship, and,
indirectly the functioning of our legal system, by
protecting the confidentiality of communications between
Liberty Mutual continuously asserts the attorney-client privilege, which is
codified at 42 Pa. Cons. Stat. Ann. § 5928 and protects communications between
an attorney and his or her client. While the defendant asserts this privilege, Liberty
Mutual has not identified that any of the documents from which it has redacted
information contained information or communications to its attorney. The
information that has been redacted is information that has been prepared by its
employees or claims adjusters, whose work may be subject to protection as work
product but would not appear to qualify as attorney-client privileged. Liberty
Mutual has not so much as identified the name of an attorney from which we could
deduce that any redacted information was protected under this privilege. Thus, we
do not find it necessary to discuss the attorney-client privilege here, where no
documents fall under its purview.
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clients and their attorneys. In contrast, the work-product
doctrine promotes the adversary system directly by
protecting the confidentiality of papers prepared by or on
behalf of attorneys in anticipation of litigation. Protecting
attorneys’ work product promotes the adversary system by
enabling attorneys to prepare cases without fear that their
work product will be used again their clients.
Westinghouse Elec. Corp. v. Republic of the Philippines, 951 F.2d 1414, 1427-28
(3d Cir. 1991). Furthermore,
The doctrine is an intensely practical one, grounded in the
realities of litigation in our adversary system. One of those
realities is that attorneys often must rely on the assistance
of investigators and other agents in the compilation of
materials in preparation for trial. It is therefore necessary
that the doctrine protect material prepared by agents for
the attorney as well as those prepared by the attorney
himself.
United States v. Nobles, 422 U.S. 225, 238-39 (1975) (footnote omitted).
With these animating principles, Rule 26(b)(3) shields from discovery
“documents and tangible things that are prepared in anticipation of litigation or for
trial by or for another party or its representative (including the other party’s attorney,
consultant, surety, indemnitor, insurer, or agent.” Fed. R. Civ. P. 26(b)(3)(A).
Further, as it pertains to an insurer’s claim files, courts in this circuit have held that
“[a]n insurance company cannot reasonably argue that the entirety of its claims files
are accumulated in anticipation of litigation when it has a duty to investigate,
evaluate, and make a decision with respect to claims made on it by is insureds.”
Lyvan D.D.S. v. Harleysville Ins. Co., et al., 1994 WL 533907 (E.D. Pa. Sept. 29,
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1994); see also Shaffer v. State Farm Mut. Auto. Ins. Co., 2014 WL 931101, at *2
(M.D. Pa. March 10, 2014).
(1)

Anticipation of Litigation

Barnard contends that Liberty Mutual could not have reasonably anticipated
litigation any earlier than March 14, 2017, when the plaintiff was denied an
extension of time to submit documents for her peer review reconsideration. (Doc.
55, at 3). On the other hand, Liberty Mutual contends that it reasonably anticipated
litigation on February 6, 2017, when it received a letter from plaintiff’s counsel that
voiced the plaintiff’s disagreement with the PRO outcome, the failure to pay wages
and benefits, and ultimately requested reconsideration. (Doc. 54, at 3). After
considering the parties’ respective positions, in our view it was reasonable for
Liberty Mutual to anticipate litigation on February 6, 2017.
The letter stated that the plaintiff was dissatisfied with the outcome of the peer
review, and that she believed she should still be receiving payments for her medical
bills and wages pending her reconsideration of the peer review decision. (Doc. 55,
at 6). Further, as the plaintiff points out in her brief, Barnard “was free to commence
litigation without cooperating with her Insurer’s request to submit her argument for
reconsideration,” as exhaustion of the peer review procedures is not a prerequisite
to filing a lawsuit. (Id., at 2). Additionally, as we have stated, “[i]t is not necessary
that litigation has been commenced or even threatened before a document can be
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found to have been prepared in anticipation of litigation.” Craig v. Rite Aid Corp.,
2012 WL 426275, at *6 (M.D. Pa. Feb. 9, 2012). Thus, Liberty Mutual could have
reasonably anticipated that Barnard would file suit once they received notice of her
dissatisfaction with the outcome of the peer review process on February 6, 2017.
(2)

Claim Status Reports

First, with respect to the claim status reports (Bates 00140-00178), in our view
these documents have been inappropriately redacted. Liberty Mutual’s privilege log
indicates that items in this log are redacted on the bases of mental impressions,
conclusions, reserves, opinions respecting value or merit of claim or defense, or legal
theories, strategy or tactics; post-litigation analyses; and/or the information is
outside the scope of Rule 26. However, following a review of the claim logs, we
conclude that the documents are simply logs that indicate when certain employees
“viewed” the plaintiff’s claim file. Any entry that includes a description does not
contain any mental impressions, conclusions, opinions, or strategies of the viewer
regarding the plaintiff’s claim, but rather updates the status of the file with factual
sentences, such as “Check status changed from Requested to Issued,” or “Uploaded
Manual Inbound E-Mail document.” See Natale v. Wal-Mart Stores, Inc., 2016 WL
3467715, at *2 (M.D. Pa. June 24, 2016) (Saporito, M.J.) (directing that redactions
containing only “a factual recitation” entered by the claims adjuster who made the
entry be produced unredacted). Additionally, and curiously, some of these
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descriptions are mentioned more than once, but are redacted on some pages of the
log and not on others. Thus, because we find that the redactions are not protected as
mental impressions, conclusions, opinions or trial strategies, we will direct the
defendant to produce these documents, Bates 00140-00178, unredacted.
(3)

Financial Documents

With respect to the financial documents that have been submitted to the court
(Bates 00098-00139), we find that these documents have been appropriately
redacted. Liberty Mutual redacts the information in these documents on the bases of
mental impressions, conclusions, reserves, and opinions respecting the value or
merit of claim or defense.
An insurance reserve is money set aside “to satisfy obligations that may arise
under a claim,” Peco Energy Co. v. Insurance. Co. of N. America, 852 A.2d 1230,
1232 n. 3 (Pa. Super. Ct. 2004), and Pennsylvania requires insurance companies to
set reserves aside when they are placed on notice of possible losses arising under
their policies. See Keefer v. Erie Ins. Exchange, 2014 WL 201123, at *3 (M.D. Pa.
March 7, 2014) (Rambo, J.) (quoting Fidelity & Deposit Co. of Md. V. McCulloch,
168 F.R.D. 516, 525 (E.D. Pa. 1996)). Courts in this circuit are split on the question
of whether reserves are discoverable in bad faith cases. Consugar v. Nationwide Ins.
Co., 2011 WL 2360208, at *5 (M.D. Pa. June 9, 2011) (Munley, J.) (collecting cases
and discussing the split in authority).
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The prevailing view indicates that reserves may be discoverable in a bad faith
action when the claim relates to the insurer’s failure to settle or where there is a
discrepancy regarding the value of the claim. See e.g., Borgia v. State Farm Mut.
Auto. Ins. Co., 2014 WL 4375643, at *4 n.5 (E.D. Pa. Sept. 3, 2014) (finding the
reserves were relevant to the plaintiff’s UIM claim because “the establishment of
reserves would serve little, if any, purpose unless the reserves ‘have some
relationship to the insurer’s estimation of the insured’s potential liability’”) (citations
omitted); Consugar, 2011 WL 2360208, at *5 (“the amount set aside for reserves ‘is
certainly germane to any analysis [defendant] made of’ the claim’s value, and of
whether defendant acted in bad faith in processing the claim”) (citations omitted);
Oak Lane Printing & Letter Serv., Inc. v. Atlantic Mut. Ins. Co., 2007 WL 1725201,
at * (E.D. Pa. June 13, 2007) (stating that reserves “must be relevant to a specific
issue presented in a bad faith action,” such as when “the insurer fails to settle or
where there is a disputed issue regarding the value of the claim”).
However, when the bad faith claim is based on a denial of coverage and “does
not involve the value of the claim or [the plaintiff’s] estimation of liability . . . the
reserve information requested is neither relevant nor reasonably calculated to lead to
the discovery of admissible evidence.” Executive Risk Indem., Inc. v. Cigna Corp.,
2006 WL 2439733, at *5 & n.7 (C.C.P. Phila. Cnty. 2006) (citing McCulloch, 168
F.R.D. 516 (E.D. Pa. 1996) and Safeguard Lighting Systems, Inc. v. N. American
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Specialty Ins. Co., 2004 WL 3037947 (E.D. Pa. Dec. 30, 2004)); see also Mine
Safety Appliances Co. v. N. River Ins. Co., 2012 WL 12930306, at *3 (W.D. Pa.
March 14, 2012) (discussing Executive Risk and holding that reserves were not
discoverable in a case where coverage under the policy was at issue).
The issue in this case is Liberty Mutual’s denial of first party benefit coverage
under the insurance policy, which Barnard contends was done in bad faith. However,
Barnard’s claim focuses on the denial of coverage based on a biased and unfair
review process rather than the value of her claim. Thus, we agree that, in such a case,
discovery of the insurer’s reserve information would not be relevant to the bad faith
claim. Accordingly, Liberty Mutual will not be required to produce unredacted
versions of the financial documents, Bates 00098-00139.
(4)

Claim Notes

Finally, Liberty Mutual has produced 26 pages of claim notes, Bates 0004500070, with a substantial amount of the information redacted. Liberty Mutual
contends that the redacted information falls under the work-product doctrine because
it was prepared in anticipation of litigation. Additionally, some of the redacted
information related to Barnard’s UIM claim, which Liberty Mutual contends is not
relevant to the current breach of contract claim involving first party medical benefits.
On this score, after a review of the unredacted claim notes, we agree with the
defendant that the entries containing the mental impressions and conclusions of the
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claim employees created after February 6, 2017, have been appropriately redacted
as work product, as they were prepared in anticipation of litigation. However, with
respect to the entries related to the UIM claim created before February 6, 2017, we
find that these documents have been inappropriately redacted. Contrary to the
defendant’s position, these entries may be relevant to the plaintiff’s claim for first
party benefits, as there seems to be overlap between the UIM entries and the first
party benefit entries. See Robertson v. Allstate Ins. Co., 1999 WL 179754, at *6
(E.D. Pa. March 10, 1999) (permitting the discovery of the first party benefits file in
a case for UIM benefits where information in one file “may indicate a difference in
opinion or analysis between the first party claims adjuster and agents or employees
involved in processing plaintiff’s UIM claim”).
In this case, as in Robertson, we find that the UIM files may contain
information relevant to the plaintiff’s first party benefits claim. Therefore, the
defendants must produce the claim notes and UIM file unredacted, up to February
6, 2017, the date that they anticipated litigation.
B. Plaintiff’s Interrogatories
Liberty Mutual also objects to Barnard’s interrogatories one through seven.
The plaintiff’s interrogatories can be summarily stated as follows: (1) the nature and
amount of any employee incentive to close out insureds’ claims; (2) the number of
times Liberty Mutual used the PRO that analyzed the plaintiff’s case, and the
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outcome of those reviews; (3) the number of times Liberty Mutual used the same
doctor in the peer review process that it used for the plaintiff’s review and the
outcome of those reviews; (4) the number of times Liberty Mutual used the PRO
that performed reconsideration of the plaintiff’s case for other reconsiderations, and
the outcome of those reconsiderations; (5) the number of times Liberty Mutual used
the same doctor in the peer review reconsideration process that it used for the
plaintiff’s reconsideration and the outcomes of those reconsiderations; (6) the title
and duties of Dorothy Walczak from 2015-2017 and the nature of her involvement
in the plaintiff’s case; and (7) any involvement that The First Liberty Insurance
Corporation had in the matters complained of in the plaintiff’s complaint, identifying
the name of the employee and the nature of his or her involvement.
The defendant’s response to interrogatory seven identified the First Liberty
Corporation as the issuer of the plaintiff’s insurance policy and Aimee Johnson as
the Claims Adjuster that handled Barnard’s claim. The plaintiff has not requested
any additional discovery regarding this interrogatory, other than to note that she may
be requesting Ms. Johnson’s employment file in the future. With respect to
interrogatory six, the defendant provided a response, subject to its objections, that
identified Dorothy Walczak as a contract employee who performed support tasks
and clerical transmission of emails, and who transmitted claims files once suit was
filed to the Legal Office of Liberty Mutual. While the plaintiff contends that the
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information regarding Ms. Walczak is incomplete, Barnard does not request any
specific additional information about Walczak’s job duties. Additionally, we note
that the plaintiff would be able to obtain the information she desires through other
means of discovery, such as a deposition. See Westport Ins. Corp. v. Hippo Fleming
& Pertile Law Offices, 319 F.R.D. 214, 219 (W.D. Pa. 2017) (denying the plaintiff’s
request for personnel files where the information the plaintiff sought “could likely
be obtained through the depositions of those employees”).
Liberty Mutual objects to interrogatory one on the basis that it is not relevant,
is overly broad and vague, and contains confidential trade secrets. However, we find
that interrogatory one must be answered by the defendant. The plaintiff seeks
information related to any policy that implemented an incentive plan for employees
of Liberty Mutual to close out claims. An employee incentive plan to close out
insureds’ claims is may have relevance to the plaintiff’s bad faith claim, which she
has now set forth in her second amended complaint, as it could reveal facts relevant
to the motivations of the employees who handled Barnard’s claim. See Saldi v. Paul
Revere Life Ins. Co., 224 F.R.D. 169, 185 (E.D. Pa. 2004) (holding that information
regarding awards and financial bonus programs for employees were “relevant to
show Defendants’ state of mind as well as their relationship with the employees who
handled Plaintiff’s claims”). Thus, the defendant will be required to answer
interrogatory one.
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As for interrogatories two through five, Liberty Mutual contends that the
information regarding other peer reviews is not relevant, contains confidential trade
secrets, and is protected from disclosure by the Health Insurance Portability and
Accountability Act of 1996 (“HIPAA”) and/or other statutory mandates. We agree
that this information is not relevant to the plaintiff’s claim.
In Kaufman v. Nationwide Mutual Insurance Co., 1997 WL 703175 (E.D. Pa.
Nov. 12, 1997), the district court prohibited the plaintiff from discovering
information regarding the number of cases assigned to the defendant’s claims
adjustors who had handled the plaintiff’s claim. The plaintiff had alleged that her
claim was improperly handled because the adjustors had too many claims and were
overworked. The court held that the statistics sought by the plaintiff were not
relevant to the plaintiff’s assertion that her claim was handled improperly, stating,
“[s]imply because a particular adjustor has a heavy caseload does not necessarily
indicate that his or her decision to deny a claim is without basis.” Id. at *2. The court
also recognized the burden such discovery would impose on the defendant as
compared to the marginal value this information would have at trial. Id.
We find the Kaufman court’s analysis instructive. In the instant case, while
the plaintiff is asserting that the PRO and the doctor who reviewed her claim were
biased, the number of times that this PRO and/or doctor decided in favor of the
insurer, whether on initial review or on reconsideration, will not necessarily speak
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to any such bias. For example, the PRO could have decided in favor of the insurer
98 times out of 100, but those 98 claims may very well have been legitimately
decided on their merits, which could not be known without an extensive post hoc
evaluation of the merits of each claim. This is not something that we are prepared to
allow the plaintiff to do, as courts in this circuit have held that “discovery of other
insureds’ claims in bad faith cases is generally improper, as such information is
irrelevant.” Zettle v. American National Property and Casualty Co., 2012 WL
2359962, at *1 (W.D. Pa. June 20, 2012); see also North River Ins. Co. v. Phila.
Reinsurance Corp., 1992 WL 724967, at *2 (D.N.J. April 6, 1992) (denying a motion
to compel discovery of other insureds’ claims information because the information
was “not relevant because it will not lead to admissible evidence”). Thus, the
defendant will not be compelled to answer interrogatories two, three, four, or five.
III.

Order
Accordingly, for the reasons set forth above, IT IS HEREBY ORDERED

THAT:
1. In response to the plaintiff’s request for production of documents, the
defendants shall produce:
a. The relevant portions of any Liberty Mutual policy or manual that
describes or outlines the Peer Review process (Request no. 1);

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b. The relevant portions of any Liberty Mutual policy or manual that
governs the way in which Liberty Mutual employees handle
inquiries from insured persons (Request no. 4);
c. Unredacted copies of the claim status reports, Bates 00140-00178,
and unredacted copies of the claim notes, Bates 00045-00070, with
the exception of entries created after February 6, 2017 that were
prepared in anticipation of litigation. (Request no. 3).
2. The defendant shall not be required to produce documents in response to
plaintiff’s requests for “all communications” relating to her claim (Request
no. 2), and for the employee file of Aimee Johnson. (Request no. 6).
3. In response to the plaintiff’s request for interrogatories, the defendants
must provide an answer to interrogatory one, regarding any policy of
employee incentives to close claims.
4. The defendant is not required to answer interrogatories two through five,
which relate to the outcomes of peer reviews of other insured persons.
5. The defendants shall produce the aforementioned documents and answer
to interrogatory one on or before February 28, 2019.

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So ordered this 6th day of February 2019.
S/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

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