MINE SAFETY APPLIANCES COMPANY v. THE NORTH RIVER INSURANCE COMPANY et al

Filing 513

MEMORANDUM ORDER granting in part and denying in part 144 Mine Safety Appliances' Motion to compel North River to answer written discovery, answer deposition questions, and produce documents which relate to North River's trigger position as more fully set forth in the memorandum order. Signed by Judge David S. Cercone on 9/20/12. (mwm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MINE SAFETY APPLIANCES
COMPANY,
Plaintiff,
vs.
THE NORTH RIVER INSURANCE
COMPANY and RIVERSTONE
CLAIMS MANAGEMENT LLC,
Defendants.

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2:09cv348
Electronic Filing

MEMORANDUM ORDER
AND NOW, this 20th day of September, 2012, after de novo review of the record and upon
due consideration of [187] the Special Discovery Master's Report and Recommendation
addressing Mine Safety Appliances' ("MSA") Motion to compel North River to answer written
discovery, answer deposition questions, and produce documents which relate to North River’s
trigger position, [198] the Special Discovery Master's Clarification limiting the breadth of the
search North River must undertake, and parties' submissions in conjunction therewith, IT IS
ORDERED that [144] the motion be, and the same hereby is, granted in part and denied in part.
The motion is granted as follows:
North River shall:
(1) Fully respond to Interrogatory Nos. 26 and 27 of MSA’s Interrogatories;
(2) Produce copies of all published medical literature in its possession, including that
contained in the files of other insureds with similar claims, that MSA relied on in reaching
the conclusion that the North River policies do not provide coverage for any claims relating

to the CWP underlying plaintiffs. If North River relied on published medical literature in
reaching the above conclusion, but does not have copies of that literature, it shall
specifically identify the literature;
(3) Answer deposition questions concerning positions North River has taken with other
insureds with similar claims; and
(4) Answer deposition questions concerning the identity and location of copies of published
medical literature relied on by North River in reaching the conclusion that the North
River policies do not provide coverage for any claims relating to the CWP underlying
plaintiffs.
IT FURTHER IS ORDERED that in complying with the above North River shall (1)
search all files that use the Code "DU" and (2) search its CMS system for files from 2000 forward
that contain the keywords "coal dust", "coal-dust", "coal mine dust", "coal-mine-dust",
"coal-workers pneumoconiosis", "coal workers pneumoconiosis" or "coalworkers
pneumoconiosis." The key word search protocol for (2) may be modified by written agreement of
counsel. The motion is denied in all other aspects. The Special Discovery Master's initial
Report and Recommendation (Doc. No. 187) as augmented therein is adopted in support of this
order.
North River's objections are unavailing. It is well-settled that the ability to obtain
discovery is not controlled by whether the inquire will produce actual evidence or whether any
generated information will be admitted for some particular purpose under all the attendant
circumstances. Such determinations must await proper development of the claims and defenses
and a clear understanding of what information a party seeks to introduce at trial, the purpose(s) for
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which it is being introduced, and the concomitant repercussions, if any, from its potential
admission. A priory assertions and conclusions do not provide the foundation upon which to
make such evidentiary determinations.
Instead, the touchstone of relevancy for the purpose of discovery is whether the inquiry is
reasonably calculated to lead to the discovery of admissible evidence. As thoroughly explained
by MSA, its "other insureds" inquiry easily meets this standard because it seeks information that is
calculated to lead to a myriad of facts that could produce admissible evidence for one or both of
MSA's counts. And the persuasive authority supports such an inquiry in cases of this nature.
Moreover, the fortress North River seeks to erect is unpersuasive. That North River's
30(b)(6) witnesses personally were "unaware" of any similar claims merely undermines the force
of its arguments of burdensomeness and oppression; such assessments do not speak to or provide
competent assessments of North River's knowledge about the existence and handling of any such
claims. Its claim that the inquiry seeks a needle in a haystack that does not even exist stands on
like footing. And any false positives that do not involve North River can be easily avoided or
eliminated through refined searching or initial superficial review.
Similarly, the contention that "Riverstone is not a party to this action and North River does
not have possession, custody or control over [its files to the extent they involve other insurers]" is
wide of the mark. North River is not being compelled to produce any such files and a consulting
expert on searching electronic data systems can assist in formulating protocols that eliminate the
generation of any such files in the event North River and Riverstone lack the ability to do so.
North River can move for relief on the basis of inability if an independent consultant ultimately
comes to the conclusion that certain areas are incapable of being searched and/or further searching
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would likely only produce results that are cumulative to those that have at that point already been
generated.
Finally, all litigation of the instant magnitude comes with significant costs, inconveniences
and potential business disruptions. Such maladies are at times extended to others in an
unforeseen manner by decisions to contract a significant segment of one's business to a third party.
But such matters and circumstances do not in themselves provide a valid basis to avoid the
necessary evils imposed by the orderly administration of justice.

s/ David Stewart Cercone
David Stewart Cercone
United States District Judge

cc:

Brian T. Himmel, Esquire
George L. Stewart, II, Esquire
Michael H. Sampson, Esquire
Alan S. Miller, Esquire
Bridget M. Gillespie, Esquire
Dennis O. Brown, Esquire
Henry M. Sneath, Esquire
(Via CM/ECF Electronic Mail)

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