Brown et al v. Nationwide Affinity Insurance Company of America

Filing 29

ORDER granting plaintiffs' 18 Motion to Compel; granting 18 Motion to Amend/Correct. Signed by US Magistrate Judge Veronica L. Duffy on 06/29/18. (Duffy, Veronica)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

TOMMY BROWN, HEATHER
MCDOUGALL,

4:17-CV-04176-LLP

Plaintiffs,

ORDER GRANTING PLAINTIFFS’
MOTION TO COMPEL

vs.
Docket No. 18
NATIONWIDE AFFINITY INSURANCE
COMPANY OF AMERICA,
Defendant.

INTRODUCTION
This matter is before the court on plaintiffs Tommy Brown and Heather
McDougall’s complaint based on the court’s diversity jurisdiction. See Docket
No. 1. Plaintiffs assert claims of breach of contract, fraudulent
misrepresentation and deceit, unfair trade practices, and vexatious refusal to
pay insurance benefits against defendant Nationwide Affinity Insurance
Company of America (“Nationwide”), arising out of a claim plaintiffs submitted
on their homeowner’s insurance policy. Plaintiffs now move the court to
compel certain discovery and to increase the number of interrogatories they are
permitted to serve on Nationwide. See Docket No. 18. Nationwide opposes the
motion. See Docket No. 23. The district court, the Honorable Lawrence L.

Piersol, referred plaintiffs’ motion to this magistrate judge for resolution
pursuant to 28 U.S.C. § 636(b)(1)(A).
FACTS
The following facts are taken from plaintiffs’ complaint merely to provide
context for the instant motion. The court implies no endorsement of the verity
of these facts.
On August 1, 2017, plaintiffs owned a house insured by Nationwide
when a hailstorm came through their Sioux Falls, South Dakota,
neighborhood, causing significant damage. Plaintiffs allege extensive, visible
damage was done to their shake shingle roof, windows and other elements of
their home. They timely submitted a claim under their insurance policy to
Nationwide. Hail damage was a covered loss under that policy.
Nationwide hired Allcat Claims Service, LLC (“Allcat”), a third party, to
investigate the claim. Allcat sent its agent, Merle Schmidt, Jr., to inspect the
damage.
After inspecting the plaintiff’s home, Mr. Schmidt placed a phone call to
what he thought was Nationwide’s phone number. Inadvertently, however, he
had in fact called plaintiffs’ phone. Mr. Schmidt proceeded to leave a detailed
voice message on “Nationwide’s” (aka plaintiffs’) phone.
In the message Mr. Schmidt recited detailed findings of his inspection.
He indicated he had “a little dilemma that I’m running into” because he had
seen evidence of hail damage on the roof, including soft metal elements and
cedar-shake, and hail damage to the plaintiffs’ windows. Furthermore, he was
2

of the opinion that the roof “would not sustain repairs” and would have to be
entirely replaced, resulting in a large loss. He estimated the total loss could be
“well over $100,000.” Mr. Schmidt recommended to “Nationwide” that they
send a general adjuster who did not have specific knowledge and experience
with roofing issues to handle the claim.
Eleven days later, Nationwide gave plaintiffs a report on their loss
indicating they valued the loss at $30,383.19. After deducting depreciation
and the deductible, Nationwide offered to pay plaintiffs $3,850.89. The report
from Nationwide to plaintiffs bore the signature of “Merle D. Schmidt, Jr.” as its
author. A Nationwide employee, Tracie Althaus, sent plaintiffs an email along
with the “Schmidt” report explaining that their “shingles do not show signs of
hail damage. They show hail spatter which happens when the hail knocks off
the dirt and oxidization (which essentially cleans the shingle and does not
cause damage).”
Mr. Brown contacted Ms. Althaus and asked her to explain the
discrepancy between the report Nationwide had given plaintiffs and the voice
mail message Mr. Schmidt had left on plaintiffs’ phone. Ms. Althaus stated
that Mr. Schmidt did not know what he was doing and his voicemail
statements should not be credited.
Nationwide then hired an engineering firm from Kentucky to perform a
second inspection of plaintiffs’ home. This Kentucky firm concluded the
hailstorm had not caused any damage to plaintiffs’ cedar-shake shingles.

3

Plaintiffs present two issues in their motion to compel. First, they seek
to know what reserves Nationwide set for their claim. Second, because
Nationwide will not voluntarily share with them information pertinent to
electronic discovery, plaintiffs seek an increase in the number of interrogatories
they are allowed to propound from 25 to 40 so that they can query Nationwide
about how it stores electronic information.
DISCUSSION
A.

Good Faith Efforts to Resolve the Issues
A motion to compel requests for the production of documents is governed

by Fed. R. Civ. P. 37. That rule provides in pertinent part as follows:
On notice to other parties and all affected persons, a party may
move for an order compelling disclosure or discovery. The motion
must include a certification that the movant has in good faith
conferred or attempted to confer with the person or party failing to
make disclosure or discovery in an effort to obtain it without court
action.
See Fed. R. Civ. P. 37(a)(1).
Likewise, the local rules in this district require a movant to attempt to
informally resolve matters with his or her opponent before filing a discovery
motion:
No objection to interrogatories, or to requests for admissions, or to
answers to either relating to discovery matters shall be heard
unless it affirmatively appears that counsel have met, either in
person or by telephone, and attempted to resolve their differences
through an informal conference. Counsel for the moving party
shall call for such conference before filing any motion relating to
discovery matters. . . .
See D.S.D. LR 37.1.
4

Here, plaintiffs assert, and have provided evidence to the court, that they
exhausted their efforts to try to resolve these discovery matters with Nationwide
prior to filing the instant motion. Nationwide does not dispute that the
requirement of good-faith efforts to resolve the matters have been fulfilled. The
court finds the prerequisite for filing the instant motion to compel has been
met.
B.

Reserve Information
1.

Work Product Doctrine

The court addresses first plaintiffs’ request for Nationwide’s reserve
information on their claim. “Reserves are an insurer’s estimates of potential
losses due to claims on its policies.” Burke v. Ability Ins. Co., 291 F.R.D. 343,
349 (D.S.D. 2013) (quoting Spirco Envt’l Inc. v. Am. Int’l Specialty Lines Ins.
Co., 2006 WL 2521618 at *1 (E.D. Mo. Aug. 30, 2006)).
When a case rests on a federal court’s grant of diversity jurisdiction,
although state privilege law applies as to an assertion of attorney-client
privilege, federal law governs the assertion of work product doctrine as a
barrier to discovery. PepsiCo, Inc. v. Baird, Kurtz & Dobson LLP, 305 F.3d
813, 817 (8th Cir. 2002); Baker v. General Motors Corp., 209 F.3d 1051, 1053
(8th Cir. 2000) (en banc). The work product doctrine was first established in
Hickman v. Taylor, 329 U.S. 495 (1947). The court established the rule to
prevent “unwarranted inquiries into the files and mental impressions of an
attorney.”

5

Rule 26 of the Federal Rules of Civil Procedure codifies the work product
doctrine in federal courts:
(b)(3) Trial Preparation: Materials.
(A) Documents and Tangible Things. Ordinarily, a party may not
discover 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). But, subject to Rule
26(b)(4), those materials may be discovered if:
(i) they are otherwise discoverable under Rule 26(b)(1); and
(ii) the party shows that it has substantial need for the
materials to prepare its case and cannot, without undue
hardship, obtain their substantial equivalent by other
means.
* * * *
(5) Claiming Privilege or Protecting Trial-Preparation
Materials.
(A) Information Withheld. When a party withholds information
otherwise discoverable by claiming that the information is . . .
subject to protection as trial-preparation material, the party must:
(i) expressly make the claim; and
(ii) describe the nature of the documents, communications,
or tangible things not produced or disclosed—and do so in a
manner that, without revealing information itself privileged
or protected, will enable other parties to assess the claim.
See FED. R. CIV. P. 26(b)(3)(A) & (5)(A).
Work product falls into two categories: “ordinary” and “opinion.”
Baker, 209 F.3d at 1054. Ordinary work product includes raw factual
information. Id. Opinion work product involves an attorney’s “mental
impressions, conclusions, opinions or legal theories.” Id.
6

A party seeking discovery of ordinary work product may overcome
the doctrine by showing they have a substantial need for the materials
and they cannot obtain the materials or their substantial equivalent by
other means. Id. Opinion work product, however, enjoys almost total
immunity; it can be discovered only in “very rare and extraordinary
circumstances” as when the “attorney engaged in illegal conduct or
fraud.” Id.
The party resisting discovery must show that the materials were
prepared in anticipation of litigation. PepsiCo, Inc., 305 F.3d at 817;
FED. R. CIV. P. 26(b)(5)(A). Furthermore, that same party must “describe
the nature of the documents, communications, or tangible things not
produced or disclosed” with sufficient detail to “enable other parties to
assess the claim.” See FED. R. CIV. P. 26(b)(5)(A).
Here, Nationwide refused to produce reserve information about
plaintiffs’ claim on 10 separate documents. See Docket No. 24-2
(documents BATES stamped “Nationwide 0125, 0163, 0183-88, 0198,
and 0370”). On April 5, 2018, Nationwide redacted these documents,
produced them in redacted form to plaintiffs, and supplied a Vaughn1

See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). A Vaughn index is a
detailed list or index of material withheld usually accompanied by a precise
rationale of the reasons it is being withheld. Although Nationwide titles its
document a “Vaughn Index,” by adopting that appellation, the court does not
imply that the document actually meets the requirements for a true Vaughn
index. As indicated elsewhere, the document is lacking in the kind of detail
one envisions in a true Vaughn index and it is lacking in the detail required of
Fed. R. Civ. P. 26(b)(5)(A).
1

7

index stating that the reason it was refusing to produce information
about reserves was that such information was “not reasonably calculated
to lead to admissible evidence.” Id. In other words, Nationwide took the
position these documents were irrelevant.
After receiving Nationwide’s redacted documents and Vaughn
index, plaintiffs wrote Nationwide providing case law that reserve
information was discoverable and not privileged. See Docket No. 20-4.
In response, Nationwide for the first time raised the issue of privilege and
confidentiality with regard to the reserve information. See Docket
No. 20-5. Nationwide set forth its position that the reserve information
might be discoverable in a third-party bad faith action, but was not
discoverable in a first-party bad faith claim. Id. Nationwide stated the
following in its letter:
While I would agree with you that, if this were a third-party
contract situation and/or the underlying claim had been resolved
when the bad faith claim was commenced, reserve information
would likely be discoverable unless it was set in anticipation of
litigation, that is not this case.
Id. at pp. 1-2 (emphasis supplied). While this sentence is lacking
somewhat in clarity, it can be read as a concession by Nationwide that
the reserve information was not created in anticipation of litigation. At
the very least, it is clear that Nationwide did not affirmatively assert that
reserve information was created in anticipation of litigation.
After plaintiffs filed their motion to compel, Nationwide then
asserted the work product doctrine in resistance to the motion. See
8

Docket No. 23 at pp. 4-5. But in that pleading, Nationwide simply makes
a bare-bones assertion that the reserves were set in plaintiffs’ case in
anticipation of litigation. Id. at p. 5. Nationwide provides no affidavit or
other support for this factual assertion. Nationwide does not explain
who set the reserve or when the reserve was set or subsequently altered
or provide any other information about this allegedly protected
information.
The test for whether a document was prepared in anticipation of
litigation is a factual one:
the test should be whether, in light of the nature of the document
and the factual situation in the particular case, the document can
fairly be said to have been prepared or obtained because of the
prospect of litigation. But the converse of this is that even though
litigation is already in prospect, there is no work product immunity
for documents prepared in the regular course of business rather
than for purposes of litigation.
Simon v. GD Searle and Co., 816 F.2d 397, 401 (8th Cir. 1987).
Plaintiffs point out that Nationwide created its reserve figures long
before plaintiffs filed this lawsuit. That alone is not determinative, but as
the above quote from Simon makes clear, it is also not determinative
even if the reserve was set after “litigation [was] already in prospect.” Id.
Here, Nationwide supplies no information whatsoever other than its barebones assertion.
It is Nationwide’s burden to establish that the reserve in plaintiffs’
case was set in anticipation of litigation in order to invoke the work
product doctrine. PepsiCo, Inc., 305 F.3d at 817; FED. R. CIV. P.
9

26(b)(5)(A). Furthermore, Rule 26 requires Nationwide to “describe the
nature of the documents, communications, or tangible things not
produced or disclosed” with sufficient detail to “enable other parties to
assess the claim” that work product protects them from discovery. See
FED. R. CIV. P. 26(b)(5)(A).
Nationwide’s failure to assert the work product doctrine in its
Vaughn index would be enough, standing by itself, to defeat the
application of the doctrine. Discovery objections are waived if they are
not first asserted in the responses to the opposing party’s discovery
requests. Cardenas v. Dorel Juv. Grp., Inc., 230 F.R.D. 611, 621 (D.
Kan. 2005). The court need not, and does not, rely on waiver, however.
Here, even considering Nationwide’s latest filing with the court,
Nationwide fails to assert the facts required to (1) establish that the
reserves were set in anticipation of litigation and (2) to establish the facts
required by Rule 26 to allow the plaintiffs and the court to evaluate its
assertion of work product doctrine as a shield to discovery.
It is true in the Simon case that the court found reserves in
individual cases, as opposed to aggregate reserves, were protected under
the work product doctrine, but the court did so because facts had been
adduced establishing that the individual reserves “reveal the mental
impressions, thoughts, and conclusions of an attorney in evaluating a
legal claim.” Simon, 816 F.2d at 401. Here, Nationwide has adduced no
facts from which the court can make those factual findings, nor has
10

Nationwide offered to supply the 10 documents to the court for in camera
review.
A highly respected magistrate judge in the District Court for the
District of Columbia has held that reserve information may be
discoverable in a bad faith action, but not discoverable pursuant to the
work product doctrine in a contract action for coverage under an
insurance policy. See J.C. Associates v. Fidelity & Guaranty Ins. Co.,
2003 WL 1889015 at *1 (D.D.C. Apr. 15, 2003). But here, plaintiffs
assert both types of claims. Nationwide has not carried its burden to
show the work product doctrine applies here. However, even if it had,
the information is clearly relevant and discoverable in a bad faith action.
It may be that the trial in this matter may have to be bifurcated between
the contract claim and the bad faith claim. However, that issue does not
inherently prevent discovery. As discussed in more detail below, the
rules of evidence are tasked with the job of keeping out irrelevant
evidence, but that is not a barrier to discovery. Accordingly, the court
does not protect the discovery on the ground of work product.
2.

Relevance

Nationwide did assert initially (in its Vaughn index), and continues to
assert before this court, that reserve information is not relevant to plaintiffs’
claims. Federal Rule of Civil Procedure 26(b)(1) sets forth the scope of
discovery in civil cases pending in federal court:

11

Unless otherwise limited by court order, the scope of discovery is
as follows: Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit. Information within the scope
of discovery need not be admissible in evidence to be discoverable.
See FED. R. CIV. P. 26(b)(1).
The scope of discovery under Rule 26(b) is extremely broad. See 8
Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure ' 2007, 3637 (1970) (hereinafter "Wright & Miller"). The reason for the broad scope of
discovery is that "[m]utual knowledge of all the relevant facts gathered by both
parties is essential to proper litigation. To that end, either party may compel
the other to disgorge whatever facts he has in his possession." 8 Wright &
Miller, § 2007, 39 (quoting Hickman, 329 U.S. at 507-08). The Federal Rules
distinguish between discoverability and admissibility of evidence. FED. R. CIV.
P. 26(b)(1), 32, and 33(a)(2) & (c). Therefore, the rules of evidence assume the
task of keeping out incompetent, unreliable, or prejudicial evidence at trial.
These considerations are not inherent barriers to discovery, however.
“Relevancy is to be broadly construed for discovery issues and is not
limited to the precise issues set out in the pleadings. Relevancy . . .
encompass[es] ‘any matter that could bear on, or that reasonably could lead to
other matter that could bear on, any issue that is or may be in the case.’ ”
E.E.O.C. v. Woodmen of the World Life Ins. Society, 2007 WL 1217919 at *1
12

(D. Neb. March 15, 2007) (quoting Oppenheimer Fund, Inc. v. Sanders, 437
U.S. 340, 351 (1978)). The party seeking discovery must make a “threshold
showing of relevance before production of information, which does not
reasonably bear on the issues in the case, is required.” Id. (citing Hofer v.
Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1993)). “Mere speculation that
information might be useful will not suffice; litigants seeking to compel
discovery must describe with a reasonable degree of specificity, the information
they hope to obtain and its importance to their case.” Id. (citing Cervantes v.
Time, Inc., 464 F.2d 986, 994 (8th Cir. 1972)). Discoverable information itself
need not be admissible at trial; rather, the defining question is whether it is
within the scope of discovery. See FED. R. CIV. P. 26(b)(1).
To prove a bad faith cause of action against Nationwide, plaintiffs must
show that Nationwide had no reasonable basis for denying their claim for
insurance benefits, and that Nationwide acted with knowledge or a reckless
disregard as to the lack of a reasonable basis for the denial of benefits. See
Sawyer v. Farm Bureau Mut. Ins. Co., 2000 S.D. 144, ¶ 18, 619 N.W.2d 644,
649.
Nationwide asserts that under its policy with plaintiffs, certain select
portions of which were filed with the court (see Docket No. 24-3), it had no
obligation to replace the entirety of plaintiffs’ roof and other property if only a
portion of that property was damaged. See Docket No. 23 at pp. 5-6
(defendant’s argument). This is neither the place, nor is this the proper court,

13

nor is it the proper time, to render a definitive interpretation of Nationwide’s
obligations of payment under the policy with plaintiffs under the facts of this
case. That issue will be determined by the district court on summary judgment
or by a jury at trial. Plaintiffs’ case includes the assertion that Nationwide’s
own agent told Nationwide that the roof had to be completely replaced, and
could not be partially repaired. That issue is one in dispute between the
parties.
Nor would this court endeavor to render a definitive reading of the
insurance policy based on select portions only of the policy. Suffice it to say
that the main issue in this case is whether Nationwide unreasonably valued
plaintiffs’ claim given the facts known to it and given the policy at issue and
whether Nationwide acted in bad faith in hiring a second evaluator of the
damage to plaintiffs’ property.
As plaintiffs assert, they do not have to show the evidence they seek will
be admissible at trial, only that it is relevant for discovery purposes. The court
agrees. If Nationwide set its reserve at a figure far in excess of the amount they
told plaintiffs their claim was valued at, that is certainly some evidence that
Nationwide acted with knowledge or a reckless disregard for whether there was
a reasonable basis for its actions. Kirchoff v. Amer. Cas. Co. of Reading, Penn.,
997 F.2d 401, 405 (8th Cir. 1993) (district court did not err in admitting into
evidence at trial CNA’s reserve estimate of plaintiff’s claim where the reserve
was set at $300,000 and CNA’s sole offer to plaintiff was $8,000 because the
evidence was relevant to the insurer’s lack of good faith); Burke, 291 F.R.D. at
14

349 (stating “[e]vidence related to reserves is generally relevant because ‘[t]he
failure of an insurer to offer a reasonable amount to settle a claim, on a claim
of bad faith breach of duty, might be evidenced by the insurer’s setting aside a
substantially greater amount of reserve for that claim.’ ”); Spirco Envr’t Inc.,
2006 WL 2521618 at *1 (stating evidence of bad faith may emerge if an insurer
offered an amount to settle a claim that was far less than the amount of reserve
for the claim); J.C. Associates, 2003 WL 1889015 at *1 (reserve information
might be proof of bad faith, though reserve information might have
questionable relevance and admissibility in a contract action for coverage
under the insurance policy).
The court is cognizant of the fact that this is a first-party bad faith action
rather than a third-party action, but the lack of a definitive case on point from
the South Dakota Supreme Court on the differences in the defendant’s
obligations under the two types of cases does not defeat plaintiffs’ bad faith
claim. When an issue of first impression as to the interpretation of an
insurance contract is presented in South Dakota, the South Dakota Supreme
Court has held whether there was bad faith depends on whether defendant’s
actions regarding the plaintiff’s claim were “fairly debatable” under the law.
See Bertelsen v. Allstate Ins. Co., 2009 S.D. 21, ¶¶ 20-21, 764 N.W.2d 495,
500 (Bertelsen I) (stating plaintiff may show a bad faith claim involving a
worker’s compensation statute never before interpreted that provided if an
employer denied a claim as non-work related, any other insurer covering bodily
injury “shall pay” according to its policy provisions and applying that statute
15

against an automobile insurer under its medical benefits provision); Mudlin v.
Hills Materials Co., 2007 S.D. 118, ¶¶ 7-15, 742 N.W.2d 49, 51-54
(interpreting a coming-and-going scenario under a worker’s compensation
insurance policy and holding no bad faith occurred as a matter of law); and
Isaac v. State Farm Mutual Auto. Ins. Co., 522 N.W.2d 752, 758 (S.D. 1994)
(holding that a jury question was created by plaintiff’s bad faith claim even
though there was no South Dakota law on point as to whether a worker’s
compensation set-off provision in the insurance policy was valid or void).
Under the broad definition of “relevance” for purposes of discovery, the
court holds plaintiffs have sustained their burden of showing the reserve
information is relevant. Accordingly, plaintiffs’ motion to compel will be
granted as to the reserve information.
C.

Increase in Numbers of Interrogatories Allowed
Rule 33 of the Federal Rules of Civil Procedure limits the use of

interrogatories to 25 interrogatories per party served on another party.
See Fed. R. Civ. P. 33(a)(1). That number may be increased with leave of
the court if consistent with Rule 26(b)(1) & (2). Id.
The district court issued a scheduling order adopting the 25interrogatory limit found in Rule 33. See Docket No. 13 at p. 2, ¶ 3.
Plaintiffs now seek to increase that maximum number of interrogatories
in order to query Nationwide about its electronic documents system.
Plaintiffs assert Nationwide should have disclosed to them during their

16

discovery planning conference details about Nationwide’s electronic
documents system such as what type of technology systems Nationwide
employs, the identity of Nationwide employees most knowledgeable in
their operations, as well as the format in which documents would be
produced and whether metadata is sought. See Docket No. 19 at p. 8.
Because Nationwide refused to disclose this information at the discovery
planning conference, plaintiffs seek an additional 15 interrogatories to
obtain this information from Nationwide.
Rule 33 provides the court the latitude to grant plaintiffs’ request,
so long as the request is consistent with the scope of discovery and the
limitations on frequency and extent found in Rule 26(b)(1) & (2). As
stated above, the scope of discovery addressed in Rule 26(b)(1) is
extremely broad. The court finds no inherent barrier to granting
plaintiffs’ request in the description of the scope of discovery in Rule 26.
Rule 26(b)(2) allows the court to limit discovery if it is not
reasonably accessible, unreasonably cumulative, duplicative, or can be
obtained from another source that is more convenient, less burdensome,
or less expensive. See Fed. R. Civ. P. 26(b)(2)(B) & (C). Nationwide
makes no claim that the information is unduly burdensome, cumulative,
duplicative or not reasonably accessible. It simply maintains that it is
not obligated to volunteer this information upfront in the parties’
planning meeting. Nationwide suggest plaintiffs can obtain the

17

information through other avenues such as document requests and
depositions.
But there is nothing in the rules that requires plaintiffs to hire a
court reporter and begin deposing Nationwide employees at considerable
expense to find out this information. The Federal Rules are established
to provide the just, speedy and inexpensive determination of every action.
FED. R. CIV. P. 1. Accordingly, the court will grant plaintiffs’ request in
part. An additional 10 interrogatories may be served by plaintiffs only.
Furthermore, the subject of those 10 additional interrogatories is limited
solely to obtaining the type of information plaintiffs have set forth in their
motion—the type and nature of Nationwide’s electronic document
system(s) and who among Nationwide’s employees is most knowledgeable
about those system(s).
CONCLUSION
Based on the foregoing facts, law, and analysis, plaintiff’s motion
to compel and to amend the scheduling order [Docket No. 18] is granted.
Nationwide shall provide in discovery to plaintiff within 21 days
unredacted versions of documents BATES stamped Nationwide 0125,
0163, 0183-88, 0198, and 0370. Furthermore, plaintiffs shall be granted
an additional ten (10) interrogatories that they may serve on Nationwide,
provided that the subject of inquiry of those interrogatories is limited to
Nationwide’s electronic document system(s) as further discussed in the
body of this opinion.
18

NOTICE OF RIGHT TO APPEAL
Pursuant to 28 U.S.C. § 636(b)(1)(A), any party may seek reconsideration
of this order before the district court upon a showing that the order is clearly
erroneous or contrary to law. The parties have fourteen (14) days after service
of this order to file written objections pursuant to 28 U.S.C. § 636(b)(1)(A),
unless an extension of time for good cause is obtained. See FED. R. CIV. P.
72(a); 28 U.S.C. § 636(b)(1)(A). Failure to file timely objections will result in
the waiver of the right to appeal questions of fact. Id. Objections must be
timely and specific in order to require review by the district court. Thompson
v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black, 781 F.2d 665 (8th Cir.
1986).
DATED June 29, 2018.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge

19