Tovares v. Gallagher Bassett Services, Inc. et al
Filing
131
ORDER granting 91 Motion to Compel; granting 93 Motion to Extend Deadlines (Discovery due by 10/14/2020); granting 95 Motion for Protective Order. Signed by US Magistrate Judge Daneta Wollmann on 8/14/20. (Attachments: # 1 Exhibit Discovery Chart) (Wollmann, Daneta)
Case 5:16-cv-05051-JLV Document 131 Filed 08/14/20 Page 1 of 31 PageID #: 2206
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
ANNIE TOVARES,
5:16-CV-05051-JLV
Plaintiff,
vs.
GALLAGHER BASSETT SERVICES,
INC., PRAETORIAN INSURANCE
COMPANY,
ORDER GRANTING MOTION TO
COMPEL (DOC. 91); GRANTING
MOTION TO EXTEND (DOC. 93);
GRANTING MOTION FOR
PROTECTIVE ORDER (DOC. 95)
Defendants.
Pending is Plaintiff’s Second Motion to Compel (Doc. 91); Motion to
Extend the Deadline for Discovery (Doc. 93); and Motion for Protective Order
(Doc. 95). United States District Judge Jeffrey L. Viken referred Plaintiff’s
motions to this Magistrate Judge for determination pursuant to 28 U.S.C. §
636. (Doc. 102).
FACTUAL BACKGROUND
The pending action is a diversity jurisdiction claim arising from a fall
Plaintiff endured while working at Menards, Inc. in Rapid City, South Dakota. 1
After incurring medical costs following her fall, Plaintiff submitted a worker’s
compensation claim seeking reimbursement for medical expenses. Defendant
Praetorian Insurance Company (“Praetorian”) had issued a policy of worker’s
compensation insurance to Menards, Inc. Co-Defendant Gallagher Bassett
The facts of this case are summarized from the undisputed material fact portion of Judge
Viken’s Order granting in part and denying in part summary judgment. (Doc. 87).
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Services, Inc. (“GBS”) is the claim administrator which handled Plaintiff’s claim
for Praetorian. After being denied worker’s compensation benefits, Plaintiff
filed a petition for a hearing with the South Dakota Department of Labor.
Following a settlement of $3,225.12, Plaintiff moved to dismiss her petition
with prejudice.
Subsequently, Plaintiff filed the pending federal action, alleging one
count of Bad Faith and one count of Misrepresentation. Following a Motion for
Summary Judgment by Defendants, the only remaining count of Plaintiff’s
lawsuit is for misrepresentation pursuant to South Dakota Codified Law § 5833-5. (Doc. 87). As part of this claim, Plaintiff seeks punitive damages
pursuant to South Dakota Codified Law § 21-3-2. Now pending is Plaintiff’s
Motion to Compel (Doc. 91); Motion to Extend Deadline for Discovery (Doc. 93);
and Motion for Protective Order (Doc. 95). To ensure the speedy and just
resolution of these motions, this court set a hearing which was held on
January 7, 2020. (Doc. 104). Prior to the hearing, the parties were ordered to
jointly complete a discovery chart to aid the court in efficiently addressing the
issues and arguments subject to the pending motions. The day before the
scheduled hearing, the parties filed a combined total of ninety-three pages of
briefing and exhibits. (Docs. 108, 109, 110, 111, 112).
At the hearing, the parties were warned that their briefing regarding the
pending motions had been in blatant violation of D.S.D. Civ. LR 7.1’s page limit
of twenty-five pages for briefs and any attachments. Likewise, the court
informed the parties that due to the last-minute nature of their filings, coupled
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with the large volume of pages filed in violation of the Local Rules, the court
could not be expected to be adequately prepared for the hearing. Accordingly,
the court concluded the hearing and informed the parties that the court would
either schedule a subsequent hearing at a later date or rule on the motions in a
written order. Before concluding the hearing, the court did, however, invite the
parties to submit briefs of no more than five pages in length to address the
issue of whether case law permitted the discovery Plaintiff seeks in connection
with a misrepresentation claim. 2 See (Docs. 119, 120).
DISCUSSION
I.
Motion to Compel
a. Scope of Discovery
The scope of discovery for civil cases is set forth in Federal Rule of Civil
Procedure 26(b)(1) which provides 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.
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, 36-
At the hearing, the court noted Plaintiff’s requests would clearly be discoverable pursuant to a
bad faith claim, but the parties had not addressed in the briefing whether the materials would
still be discoverable in terms of the remaining misrepresentation claim.
2
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37 (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 v. Taylor, 329 U.S. 495, 507-08 (1947)).
“A party seeking discovery is merely required to make a threshold
showing of relevance, which is more relaxed than the showing required for
relevance in the context of admissibility.” Klynsma v. Hydradyne, LLC, No.
CIV. 13-5016-JLV, 2015 WL 5773703, *16 (D.S.D. Sept. 30, 2015) (citing
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 350-51 (1978)). “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 (D. Neb. March 15, 2007) (quoting
Oppenheimer Fund, Inc., 437 U.S. at 351). “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.” E.E.O.C., 2007 WL 1217919 at *1 (D.
Neb. March 15, 2007) (citing Cervantes v. Time, Inc., 464 F.2d 986, 994 (8th
Cir. 1972).
The party resisting discovery must show specifically how each request is
irrelevant or unduly burdensome. Klynsma, 2015 WL 5773703 at *16 (citing
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St Paul Reinsurance Co., 198 F.R.D. at 512). The court may limit the
frequency and extent of discovery. See FED. R. CIV. P. 26(b)(2). See also
Roberts v. Shawnee Mission Ford, Inc., 352 F.3d 358, 361 (8th Cir. 2003) (“The
rule vests the district court with discretion to limit discovery if it determines,
inter alia, the burden or expense of the proposed discovery outweighs its likely
benefit.”); Continental Illinois Nat’l Bank & Trust Co. of Chicago v. Caton, 136
F.R.D. 682, 684-85 (D. Kan. 1991) (“All discovery requests are a burden on the
party who must respond thereto. Unless the task of producing or answering is
unusual, undue or extraordinary, the general rule requires the entity
answering or producing the documents to bear that burden.”).
Because she is seeking punitive damages, Plaintiff must show that
Defendants acted with malice, actual or implied. See Bertelsen v. Allstate Ins.
Co., 2011 S.D. 13, ¶ 39, 796 N.W.2d 685, 698–99 (citing SDCL § 21–3–2).
“Actual malice is a positive state of mind, evidenced by a positive desire and
intention to injure one another, actuated by hatred or ill-will towards that
person.” Bertelsen, ¶ 40, 796 N.W.2d at 699 (quoting Biegler v. Am. Family
Mut. Ins. Co., 2001 S.D. 13, ¶ 45, 621 N.W.2d 592, 605). Implied malice can
be inferred or imputed by law. Bertelsen, ¶ 40, 796 N.W.2d at 699. “Presumed
malice may not ‘be motivated by hatred or ill-will but is present when a person
acts willfully or wantonly to the injury of others.’” Id. (quoting Biegler, ¶ 45,
621 N.W.2d at 605).
When a party seeks punitive damages, the jury must evaluate “(1) the
degree of reprehensibility of the defendant’s misconduct, (2) the disparity
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between the harm (or potential harm) suffered by the plaintiff and the punitive
damages award, and (3) the difference between the punitive damages awarded
by the jury and the civil penalties authorized or imposed in comparable cases.”
Roth v. Farner–Bocken Co., 2003 S.D. 80, ¶ 46, 667 N.W.2d 651, 665–66
(citing State Farm v. Campbell, 538 U.S. 408, 418 (2003)). The jury may
consider evidence that the harm caused to a plaintiff was a company policy or
practice. Roth, ¶ 65, 667 N.W.2d at 669. With this claim in mind, the court
turns to the instant discovery disputes.
b. Requests for Production
Plaintiff seeks to compel responses to the following eighteen document
requests. 3 The court will address each, in turn. Defendants repeatedly object
to the individual requests on the basis of relevance, arguing the specific
requests have no relevance as to whether the letter dated on April 30, 2014,
was a misrepresentation under SDCL § 58-33-5. (Ex. 1 at p. 1). Additionally,
Defendants assert Plaintiff’s arguments are premised on the scope of discovery
for a bad faith cause of action. Id. Because the count alleging bad faith was
dismissed by the District Judge, Defendants argue the discovery sought is
irrelevant to an intentional misrepresentation cause of action. Id. See also
(Doc. 87).
3 Discovery requests at issue, as well as the parties’ respective positions, are derived from the
parties’ completion of the joint discovery chart attached to this Order as Exhibit 1.
Furthermore, the court does not refer to the requests numerically one through eighteen, rather,
the court has kept the original request numbers to correspond with Plaintiff’s Motion and
Exhibit 1.
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The parties each submitted a five-page brief to address whether case law
permits the scope of discovery sought by Plaintiff under a misrepresentation
claim. (Docs. 119, 120). Both parties assert that there exists no case law
addressing discovery as it pertains to claims solely under SDCL § 58-33-55,
which governs the misrepresentation claim. Likewise, the court conducted
independent research and could not find any case law specifically discussing
the requested scope of discovery as it pertained only to the misrepresentation
claim.
Plaintiff, however, asserts that SDCL § 58-33-46.1 (the statute which
provides a civil cause of action for actual and consequential damages resulting
from a misrepresentation under SDCL § 58-33-5) makes Defendants’ practices
relevant. (Doc. 120 at p. 2). The relevant statute provides as follows:
Any person who claims to have been damaged by any act or practice
declared to be unlawful by this chapter shall be permitted to bring
a civil action for the recovery of all actual and consequential
damages suffered as a result of such act or practice including
reasonable attorneys’ fees to be set by the court.
SDCL § 58-33-46.1 (emphasis added). Furthermore, Plaintiff argues discovery
is proper because she is seeking punitive damages pursuant to SDCL § 21-3-2.
(Doc. 120 at p. 3).
Defendants further assert that Plaintiff is limited to actual and
consequential damages under SDCL § 58-33-46.1 and that she is not entitled
to punitive damages as a matter of law. (Doc. 119 at p. 3). However, in
denying this argument from Defendants’ Second Motion for Summary
Judgment, United States District Judge Jeffrey L. Viken held the following:
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Defendants’ second assertion is that the damages recoverable for a
violation of § 58-33-5 are limited to the statutory damages
articulated in SDCL § 58-33-46.1. They assert those are “actual and
consequential damages” and “reasonable attorneys’ fees.” SDCL §
58-33-46.1. . . . Defendants ignore the clear language of SDCL §
21-3-2, which permits punitive damages “in addition to the actual
damage[.]” Id. (emphasis added). Nothing in § 58-33-46.1 declares
the damages available by that section are the exclusive damages
available. Plus, it is clear that § 21-3-2 contemplates punitive
damages may be awarded in addition to other statutory, actual
damages. The court previously held Ms. Tovares may be entitled to
punitive damages for defendants’ conduct in disregarding plaintiff’s
rights under SDCL § 58-33-5. (Docket 87 at p. 36). Nothing in
defendants’ second motion for summary judgment changes the
court’s earlier ruling. Defendants’ second motion for summary
judgment on punitive damages is denied.
(Doc. 130 at p. 24-25). Accordingly, this court need not consider whether any
of Plaintiff’s discovery requests are permitted solely under a claim of
misrepresentation pursuant to SDCL § 58-33-46.1, but rather, whether the
discovery is permissible under a claim of misrepresentation or as it relates to a
claim of punitive damages. Any objections Defendants make to the individual
requests on the basis that they cannot be considered in terms of punitive
damages are, therefore, overruled.
Plaintiff’s requests can best be categorized into the following nine
categories: (i) Personnel Files; (ii) Training, Education, Information, and
Presentations; (iii) Marketing; (iv) Compensation and Incentives; (v) Measures of
Performance and Goals; (vi) Worker’s Compensation Calculations; (vii) Previous
Litigation; (viii) Financial Reports; and (ix) Policies Issued to Menards. The
court will address each category, in turn.
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i. Personnel Files
Request No. 2
Personnel files of claims staff in this case, defined to include persons
directly involved in handling Plaintiff’s claim and supervisors and
managers in the chain of command up to the head of the
department.
(Ex. 1 at p. 1).
Plaintiff asserts the request is necessary to prove the following: how the
company evaluates claim handlers, how it wants claims handled, and
incentives and motivations the company gives claims personnel. Id.
Furthermore, Plaintiff asserts the chain of command files are relevant to the
intentions of management. Id.
Defendants respond that the request is irrelevant and further cite to
concerns about the confidential nature and privacy rights surrounding
personnel files. (Ex. 1 at p. 1).
Personnel files are relevant and discoverable as it pertains to a claim for
punitive damages. See Anspach v. United of Omaha Life Ins. Co., No. CIV. 105080-JLV, 2011 WL 3862267, at *9 (D.S.D. Aug. 31, 2011) (“Personnel files
may reveal whether a particular employee was rewarded financially for denying
a certain number or percentage of claims or achieving a particular outcome
with regard to claims handling. This is certainly relevant to [Plaintiff’s] . .
. punitive damages claims.”). As it pertains to Defendants’ argument that the
personnel files involve confidential information, the court is satisfied that such
information will be adequately protected by entry of a Protective Order. See
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infra Section III. Accordingly, the court grants the Motion to Compel as it
pertains to Request No. 2.
ii. Training, Education, Information, and Presentations
Request No. 3
Documents that identify training/educational materials made
available to claims staff regarding the handling of worker’s
compensation claims.
Request No. 18
Documents made available to claims staff that guide, direct or
inform how they handle claims.
Request No. 30
Newsletters, bulletins, blast e-mails or other documents created by
Defendants and made accessible to claims staff in this case
regarding news or commentary about Defendants.
Plaintiff
stipulates the request is limited to documents created or modified
from January 1, 2012 to present.
Request No. 31
All transcripts, video or audio recordings, power point presentations
or other materials relating to presentations or speeches claims staff
in this case have given regarding insurance.
(Ex. 1 at p. 3, 14, 31, 33).
Plaintiff asserts the requests are relevant to reveal Defendants’ company
policies and culture as well as how claims staff were trained to determine
benefits. Id. at p. 3, 14, 31, 33.
Defendants object to the request, claiming it is irrelevant and overly
broad by not being limited to South Dakota. Id.
Like personnel files, training and educational materials are discoverable,
as they may shed light on punitive damages. For example, the training and
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educational materials made available to claims staff may demonstrate malice if
employees were acting willfully or wantonly to the injury of others. See
Bertelsen, ¶ 39, 796 N.W.2d at 698–99 (internal quotation omitted) (“Presumed
malice may not be motivated by hatred or ill-will but is present when a person
acts willfully or wantonly to the injury of others.”). Similarly, training and
educational materials are relevant and may lead to the discovery of admissible
evidence concerning the degree of reprehensibility of Defendants’ alleged
misconduct. See Roth, ¶ 46, 667 N.W.2d at 665–66 (internal citation omitted)
(noting the degree of reprehensibility of the conduct as one of the three factors
a jury must consider when awarding punitive damages).
Further, Defendants cite to State Farm for the proposition that “the
Supreme Court has cautioned that evidence of a company’s practices which are
relevant to punitive damages should be limited to evidence of practices in the
same state as the plaintiff.” (Ex. 1 at p. 7) (citing State Farm Mut. Auto. Ins.
Co. v. Campbell, 538 U.S. 408 (2003)). However, the Supreme Court, in State
Farm actually held the following:
Lawful out-of-state conduct may be probative when it demonstrates
the deliberateness and culpability of the defendant’s action in the
State where it is tortious, but that conduct must have a nexus to
the specific harm suffered by the plaintiff. A jury must be
instructed, furthermore, that it may not use evidence of out-of-state
conduct to punish a defendant for action that was lawful in the
jurisdiction where it occurred.
State Farm Mut. Auto. Ins. Co., 538 U.S. at 422. At this stage in the
proceedings, the court is not concerned with admissibility of evidence or
instructions for a jury to consider. Because out of state conduct regarding
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training and educational materials may be probative in determining the
deliberateness of Defendants’ actions regarding conduct that occurred in South
Dakota, it is discoverable for purposes of punitive damages. Accordingly, the
court grants the Motion to Compel as it pertains to Request Nos. 3, 18, 30, 31.
iii. Marketing
Request No. 8
Documents produced by or for GBS for purposes of marketing its
services to worker’s compensation insurance. Plaintiff stipulates the
request is limited to documents that were received by Praetorian or
created or modified from January 1, 2012 to the present.
(Ex. 1 at p. 8).
Plaintiff asserts the request is relevant to reveal Defendants’ intent to
reduce claim payouts and to demonstrate a company plan as it pertains to
punitive damages. Id.
Defendants object on the ground of relevance, unduly burdensome,
annoyance, harassment, undue expense, and proprietary information. Id.
Again, Defendants cite to State Farm for the proposition that discovery must be
limited to South Dakota.
This court has already addressed the latter argument, and therefore,
overrules that objection. The court furthermore overrules Defendants’
boilerplate objections on the grounds of discovery being unduly burdensome,
an annoyance, harassing, or an undue expense. See O’Daniel v. Hartford Life
Ins. Co., No. CIV. 11-5088-JLV, 2013 WL 164225, at *3 (D.S.D. Jan. 15, 2013)
(internal quotations omitted) (“[B]oilerplate objections are unacceptable. The
party resisting discovery must show specifically how each interrogatory or
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request for production is not relevant or how each question is overly broad,
burdensome or oppressive.”). Furthermore, the court is satisfied that any
proprietary information will be properly protected by the entry of a Protective
Order. See infra Section III.
As it pertains to relevance, Plaintiff asserts marketing materials already
located demonstrate GBS “bragging that its clients enjoy lower claim payouts
than the rest of the industry.” (Ex. 1 at p. 8). Defendants responds that
“[w]hether or not [GBS] touts lower claim payouts in marketing materials is
irrelevant” as to the misrepresentation claim. Id. However, as noted supra,
misrepresentation is not this court’s only consideration. Rather, the marketing
materials are relevant as it pertains to punitive damages. If marketing
materials exist that demonstrate GBS touting lower claim payouts, such
evidence is relevant as it pertains to Plaintiff’s burden in demonstrating
Defendants acted willfully or wantonly in denying worker’s compensation
benefits. Accordingly, the court grants the Motion to Compel as it pertains to
Request No. 8.
iv. Compensation and Incentives
Request No. 12
Documents regarding compensation or incentive plans or programs
for claims staff in this case. Plaintiff stipulates the request is limited
to documents created or modified from January 1, 2012 to present.
Request No. 14
Documents indicating amounts paid in claims may be considered in
determining compensation to claims staff (i.e. bonuses). Plaintiff
stipulates the request is limited to documents created or modified
from January 1, 2012 to present.
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Request No. 15
Documents showing compensation paid to claims staff in this case
from January 1, 2010 to present. Plaintiff stipulates the request is
limited to documents from January 1, 2010 to present.
Request No. 23
Documents referring to contests, games or prizes relating to
performance of claims staff in this case. Plaintiff stipulates the
request is limited to documents created from January 1, 2012 to
present.
(Ex. 1 at p. 10, 11, 13, 23).
Plaintiff asserts the requests are relevant to reveal how the compensation
system provides motivation or incentives to reduce claim payouts. Id. at p. 1011, 13, 23.
Defendants object that the claim staff’s salary has no relevance as to
whether the April 30, 2014 letter was a misrepresentation. Id. Further,
Defendants state the request is privileged and of a proprietary nature.
Defendants also raises the following, additional objections: vague, ambiguous,
overbroad, and not reasonable in scope. Id. at p. 10-11, 13.
Defendants’ boilerplate objections to vague, ambiguous, overbroad, and
not reasonable in scope are overruled. See O’Daniel, No. CIV. 11-5088-JLV,
2013 WL 164225, at *3 (D.S.D. Jan. 15, 2013). Furthermore, the court is
satisfied sensitive information subject to the request will be adequately
protected by the entry of a Protective Order. See infra Section III. As it
pertains to relevance, compensation or incentive plans or programs for claims
staff in this case are relevant to the issue of punitive damages. See Anspach,
No. CIV. 10-5080-JLV, 2011 WL 3862267, at *9 (D.S.D. Aug. 31, 2011)
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(holding that “whether a particular employee was rewarded financially for
denying a certain number or percentage of claims or achieving a particular
outcome with regard to claims handling . . . is certainly relevant to [Plaintiff’s] .
. . punitive damages claims”). Accordingly, the court grants the Motion to
Compel as it pertains to Request Nos. 12, 14, 15, and 23.
v. Measures of Performance and Goals
Request No. 20
Documents analyzing or discussing performance of claims
department’s handling of worker’s compensation claims. Plaintiff
stipulates the request is limited to documents created or modified
from January 1, 2012 to present. Plaintiff further stipulates that
the request excludes documents that solely concern the handling of
a particular claim other than Plaintiff’s.
Request No. 21
Documents regarding goals, targets or objectives for claims staff in
this case or for worker’s compensation claims in general. Plaintiff
stipulates the request is limited to documents created or modified
from January 1, 2012 to present. Plaintiff further stipulates that
the Request excludes documents that solely concern the handling of
a particular claim other than Plaintiff’s and documents related only
to efforts to save on non-allocated loss adjustment expenses (i.e.
office supplies and other general overhead).
(Ex. 1 at p. 15-16, 17-18).
Plaintiff asserts the requests are relevant to reveal management’s
tracking of claim outcomes and payouts as well as intent and motive to reduce
claim payouts. Id. at p. 15, 17.
Defendants object to the requests, asserting the requests are irrelevant
as to the misrepresentation claim. Id. at p. 15. Defendants further assert
complying with Request No. 20 would take 2,981,628.6 hours at an expense of
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$74,540,715. Id. at p. 15-16. Additionally, Defendants claim they answered
“none” and raised the following objections: overbroad, vague, ambiguous, not
limited to South Dakota claims, outside time period of Plaintiff’s claim, and
attorney-client and work product privilege. Id. at p. 16.
Plaintiff replies that Defendants’ “none” response is false because
Defendants have referenced “carrier audit scores” of GBS’s performance and
“Claim Scorecards/Outcomes.” Id. at p. 15. Plaintiff further replies that
Defendants’ estimation of time and expense applies to manually reviewing
every single GBS claim file during the relevant time period. Id. at p. 16.
Plaintiff has stipulated that the request excludes documents that solely
concern the handling of a particular claim other than Plaintiff’s. Id.
As it pertains to Request No. 21, Defendants object stating they have no
documentation of goals, targets and objectives related to Plaintiff’s claim. Id. at
p. 17. Defendants further object to relevance and privilege. Id. at p. 18.
The court has already addressed Defendants’ objections regarding
relevance. Misrepresentation is not this only court’s consideration, as
discovery related to punitive damages is also relevant. See Lyon v. Bankers
Life & Cas. Co., No. CIV. 09-5070-JLV, 2011 WL 124629, at *10 (D.S.D. Jan.
14, 2011) (emphasis added) (granting a motion to compel for “[a]ny and all
copies of documents referring to goals, targets, or objectives established for
claim payments” in a case involving punitive damages). The objection is
overruled. Additionally, the court finds the time period for the request to be
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permissible. See Lyon, No. CIV. 09-5070-JLV, 2011 WL 124629, at *10
(providing discovery for goals, targets, and objectives for a ten-year period).
The court has already addressed supra Defendants’ argument that the
request must be limited to South Dakota, and therefore, overrules the
objection. See State Farm Mut. Auto. Ins. Co., 538 U.S. at 422. Furthermore,
Defendants’ boilerplate objections of “overbroad, vague, and ambiguous” have
been addressed supra and are overruled. See O’Daniel, No. CIV. 11-5088-JLV,
2013 WL 164225, at *3 (D.S.D. Jan. 15, 2013). The court finds Plaintiff’s
stipulation that she is not requesting information related to specific claim files,
besides her own claim file, alleviates Defendants’ concern that compliance
would cost an exorbitant amount of time and expense for Request No. 20, and
therefore, overrules the objection.
Defendants object that they responded “none” to Request No. 21 and that
no materials exist that are related to Plaintiff’s claim for Request No. 21. This
objection misses the point of the request; the request asks for documentation
regarding Defendants’ general practices, not limited solely to the handling of
Plaintiff’s claim. Likewise, Plaintiff’s stipulation addresses Defendants’
concerns, and is not seeking information related to specific claims that are not
Plaintiff’s claim. Defendants’ general company practices regarding goals,
targets, and objectives are relevant and discoverable as it pertains to the issue
of punitive damages. See Roth, ¶ 65, 667 N.W.2d at 669. To the extent
materials do not exist as it pertains to Request Nos. 20 and 21, Defendants
shall certify to Plaintiff that no responsive materials exist. Furthermore, the
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court finds any concerns regarding sensitive information is properly protected
by the entry of a Protective Order. See infra Section III.
Accordingly, the court overrules Defendants’ objections and grants the
Motion to Compel as it pertains to Request Nos. 20 and 21.
vi. Worker’s Compensation Calculations
Request No. 22
Documents regarding efforts to affect average claim costs, loss
ratios, combined ratios, allocated loss expenses or underwriting
profit for worker’s compensation claims. Plaintiff stipulates the
request is limited to documents created or modified from January 1,
2012 to present. Plaintiff further stipulates the request excludes
documents from individual claim files and documents related solely
to efforts to increase sales of insurance policies or underwriting
efforts to reduce the risk of policies not yet issued.
Id at p. 20-21.
Plaintiff asserts the request is relevant to reveal intent and motive to
reduce claim payouts. Id. at p. 20.
Defendants object that the request is not relevant to a misrepresentation
claim. Id. Defendants further object to the overbreadth of the request, again
arguing it would take 2,981,628.6 hours at an expense of $74,540,715 to
comply. Id. Defendants argue they do not maintain aggregate data of this
nature and each claim is handled independent on the merits. Id. at p. 21.
Despite Defendants claiming they do not maintain this data, Defendants raise
the following additional arguments: overbroad, vague, ambiguous, not limited
in time, insurance line, or individual claim, seeks information outside of the
period of handling of Plaintiff’s claim, and the request seeks privileged and
proprietary information. Id.
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Plaintiff replies that Defendants’ assertion that they do not maintain this
information is contrary to what GBS says in its marketing materials. Id. at p.
20.
The court overrules Defendants’ objection that the request is irrelevant,
as misrepresentation is not this court’s only consideration. See Lyon, No. CIV.
09-5070-JLV, 2011 WL 124629, at *10 (emphasis added) (granting a motion to
compel for “[a]ny and all copies of documents referring . . . loss ratios . . . or
combined ratios” in a case involving punitive damages). Likewise, the court
finds the requested time-frame to be appropriate. See Lyon, No. CIV. 09-5070JLV, 2011 WL 124629, at *10 (providing discovery for a ten-year period for loss
ratios and combined ratios). Defendants’ boilerplate objections to vague,
ambiguous, etc. are overruled. See O’Daniel, No. CIV. 11-5088-JLV, 2013 WL
164225, at *3 (D.S.D. Jan. 15, 2013). Defendants’ objections regarding the
request seeking information not directly related to Plaintiff’s claim is overruled.
See Roth, ¶ 39, 667 N.W.2d at 669 (finding the company’s general policies
relevant for purposes of punitive damages).
Like Request Nos. 20 and 21, supra, the court finds Plaintiff’s stipulation
that she is not seeking information from each individual claim file alleviates the
overbreadth of the request and the concern that Defendants would have to
expend an exorbitant amount of time and expense to comply with the request;
the objection is overruled. Furthermore, the court is satisfied that any
sensitive nature associated with this request will be properly protected by the
entry of a Protective Order. See infra Section III. To the extent Defendants
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claim they do not maintain this data, Defendants shall certify to Plaintiff if they
have no responsive discovery to the request.
Accordingly, the court overrules Defendants’ objections and grants the
Motion to Compel as it pertains to Request No. 22.
vii. Previous Litigation
Request No. 26
Depositions or trial testimony transcripts or recordings of any claims
staff in this case in any extra-contractual suit arising out of the
handling of a worker’s compensation claim. Plaintiff stipulates the
request is limited to documents available from January 1, 2010 to
present.
Request No. 27
Documents that identify names, dates and venues of extracontractual suits filed against Defendants arising out of worker’s
compensation claims. Plaintiff stipulates the Request is limited to
lawsuits in the United States. Plaintiff stipulates the request is
limited to documents available from January 1, 2010 to present.
Request No. 28
Documents regarding market conduct examinations, cease and
desist orders, consent orders or other regulatory investigations
involving Defendant’ handling of worker’s compensation claims.
Plaintiff stipulates the Request is limited to regulatory actions in the
United States.
Plaintiff stipulates the request is limited to
documents available from January 1, 2010 to present.
(Ex. 1 at p. 24, 26, 28).
Plaintiff asserts the requests are relevant in that they may reveal the
following: similar events of claims handling, prior adverse rulings against
Defendants on same issues, prior statements of Defendants’ personnel
regarding claims handling and internal procedures involved in handling claims.
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Id. at p. 24-25. Similarly, Plaintiff asserts the discovery may reveal intent and
motive as it relates to punitive damages. Id. at p. 26, 28.
Defendants again object to relevance, arguing the requests are not
relevant to the misrepresentation claim. Id. at p. 24, 26, 28. Defendants state
they answered that there is no such prior testimony for Request Nos. 26 and
27 that involves individuals who “directly handled” Plaintiff’s workers’
compensation claim. Id. at p. 25. Again, Defendants argue compliance of
Request No. 28 would involve a review of every claim file involving 2,981,628.6
hours at an expense of $74,540,715. Id. at p. 28. Finally, Defendants argue
discovery should be limited to South Dakota. Id. at p. 27.
Defendants’ objections to relevance are overruled, as the requests are
relevant to the issue of punitive damages. See Brown Bear v. Cuna Mut. Grp.,
266 F.R.D. 310, 325–26 (D.S.D. 2009) (“Because the [litigation files] [Plaintiff]
requests may reveal that [Defendants’] alleged conduct in this case occurs
frequently and as a result risks harm to many, the requested documents may
be relevant to demonstrate reprehensibility, which is a proper consideration in
a punitive damages determination.”). Defendants’ objection that no such prior
testimony exists for those who directly handled Plaintiff’s claim misses the point
of the request. The request is not limited to those involved in Plaintiff’s claim,
but involves litigation arises from Defendants’ general handling of workers’
compensation claims. Defendants need not review every individual claim file,
and therefore, their objection that complying would take 2,981,628.6 hours at
an expense of $74,540,715, is without merit. Defendants’ assertion that they
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do not maintain “aggregate data of this nature” is disingenuous. Id. at p. 26.
The court is hard pressed to believe Defendants do not maintain some sort of
database or collection of records noting past litigation or have a manner in
which they could obtain such information, aside from having to review every
individual claim file. The objection is overruled. See Continental Illinois Nat’l
Bank & Trust Co. of Chicago, 136 F.R.D. at 684-85 (“All discovery requests are
a burden on the party who must respond thereto. Unless the task of producing
or answering is unusual, undue or extraordinary, the general rule requires the
entity answering or producing the documents to bear that burden.”). Likewise,
this court has already addressed supra that the discovery need not be limited
to South Dakota. See State Farm Mut. Auto. Ins. Co., 538 U.S. at 422.
Accordingly, the court overrules Defendants’ objections and grants the
Motion to Compel as it pertains to Request Nos. 26, 27, 28.
viii. Financial Reports
Request No. 33
Financial reports of Defendants. Plaintiff stipulates the request is
limited to reports for the years 2012 through 2016.
(Ex. 1 at p. 35).
Plaintiff asserts the request is relevant to the issue of punitive damages.
Id.
Defendants assert they have produced responsive documents. Id.
Defendants raise the following objections: relevance, seeks information outside
the period of Plaintiff’s claim, unduly burdensome, annoyance, harassment,
undue expense, overly broad, not limited in scope, and seeks proprietary
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information. Id. Defendants state the request is not proportional as their
actual damages total less than $3,000. Id. at p. 36. Defendants further state
that SDCL § 21-1-4.1 requires a hearing to determine whether punitive
damages would be appropriate before allowing discovery. Id. at p. 35.
Plaintiff replies that to the extent Defendants have produced relevant
documents, they request Defendants direct their attention to those documents.
Id.
To the extend Defendants have produced relevant documents, the court
directs Defendants to specify to Plaintiff which documents are responsive to the
request. Defendants’ objection to relevance is overruled; financial documents
are clearly relevant in a claim for punitive damages. See Burke v. Ability Ins.
Co., 291 F.R.D. 343, 350 (D.S.D. 2013) (quoting Roth, ¶ 72, 667 N.W.2d at
670) (“Defendants also argue that their financial condition is not relevant to
this case. The court disagrees. The South Dakota Supreme Court has held
that ‘a defendant’s net worth is a guideline for assessing the amount
of punitive damages.’”). See also Winterboer v. Edgewood Sioux Falls Senior
Living, LLC, No. CIV. 12-4049-KES, 2014 WL 28863, at *6 (D.S.D. Jan. 2,
2014) (granting financial discovery where punitive damages were asserted).
Judge Viken’s Order Denying Defendants’ Motion for Summary Judgment
makes it clear that Plaintiff may be entitled to punitive damages in addition to
actual damages. (Doc. 130). Therefore, Defendants’ objection that the request
is not proportional to the claim for $3,000 in actual damages is without merit,
as it does not take into account the potential for punitive damages.
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Furthermore, Defendants’ objection that the court must hold a hearing to
determine whether punitive damages are appropriate before allowing discovery,
is a misstatement of the law. Although SDCL § 21-1-4.1 requires such a
determination, that statute is procedural in nature, and therefore, does not
control in a federal diversity action concerning a Motion to Compel Discovery. 4
In Dahl, the South Dakota Supreme Court held that SDCL § 21-1-4.1 is
a procedural statute. Dahl v. Sittner, 474 N.W.2d 897, 902 (S.D. 1991) (“SDCL
21–1–4.1 only affects the procedures involved in obtaining discovery regarding
punitive damages and submitting the claim to the finder of fact. It is a
procedural statute.”). The well-established Erie Doctrine requires federal
courts sitting in diversity jurisdiction to adhere to state substantive law. Erie
R. Co. v. Tompkins, 304 U.S. 64 (1938). Contrary, matters of procedure, are
properly controlled by federal law. See Bradshaw v. FFE Transp. Servs., Inc.,
715 F.3d 1104, 1107 (8th Cir. 2013) (“In this diversity of citizenship case, the
Federal Rules of Civil Procedure and Federal Rules of Evidence govern the
disputes concerning discovery and the admission of evidence.”); Hiatt v. Mazda
Motor Corp., 75 F.3d 1252, 1255 (8th Cir. 1996) (citing Erie R. Co., 304 at 64)
(“It is, of course, well-settled that in a suit based on diversity of citizenship
4 This court notes that there appears to be a split of authority within the District of South
Dakota on this issue. See Lillibridge v. Nautilus Ins. Co., No. CIV. 10-4105-KES, 2013 WL
870439, at *7 (D.S.D. Mar. 7, 2013) (noting “courts in this district have differed on
whether SDCL 21–1–4.1 applies in federal court”). After conducting a thorough analysis on the
case law within this District, this court is persuaded by the rationale consistent with the courts
in this District that hold SDCL § 21-1-4.1 is procedural, and therefore, does not control in a
federal diversity action concerning the resolution of discovery motions.
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jurisdiction the federal courts apply federal law as to matters of procedure but
the substantive law of the relevant state.”).
FED. R. CIV. P. 26 conflicts with SDCL § 21-1-4.1 in that the former
requires no hearing to take place before permitting discovery on the issue of
punitive damages. Accordingly, FED. R. CIV. P. 26 is the appropriate procedural
statute governing discovery in the pending diversity action, not SDCL § 21-14.1 See Janvrin v. Cont’l Res., Inc., No. 4:14-CV-4124-KES, 2017 WL
2838139, at *8 (D.S.D. June 30, 2017), aff’d, 934 F.3d 845 (8th Cir. 2019);
Christensen v. Quinn, No. CIV. 10-4128-KES, 2013 WL 4774900, at *1 (D.S.D.
May 20, 2013); Lillibridge v. Nautilus Ins. Co., No. CIV. 10-4105-KES, 2013 WL
870439, at *7 (D.S.D. Mar. 7, 2013); Houwman v. Gaiser, No. CIV. 10-4125KES, 2011 WL 4345236, at *10 (D.S.D. Sept. 15, 2011); Bjornestad v.
Progressive N. Ins. Co., No. CIV 08-4105, 2010 WL 11681662, at *1 (D.S.D.
July 20, 2010); Kendall v. Bausch & Lomb, Inc., No. CIV. 05-5066, 2007 WL
9773481, at *2 (D.S.D. Feb. 7, 2007); Ammann v. Massey-Ferguson, Ltd., 933
F. Supp. 840, 841 (D.S.D. 1996).
Accordingly, the court overrules Defendants’ objections and grants the
Motion to Compel as it pertains to Request No. 33.
ix. Policies Issued to Menards
Request No. 34
Documents related to the policies issued to Menards as well as
documents relating to terms and retention limits of the policies,
premiums assessed, loss experience and any special account status
between Defendants and Menards. Plaintiff stipulates the request
excludes documents from individual claim files.
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(Ex. 1 at p. 36-37).
Plaintiff asserts the request is relevant to reveal financial incentives,
motives, and intent in reducing claim payouts. Id. at p. 36. Plaintiff further
asserts the request may reveal the contract for services is not between GBS
and Praetorian, but between GBS and Menards. Id. Such a discovery, Plaintiff
asserts, is relevant because it would demonstrate that GBS had no legal
authority to handle Plaintiff’s claim and may contain direct financial incentives
for GBS to reduce Menard’s claim payout. Id. at p. 37.
Defendants object to the request, claiming it is irrelevant to the
misrepresentation claim and overbroad. Id. Defendants further cite that they
will be shortly filing a Motion for Summary Judgement to show the remaining
cause of action is not viable. Id.
The court first notes the Motion for Summary Judgment Defendants cite
to has since been filed and rejected by the District Judge. (Doc. 130). Plaintiff
has made a threshold showing of relevance for the request to reveal agency
relationships that may or may not have been provided for by contract.
Furthermore, Plaintiff cites to the possible motives and incentives for reducing
claim payouts that could result from the relationships between the parties.
“Once the threshold relevance of requested discovery is established, the burden
shifts to the party resisting discovery to demonstrate some valid reason not to
provide the discovery.” O’Daniel, No. CIV. 11-5088-JLV, 2013 WL 164225, at
*9 (D.S.D. Jan. 15, 2013). Defendants provide no other argument for why the
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request is irrelevant or overbroad, aside from their argument focusing solely on
misrepresentation and an unsuccessful Motion for Summary Judgment.
Accordingly, the court overrules Defendants’ objections and grants the
Motion to Compel as it pertains to Request No. 34.
II.
Motion to Extend Deadlines
Plaintiff filed a Motion to Extend the discovery deadline in this case.
(Doc. 93). The most recent Scheduling Order set a discovery deadline of
December 6, 2019. (Doc. 89). Plaintiff requests the extension, in part, because
Defendants did not comply with Plaintiff’s document requests, requiring
Plaintiff to file the pending Motion to Compel. Defendants oppose the Motion.
(Doc. 106).
Federal Rule of Civil Procedure 16 requires the court to issue an order
setting deadlines for various stages of the litigation. The Rule 16 scheduling
order may be modified only for good cause. FED. R. CIV. P. 16(b)(4); Sherman v.
Winco Fireworks, Inc., 532 F.3d 709, 715 (8th Cir. 2008). The primary
measure of good cause is the movant’s diligence in attempting to meet the
scheduling order’s requirements. Bradford v. DANA Corp., 249 F.3d 807, 809
(8th Cir. 2001). “While the prejudice to the nonmovant resulting from
modification of the scheduling order may also be a relevant factor, generally,
[the court] will not consider prejudice if the movant has not been diligent in
meeting the scheduling order’s deadlines.” Sherman, 532 F.3d at 717. Even
when the movant shows good cause, the district court retains discretion as to
whether to grant the motion. Bradford, 249 F.3d at 809. Further, the court
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must interpret Rule 16 in manner so as to achieve the “just, speedy, and
inexpensive determination of every action.” See FED. R. CIV. P. 1.
The court finds Plaintiff has shown good cause meriting an additional
extension in this case because of the need to file the pending Motion to Compel
to require Defendants to comply with discovery requests. The court further
finds prejudice to Defendants is limited because a trial date has not yet been
set in this case. The court notes, however, that only a limited extension is
necessary. Plaintiff filed the pending Motion to Compel (Doc. 91) and Motion to
Motion to Extend (Doc. 93) on the same day as the previous deadline for
discovery, December 6, 2019. This demonstrates that Plaintiff had up until the
discovery deadline to continue any discovery efforts before filing her Motion to
Compel. Furthermore, this case has been pending since 2016, and the court
finds the parties have had nearly four years to conclude discovery.
Additionally, two Motions for Summary Judgment have already been filed and
ruled on by the presiding District Judge. (Docs. 87, 130). The court’s limited
extension on the discovery deadline will be permitted solely for the purposes of
allowing the parties to comply with the terms of this Order and to follow up on
any pertinent discovery inquiries arising from the production of discovery
compelled by this Order. Accordingly, the court grants Plaintiff’s Motion to
Extend (Doc. 93).
III.
Motion for Protective Order
Plaintiff filed the pending Motion for Protective Order (Doc. 95) in an
effort to facilitate discovery with Defendants. Plaintiff filed a proposed
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Protective Order. (Doc. 96). While Defendants are not opposed to the entry of
a Protective Order, they take issue with Plaintiff’s proposed Protective Order.
(Doc. 105). Defendants have filed their own proposed Protective Order. (Doc.
105-2).
A party may obtain a protective order upon a showing of good cause.
General Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 1212 (8th Cir. 1973).
Federal Rule of Civil Procedure 26(c)(1) governs the granting of a protective
order:
A party or any person from whom discovery is sought may move for
a protective order in the court where the action is pending—or as an
alternative on matters relating to a deposition, in the court for the
district where the deposition will be taken. The motion must include
a certification that the movant has in good faith conferred or
attempted to confer with other affected parties in an effort to resolve
the dispute without court action. The court may, for good cause,
issue an order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense[.]
The trial court has significant discretion in either granting or denying a
protective order, and “only an abuse of that discretion would be cause for
reversal.” General Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 1212 (8th
Cir. 1973). Under Rule 26(c), a court may grant a protective order only upon a
showing of good cause by the moving party. Id. The movant must articulate “a
particular and specific demonstration of fact, as distinguished from stereotyped
and conclusory statements.” Id. (internal citation and quotation marks
omitted). The court must also consider “the relative hardship to the nonmoving party should the protective order be granted.” Id. (internal citation
omitted).
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Due to the confidential nature that touches on various discovery
requests subject to this Order, the court finds there is good cause for entry of a
Protective Order. Accordingly, the court grants Plaintiff’s Motion for Protective
Order. (Doc. 95). The court rejects Plaintiff’s and Defendants’ proposed
Protective Orders at this time, and instead, orders the parties to propose to the
court, a joint stipulation for entry of a Protective Order.
CONCLUSION
Based on the foregoing, it is hereby
ORDERED that Plaintiff’s Motion to Compel (Doc. 91) is granted.
Defendants shall turn over discovery in compliance to this Order within two (2)
weeks of this court’s entry of a Protective Order.
ORDERED that Plaintiff’s Motion to Extend Deadlines (Doc. 93) is
granted. All discovery, including expert discovery, shall be commenced in time
to be completed within two (2) months of the date of this Order.
ORDERED that Plaintiff’s Motion for Protective Order (Doc. 95) is
granted. The parties shall confer and submit to the court, within one (1) week
of the date of this Order, a joint stipulation for entry of a Protective Order,
specifying the terms and conditions for discovery which must be produced
pursuant to this Order.
NOTICE TO PARTIES
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
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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 this 14th day of August, 2020.
BY THE COURT:
DANETA WOLLMANN
United States Magistrate Judge
31
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