Greer et al v. Waste Connections of Tennessee, Inc. et al

Filing 47

ORDER granting 38 Motion to Compel; denying 41 Motion for Protective Order. Signed by Chief Magistrate Judge Tu M. Pham on May 6, 2022. (jcn)

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PageID 289

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
________________________________________________________________
PATRICK GREER and
TRACEY GREER,

)
)
Plaintiffs,
)
)
v.
)
No. 21-2474-MSN-tmp
)
WASTE CONNECTIONS OF
)
TENNESSEE, INC.,
)
PATRICK E. WATT, and
)
JOHNS/JANES DOE 1-5,
)
)
Defendants.
)
________________________________________________________________
ORDER GRANTING PLAINTIFFS’ MOTION TO COMPEL AND DENYING
DEFENDANTS’ MOTION FOR PROTECTIVE ORDER
________________________________________________________________
Before the court by order of reference are two motions. First
is plaintiffs Patrick and Tracey Greer’s Motion to Compel Insurance
Policies,

filed

on

April

14,

2022.

(ECF

No.

38.)

Second

is

defendant Waste Connections of Tennessee’s Motion for Protective
Order, filed on April 28, 2022. (ECF No. 41.) The Motion for
Protective Order was filed partly in response to Greer’s Motion to
Compel, which defendants responded to on the same day. (ECF No.
42.) Plaintiffs responded to defendants’ motion and filed a reply
to defendants’ response on May 2, 2022. (ECF Nos. 43-44.) For the
below reasons, the plaintiffs’ Motion to Compel is GRANTED and the
defendants’ Motion for Protective Order is DENIED.
I.

BACKGROUND

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This is a personal injury case in which the plaintiffs allege
that Patrick Greer was injured in a “catastrophic vehicularcollision that left [him] with a brain injury.” (ECF No. 38 at 1.)
Plaintiffs filed the complaint on July 19, 2021, alleging diversity
jurisdiction and at least $450,000 in damages. (ECF No. 1.)
As the case progressed, the parties began their initial
disclosures. On December 8, 2021, plaintiffs’ counsel emailed
defendants’ counsel regarding “several issues” with their initial
disclosures. (ECF No. 38-2 at 10.) Of relevance to this motion,
plaintiffs’ counsel noted that defendants had identified only one
liability insurance policy, for $7.5 million, but not produced the
policy

itself.

(Id.)

Plaintiffs’

counsel

also

asked

for

clarification about whether this was the only insurance agreement
“that may be available to satisfy all or part of a possible
judgment[.]”

(Id.)

On

December

22,

2021,

defendants’

counsel

emailed over “the dec page of our client’s primary responding
business policy” and stated that the client “indicated that there
was an excess tower of coverage” for which they had not yet
received documentation. (Id. at 2.) Later that day, plaintiffs’
counsel

indicated

that

they

found

this

production

deficient,

stating that “the rule does not provide for production of the dec
page, it requires production of the insurance agreement[.]” (Id.
at 1.) Counsel further stated that if the “tower” coverage was not

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produced within ten days that they would file a motion to compel.
(Id.)
That motion to compel was ultimately filed on April 14, 2022.
(ECF No. 38.) Based on the briefing, it appears that defendants
ultimately produced the entire primary policy but have refused to
produce any further policies based on their interpretation of Rule
26’s initial disclosure requirements. Defendants have also moved
for the court to enter a protective order should the policies be
ordered produced, arguing that it is in the “best interest of all
parties involved as it will protect proprietary information of the
Defendants

and

the

medical

and

financial

interests

of

the

Plaintiffs.” (ECF No. 41 at 2.)
II.
A.

ANALYSIS

Scope of Discovery
The scope of discovery is governed by Federal Rule of Civil

Procedure 26(b)(1), which provides that “[p]arties 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[.]” Fed. R. Civ. P. 26(b)(1). The party seeking discovery is
obligated to demonstrate relevance. Johnson v. CoreCivic, Inc.,
No. 18-CV-1051-STA-tmp, 2019 WL 5089086, at *2 (W.D. Tenn. Oct.
10, 2019). Upon a showing of relevance, the burden shifts to the
party

opposing

discovery

to

show,

with

specificity,

why

the

requested discovery is not proportional to the needs of the case.
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William Powell Co. v. Nat'l Indem. Co., No. 1:14-CV-00807, 2017 WL
1326504, at *5 (S.D. Ohio Apr. 11, 2017), aff'd sub nom. 2017 WL
3927525 (S.D. Ohio June 21, 2017), and modified on reconsideration,
2017 WL 4315059 (S.D. Ohio Sept. 26, 2017). Six factors are
relevant to proportionality: (1) “the importance of the issues at
stake in the action;” (2) “the amount in controversy;” (3) “the
parties’

relative

access

to

relevant

information;”

(4)

“the

parties’ resources;” (5) “the importance of the discovery in
resolving the issues;” and (6) “whether the burden or expense of
the proposed discovery outweighs its likely benefit.” Fed. R. Civ.
P. 26(b)(1).
B.

Motion to Compel
Federal Rule of Civil Procedure 26(a)(1)(A)(iv) requires that

parties must automatically provide “any insurance agreement under
which an insurance business may be liable to satisfy all or part
of a possible judgment in the action or to indemnify or reimburse
for payments made to satisfy the judgment.” Plaintiffs argue that
“Rule 26 requires the disclosure of excess and umbrella insurance
policies”

beyond

a

single

policy

that

could

cover

all

of

a

plaintiffs’ claimed damages. (ECF No. 38 at 2) (quoting Miller v.
Tiger Style Corp., No. 2:18-cv-02275-SHL-dkv, 2018 WL 6566553, at
*4 (W.D. Tenn. Nov. 7, 2018)). They further state that the “tower”
of excess coverage described by defendants’ counsel falls within
the required production. (ECF No. 38 at 3.) Defendants disagree,
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stating instead that “they have produced sufficient insurance
coverage to satisfy [plaintiffs’] claim many times over” and that
they would nevertheless be willing to produce declaration pages
for all unproduced policies. (ECF No. 42 at 2.)
While no published case seems to have addressed this issue,
the text of Rule 26 and prior decisions by this court support the
plaintiffs’ position. Rule 26 requires the automatic disclosure of
“any” insurance policy that “may be liable to satisfy all or part
of a possible judgment.” There is no allowance for a party to pick
and choose which policies it discloses simply because certain
policies may exceed a plaintiff’s claimed damages. This district
has squarely stated that “Rule 26 requires the disclosure of excess
and umbrella insurance policies[.]” Miller, 2018 WL 6566553 at *4.
Other districts have agreed. See Williams Int’l Co., LLC v. Zurich
Am. Ins. Co., No. 4:20-cv-13277, 2022 WL 678458, at *1 (E.D. Mich.
Mar. 7, 2022) (“[Rule 26] is absolute . . . and does not require
any showing of relevance.”) (quoting Suffolk Fed. Credit Union v.
CUMIS Ins. Soc., Inc., 270 F.R.D. 141, 142 (E.D.N.Y. 2010)); Garcia
v. Techtronic Indus. N. Am., Nos. 2:13-cv-05884 (MCA) (JAD), 3:14cv-00840(KM)(JAD), 2:14-cv-04697(KM)(JAD), 2015 WL 1880544, at *2–
4 (D.N.J. Apr. 22, 2015) (compelling disclosure of excess insurance
policy notwithstanding unresolved liability in excess of standard
coverage); Regalado v. Techtronic Indus. N. Am., Inc., No. 3:13cv-4267-L, 2015 WL 10818616, at *1–2 (N.D. Tex. Feb. 24, 2015)
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(“Rule

26(a)(1)(A)(iv)'s

production

requirement

.

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.

.

‘is

absolute’ ”); Cessante v. City of Pontiac, No. 07-cv-15250, 2009
U.S.

Dist.

LEXIS

30217,

(compelling

disclosure

policies”).

While

of

*11–12

(E.D.

“umbrella

defendants

argue

Mich.

and/or

that

Apr.
excess

plaintiffs

9,

2009)

insurance
should

be

required to “show cause as to why they need the full insurance
policies of Defendants,” no such requirement exists in the Rule.
(ECF No. 42 at 3.) By its terms, Rule 26 is automatic and the
disclosures it requires mandatory. Defendants are hereby ORDERED
to produce complete copies of any insurance policy under which an
insurance business may be liable to satisfy all or part of a
possible judgment in the action or to indemnify or reimburse for
payments made to satisfy the judgment, within seven days of the
entry of this order.
C.

Motion for Protective Order
Federal Rule of Civil Procedure 26(c)(1) allows a party to

move for a protective order, and for the court to issue one “to
protect

a

party

or

person

from

annoyance,

embarrassment,

oppression, or undue burden or expense[.]” Defendants argue that
a protective order “is in the best interest of all parties involved
as it will protect proprietary information of the Defendants and
the medical and financial interests of the Plaintiffs.” (ECF No.
41 at 2.) They further state that a “protective order will assist
in the swift adjudication of discovery issues” and help “stream
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line this litigation[.]” (Id.) Plaintiffs state that they “do not
oppose a protective order in theory to control the release of
confidential information, but Plaintiffs do oppose what Defendants
have informed Plaintiffs they intend to do with a protective
order,” namely, produce the above-described insurance policies as
confidential. (ECF No. 44 at 2.)
The undersigned finds a protective order unnecessary at this
time. Defendants’ motion makes gestures towards a protective order
speeding along the litigation process, but point to no specifics
of

“annoyance,

embarrassment,

oppression,

or

undue

burden

or

expense” that would justify a protective order. “The burden of
establishing good cause for a protective order rests with the party
seeking the protection.” Waite, Schneider, Bayless & Chesley Co.
L.P.A. v. Davis, No. 1:11-cv-0851, 2012 WL 3600106, at *4 (S.D.
Ohio Aug. 21, 2012) (citing Nix v. Sword, 11 F. App’x 498, 500
(6th Cir. 2001)). The defendants here have not offered any examples
of burden and not shown good cause.
III. CONCLUSION
For the above reasons, plaintiffs’ Motion to Compel is GRANTED
and defendants’ Motion for Protective Order is DENIED without
prejudice.
IT IS SO ORDERED.
s/ Tu M. Pham
TU M. PHAM
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____

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Chief United States Magistrate Judge
May 6, 2022____________
Date

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