Associated Electric & Gas Insurance Services Limited v. American International Group et al

Filing 105

MEMORANDUM DECISION granting in part and denying in part 56 Motion to Enforce and for Protective Order. Signed by Magistrate Judge Dustin B. Pead on 01/28/2014. (tls)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

ASSOCIATED ELECTRIC & GAS
INSURANCE SERVICES LIMITED,
MEMORANDUM DECISION
Plaintiff,

Case No. 2:11-cv-00368-RJS-DBP

v.

District Judge Robert J. Shelby

NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA,

Magistrate Judge Dustin B. Pead

Defendant.

I.

INTRODUCTION

This matter was referred to the Court under 28 U.S.C. § 636(b)(1)(A). (Docket Nos. 49; 56.)
The Court considers Plaintiff’s motion to enforce the scheduling order and for a protective order.
(Dkt. No. 56.) For the reasons described below, the Court GRANTS in part and DENIES in
part the motion.
II.

PROCEDURAL HISTORY

On February 4, 2013, the parties jointly moved to modify the scheduling to divide the case
“into two phases.” (Dkt. No. 51 at 2.) The parties wanted to limit the first phase to completing
discovery regarding insurance “policy interpretation issues . . . .” (Id.) 1 After the parties

1

According to Plaintiff’s complaint, the parties dispute the insurance coverage that Defendant
owes to mine owners/operators that Defendant insured. (Dkt. No. 2.)
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completed the first discovery phase, they intended to present their policy interpretation
arguments to the District Court by filing “cross-motions for summary judgment.” (Id.) If
“additional discovery [was] needed” after the District Court ruled on the summary judgment
motions, the parties intended to “then conduct the remaining discovery” via a second discovery
phase. (Id.)
On February 28, 2013, the District Court granted the parties’ joint motion, and it issued a
scheduling order that split discovery into two phases. (Dkt. No. 52.) Pursuant to the scheduling
order, the “[d]eadline to complete first phase discovery” fell on May 10, 2013. (Id. at 1.) The
deadline to file summary judgment motions regarding the first discovery phase fell on June 7,
2013. (Id.)
On June 7, 2013, the parties filed summary judgment motions regarding the first discovery
phase. (Dkt. Nos. 63-64.) To date, these motions remain pending before the District Court.
Pursuant to the scheduling order, “within thirty (30) days of receiving the [District] Court’s
ruling on” these summary judgment motions, the parties “shall . . . present the Court with a
stipulated schedule for completion of the second phase of discovery (if necessary) and for trial of
any remaining issues in this matter.” (Dkt. No. 52 at 2.)
III.

ANALYSIS OF PLAINTIFF’S MOTION TO ENFORCE SCHEDULING
ORDER AND FOR A PROTECTIVE ORDER

If a party fails to obey a scheduling order, “the court may issue any just orders, including
those authorized by Rule 37(b)(2)(A)(ii)-(vii) . . . .” Fed. R. Civ. P. 16(f)(1)(C). Pursuant to
Fed. R. Civ. P. 16(f)(1)(C), Plaintiff moves to enforce the scheduling order (Dkt. No. 52) and for
a protective order that addresses Defendant’s untimely discovery requests. (Dkt. No. 56.)

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A. Interrogatories and Document Production Requests
On April 19, 2013, Defendant served Plaintiff with interrogatories and document production
requests that required Plaintiff to respond by May 22, 2013. (Dkt. No. 56-4, Ex. C.) Plaintiff
views these requests as untimely because they relate to the first discovery phase but ask Plaintiff
to respond after the May 10, 2013 first phase discovery deadline. (Dkt. No. 56 at 6.)
Accordingly, Plaintiff seeks to strike the discovery requests as untimely, or it seeks to protect
itself from responding to the requests until the second discovery phase commences. (Id. at 2, 6,
8.)
Defendant opposes Plaintiff’s motion as moot because Defendant “already advised [Plaintiff]
that it will not insist on” Plaintiff’s responses to the discovery requests. (Dkt. No. 57 at 4.)
Defendant clarifies that it only expects Plaintiff to respond after the District Court resolves the
pending summary judgment motions and accepts the parties’ stipulated schedule for the second
discovery phase. (Id. at 5 n.1.)
Because Defendant previously agreed to refrain from prematurely requesting these discovery
responses, the Court finds that Plaintiff unnecessarily brought this motion regarding the
discovery requests. Therefore, the Court DENIES Plaintiff’s motion insofar as it refuses to
strike the discovery requests or to protect Plaintiff from having to respond to them. (Dkt. No.
56.)
B. Third-Party Subpoena
On April 30, 2013, Defendant notified Plaintiff that it intended to subpoena documents from
third-party Kaercher Campbell & Associates Insurance Brokerage. (Dkt. No. 56-5, Ex. D.) It
appears that Defendant actually served the subpoena sometime after the May 10, 2013 first phase
discovery deadline. (Dkt. No. 56 at 6.) Plaintiff now moves to enforce the scheduling order by

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quashing or striking the subpoena as untimely under the first phase discovery deadline. (Id. at 68; Dkt. No. 68 at 3.)
In its opposition, Defendant claims the subpoenaed documents are relevant to the first
discovery phase. (Dkt. No. 57 at 5-6.) As such, Defendant asks the Court to amend the
scheduling order to permit the production of the subpoenaed documents under the first discovery
phase. (Id. at 7.) Alternatively, Defendant argues that the subpoenaed documents are also
relevant to the second discovery phase, which the current scheduling order does not prohibit the
parties from engaging in. (Id. at 5-6.) Therefore, Defendant believes the third-party may timely
produce the subpoenaed documents under the second discovery phase. (Id.)
In its reply, Plaintiff suggests that amending the first phase discovery deadline would serve
little purpose. (See Dkt. No. 68 at 3-4.) Defendant already filed a summary judgment motion
regarding the first discovery phase without using or referencing the subpoenaed documents. (Id.
at 4.) The Court agrees with Plaintiff’s reasoning. At this stage, the subpoenaed documents
would mainly help Defendant with the second discovery phase.
Turning to the second discovery phase, Plaintiff claims that the “plain language” in the
parties’ joint motion to modify the scheduling order “undercuts” Defendant’s assertion that
second phase discovery “is currently underway.” (Id. at 3.) Again, the Court agrees with
Plaintiff’s reasoning. Based on the parties’ joint motion, the Court believes the parties intended
to postpone the second discovery phase until after the District Court ruled on their summary
judgment motions. (See Dkt. No. 51 at 2) (consisting of parties’ joint motion to split the case
into two phases to “save time and expense that would be spent on experts and conducting
discovery on other issues such as damages.”)

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For these reasons, the Court GRANTS Plaintiff’s motion insofar as it protects Plaintiff
against the premature production of the subpoenaed documents. 2 See Bare v. Brand Energy &
Infrastructure Servs., No. 2:09-cv-807-DB-BCW, 2012 WL 5285374, at *3 (D. Utah Oct. 25,
2012) (unpublished) (reasoning that a court could “issue just orders if a party fail[ed] to obey a
scheduling order,” such as where a party issued a third-party subpoena after the fact discovery
deadline); Scherer v. GE Capital Corp., 185 F.R.D. 351, 352 (D. Kan. 1999) (ordering “that
discovery by [] subpoenas served upon [] three non-parties not be had” where the plaintiff served
such subpoenas after the discovery deadline).
IV.

ORDERS

For the reasons detailed above, the Court issues the following ORDERS:
The Court DENIES Plaintiff’s motion to enforce the scheduling order and for a protective
order regarding Defendant’s April 19, 2013 discovery requests. More specifically, the Court
refuses to strike the discovery requests, and it refuses to protect Plaintiff from responding to the
requests. (Dkt. No. 56.)
Under Fed. R. Civ. P. 16(f)(1)(C), the Court GRANTS Plaintiff’s motion to enforce the
scheduling order and for a protective order regarding the third-party subpoena that Defendant
served. More specifically, the Court protects Plaintiff against the production of the subpoenaed
documents until the parties submit a second phase discovery scheduling plan to the District
Court. (Dkt. No. 56.)
Under Fed. R. Civ. P. 16(f)(2), the Court DENIES Plaintiff’s request for attorney’s fees
incurred by filing its motion. (Dkt. No. 56.) Other circumstances make an award of expenses
2

The Court refrains from quashing the third-party subpoena under Fed. R. Civ. P. 45 because the
parties never addressed Plaintiff’s standing to quash the subpoena, and Plaintiff brought forth no
arguments under Fed. R. Civ. P. 45(d)(3) to justify quashing.
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unjust where Defendant previously agreed to delay Plaintiff’s discovery responses, and where
Defendant delayed serving the third-party subpoena because it could not confirm the thirdparty’s identity until ten days before the first phase discovery deadline. 3
Dated this 28th day of January, 2014.

By the Court:

Dustin B. Pead
United States Magistrate Judge

3

(See Dkt. Nos. 57 at 9; 57-1.)
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