Federal Deposit Insurance Corporation v. Arch Insurance Company et al

Filing 130

ORDER granting in part Plaintiff Federal Deposit Insurance Corporation's 67 Motion to Compel Defendants to Produce Documents, by Judge Robert S. Lasnik. (SWT)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 10 FEDERAL DEPOSIT INSURANCE CORPORATION as Receiver for Washington Mutual Bank, No. C14-545RSL Plaintiff, 11 v. 12 13 ARCH INSURANCE COMPANY, et al., Defendants. 14 15 16 17 18 19 20 21 22 ORDER GRANTING IN PART PLAINTIFF’S MOTION TO COMPEL This matter comes before the Court on “Plaintiff Federal Deposit Insurance Corporation’s Motion to Compel Defendants to Produce Documents.” Dkt. # 67. Having reviewed the parties’ briefing, declarations, exhibits, and the remainder of the record,1 the Court finds as follows. In this case, plaintiff Federal Deposit Insurance Corporation, as Receiver for Washington Mutual Bank (“FDIC-R”), sues various insurance companies for refusing to cover certain losses under fidelity bond insurance policies held by Washington Mutual Bank (“WaMu”). FDIC-R alleges that WaMu suffered these losses as a result of a criminal mortgage fraud scheme perpetrated on WaMu by two of its lenders. In discovery, FDIC-R seeks documents related to 23 24 25 26 1 Defendants move to strike arguments raised for the first time in plaintiff’s reply brief. Dkt. # 92. It is true that the Court may not rely on arguments raised for the first time in a moving party’s reply brief without giving the non-moving party an opportunity to respond. See Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996). The Court grants this motion and declines to consider those arguments. 27 28 ORDER GRANTING IN PART PLAINTIFF’S MOTION TO COMPEL - 1 1 the insurers’ handling, adjustment, or investigation of WaMu’s claim; defendants respond that 2 most of the requested documents are either irrelevant, privileged, or too voluminous to produce. 3 Dkt. ## 76, 78, 80. 4 Under the Federal Rules of Civil Procedure, parties may generally obtain discovery 5 regarding any non-privileged matter that is relevant to any party’s claim or defense and 6 proportional to the needs of the case. Information need not be admissible at trial to be 7 discoverable. Fed. R. Civ. P. 26(b)(1). During discovery, a party served with requests for 8 production must comply within 30 days. Fed. R. Civ. P. 34(b)(2)(A). The party seeking 9 discovery may move for an order compelling disclosure or discovery after good-faith attempts to 10 11 obtain compliance without court action have been unsuccessful. Fed. R. Civ. P. 37(a)(1). Because defendants have asserted that WaMu’s losses are not covered by the terms of the 12 insurance policies, the materials sought by FDIC-R are indeed relevant to the insurance 13 companies’ defenses. See Milgard Mfg., Inc. v. Liberty Mut. Ins. Co., No. C13-6024BHS, 2015 14 WL 1884069, at *2 (W.D. Wash. Apr. 24, 2015). The FDIC-R’s First Document Request Nos. 15 1–4 seek documents from the insurers’ “claim files” for the claim giving rise to this suit and are 16 certainly relevant to the parties’ claims and defenses. Documents discussing or clarifying the 17 meaning of the disputed policy terms are relevant even if not contained in WaMu’s underwriting 18 files. Polygon Northwest Co., LLC v. Steadfast Ins. Co., No. C08-1294RSL, 2009 WL 19 1437565, at *2 (W.D. Wash. May 22, 2009) (“[T]he manner in which [the insurer] has handled 20 the claims of other insureds with identical policy language is potentially relevant to this action. 21 Evidence that [the insurer] has acted in an inconsistent manner in resolving claims where similar 22 policies were involved could undermine defendant’s position that the language in question is 23 clear and unambiguous.” (internal quotation marks omitted)). And while the parties dispute the 24 admissibility of extrinsic evidence to resolve the meaning of ambiguous policy language, 25 requested material need not be admissible to be discoverable. Fed. R. Civ. P. 26(b)(1). 26 Still, even relevant discovery must be proportional to the needs of the case. Fed. R. Civ. 27 28 ORDER GRANTING IN PART PLAINTIFF’S MOTION TO COMPEL - 2 1 P. 26(b)(1). Defendants argue that production of all requested materials would be unduly 2 burdensome, as the FDIC-R’s requests for production are worded quite broadly. See Dkt. # 67, 3 App’x A (seeking documents “related to” the contested claim, the meaning of the disputed 4 policy terms, and reinsurance policies). The Court agrees that the FDIC-R’s requests, read 5 literally, would require the production of all documents that contain the disputed policy terms, as 6 those documents would shed light on the “meaning” of the policy terms. Defendants have 7 shown that production of all such documents would be unduly burdensome, and so the Court 8 will limit the scope of First Document Request Nos. 14 and 15, and of Second Document 9 Request No. 2, to materials (1) from the period of 2004 through 2008; (2) that contemplate a 10 dispute over the meaning of the relevant policy term; (3) in the context of a fidelity bond 11 insurance policy like the ones at issue in this case. 12 Finally, defendants may not evade their discovery responsibilities through the wholesale 13 assertion of attorney-client or work-product privilege. Rather, defendants may assert specific, 14 applicable privileges in a privilege log. 15 16 For all the foregoing reasons, plaintiff’s motion to compel (Dkt. # 67) is GRANTED in 17 part. The parties are directed to meet and confer and to work in good faith to narrow the 18 categories of materials sought, which will further reduce the burden on defendants and will 19 maximize the utility of discovery for both parties. 20 21 SO ORDERED this 4th day of April, 2017. 22 23 A 24 Robert S. Lasnik United States District Judge 25 26 27 28 ORDER GRANTING IN PART PLAINTIFF’S MOTION TO COMPEL - 3

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