Allstate Indemnity Company v. Lindquist et al

Filing 194

ORDER: Allstate's motion for relief from the discovery-related motions deadline and discovery cutoff, to compel further discovery, and for sanctions against Mr. Lindquist and his counsel (Dkt. # 172 ) is DENIED. Signed by Judge James L. Robart. (LH)

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Case 2:20-cv-01508-JLR Document 194 Filed 05/06/22 Page 1 of 11 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 ALLSTATE INDEMNITY COMPANY, 10 11 12 v. 13 CASE NO. C20-1508JLR ORDER Plaintiff, RANDY LINDQUIST, et al., 14 Defendants. 15 I. 16 INTRODUCTION Before the court is Plaintiff Allstate Indemnity Company’s (“Allstate”) motion to 17 18 extend the discovery-related motions deadline and discovery cutoff, to compel further 19 discovery, and for sanctions against Mr. Lindquist and his counsel. (Mot. (Dkt. # 172); 20 Reply (Dkt. # 183).) Mr. Lindquist opposes the motion. (Resp. (Dkt. # 190).) The court 21 // 22 // ORDER - 1 Case 2:20-cv-01508-JLR Document 194 Filed 05/06/22 Page 2 of 11 1 has considered the parties’ submissions, the relevant portions of the record, and the 2 applicable law. Being fully advised, 1 the court DENIES Allstate’s motion. II. 3 4 BACKGROUND This case stems from a fire that burned down Mr. Lindquist’s house at 6920 Fisher 5 Road in Edmonds, WA (the “Fisher Road House”) on December 25, 2019. (Compl. 6 (Dkt. # 1) ¶¶ 3.12.) The Fisher Road House was subject to an insurance policy issued by 7 Allstate to Mr. Lindquist. (Id. ¶ 3.1.) The background facts have been summarized in the 8 court’s prior orders, so the court focuses below on those facts most relevant to the instant 9 motion. (See, e.g., 3/5/21 Order (Dkt. # 52) at 2-3; 11/24/21 Order (Dkt. # 117) at 2-5.) 10 The parties exchanged initial disclosures on December 15, 2020. (See Sched. 11 Order (Dkt. # 11) at 1; 4/14/22 (Dkt. # 173) ¶ 10, Ex. H (“Initial Disclosures”).) Mr. 12 Lindquist disclosed that Craig Sternberg and Roger Howson were “likely to have 13 discoverable information that” would “support his claims and defenses.” (Initial 14 Disclosures at 3.) Specifically, he disclosed that Mr. Sternberg had discoverable 15 information related to his prior foreclosure action against JPMorgan Chase Bank, N.A. 16 (“Chase”), and that Mr. Howson had discoverable information related to his proofs of 17 loss and the “[i]ndustry standards that apply to the handling of first-party property claims 18 in Washington.” (See id.) 19 // 20 // 21 22 1 The parties do not request oral argument (see Mot. at 1; Resp. at 1), and the court concludes that oral argument would not be helpful to its disposition of the motion, see Local Rules W.D. Wash. LCR 7(b)(4). ORDER - 2 Case 2:20-cv-01508-JLR Document 194 Filed 05/06/22 Page 3 of 11 1 On February 16, 2022, Mr. Lindquist timely disclosed to Allstate that he was 2 designating Mr. Sternberg, Mr. Howson, and Thomas Lether as expert witnesses. (See 3 Mot. at 2; Am. Sched. Order (Dkt. # 30) at 1.) On March 4, 2022, Allstate served Mr. 4 Sternberg, Mr. Howson, and Mr. Lether with notices of deposition and document 5 subpoenas. (See 4/14/22 O’Neill Decl. ¶¶ 3-5, Exs. A-C.) Allstate asked Mr. Sternberg 6 to produce responsive records by April 6, 2022 and to sit for a deposition on April 13, 7 2022. (See id., Ex. C at 2. 2) It asked Mr. Howson to produce responsive records by 8 March 22, 2022 and to sit for a deposition on March 29, 2022. (See 4/14/22 O’Neill 9 Decl., Ex. A at 2. 3) And it asked Mr. Lether to produce responsive records by March 29, 10 2022, and to sit for a deposition on April 5, 2022. (See id., Ex. B at 2. 4) 11 On April 14, 2022, after the March 18, 2022 deadline for filing discovery-related 12 motions had passed and on the cusp of the April 18, 2022 discovery cutoff date, Allstate 13 filed the instant motion. (See generally Mot.; see also Am. Sched. Order at 1.) 14 III. 15 ANALYSIS Allstate requests an extension of the March 18, 2022 deadline for filing discovery- 16 related motions and of the April 18, 2022 discovery cutoff and asks the court to compel 17 (1) Mr. Sternberg to produce his complete files in hardcopy and electronic format and to 18 // 19 20 21 22 2 “[D]ue to time constraints,” Mr. Sternberg’s deposition was “continued without objection.” (See Mot. at 4.) 3 Mr. Howson’s deposition ultimately took place on March 28, 2022. (See 4/29/22 O’Neill Decl. ¶ 3, Ex. 1 at 1.) 4 Mr. Lether’s deposition was rescheduled to April 13, 2022. (See Lether Decl. (Dkt. # 188) ¶ 4, Ex. A (March 21, 2022 deposition notice).) ORDER - 3 Case 2:20-cv-01508-JLR Document 194 Filed 05/06/22 Page 4 of 11 1 sit for a further deposition; (2) Mr. Howson to produce supplemental files; (3) Mr. 2 Roberts to produce responsive records and to sit for a deposition; (4) Mr. Lindquist to sit 3 for a further deposition and to provide his phone for examination; and (5) Mr. Lether to 4 produce his complete file. (Mot. at 1.) Allstate further asks the court to strike Mr. 5 Lether’s declaration, and to sanction Mr. Lindquist and his counsel for their purported 6 discovery violations. (See Reply at 2 n.9; Mot. at 12.) 7 The court first considers whether Mr. Lether’s declaration should be stricken and 8 then turns to consider whether Allstate has shown good cause for the court to extend the 9 discovery-related motions deadline and discovery cutoff. 10 A. 11 Allstate’s Motion to Strike Mr. Lether’s Declaration Allstate asks the court to strike Mr. Lether’s declaration because “it is false and 12 inflammatory.” (See Reply at 2 n.9.) Allstate does not specify which portion of Mr. 13 Lether’s declaration contains false or inflammatory statements, but presumably objects to 14 Mr. Lether’s contention that Allstate failed to pay his expert fees and costs, that such 15 failure is an established habit of Allstate’s counsel, and that Allstate’s counsel acted out 16 of personal animosity toward Mr. Lether during his deposition. (See Lether Decl. ¶¶ 3, 17 10.) The court does not rely on the portion of Mr. Lether’s declaration to which Allstate 18 appears to object. Accordingly, Allstate’s motion to strike is DENIED. 19 B. 20 21 22 Allstate’s Request to Extend the Discovery-Related Motions Deadline and Discovery Cutoff Allstate asks the court to extend the March 18, 2022 deadline for discovery-related motions and April 18, 2022 discovery cutoff so that the court may compel Mr. Lindquist ORDER - 4 Case 2:20-cv-01508-JLR Document 194 Filed 05/06/22 Page 5 of 11 1 to provide further discovery and award sanctions against Mr. Lindquist and his counsel. 2 (Mot. at 1.) Specifically, Allstate seeks additional discovery against five individuals: (1) 3 Mr. Sternberg; (2) Mr. Howson; (3) Mr. Roberts; (4) Mr. Lindquist; and (5) Mr. Lether. 4 (See id.) It contends that good cause exists to extend the discovery-related deadlines 5 because, through the discovery it has taken into Mr. Lindquist’s designated expert 6 witnesses, Allstate identified “significant discovery deficiencies” on Mr. Lindquist’s 7 part, which necessitate further discovery that could not have completed within the time 8 provided by the amended scheduling order. (See id. at 6 (emphasis in original).) 9 “A motion for relief from a deadline should, whenever possible, be filed 10 sufficiently in advance of the deadline to allow the court to rule on the motion prior to the 11 deadline.” Local Rules W.D. Wash. LCR 7(j). The court may grant relief from fixed 12 deadlines, including those set by its scheduling order, only “for good cause.” See Fed. R. 13 Civ. P. 6(b); (see also Am. Sched. Order at 2.) A party’s “failure to complete discovery 14 within the time allowed is not recognized as good cause.” (Am. Sched. Order at 2.) 15 “This standard ‘primarily considers the diligence of the party seeking the amendment.’” 16 Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000) (quoting Johnson v. 17 Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992)). 18 As discussed below, Allstate had ample opportunity to pursue the discovery it now 19 seeks an extension to complete. Its failure to complete discovery and raise disputes 20 before the court in a timely manner reflects a lack of diligence on Allstate’s part, which 21 undercuts its claim that good cause exists to extend the expired discovery deadlines. 22 // ORDER - 5 Case 2:20-cv-01508-JLR Document 194 Filed 05/06/22 Page 6 of 11 1 1. Mr. Sternberg 2 Allstate seeks to compel Mr. Sternberg to produce his complete file and to sit for a 3 re-deposition. (Mot. at 11.) It contends that Mr. Sternberg’s production was untimely 4 and incomplete, which “deprived Allstate of the opportunity to prepare for Mr. 5 Sternberg’s deposition.” (Id.) However, Allstate was aware that Mr. Sternberg had 6 information relevant to Mr. Lindquist’s claims and defenses, at the absolute latest, by the 7 December 15, 2020 initial disclosure date. (See Initial Disclosures at 3; see also 11/30/20 8 Sternberg Decl. (Dkt. # 17).) It could have taken his deposition and requested his files 9 related to Mr. Lindquist and the Fisher Road House at any point thereafter, yet it waited 10 until March 4, 2022, to serve its subpoena, and set the document production deadline and 11 deposition on dates after the discovery motions deadline had passed. (See 4/14/22 12 O’Neill Decl., Ex. C at 2 (requesting Mr. Sternberg produce records by April 6, 2022 and 13 sit for an April 13, 2022 deposition).) Allstate contends that “there was no way for [it] to 14 anticipate the new facts that the expert file production would bring to light.” (Mot. at 6.) 15 That misses the point. If Allstate had exercised greater diligence and sought discovery 16 against Mr. Sternberg sooner, it could have reviewed his productions, used them in 17 deposition, and litigated any disputes within the time allotted by the amended scheduling 18 order. 19 2. Mr. Howson 20 Allstate also asks the court to extend the discovery-related motions deadline and 21 discovery cutoff and to compel Mr. Howson’s “complete file,” including handwritten 22 notes Mr. Lindquist provided to him. (See Mot. at 12.) As with Mr. Sternberg, Allstate ORDER - 6 Case 2:20-cv-01508-JLR Document 194 Filed 05/06/22 Page 7 of 11 1 set the deadline for Mr. Howson to produce records after the motions deadline had 2 expired, thereby foreclosing the possibility that disputes could have been litigated in a 3 timely manner. (See 4/14/22 O’Neill Decl., Ex. A at 2 (requesting that Mr. Howson 4 produce responsive records by March 22, 2022).) Allstate’s failure to do so, when it has 5 been aware of Mr. Howson’s involvement with this matter since at least November 2020, 6 illustrates its lack of diligence in seeking discovery against Mr. Howson. (See Initial 7 Disclosures at 3; see also 11/30/20 Howson Decl. (Dkt. # 18).) Accordingly, Allstate has 8 not shown that good cause exists to extend the motions deadline or discovery cutoff to 9 permit further discovery against Mr. Howson. 10 Furthermore, it is not clear what additional files Allstate seeks from Mr. Howson. 11 Mr. Howson contends that he provided his files to Allstate in advance of his deposition 12 and, shortly thereafter, provided email correspondence to Allstate and also “confirmed 13 there were no handwritten notes related to this matter.” (See 4/25/22 Howson Decl. (Dkt. 14 # 186) ¶ 3; see also 4/29/22 O’Neill Decl. ¶ 5, Ex. 3 at 1; id. ¶ 4, Ex. 2.) Allstate 15 complains that Mr. Howson produced email records after his deposition and the 16 discovery cutoff, but does not contend that it is entitled to further records or to depose 17 Mr. Howson on his emails. (See generally Reply.; see also Mot. at 1.) Accordingly, 18 there is no reason to extend the motions deadline or discovery cutoff so that Allstate can 19 compel further discovery against Mr. Howson. 20 3. 21 Allstate also asks the court to compel Mr. Lindquist to make Mr. Roberts available 22 Mr. Roberts for a deposition as a fact witness, and argues that Mr. Lindquist has wrongly prevented ORDER - 7 Case 2:20-cv-01508-JLR Document 194 Filed 05/06/22 Page 8 of 11 1 that discovery by erroneously designating Mr. Roberts as a consulting expert. (See Mot. 2 at 7-10.) It asserts that it learned that Mr. Lindquist retained Mr. Roberts as a fire 3 investigator through “newly discovered evidence” obtained from Mr. Howson, and 4 argues that an extension of the motions deadline and discovery cutoff is justified on that 5 basis. (See Mot. at 3 (citing 4/14/22 O’Neill Decl. ¶ 12, Ex. J at 1 (Mr. Howson’s 6 activity log showing that he was in touch with Mr. Roberts in June 2020); id. at 6-7.) 7 Because the court concludes that Allstate’s decision to wait until April 2022 to depose 8 Mr. Howson reflects a lack of diligence (see supra at 6-7), Allstate cannot show good 9 cause to extend the discovery deadlines by arguing that it must have an opportunity to 10 11 depose Mr. Roberts with evidence it could have obtained at an earlier date. But even if Allstate was diligent in pursuing discovery against Mr. Howson and in 12 obtaining the activity log showing his contact with Mr. Roberts, that hardly makes Mr. 13 Roberts’s involvement with Mr. Lindquist a newly discovered fact to Allstate. Indeed, 14 Allstate’s own fire investigator, Mark Crowley, testified that Mr. Roberts contacted him 15 in March 2020 to make sure Mr. Crowley had no “object[ion] to [Mr. Roberts] going up 16 and looking at the fire scene” at the Fisher Road House. (See 4/14/22 O’Neill Decl. ¶ 11, 17 Ex. I at 90:21-25; 91:1-12; see also Roberts Decl. (Dkt. # 187) ¶ 4 (recalling that he 18 “reached out to Mark Crowley from EFI-Global a single time for the sole purpose of 19 asking if he had any objection to the possibility of visiting the site”).) Furthermore, Mr. 20 Lindquist’s counsel wrote to Allstate’s counsel on July 8, 2020 to ask that cause-and- 21 origin-related evidence gathered by Allstate “be immediately made available to [Mr. 22 Lindquist’s] own cause-and-origin consultant.” (See 4/25/22 Knudsen Decl. (Dkt. # 184) ORDER - 8 Case 2:20-cv-01508-JLR Document 194 Filed 05/06/22 Page 9 of 11 1 ¶ 8, Ex. D at 1.) Thus, Allstate had ample notice that Mr. Lindquist had, at least 2 tentatively, hired a fire investigator, and even had notice that the fire investigator under 3 consideration was Mr. Roberts. And yet, Allstate failed to seek discovery against Mr. 4 Roberts until March 30, 2022. (See 4/14/22 O’Neill Decl. ¶ 13, Ex. K at 2, 4.) That 5 reflects a lack of diligence on Allstate’s part. 6 4. Mr. Lindquist 7 Allstate also fails to establish that good cause exists to extend the motions 8 deadline and discovery cutoff to compel additional discovery against Mr. Lindquist. 9 Allstate seeks an opportunity to re-depose Mr. Lindquist with the benefit of records it has 10 obtained, or hopes to obtain through this motion to compel, from Mr. Sternberg and Mr. 11 Roberts. (See Mot. at 11.) But Allstate was not diligent in pursuing discovery against 12 Mr. Sternberg or Mr. Roberts (see supra at 6-9), so it cannot show good cause by arguing 13 that it needs more time to re-depose Mr. Lindquist with evidence it failed to diligently 14 pursue prior to his deposition. 15 Allstate’s argument that Mr. Lindquist concealed evidence of a settlement 16 agreement with Chase does not change this result. (See id. at 12.) Allstate relies on a 17 letter produced by Mr. Sternberg, which shows that, on behalf of Mr. Lindquist, Mr. 18 Sternberg and Chase discussed a settlement agreement regarding the Fisher Road House. 19 (See 4/14/22 O’Neill Decl. ¶ 9, Ex. G.) As Mr. Sternberg confirms, however, no deal 20 was ultimately reached. (See 4/25/22 Knudsen Decl. ¶ 13, Ex. I at 57:14-58:14). Thus, 21 Mr. Lindquist did not need to disclose the settlement effort with Chase in response to 22 // ORDER - 9 Case 2:20-cv-01508-JLR Document 194 Filed 05/06/22 Page 10 of 11 1 Allstate’s interrogatory, which asked whether he had “entered into any agreements with 2 JPMorgan Chase.” (See 4/14/22 O’Neill Decl. ¶ 26, Ex. X at 1.) 3 Allstate fares no better in its request to extend the motions deadline and discovery 4 cutoff to examine the cell phone Mr. Lindquist had at the time of the fire. (See Mot. at 5 4.) As Allstate notes, “Mr. Lindquist testified he still ha[d] the phone” during his 6 examination under oath, which took place on August 13, 2020. (See id. (citing Leid Decl. 7 (Dkt. # 9) ¶ 5, Ex. C at 69:4-15.) Allstate does not explain why it waited until February 8 15, 2022 to request Mr. Lindquist’s phone, or why it waited another two months to seek 9 an order compelling production of that evidence. (See 4/14/22 O’Neill Decl. ¶ 24, Ex. V 10 11 (February 15, 2022 spoliation notice regarding Mr. Lindquist’s phone).) Because Allstate failed to diligently pursue the evidence it wishes to use in 12 re-deposing Mr. Lindquist, good cause does not exist to extend the motions deadline or 13 discovery cutoff. 14 5. 15 Finally, Allstate asks the court to extend the motions deadline and discovery cutoff Mr. Lether 16 in order to compel Mr. Lether to produce his complete file. (See Mot. at 1, 12.) As with 17 the other expert witnesses, Allstate set the deadline for Mr. Lether to produce records on 18 a date after the motions deadline had expired, thereby foreclosing the possibility of 19 resolving disputes in a timely manner. (See 4/14/22 O’Neill Decl., Ex. B at 2 (initially 20 requesting that Mr. Lether produce responsive records by March 29, 2022).) In any 21 event, Mr. Lether appears to have produced the entirety of his file, so it is not clear what 22 Allstate would gain from additional time to conduct discovery against him. (See Lether ORDER - 10 Case 2:20-cv-01508-JLR Document 194 Filed 05/06/22 Page 11 of 11 1 Decl. ¶ 8, Ex. C (providing non-privileged materials electronically to Allstate’s counsel 2 on April 22, 2022).) Although Allstate complains that these records were produced after 3 the discovery cutoff, it does not argue that anything is missing from Mr. Lether’s 4 production or that these recently produced records warrant further discovery. (See Reply 5 at 2.) Accordingly, there is no reason to extend the motions deadline or discovery cutoff 6 based on Mr. Lether’s conduct in discovery. 7 C. 8 9 Allstate’s Motion to Compel Further Discovery and for Sanctions Allstate has failed to show good cause that would justify an extension of the March 18, 2022 motions deadline or April 18, 2022 discovery cutoff. Accordingly, its 10 motion to compel further discovery and for sanctions against Mr. Lindquist and his 11 counsel, which was filed on April 14, 2022, is DENIED as untimely. (See Mot.; see also 12 Am. Sched. Order at 1.) IV. 13 14 CONCLUSION For the foregoing reasons, Allstate’s motion for relief from the discovery-related 15 motions deadline and discovery cutoff, to compel further discovery, and for sanctions 16 against Mr. Lindquist and his counsel (Dkt. # 172) is DENIED. 17 Dated this 6th day of May, 2022. 18 A 19 JAMES L. ROBART United States District Judge 20 21 22 ORDER - 11

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