Handy v. State Farm Mutual Automobile Insurance Company, et. al.

Filing 85

MEMORANDUM OPINION AND ORDER granting in part and denying in part Plaintiff's 32 MOTION to Compel Old Republic Insurance Company to Respond to Discovery; Plaintiff shall have through and including 2/15/16 to file his Affidavit and supporting documentation for fees and expenses; defendant shall have 14 days to file a response. Signed by Magistrate Judge Omar J. Aboulhosn on 1/12/2016. (cc: attys; any unrepresented party) (cds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
KYLE HANDY,
Plaintiff,
v.

Civil Action No.: 5:15-CV-01950

STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY, an insurance
company; and OLD REPUBLIC INSURANCE
COMPANY, an insurance company,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff=s Motion to Compel Old Republic Insurance Company
to Respond to Discovery (Document No. 32.), filed on August 14, 2015. Defendant Old Republic
Insurance Company (hereinafter “Old Republic”), by counsel, filed a response (Document No.
35.) This matter is now ripe for a decision by this Court.
BACKGROUND
Plaintiff filed his Complaint in the Circuit Court of Raleigh County on January 16, 2015,
seeking declaratory judgment and asserting various other claims against the Defendants State Farm
Mutual Insurance Company (hereinafter “State Farm”) and Old Republic. State Farm removed
this case to District Court on February 19, 2015. (Document No. 1.) Defendant State Farm filed
its answer to the Plaintiff’s Complaint on February 19, 2015 (Document No. 3.) and Defendant
Old Republic filed its Answer on February 24, 2015. (Document No. 4) On March 27, 2015,
Plaintiff voluntarily dismissed all of its causes of action against the Defendants except a single
declaratory judgment cause of action against each Defendant. (Document No. 7.)
1

Each

declaratory judgment action against the Defendants seeks a declaration finding that the Defendants
failed to make a commercially reasonable offer of underinsured motorist coverage to its insured,
or, in the alternative, failed to obtain knowing and intelligent rejection of underinsured motorist
coverage from their insured. (Id. at Document No. 1.)
On May 15, 2015, Plaintiff filed two Certificates of Service indicating service of Plaintiff’s
First Set of Interrogatories to Defendant Old Republic and Plaintiff’s First Set of Requests for
Production of Documents to Defendant Old Republic. (Document Nos. 13 and 14.)
On July 15, 2015, Old Republic filed its Notice of Service indicating it answered the
Plaintiff’s discovery. (Document No. 29.)
Plaintiff filed his Motion to Compel Defendant Old Republic to Respond to Discovery on
August 14, 2015. (Document No. 32.) Defendant Old Republic responded on August 31, 2015.
(Document No. 35.) Counsel for Plaintiff and Defendant Old Republic filed their respective
affidavits pursuant to Fed. R. Civ. P. 37(a)(1). (Document Nos. 33 and 39.)
In his Motion to Compel, Plaintiff asserts that Old Republic failed to fully and adequately
respond to discovery. Plaintiff argues that Old Republic has relied on general objections,
boilerplate objections, objections that the discovery requests are overly broad and unduly
burdensome or are vague and irrelevant. Furthermore, Plaintiff contends that Old Republic has
failed to disclose documents alleging that the documents are protected from disclosure due to
attorney-client privilege and attorney work product, but that Old Republic has failed to follow the
requirements of Fed. R. Civ. P. Rule 26(b)(5) regarding privilege logs. (Document No. 32.)
Plaintiff further asserts that Defendant Old Republic has failed and refused to answer or produce
documents in response to specific discovery requests (Id.) Plaintiff complains that Old Republic

2

answers several discovery requests with a statement of “no responsive information.” (Document
32 at beginning at ¶ 15.) Finally, Plaintiff objects to the fact that Old Republic “produced over
1,200 pages of documents without specifying which may be responsive to which request” and
seeks an Order from this Court requiring Old Republic to identify the 1,200 pages by Bates
numbers or other identifying information. (Id. at ¶ ¶ 32 and 34.)
ANALYSIS
Rule 37 of the Federal Rules of Civil Procedure provides that if a party fails to answer an
interrogatory or produce a document, the discovering party may move for an Order compelling the
answer. See Fed. R. Civ. P. 37(a)(3)(B) Additionally, the Rule requires a certification Athat the
movant has in good faith conferred or attempted to confer with the person or party failing to make
disclosure or discovery in an effort to obtain it without court action.@ Fed. R. Civ. P. 37(a) (1) Rule
37 also provides that when a Motion to Compel is granted, the court Amust, after giving an
opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the
party or attorney advising that conduct, or both to pay to the movant=s reasonable expenses incurred
in making the motion, including attorney=s fees,@ unless the nondisclosure was substantially
justified or an award of expenses would be unjust. Fed. R. Civ. P. 37(a) (5) (A) (Emphasis added)
Rule 26(b) (1) of the Federal Rules of Civil Procedure provides as follows:
Parties may obtain discovery regarding any nonprivileged matter
that is relevant to any party=s claim or defense - including the
existence, description, nature, custody, condition, and location of
any documents or other tangible things and the identity and location
of persons who know of any discoverable matter. For good cause,
the court may order discovery of any matter relevant to the subject
matter involved in the action. Relevant information need not be
admissible at the trial if the discovery appears reasonably calculated
to lead to the discovery of admissible evidence.
3

The scope of discovery therefore, is limited to nonprivileged information that is relevant
to any party=s claim or defense. See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 352, 98
S.Ct. 2380, 2390, (1978) Although evidence need not be admissible at trial, A[d]iscovery of matter
>not reasonably calculated to lead to the discovery of admissible evidence= is not within the scope
of Rule 26(b)(1)@ Id.
Rule 26(b)(5)(A) states:
[w]hen a party withholds information otherwise discoverable by
claiming that the information is privileged or subject to protection
as trial-preparation material, the party must: expressly make the
claim; and describe the nature of the documents,
communications, or tangible things not produced or disclosed –
and do so in a manner that, without revealing information itself
privileged or protected, will enable other parties to assess the claim.
Rule 33(b) of the Federal Rules of Civil Procedure provides that answers and objections to
Interrogatories shall be made as follows:
(b) Answers and Objections.
(3) Answering Each Interrogatory. Each interrogatory
must, to the extent it is not objected to, be answered
separately and fully in writing under oath.
(4) Objections. The grounds for objecting to an interrogatory
must be stated with specificity. Any ground not stated in a
timely objection is waived unless the court, for good cause,
excuses the failure.
(5) Signature. The person who makes the answers must sign
them, and the attorney who objects must sign any objections.
Similarly, respecting Requests for Production of Documents, Rule 34(b)(2) of the Federal Rules
of Civil Procedure provides as follows:
(b) Procedure.
(2) Responses and Objections.
…
(B) Responding to Each Item. For each item or
category, the response must either state that
inspection and related activities will be permitted as
4

requested or state an objection to the request,
including the reasons.
(C) Objections. An objection to part of a request must
specify the part and permit inspection of the rest.
(D) Responding to a Request for Production of
Electronically Stored Information. The response
may state an objection to a requested form for
producing electronically stored information. If the
responding party objects to a requested form B or if
no form was specified in the request B the party must
state the form or forms it intends to use.
(E) Producing the Documents or Electronically
Stored Information. Unless otherwise stipulated or
ordered by the court, these procedures apply to
producing documents or electronically stored
information:
(i) A party must produce documents as they
are kept in the usual course of business or
must organize and label them to correspond
to the categories in the request;
(ii) If a request does not specify a form for
producing electronically stored information,
a party must produce it in a form or forms in
which it is ordinarily maintained or in a
reasonably usable form or forms; and
(iii) A party need not produce the same
electronically stored information in more
than one form.
AGeneric, non-specific objections will not suffice when posed in response to reasonable Interrogatories.
Objections to reasonable Interrogatories must be specific to each Interrogatory and explain or demonstrate
precisely why or how the party is entitled to withhold from answering.@ VICA Coal Co., Inc. v. Crosby, 212
F.R.D. 498, 503 (S.D. W.Va. 2003)

5

Unresolved Discover disputes between the
Plaintiff and Old Republic with regard to Interrogatories
Plaintiff’s Interrogatory No. 4 and Old Republic’s Answer are as follows:
“For each Old Republic employee, agent or servant identified above,
please state the training and education received by that person
concerning the offer of uninsured and/or underinsured motorist
coverage to Old Republic insureds and the dates any such training
was provided from 2010 to present.
ANSWER: No responsive information.”
(Document No. 32-1.)
Plaintiff’s Motion to Compel alleges that the answer is unclear as to “whether Old Republic
asserts that no such information is available to it, or whether the response is indicated to state that Old
Republic provided no training and education to the individuals identified.” (Document No. 32 ¶ 15.)

Subsequent to receiving Plaintiff’s Motion to Compel, Old Republic, by counsel,
corresponded (Document No. 35-1) with Plaintiff’s counsel on August 24, 2015 as follows:
No. 4
Although I believe the response to this Interrogatory was
unequivocally clear, I will clarify it for (sic) since you did not appear
to understand the response. The response should be read as “no
specific training.” However, as indicated in Defendant’s Responses
to Production, there are generalized training documents that have
already been produced.
Plaintiff’s Counsel replied (Document No. 35-2) to Old Republic via email on August 28,
2015:
Interrogatory No. 4: If training documents exist, which were
produced, please identify those documents by appropriate Bates No.
The response which merely stated “no responsive information” was
misleading if in fact documents were produced which contained
responsive information.
6

Old Republic’s initial answer to Interrogatory No. 4 was unclear at best and inherently nonresponsive at worst.

While Counsel for Old Republic asserts that the initial answer was

“unequivocally clear”, he goes on to clarify that the response should have said “no specific
training” and further asserts general training documents were produced. (Document No. 35-1.)
However, Old Republic fails to specify which of the 1,200 pages of documents produced were
responsive to the interrogatory. The undersigned is hard-pressed to find that Old Republic’s
original answer and supplementation “fully” answered Interrogatory No. 4. In view of Defendant
Old Republic having failed to properly answer the interrogatory, the undersigned GRANTS
Plaintiff’s Motion to Compel (Document No. 32.) respecting Interrogatory No. 4. Defendant Old
Colony shall be required to reproduce the 1,200 pages of documents and identify the same by Bates
numbers that are responsive to Interrogatory No. 4.1
Plaintiff’s Interrogatory No. 5 and Old Republic’s answer are as follows:
If you or any of your agents, servants, contractors, brokers or
employees or any one acting on your behalf have had any
conversations with the Plaintiff, please provide as follows:
a.
Date of any such statement or discussion;
b.
The content or details of any such statement or
discussion; and,
c.
Whether any such statement or discussion was
recorded.
ANSWER: Carl Warren company may have had contact with
Plaintiff. No other responsive information.
(Document No. 32-1.)
Plaintiff’s Motion to Compel asserts that Old Republic
fails to provide the information requested by subparts a, b, or c.
Further, the portion of the response which states “no other
responsive information” is inappropriate. Information regarding
1 See discussion below regarding production of documents pp. 19-24, infra.

7

whether Carl Warren Company did or did not communicate with
Plaintiff is available to Defendant, as is the remainder of the
information requested.
(Document No. 32 ¶ 17.)
Old Republic, in response to the Plaintiff’s Motion to Compel, supplemented its answer
and stated:
Once again, the response to this Interrogatory was unequivocally
clear, but to the extent you require clarification, Old Republic has
no further information on any details of the contact between Carl
Warren and Plaintiff, separate and apart from any information
contained in documents produced.
(Document No. 35-1.)
However, Plaintiff once again asserts that the supplementation by Old Republic is deficient
and corresponds to Old Republic via email on August 28, 2015 by stating: “Interrogatory No. 5:
Your correspondence indicates that documents produced contain responsive information.
However, no documents were identified in your response. Please identify responsive documents
by Bates Nos.” (Document No. 35-2.) Old Republic asserts in its brief that
With regard to Interrogatory No. 5, Plaintiff requested
information on anyone having conversations with Plaintiff.
Despite the fact this information is clearly already in
Plaintiff’s possession, Defendant indicated McKesson’s Third
Party Administrator, Carl Warren Company, may have had
contact with Plaintiff. … Defendant also produced information
in its possession from Carl Warren Company. . . . Despite
Plaintiff’s protests otherwise, Defendant submits that these
responses meet the spirit and substance of compliance with the
Federal Rules of Civil Procedure.
(Document No. 35.)
The undersigned cannot fathom how Old Republic’s initial answer to Interrogatory No. 5
fully answered that specific interrogatory nor how it met “the spirit and substance” of the rules.
Furthermore, Old Republic’s supplementation indicates documents were produced but did not
8

specify in any reasonable way which of the 1,200 pages specifically applied to that interrogatory.
The undersigned finds that Old Republic’s assertion that the original answer was “unequivocally
clear” is disingenuous. Once again, the undersigned is hard-pressed to find that Old Republic’s
original answer and supplementation “fully” answered Interrogatory No. 5. In view of Defendant
Old Republic having failed to properly answer the interrogatory, the undersigned GRANTS
Plaintiff’s Motion to Compel (Document No. 32.) respecting Interrogatory No. 5. Defendant Old
Colony shall be required to answer the subparts and shall reproduce the 1,200 pages of documents
and identify the same by Bates numbers that are responsive to Interrogatory No. 5.
The undersigned next turns to the issues surrounding Plaintiff’s Interrogatory Nos. 8, 9 and
10 and Old Republic’s responses as follows:
8. Please state whether you have ever been named as a defendant in
West Virginia in any civil action during the past ten (10) years
concerning a first-party claim involving uninsured or underinsured
motorist coverage including, but not limited to, a claim that Old
Republic’s offer of uninsured and/or underinsured motorists
coverage was not made in a commercially reasonable manner. If
so, then please state:
a.
The court style and civil action number of the civil
action;
b.
The name(s) of the plaintiff(s) involved; and,
c.
The results or the final resolution, if any, of the civil
action.
ANSWER: Objection. This request seeks information
that is available through public records, and thus seeks
to impose a burden upon the Defendant that is greater
than allowable under the Civil Rules.

9.
Please state whether you have ever been named as a
defendant in West Virginia in any civil action during the past ten
(10) years concerning allegations of bad faith and/or violations of
the West Virginia UTPA or West Virginia insurance regulations. If
so, then please state:
9

a.
The court style and civil action number of the civil
action;
b.
The name(s) of the plaintiff(s) involved; and,
c.
The results or the final resolution, if any, of the civil
action.
ANSWER: Objection. This request seeks information
that is available through public records, and thus seeks
to impose a burden upon the Defendant that is greater
than allowable under the Civil Rules.
10.
Please state whether you have ever been named as a defendant
in any state or jurisdiction other than West Virginia during the past
five (5) years concerning allegations of bad faith or violations of state
law or state insurance regulations. If so, then please state:
a.
The court style and civil action number of the civil
action;
b.
The name(s) of the plaintiff(s) involved; and,
c.
The results or the final resolution, if any, of the civil
action.
ANSWER: Objection. This request seeks information
that is available through public records, and thus seeks to
impose a burden upon the Defendant that is greater than
allowable under the Civil Rules.
(Document No. 32-1.)
Plaintiff’s Motion to Compel states: “In response to Interrogatory Nos. 8, 9, and 10,
Defendant incorrectly states that the Civil Rules do not require Old Republic to provide information
which is available through public records. This is not the standard or the scope of discovery contained
within the Federal Rules.” (Document No. 32.) In response, Old Republic’s Counsel supplemented
the answers as follows:

No. 8
No.
No. 9
10

No.
No. 10
In addition to the previous objection, this request is not calculated
to lead to relevant or admissible evidence. As you know, there is
only one claim pending against Old Republic. In that regard, your
client seeks a declaratory judgment against Old Republic that Old
Republic must provide underinsured insurance coverage to your
client. As I am sure you are aware, whether a commercially
reasonable offer was made and a knowing and informed rejection
received is an inquiry peculiar to each insured. Martin v. State Farm
Mut. Auto. Ins. Co., 809 F. Supp. 2d 496 (S.D.W. Va 2011).
Whether or not Old Republic has been named as a defendant in a
state or jurisdiction other than West Virginia relative to allegations
of bad faith or violation of insurance laws has no bearing whatsoever
on the issue in this present case.
(Document No. 35-1.)

Plaintiff’s Counsel, via email, responded to Old Republic’s supplementation on August 28,
2015, as follows:
Interrogatory Nos. 8 and 9 is the response “no” Defendant will not
supplement, or “no” defendant has (sic)
Interrogatory No. 10: Your attempt to make additional objections is
inappropriate, as objections not made at the time of responding are
waived. This interrogatory remains in issue, as no substantive
response has been provided.
(Document No. 35-2.)
Old Republic, in its Brief in Opposition asserts:
With regard to Interrogatory Nos. 8 & 9, Defendant properly
responded to these interrogatories. Plaintiff’s attempt to misinterpret
Defendant’s supplemental responses should be disregarded. (Ex. 1
& 2). It is clear Defendant provided supplementary responses of
“no” to the interrogatories (and not that Defendant was stating “no”
it would not provide any additional response).
With regard to Interrogatory No. 10, Plaintiff sought
information about cases outside of West Virginia where Defendant
had been named as a defendant in a bad faith or violation of
11

insurance law claim. Based on Martin v. State Farm Mut. Auto. Ins.
Co., 809 F. Supp. 2d 496, 510 (S.D.W. Va 2011), this information
is clearly irrelevant to the current claim at issue. Notwithstanding
the clear case law on this issue, Defendant will supplement its
response to state ‘no.’
(Document No. 35 at page 3.)
With regard to Interrogatories No. 8 and 9, the undersigned once again finds that Old
Republic has failed to answer the interrogatories properly. First, the initial objection by Old
Republic is non-responsive. Furthermore, it is unreasonable to respond by suggesting that the
Plaintiff should search every other jurisdiction in the country to find out if Old Republic was sued
for similar conduct. Clearly, Old Republic has that information and can answer it readily as
contemplated by the Rules. Second, the supplemental answers of “No” to both of the
interrogatories are confusing, non-responsive and provide no further clarity on the issue.
Old Republic’s approach to discovery issues in this case, as evidenced by the pleadings
filed regarding the instant matter, is troubling. Old Republic’s responses were disingenuous and
indicated an intent to act in a manner inconsistent with the expectation that parties would act in
good faith as contemplated by the Rules is troubling. The same could be said of Old Republic’s
response to Interrogatory No. 10, however, the undersigned agrees with Old Republic that, in light
of Plaintiff’s voluntary dismissal of all other claims, but for the declaratory judgment actions, the
interrogatory is irrelevant.
In view of Defendant Old Republic having failed to properly answer the interrogatories 8
and 9, the undersigned GRANTS Plaintiff’s Motion to Compel (Document No. 32.) respecting
Interrogatory Nos. 8 and 9. However, the Court hereby DENIES the motion to Compel with
regard to Interrogatory No. 10.

12

Plaintiff’s Interrogatory No. 13 and Old Republic’s answer state:
13. Please identify the name, job title and business address of the
Old Republic employee(s) who made the decision or determination
to deny the plaintiff’s claim for underinsured motorist coverage
regarding the March 26, 2013, motor vehicle accident.
ANSWER: There was no specific decision to deny Plaintiff’s
claim for underinsured motorist coverage. Rather, Doug Ebben
of Old Republic reviewed the policy and noted that the insured
did not elect Underinsured Motorist Coverage.
(Document No. 32-1.)
Plaintiff’s Motion to Compel on this matter states at ¶ 25:
Interrogatory No. 13 sought the job title and business address of any
Old Republic employee identified. The same was not provided.
(Document No. 32.)
Old Republic replied to Plaintiff’s Motion to Compel on this issue by
supplementing as follows:
No. 13.
As indicated in the response, there was no employee of Old Republic
who made a decision to deny Plaintiff’s claim for underinsured
motorist coverage. Providing the name of the person who noted that
the insured did not elect Underinsured Motorist Coverage was done
in an attempt to provide a full and fair response. As such, there is no
job title and business address of “the Old Republic who made a
decision to deny Plaintiff’s claim for underinsured motorist
coverage” to provide.
(Document No. 35-1.)
However, Plaintiff continues to insist that: “As the supplement did not provide the job title
or business address of the employee identified, this interrogatory remains in issue.” Document No.
35-2.). Finally, Old Republic in its Brief in Opposition states:
With regard to Interrogatory No. 13, Plaintiff sought
information on Defendant’s employee who “made the decision or
13

determination to deny Plaintiff’s claim...” Defendant unequivocally
responded that no such determination was made. Rather, the policy
itself dictated the coverage available. …In an abundance of caution
and for purposes of full disclosure, Defendant also stated that its
employee reviewed the policy and conveyed the information
contained in the policy. ... Unfortunately, Plaintiff somehow still
believes the response is inadequate. Plaintiff’s position is without
merit and no further information on this issue should be required.
(Document No. 35 at Page 4.)
The undersigned emphatically agrees with Old Republic that the answer by Old Republic
is clear and responsive. While the answer did not give the job title of Doug Ebben, this Court
notes that by Old Republic identified Mr. Ebben in its response to Interrogatory No. 1 as a “Sr.Claims Specialist with Old Republic Risk Management”. It is simply unreasonable for Plaintiff
to have filed a Motion to Compel as it relates to the job title of Mr. Ebben when his job title was
clearly set forth in the answer to Plaintiff’s Interrogatory No. 1. Therefore, the Court hereby
DENIES Plaintiff’s Motion to Compel as it relates to Interrogatory No. 13.
Unresolved Discovery Disputes between the Plaintiff
and Old Republic with regard to Requests for Production of Documents
The disputes between the Plaintiff and Defendant, Old Republic, regarding the Plaintiff’s
Requests for Production of Documents, can be categorized as two separate issues. First, Plaintiff
objects to the manner in which Counsel for Old Republic has asserted privileges with regard to
Request Nos. 1 and 15. Plaintiff argues that Old Republic has not followed the rules regarding
how privileges, asserted by Old Republic, are raised. Specifically, Plaintiff complains that Old
Republic failed to file a privilege log and subsequently filed two privilege logs that were “not
sufficient.” (Document No. 35-2.) Second, Plaintiff objects to the manner in which Old Republic
produced over 1,200 pages of documents without reference to which discovery requests the

14

documents were being produced. The Plaintiff suggested that the documents be identified by
“Bates” stamping and that the specific Bates stamped pages be further referenced to the specific
discovery response (e.g. Request “x”, see Bates stamp Nos. 1-5.)
a. Privilege Logs
The Plaintiff’s issues regarding privilege logs relate to his Requests for Production of
Documents Nos. 1 and 15 and Old Republic’s responses as follows
1. Please produce a true, complete, accurate and authentic copy of
the entire claims file, written or electronic, concerning the plaintiff’s
claim and the March 26, 2013, automobile accident referenced in
the Complaint.
RESPONSE: Objection. The requested materials are protected by
attorney work product, attorney-client privilege and/or prepared in
anticipation of litigation.
…
15. Please produce a true, complete, accurate and authentic copy of
any engagement or other letter outlining or detailing the scope of the
duties regarding ay (sic) attorney or law firm (outside or Old
Republic) and concerning any work or opinions provided by said
attorney or law firm relative to plaintiff’s claim involving March 26,
2013, automobile accident.
RESPONSE: Objection, this request invades the attorney-client
privilege and the work product doctrine.
(Document No. 32-2.)
Plaintiff, in his Motion to Compel, argues that the Old Republic failed to include a
privilege log with regard to these requests and specifically states:
The attorney-client privilege and attorney work product doctrine
were asserted in response to Request for Production Nos. 1 and
15. This objection, in the absence of a privilege log is an
improper objection. Rule 26(b)(5) of the Federal Rules of Civil
Procedure requires that “[w]hen a party withholds information
otherwise discoverable by claiming that the information is
15

privileged or subject to protection as trial-preparation material, the
party must: expressly make the claim; and describe the nature
of the documents, communications, or tangible things not
produced or disclosed – and do so in a manner that, without
revealing information itself privileged or protected, will enable
other parties to assess the claim.” Fed. R. Civ. P., Rule 26 [2010];
see also Susko v. City of Weirton, 2011 WL 98557 (N.D.W.Va.
January 12, 2011).
(Document No. 32 at ¶ 29.)
Old Republic responded to the Plaintiff’s Motion to Compel by letter to Plaintiff’s Counsel
on August 24, 2015, and stated:
Requests for Production
No. 1
See attached privilege log
…
No. 15
See attached privilege log
(Document No. 35-1).
The “attached privilege log” consisted of a single page and statement, in its entirety as
follows:2
Privilege Log
Communications between Old Republic and counsel since
inception of lawsuit and information intended for counsel.
Plaintiff’s Counsel responded to the August 24, 2015, letter from Old Republic’s Counsel
via email dated August 28, 2015, and stated:
Request Nos. 1, 15
The privilege log provided is not sufficient under the Rules of Civil
Procedure to allow the Court to review the documents and make a
ruling on the applicable privilege and protections, nor is it specific
2 The Court notes that the privilege log was not filed with the Court and is not part of the Court’s docket. The
Court requested of its law clerk to contact counsel for both parties to obtain copies of the initial privilege log and the
supplemental privilege log that will be discussed below. Plaintiff’s Counsel responded by providing PDF copies of
both privilege logs submitted by Old Republic.

16

enough to allow Plaintiff’s counsel to determine if a request to have
the documents reviewed is necessary. A privilege log must identify
the nature of each document, the date of its transmission or creation,
the author and recipients, the subject, and the privilege asserted.
Westfield Ins. Co. v. Carpenter Reclamation, Inc., 301 F.R.D. 235
(S.D.W.Va. 2014). Failure to provide an adequate privilege log may
constitute waiver of any asserted privileges. Id. (internal citation
omitted).
(Document No. 32-2.)
In Old Republic’s Brief in Opposition to Plaintiff’s Motion to Compel, Old Republic states:
With regard to Requests for Production Nos. 1 & 15, Defendant
asserted privilege with respect to varying documents. Plaintiff
requested a privilege log and Defendant complied. (Ex. 1). Plaintiff
asserted the privilege log was inadequate. Defendant is providing
a supplemental privilege log that can be addressed in Plaintiff’s
Reply Brief.
(Document No. 35.)
Old Republic’s “supplemental privilege log” consisted of one page and stated the following
in its entirety:
Privilege Log
Claim note emails (Bates Numbered ORRM 01370 – 1402) between
Jane Leonard (Carl Warren and Company), Kristi Lawson
(McKesson), Doug Ebben (Old Republic), and Anthony
Catanzarite (Reminger Co. LPA) dating from 10-2-13 through 210-15 regarding the receipt of the claim from Plaintiff, contact with
Plaintiff’s counsel, receipt of lawsuit, and retention of counsel.3
It is obvious that Old Republic’s assertion of privilege fails to comply with Rule 26 of the
Federal Rules of Civil Procedure and this Court’s previous ruling on this very issue as laid out in
the case cited by Plaintiff wherein this Court held:
Rule 26(b)(5)(A) provides as follows respecting the withholding of
information considered privileged:
3 See Footnote 2, above.

17

Information Withheld. When a party withholds
information otherwise discoverable by claiming that
the information is privileged or subject to protection
as trial-preparation material, the party must:
(i) expressly make the claim; and
(ii) describe the nature of the documents,
communications, or tangible things not produced or
disclosed—and do so in a manner that, without
revealing information itself privileged or protected,
will enable other parties to assess the claim.
A privilege log must contain “specific facts which, taken as true,
establish the elements of the privilege for each document for
which privilege is claimed. A privilege log meets this standard,
even if not detailed, if it identified the nature of each document,
the date of its transmission or creation, the author and
recipients, the subject and the privilege asserted.” Clark v.
“Unum Life Ins. Co. of America, 799 F.Supp.2d 527, 536
(D.Md.2011), quoting N.L.R.B. v. Interbake Foods, LLC, 637 F.3d
492, 502 (4th Cir.2011) (Footnote omitted.) A summary of the
specific facts underlying the assertion of the privilege respecting
each of the documents or category of documents withheld and an
adequate explanation of why each document or category of
documents withheld as privileged are required. The Rule 26
Advisory Committee Notes, 1993 Amendments, state that “[t]o
withhold materials without such notice is contrary to the rule,
subjects the party to sanctions under Rule 37(b)(2), and may be
viewed as a waiver of the privilege or protection.” See also
Herbalife Intern., Inc. v. St. Paul Fire and Marine Ins. Co., 2006
WL 2715164 (N.D.W.Va.)(“Failure to timely produce or production
of an inadequate privilege log may constitute a waiver of any
asserted privileges. However, some courts have held that the waiver
of a privilege extends only to those cases in which the offending
party committed unjustified delay, inexcusable conduct or bad faith
in responding to discovery.” (Citations omitted.)) Sanctions under
Rule 37(b)(2) include the requirement that “the court ... order the
disobedient party, the attorney advising that party, or both to pay the
reasonable expenses, including attorney's fees, caused by the failure,
unless the failure was substantially justified or other circumstances
make an award of expenses unjust.” Rule 37(b)(2)(C). (Emphasis
added.)
Westfield Ins. Co. v. Carpenter Reclamation, Inc., 301 F.R.D. 235, 246-47 (S.D.W.Va. 2014)
18

Counsel for Old Republic, even after having been provided the above referenced authority,
failed to heed to the dictates of the Rules and the case law on this issue. Of the two privilege logs
submitted by Old Republic, neither comply with the Rules or case law.

Simply put, Old

Republic’s counsel ignored the requirements of the Rules and the procedures set forth therein.
There is no question that Plaintiff’s Motion to Compel is justified in this instance. Had Old
Republic followed the proper procedures and requirements as outlined above when it submitted its
supplemental privilege log, the undersigned could have overlooked Old Republic’s initial failure
to follow the rules. However, Old Republic continued to obstruct the orderly process of discovery
and the spirit and intent of the rules, in spite of having the appropriate procedure outlined by the
rules and recent case law, necessitating Plaintiff to resort to the Court to remedy Old Republic’s
blatant disregard of the rules. In view of Old Republic having failed to properly comply with the
rules, the undersigned GRANTS Plaintiff’s Motion to Compel (Document No. 32.) respecting
Requests for Production of Documents Nos. 1 and 15.
Having concluded that Old Republic's privilege log does not meet the dictates of Rule
26(b)(5)(A), the undersigned must consider whether the “extreme sanction of waiver” is
appropriate in this case. See Westfield Ins. Co., 301 F.R.D. at 248. Federal courts have typically
found waiver appropriate where unjustified delay, inexcusable conduct, or bad faith are present.
Id. at 247. While Old Republic should have realized its document descriptions were inadequate,
the undersigned finds that the current circumstances do not justify application of the harshest
remedy. Accordingly, the Court FINDS that waiver of privilege related to the withheld documents
is not an appropriate sanction at this juncture. Instead, the Court ORDERS Old Republic to
supplement the privilege log with more detailed descriptions of the withheld documents in
19

accordance with Federal Rule of Civil Procedure 26(b)(5)(A), so that Plaintiffs may “make an
intelligent determination about the validity of the assertion of the privilege,” by Old Republic.
Auto. Club of N.Y., Inc., 2014 WL 2518959, at *5. Old Republic is ORDERED to provide the
updated privilege log to Plaintiffs within ten (10) days of the entry of this Order.
b. 1,200 pages of Documents
The remaining disputes, regarding Requests for Production of Documents Nos. 2-14, 16,
17, 23 and 24, all concern the mass disclosure of over 1,200 pages of documents by Old Republic
in response to the Plaintiff’s discovery. (Document No. 32 ¶¶ 32-36).

Plaintiff essentially

requests that Old Republic identify by “Bates” numbers which of the particular documents are
responsive to the specific discovery request.
Old Republic, by letter of counsel dated August 24, 2015, in response to Plaintiff’s Motion
to Compel, stated as follows:
With respect to your issues with the responsive documents, as you
know, Civ. R. 34 requires a party must “produce documents as they
are kept in the normal course of business or must organize and
label them to correspond to the categories in the request.” My
understanding is these documents were produced in the form in
which they are kept in the normal course of business (obviously
absent the bates labeling that was added).
(Document No. 35-1.)
Plaintiff reiterated the problem with receiving the mass production of documents without
specifying which document was responsive to which request via email dated August 28, 2015, as
follows:
Request Nos. 2, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 23, 24
Your correspondence is correct. Documents provided in response to
a singular request may be produced in the fashion noted. However,
1,200 pages of documents may not be produced, with no indication
as to which documents are responsive to which request.
20

Request Nos. 3 and 6
Please see the above statements regarding identifying responsive
documents by request.
(Document No. 35-2.)
Old Republic, in its Brief in Opposition stated:
With regard to Requests for Production Nos. 2, 3, 4, 5, 6, 7, 8, 9,
10, 11, 12, 13, 14, 16, 17, 23, 24, Plaintiff requested certain
documents and other tangible items. Pursuant to the clear language
of Rule 34 of the Federal Rules of Civil Procedure, Defendant
produced the documents “as they are kept in the normal course of
business.” While Plaintiff agrees that Defendant is correct in this
assertion, Plaintiff seeks to impose an additional burden not
contemplated by the Federal Rules of Civil Procedure. ... In that
regard, despite the clear language of the rule, Plaintiff essentially
seeks to compel Defendant to “organize and label them to
correspond to the categories in the request.” Given that Civ.R. 34
clearly states a party may either produce documents as they are kept
in the ordinary course of business OR organize and label them,
Plaintiff’s request to compel Defendant in this regard is without
merit and should be denied.
(Document No. 35 at p. 4.)
Essentially, Old Republic asserts that it produced over 1,200 pages in the same manner in
which Old Republic “kept [them] in the ordinary course of business” and therefore pursuant to the
rules, Old Republic is not required to “organize and label” the documents any further. Fed. R.
Civ. P. 34. However, this Court finds it very unlikely that Old Republic keeps the records in the
same manner as produced to the Plaintiff. A District Court in New York faced with a similar
scenario found as follows:
The most obvious means of complying with the requirement of Rule
34(b) to produce documents as they are kept in the usual course of
business is to permit the requesting party to inspect the documents
where they are maintained, and in the manner in which they are
21

organized by the producing party. It logically follows that when
production occurs by means other than permitting the demanding
party access to the original records as they are organized and
maintained by the responding party, such as by instead choosing to
copy the documents and produce the duplicates, they must be
organized in such a way that the system utilized by the producing
party is replicated; in other words, the documents should be
produced, organized and labeled and, if appropriate, indexed just as
they are maintained by the producing party.
Pass & Seymour, Inc. v. Hubbell Inc., 255 F.R.D. 331, 336 (N.D.N.Y. 2008).
As in this case, the moving party in Pass & Seymour faced a similar problem with the mass
production of documents. Specifically, that Court noted: “The production by P & S of 405,367
pages of documents devoid of any index or table to help illuminate the organizational regime
utilized by P & S falls short of meeting the obligations imposed under Rule 34(b)(2).” Id.

Similarly, a United States District Court in Kansas dealing with 3,000 pages of documents
that were disclosed in similar fashion to the case at bar found:
Upon review of the pleadings and exhibits submitted by the
parties in conjunction with this motion, the Court finds no
information about the manner in which the referenced documents
were produced; i.e., where these documents were maintained or who
maintained them and whether the documents came from one single
source or file or from multiple sources or files. In short, Plaintiff
fails to provide the Court with any information, let alone evidentiary
proof, to establish that the documents were produced as kept in the
ordinary course of business.
Rule 34 does not explain what it means to produce
documents “as they are kept in the usual course of business.” The
Court, however, finds the facts here very similar to the facts in
Cardenas v. Dorel Juvenile Group, Inc. In Cardenas, this Court held
that a party who chooses the Rule 34(b) option to produce
documents as they are kept in the ordinary course of business bears
the burden of showing that the documents were in fact produced in
that manner and that a mere assertion that they were so produced is
not sufficient to carry that burden.
22

In light of the foregoing, the Court finds that Plaintiff has not
met his burden to establish that he produced these documents “as
they are kept in the usual course of business.” Because Plaintiff did
not do so, he should have organized and labeled them to correspond
with the categories in each request, as required by Rule 34(b). As
the documents already have been provided, the easiest way for
Plaintiff to comply with the “organize and label” requirement is for
Plaintiff to identify by bates number which documents are
responsive to each request. To that end, Plaintiff will be ordered
to serve amended discovery responses to those requests that he
responded to by referring to “previously produced” documents,
and will be further ordered to identify by bates stamp number
which documents are responsive to which requests.
Johnson v. Kraft Foods N. Am., Inc., 236 F.R.D. 535, 540-41 (D. Kan. 2006) (Emphasis added).
Similarly, this Court hereby FINDS that Old Republic has not sustained its burden of
showing that the 1,200 pages of documents disclosed to the Plaintiff were disclosed “as they are
kept in the usual course of business.” The undersigned hereby GRANTS Plaintiff’s Motion to
Compel (Document No. 32.) respecting Requests for Production of Documents Nos. 2-14, 16,
17, 23 and 24. Therefore, this Court ORDERS that Old Republic shall have 10 days from entry
of this Order to serve amended discovery responses by reproducing the said documents with bates
stamp numbers and is further ORDERED to identify by bates stamp numbers which documents
are responsive to which requests.
The undersigned is troubled by the manner in which Old Republic and its counsel
responded to the discovery requests and motion to compel that forms the subject of this Order.
Old Republic’s counsel failed to follow the spirit and intent of the rules and further failed to follow
case law that clearly set forth appropriate procedures to comply with the rules. The Court notes
that there are further discovery disputes filed in this matter by the Plaintiff against Old Republic.
(See Document Nos. 66 and 67.) Old Republic would be wise, in light of this Court’s Order
23

herein, to re-evaluate any outstanding discovery disputes to determine if any outstanding issues,
similar to the ones in this Order, can be corrected and mooted without further action by the
undersigned4. Should similar matters be outstanding that are not rectified by the parties in the
fashion outlined herein and should the undersigned be required to resolve those outstanding issues,
the undersigned will consider imposing sanctions under Rule 37(b). However, as it relates to this
matter presently pending before the Court, Rule 37(a)(5)(A) provides:
If the motion is granted--or if the disclosure or requested discovery
is provided after the motion was filed--the court must, after giving
an opportunity to be heard, require the party or deponent whose
conduct necessitated the motion, the party or attorney advising that
conduct, or both to pay the movant's reasonable expenses incurred
in making the motion, including attorney's fees. But the court must
not order this payment if:
(i) the movant filed the motion before attempting in good
faith to obtain the disclosure or discovery without court
action;
(ii) the opposing party's nondisclosure, response, or
objection was substantially justified; or
(iii) other circumstances make an award of expenses unjust.

The Court notes that Old Republic’s counsel indicated in his Affidavit that he attempted to
contact Plaintiff’s counsel at noon on August 14, 2015, the date that Plaintiff had set for
compliance, after which the Plaintiff would file a Motion to Compel. (Document No. 39.)
Plaintiff’s Counsel, in her affidavit indicated that her letter outlining the dispute “invited a response
no later than August 14, 2015.” (Document No. 33.) Old Republic’s counsel appears to suggest
that he did not have an opportunity to attempt to resolve the matter in good faith because Plaintiff
filed the Motion to Compel before the end of the deadline set by Plaintiff. However, after having

4 Should the parties be able to resolve any outstanding discovery issues presently pending before the Court, the
parties are advised to promptly file an appropriate motion noting that the outstanding motions have been mooted.

24

detailed the responses by Old Republic subsequent to the August 14, 2015 deadline as set forth
above, this Court FINDS that Old Republic did not attempt in good faith to resolve the dispute.
Furthermore, contacting Plaintiff’s Counsel at noon on the potential last day to resolve the dispute
also does not evidence intent to act in good faith.
Therefore, it is hereby ORDERED that Plaintiff shall have through and including
February 15, 2016, in which to file an Affidavit of reasonable fees and costs incurred in making
and arguing their Motion to Compel, as well as any supportive documentation or argument to
justify the amount of fees and expenses requested. See Robinson v. Equifax Information Services,
LLC, 560 F.3d 235, 243–44 (4th Cir.2009). Within fourteen (14) days after Plaintiffs have filed
the aforementioned documents, Old Republic shall file a response either agreeing to the amount
requested, or objecting to specific fees or costs. Old Republic is hereby notified that the failure to
file a response shall be deemed an agreement with the representations and arguments of Plaintiffs.
Based on the discussion above, Plaintiff’s Motion to Compel is GRANTED in part and
DENIED in part as specifically set forth below:
1) Plaintiff’s Motion to Compel regarding Interrogatory Nos. 4, 5, 8, and 9 are
GRANTED and Old Republic is ORDERED to provide the discovery consistent with this Order
to Plaintiff within ten (10) days of the entry of this Order.
2) Plaintiff’s Motion to Compel regarding Interrogatory Nos. 10 and 13 are DENIED.
3) Plaintiff’s Motion to Compel regarding Requests for Production of Documents Nos.
1 and 15 concerning Old Republic’s Privilege Logs is GRANTED and Old Republic is
ORDERED to provide the updated privilege logs, consist with this Court’s Order, to Plaintiff
within ten (10) days of the entry of this Order.

25

4) Plaintiff’s Motion to Compel regarding Requests for Production of Documents Nos.
2-14, 16, 17, 23 and 24, is GRANTED and ORDERS Old Republic shall have 10 days from entry
of this Order to serve amended discovery responses by reproducing the said documents with bates
stamp numbers and is further ORDERED to identify by bates stamp numbers which documents
correspond to which requests.
5) Plaintiff shall have through and including February 15, 2016, to file his Affidavit and
supporting documentation for fees and expenses. Defendant shall have 14 days to file a response
either agreeing to the amount requested, or objecting to specific fees or costs.
In accordance with Rule 72(a) of the Federal Rules of Civil Procedure, the ruling set forth
above on this non-dispositive motion may be contested by filing, within 10 days, objections to this
Order with District Judge Irene Berger. If objections are filed, the District Court will consider the
objections and modify or set aside any portion of the Order found clearly to be erroneous or
contrary to law.
The Clerk is directed to send a copy of this Order to counsel of record.
ENTER: January 12, 2016.

26