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Mary Jo Lyon v. Bankers Life and Casualty

January 14, 2011

MARY JO LYON,
PLAINTIFF,
v.
BANKERS LIFE AND CASUALTY COMPANY, DEFENDANT.



The opinion of the court was delivered by: Jeffrey L. VIKEN United States District Judge

PLAINTIFF'S MOTION TO COMPEL DISCOVERY

Pending before the court is plaintiff's first motion to compel. (Docket 33). Plaintiff's motion seeks an order requiring defendant to comply with the initial disclosure requirements of Fed. R. Civ. P. 26 and to provide responsive answers to plaintiff's first request for production of documents to defendant. Id. Plaintiff has complied with Fed. R. Civ. P. 37(a)(1) and D.S.D. Civ. LR 37.1 by attempting, in good faith, to resolve her differences with defendant before bringing the motion to compel before the court. Id.

FACTUAL BACKGROUND

Plaintiff's complaint (Docket 1-6) and amended complaint (Docket 1-3) were originally filed in the Seventh Judicial Circuit Court for Pennington County, South Dakota. The director of the South Dakota Division of Insurance admitted service of the summons and complaint on August 10, 2009. (Docket 1-2). Defendant filed a notice of removal (Docket 1) on August 28, 2009, on the basis of diversity of citizenship and this court's jurisdiction pursuant to 28 U.S.C. §§ 1332 and 1441. On September 4, 2009, defendant filed its answer to plaintiff's amended complaint. (Docket 6). In its answer, defendant asserted 54 affirmative defenses and a number of other defenses to plaintiff's amended complaint. Id.

On October 8, 2009, the parties filed their report of Rule 26(f) meeting. (Docket 16). In that report, defendant agreed that "all prediscovery disclosures required by Rule 26(a)(1) will be completed . . . [by] October 15, 2009." Id. at #10. The court's scheduling order incorporated that same Rule 26(a)(1) exchange of information requirement. (Docket 17 #2).

On October 22, 2009, defendant served its initial disclosures. (Docket 22-2). In that initial disclosure, defendant made the following representation:

A. The following are the names, addresses and telephone numbers of each person Bankers Life believes has discoverable, non-privileged, personal knowledge concerning significant factual issues specifically raised by the pleadings . . . .

1. Plaintiff.

2. Corporate representative(s) of Bankers Life c/o Paul P. Bolus, Esq.

Bradley Arant Boult Cummings LLP 1819 Fifth Avenue North Birmingham, Alabama 35203-2119 (205) 521-8000 Id. at A. Defendant made no specific reference to documents as contemplated by Rule 26(a)(1)(A)(ii), but stated:

The documents . . . described in Rule 26 . . . that are in defendant's possession, custody, or control . . . will be made available for inspection and copying at the offices of Bradley Arant Boult Cummings LLP at a time mutually agreeable to counsel. In the alternative, if requested by counsel for plaintiff, counsel for defendant will copy and mail all such documents at plaintiff's expense.

Id. at B.

On October 30, 2009, in response to defendant's initial discovery, plaintiff wrote to defendant's counsel. That response contained the following inquiries:

I received your Rule 26 initial disclosures. I would appreciate it if you could give me the information required by the Rule with respect to persons who might have discoverable information. Also, local practice is to provide copies of the documents identified under Rule 26 to the opposing party. You will notice that I have already provided copies of our documents to you. I would sure appreciate it if you could return the favor . . . . (Docket 34-4).

In response, on November 3, 2009, defendant's counsel wrote:

It is our position that our initial disclosures are compliant in all respects under the Federal Rules. Nevertheless, pursuant to your request, we will supplement our initial disclosures, providing you with the documents identified under Rule 26 and the specific names of individuals who have knowledge of this matter. Please be advised, however, that the subject policy has been in force since 1997 and, therefore, there are a substantial amount of documents in this case. It will take us a little time to gather the requested information and documentation . . . . (Docket 34-5).

On December 21, 2009, defendant served its responses to plaintiff's first set of requests for production of documents. (Docket 34-7). In its 17-page response, defendant responds to 22 of 28 plaintiff's requests as follows:

Defendant objects to this request on the grounds that it is vague, ambiguous, overly broad, unduly burdensome, harassing, not properly limited in time and/or scope, and not reasonably calculated to lead to the discovery of admissible evidence. Defendant objects to this request to the extent it seeks confidential, financial, business or proprietary information. (Docket 34-7) (hereinafter this objection will be referred to as "overly broad" and "proprietary"). For ten of the requests, defendant responded:

Without waiving these objections and specifically incorporating them herein, Defendant states as follows:

Upon the entry of an appropriate protective order, responsive non-privileged documents will be made available for inspection and copying at Bradley Arant Boult Cummings LLP at a mutually agreeable date and time. Alternatively, upon the entry of an appropriate protective order, at the request and expense of Plaintiff's counsel, counsel for Defendant will copy the requested documents and mail them to Plaintiff's counsel.

Id. (hereinafter this response will be referred to as "subject to protective order"). For three of the requests defendant stated:

Defendant further objects to this request on the grounds that it requests information regarding other policies and policyholders which are not at issue in the instant case.

Id. (hereinafter this response will be referred to as "other policyholders"). For five of the requests defendant stated:

Defendant objects to this request on the grounds that it seeks information protected by the attorney-client and/or work product privilege.

Id. (hereinafter referred to jointly as "attorney-client/work product privilege"). For three of the requests defendant stated:

Defendant objects to this request on the grounds that the requested topic seeks information in the public record which is equally available to Plaintiff.

Id. (hereinafter referred to as "public records"). For some of its responses defendant included two or more of these statements. No documents were produced by defendant.

During a correspondence exchange on December 24, 2009, plaintiff's counsel inquired about defendant's responses to the requests for production of documents and the status of defendant's Rule 26 disclosures. That inquiry included, among other things, the following:

1. You object to every request as seeking irrelevant information. I provided you with six different discovery orders entered by South Dakota federal courts in bad faith actions, approving these same discovery requests. Can you please direct me to binding authority that supports your position?

2. You object to producing Mary Lyon's claim file, but say you will make some documents available if plaintiff agrees to a confidentiality order. Please explain how Bankers Life will suffer "competitive disadvantage" by disclosing documents showing why Bankers Life refused to pay this 85 year old women's claim for assisted living benefits.

6. You still have not complied with the Rule 26 disclosure requirements. Will you please do so?

(Docket 34-16). On January 8, 2010, defense counsel responded to plaintiff's counsel and stated, among other things: First, it is Bankers Life's position that many of your document requests are objectionable on various grounds, including, but not limited to, on the grounds that some requests are irrelevant to the claims and defenses in the above-referenced matter . . . . Many of your requests are overly broad as well . . . .

Secondly, Bankers Life will produce the claims file. In fact, I will provide such documentation to you in the very near future . . .

Lastly, Bankers Life intends to supplement its initial disclosures in this case. I will get you supplemental disclosures, with corresponding documentation, in the very near future . . . . (Docket 34-6). Defendant again reasserted its request that a confidentiality agreement be in place before any documents were produced, insisting that plaintiff withdraw her objections to defendant's proposed order or another proposal which may be sent in the future. Id.

On January 29, 2010, plaintiff filed her first motion to extend scheduling deadlines. (Docket 22). Among the reasons for this motion was plaintiff's inability to obtain an expert review of defendant's claim file of plaintiff because of defendant's failure to comply with the Rule 26(a)(1) disclosure requirement, including the disclosure of the claims file.

Id. That same day, defendant filed a response to plaintiff's motion to extend scheduling deadlines and motion for protective order. (Docket 23). Defendant did not resist plaintiff's motion for extension. Id. at p. 6. Rather, defendant felt it was necessary to inform the court as to defendant's perception of the status of the case. Id.

As a preliminary matter, in her motion Plaintiff fails to mention that Bankers Life has already agreed to supplement its Rule 26 initial disclosures and had so informed Plaintiff's counsel on January 8, 2010 that it would do so in the near future. . . . One of the reasons Bankers Life had not yet supplemented its disclosures is because it was trying to get an agreement with Plaintiff's counsel on a protective order. . . . Plaintiff's counsel has rejected Bankers Life's proposed confidentiality order.

Id. at p. 2. As part of its response, defendant then incorporated its motion for protective order. (Docket 23).

On February 5, 2010, based on the plaintiff's motion and defendant's concurrence, the court entered an order granting extension. (Docket 24). While this order made no further mention of the Rule 26(a)(1) obligations, it reset the plaintiff's deadline for the identity of retained experts and their reports for May 3, 2010, as well as other deadlines. Id.

Plaintiff filed her motion to compel (Docket 33) on March 23, 2010, asserting as the basis of that motion (a) the failure of defendant to comply with the Rule 26(a)(1) disclosure requirements; and (b) defendant's objections and failure to adequately respond to plaintiff's first request for production of documents. (Docket 34). Plaintiff also requested an award of attorney's fees and costs in bringing the motion on before the court. Id. at p. 27.

The very next day, March 24, 2010, defendant served plaintiff by mail with defendant's supplemental initial disclosures. (Docket 35-1). Those supplemental initial disclosures replicated its original initial disclosures, except for the underlined portion emphasized as follows:

A. The following are the names, addresses and telephone numbers of each person Bankers Life believes has discoverable, non-privileged, personal knowledge concerning significant factual issues specifically raised by the pleadings . . . .

1. Plaintiff.

2. Corporate representative(s) of Bankers Life, including, but not limited to, Elizabeth Kinder, Jennifer Hutton, Bonnie Doebler, and Chris Reuscher. c/o Paul P. Bolus, Esq.

Bradley Arant Boult Cummings LLP 1819 Fifth Avenue North Birmingham, Alabama 35203-2119 (205) 521-8000 Id. at A. Defendant further represented that the "documents and information described in Rule 26 . . . are enclosed herewith." Id. at B. The disclosure makes no reference to the particular documents or information which were then provided to plaintiff.

DISCUSSION

A. DEFENDANT'S RULE 26(A)(1) DISCLOSURES Fed. R. Civ. P. 26(a)(1) directs the initial disclosure of information and documents in civil litigation. That section provides:

(a) Required Disclosures.

(1) Initial Disclosure.

(A) In General. . . . a party must, without awaiting a discovery request, provide to the other parties:

(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information--along with the subjects of that information--that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;

(ii) a copy--or a description by category and location--of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims ...


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