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Plucker v. United Fire & Casualty Co.

United States District Court, Eighth Circuit

January 8, 2014

DEBBIE PLUCKER, Plaintiff,
v.
UNITED FIRE & CASUALTY COMPANY, Defendant.

ORDER

JOHN E. SIMKO, Magistrate Judge.

Pending is plaintiff Debbie Plucker's motion to compel production of documents.[1]

BACKGROUND

Plucker sued her auto insurer United Fire to recover first party medical pay benefits to pay medical expenses for treatment of injuries she sustained when a tire and rim from an oncoming semi-tractor and trailer came off the trailer and struck her pickup. United Fire sent her a document for her to sign expressing her consent to release her medical records so that United Fire could get medical records from her doctors. Plucker objected to the breadth of the medical release, struck the objectionable parts of the release, and signed the document. United Fire claims it could not process her claim because she refused to sign the medical release it provided. Plucker claims United Fire's release was too broad, but the one she provided was sufficient to process her claim. Plucker's complaint asserts claims for (1) attorney's fees under SDCL 58-12-3 for United Fire's alleged vexatious refusal to pay benefits, (2) compensatory damages for United Fire's alleged bad faith refusal to pay benefits, and (3) punitive damages for United Fire's alleged bad faith refusal to pay benefits.

Plucker moves to compel defendant United Fire & Casualty Company to respond to her Interrogatory 5 and Requests for Production Nos. 7, 10, 11, 12, 13, 15, 16, 17, and 22. Plucker has filed a supporting affidavit with 42 exhibits (Doc. 18), a supporting memorandum (Doc. 19), a letter with informal objection to United Fire's suggestion of in camera review of documents (Doc. 23), a Reply to United Fire's Response (Doc. 27), and a second affidavit supporting her motion to compel with 3 exhibits. United Fire has filed a letter regarding in camera review (Doc. 22), and a Response to Plucker's motion to compel (Doc. 26).

ANALYSIS AND DECISION

Standards for Decision.

The scope of discovery in bad faith claims against a first party insurer in this district is well established.[2] "The scope of discovery under Rule 26(b) is extremely broad."[3] Information is discoverable if it is relevant to the claims or defenses of the case or to the subject of the case, upon a showing of good cause.[4] The party seeking discovery must make a threshold showing of relevancy. The burden then shifts to the party resisting discovery to show the sought after discovery is not relevant, is overly broad, overly burdensome, oppressive, or privileged.[5] "When a party withholds information otherwise discoverable by claiming that the information is privileged... the party must expressly make the claim; and describe the nature of the documents. FED. R. CIV. P. 26(b)(5)(A). If a party claims that the attorney-client privilege protects a document, then it must submit a privilege log to the requesting party."[6] Conclusory objections of overly broad, overly burdensome, or oppressive are insufficient to carry the resisting party's burden. The resisting party must make a specific showing why the relevant discovery should not be had.[7]

Interrogatory 5.

Plucker's motion to compel and her supporting memorandum mention Interrogatory 5, but mention Interrogatory 5 is all that either does. Plucker's supporting memorandum addresses only her Requests for Production without addressing Interrogatory 5. Plucker does not explain why United Fire's answer to Interrogatory 5 is not sufficient. Interrogatory 5 asked for the identification information of any employee of United Fire who handled, reviewed, supervised or audited Plucker's claim and Interrogatory 5 also asked for the identification of United Fire's corporate parents or subsidiaries. United Fire provided answers to each part of Interrogatory 5 without objecting. Because Plucker recited in her supporting memorandum a litany of complaints about communications with opposing counsel and complaints about the responses and tardy responses from United Fire, it is concluded Plucker's motion to compel about Interrogatory 5 is subsumed by her arguments about the disputed Requests for Production, i.e. Plucker believes there are more than two of United Fire employees who were involved with her claim. Plucker's motion to compel as it relates to Interrogatory 5 will be denied as moot because it appears Interrogatory 5 will be adequately answered implicitly by the information contained in the documents United Fire is otherwise ordered to produce. To grant the motion to compel about Interrogatory 5 would be to speculate because on its face there is a response and Plucker has not specifically explained why United Fire's response to Interrogatory 5 is not sufficient.

Request for Production 7.

Plucker requested the personnel files of employees and supervisors in the chain of command who handled, reviewed, supervised or audited her claim. United Fire objected with conclusory objections, but agreed to produce for in camera inspection copies of the personnel files of individuals directly involved in the handling of Plucker's claim. Personnel files are relevant to Plucker's bad faith claim. United Fire's conclusory objections are not sufficient to satisfy its burden to show why the personnel files are not relevant or why production of them is overly broad, burdensome, or oppressive. It is understood the in camera documents have since been produced to Plucker. Personnel files of pertinent employees, including those in the chain of command, are routinely required to be produced. Plucker's motion will be granted. It will be ordered that to the extent not already accomplished, United Fire must produce the personnel files requested by Plucker. Production is to be protected by a stipulated protection order prepared by the parties for the court's consideration if the protection order already filed is not sufficient to protect the confidentiality of the personnel files.

Request for Production 10.

Plucker seeks documents about United Fire's cost containment programs with respect to handling automobile claims from January 1, 2007 to the present. United Fire raises conclusory objections. United Fire's conclusory objections are not sufficient to satisfy its burden to show why United Fire's cost containment program documents are not relevant or why production of them is overly broad, burdensome, or oppressive. Cost containment programs are relevant to Plucker's bad faith claim and her ...


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