United States District Court, D. South Dakota, Southern Division
ORDER ON PLAINTIFF’S MOTION TO COMPEL DOCKET
VERONICA L. DUFFY UNITED STATES MAGISTRATE JUDGE
matter is before the court on plaintiff Lucille
Schultz’s complaint pursuant to the court’s
diversity jurisdiction, 28 U.S.C. § 1332. See
Docket No. 1. Ms. Schultz has filed a motion seeking an order
from the court compelling defendant Sentinel Insurance
Company, Ltd. (“Sentinel") to provide certain
discovery. See Docket No. 18. Sentinel resists the
motion. See Docket No. 25. The presiding district
court, the Honorable Lawrence L. Piersol, referred Ms.
Schultz’s motion to this magistrate judge for decision.
following facts are largely taken from Ms. Schultz’s
complaint and the parties’ briefs on the instant motion
to compel. No indication by the court is given as to the
veracity of these allegations. They are described merely to
provide context in setting forth the claims asserted.
damaging hail storm hit Sioux Falls, South Dakota, in June,
2014. Ms. Schultz submitted a claim to Sentinel under her
homeowner’s insurance policy for damage to her roof
from that storm. Sentinel initially approved the claim,
paying Ms. Schultz around $213 for spot repairs after an
inspection by its adjustor, Tom Seversen, verified damage to
the roof. Later, Ms. Schultz provided Sentinel with a report
from her own inspector asserting spot repairs were
ineffective and her entire roof needed to be repaired at a
cost of $17, 726. Thereafter, Sentinel denied her claim.
receiving Ms. Schultz’s inspector’s report,
Sentinel hired Stanley Johnson to conduct another inspection
of Ms. Schultz’s roof on Sentinel’s behalf. Mr.
Johnson’s report did not address the issue raised by
Ms. Schultz’s inspector that spot repairs would not be
effective in fixing her roof. In its initial disclosures
required by Federal Rule of Civil Procedure 26, Sentinel
identified Mike Martin and Jerry Vander Plaats, in addition
to Severson and Johnson, as estimators or adjusters having
relevant knowledge of the parties’ claims or defenses
in this case. See Docket No. 20-6 at p. 3.
Schultz filed a complaint in this court against Sentinel
alleging breach of contract, bad faith, punitive damages, and
vexatious refusal to pay. See Docket No. 1. The
parties in this action stipulated to the entry of a
protective order early on. See Docket No. 17. The
order applies to “confidential documents or
information" and defines that phrase to include
proprietary business information including financial
information, training materials, contracts and agreements,
non-public sensitive material, testimony given at a
deposition, and personal financial, health, medical,
psychological, psychiatric, rehabilitation or counseling
records of parties and non-parties. Id. at pp. 1-2,
4, ¶¶ 1, 7. The order provides that a party may
designate documents, testimony or information as
confidential. Id. at p. 2, 4, ¶¶ 2, 7.
information is designated as “confidential, " the
receiving person may not copy or reproduce it in any form and
may not disclose the content or substance of the information
except to counsel for plaintiff or defendant and their
regular employees in the preparation of the case for trial,
parties to the action (including corporate representatives),
expert and fact witnesses who may be called to give
depositions or testimony, and the court and court staff.
Id. at pp. 2-3, ¶ 4. Persons to whom
“confidential" information is disclosed are
forbidden to further disclose the information or to make any
other use of the information except as provided in paragraph
4. Id. at p. 3, ¶ 5. If
“confidential" documents are filed with the court,
they must be filed under seal. Id. at p. 4, ¶
permitted disclosure of “confidential" information
is being made to parties to the litigation, regular employees
or agents of counsel for the parties, or to fact or expert
witnesses, counsel must inform the person to whom the
disclosure is being made that they are prohibited from
disclosing the information to any other person. Id.
at pp. 3-4, ¶ 6. Further, counsel making the disclosure
must provide the person to whom the disclosure is made with a
copy of the protective order and tell the person that
violation of the order will subject the person to court
sanctions. Id. at p. 4. The protective order does
not affect admissibility of a “confidential"
document at trial. Id. at pp. 5-6, ¶ 12.
subject to the attorney-client privilege or the work-product
doctrine is subject to special retraction provisions.
Id. at pp. 4-5, ¶ 9. If a privileged document
is inadvertently produced, the party may, if they act quickly
enough, retract the document. Id. If this occurs,
the parties essentially agree to act as if the information
was never produced. Id.
documents must be destroyed at the conclusion of the
litigation or returned to the party from whom they emanated.
Id. at p. 5, ¶ 10. The court retains
jurisdiction post-termination of the action to resolve
disputes regarding the provisions of the protective order.
Id. at p. 5, ¶ 11.
someone disagrees with a “confidential"
designation, that person may notify the designator of the
objection. Id. at p. 2, ¶ 3. The parties then
agree to make a good-faith effort to resolve their
disagreement about the confidentiality of the information.
Id. If the disagreement is not resolved, the matter
is submitted to the court via motion. Id. The person
who designated the information as “confidential"
need not disclose the information until the court rules on
whether it is “confidential." Id.
Meet and Confer Requirement
a party may make a motion to compel another party to make
discovery or disclosure, the movant must certify that they
have in good faith conferred or attempted to confer with the
opposing party from whom the discovery or disclosure is
sought in an attempt to resolve the disagreement without
court intervention. See Fed.R.Civ.P. 37(a)(1). Ms.
Schultz alleges that she has complied with this requirement.
Sentinel does not dispute that assertion, though it
insinuates that Ms. Schultz was unreasonable in the dispute
resolution meetings. The court considers Ms. Schultz’s
motion on its merits.
Standards Applicable to Discovery
Rule of Civil Procedure 26(b)(1) sets forth the scope of
discovery in civil cases pending in federal court:
Unless otherwise limited by court order, the scope of
discovery is as follows: Parties may obtain discovery
regarding any nonprivileged matter that is relevant to any
party's claim or defense and proportional to the needs of
the case, considering the importance of the issues at stake
in the action, the amount in controversy, the parties’
relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit. Information within
the scope of discovery need not be admissible in evidence to
See Fed.R.Civ.P. 26(b)(1). Rule 26 contains specific
limitations relative to electronic discovery and other
objections to providing discovery:
(B) Specific Limitations on Electronically Stored
Information. A party need not provide discovery of
electronically stored information from sources that the party
identifies as not reasonably accessible because of undue
burden or cost. On motion to compel discovery or for a
protective order, the party from whom discovery is sought
must show that the information is not reasonably accessible
because of undue burden or cost. If that showing is made, the
court may nonetheless order discovery from such sources if
the requesting party shows good cause, considering the
limitations of Rule 26(b)(2)(C). The court may specify the
conditions for the discovery.
(C) When Required. On motion or on its own, the
court must limit the frequency or extent of discovery
otherwise allowed by these rules or by local rule if it
(i) the discovery sought is unreasonably cumulative or
duplicative, or can be obtained from some other source that
is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to
obtain the information by discovery in the action; or
(iii) the proposed discovery is outside the scope permitted
by Rule 26(b)(1).
See Fed.R.Civ.P. 26(b)(2)(B) and (C).
claiming a privilege as to requested discovery has the burden
of proving the basis for the application of the privilege:
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 disclosedBand do so in a
manner that, without revealing information itself privileged
or protected, will enable other parties to assess the claim.
See Fed.R.Civ.P. 26(b)(5)(A).
party fails to respond to a proper request for discovery, or
if an evasive or incomplete response is made, the party
requesting the discovery is entitled to move for a motion
compelling disclosure after having made a good faith effort
to resolve the dispute by conferring first with the other
party. See Fed. R. Civ. P. 37(a).
scope of discovery under Rule 26(b) is extremely broad.
See 8 Charles A. Wright & Arthur R. Miller,
Federal Practice & Procedure § 2007, 36-37
(1970) (hereinafter "Wright & Miller"). The reason
for the broad scope of discovery is that "[m]utual
knowledge of all the relevant facts gathered by both parties
is essential to proper litigation. To that end, either party
may compel the other to disgorge whatever facts he has in his
possession." 8 Wright & Miller, § 2007, 39 (quoting
Hickman v. Taylor, 329 U.S. 495, 507-08 (1947)). The
Federal Rules distinguish between discoverability and
admissibility of evidence. Fed.R.Civ.P. 26(b)(1), 32, and
33(a)(2) & (c). Therefore, the rules of evidence assume the
task of keeping out incompetent, unreliable, or prejudicial
evidence at trial. These considerations are not inherent
barriers to discovery, however.
is to be broadly construed for discovery issues and is not
limited to the precise issues set out in the pleadings.
Relevancy ... encompass[es] 'any matter that could bear
on, or that reasonably could lead to other matter that could
bear on, any issue that is or may be in the case.' "
E.E.O.C. v. Woodmen of the World Life Ins. Society,
2007 WL 1217919 at *1 (D. Neb. March 15, 2007) (quoting
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351
(1978)). The party seeking discovery must make a
“threshold showing of relevance before production of
information, which does not reasonably bear on the issues in
the case, is required." Id. (citing Hofer
v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th
Cir. 1993)). “Mere speculation that information might
be useful will not suffice; litigants seeking to compel
discovery must describe with a reasonable degree of
specificity, the information they hope to obtain and its
importance to their case." Id. (citing
Cervantes v. Time, Inc., 464 F.2d 986, 994 (8th Cir.
information itself need not be admissible at trial; rather,
the defining question is whether it is within the scope of
discovery. See Fed.R.Civ.P. 26(b)(1). Additionally,
the court may limit the frequency and extent of discovery.
See Fed.R.Civ.P. 26(b)(2); see also Roberts v.
Shawnee Mission Ford, Inc., 352 F.3d 358, 361 (8th Cir.
2003) (“The rule vests the district court with
discretion to limit discovery if it determines, inter alia,
the burden or expense of the proposed discovery outweighs its
likely benefit."); Continental Illinois Nat'l
Bank & Trust Co. of Chicago v. Caton, 136 F.R.D. 682,
684-85 (D. Kan. 1991) (“All discovery requests are a
burden on the party who must respond thereto. Unless the task
of producing or answering is unusual, undue or extraordinary,
the general rule requires the entity answering or producing
the documents to bear that burden.).
of the Federal Rules of Civil Procedure governs requests for
the production of documents and provides that a party may ask
another party to permit copying of documents “in the
responding party's possession, custody, or control."
See Fed.R.Civ.P. 34(a)(1). The concept of documents
in a party's “possession" or
“custody" is clear enough, but the concept of
documents in a party's “control" is not
obvious upon a reading of the rule.
rule that has developed is that if a party “has the
legal right to obtain the document, " then the document
is within that party's “control" and, thus,
subject to production under Rule 34. See 8A Charles
A. Wright, Arthur R. Miller, & Richard L. Marcus, Fed.
Practice & Procedure, §2210, at 397 (2d ed. 1994)
(hereinafter “Fed. Practice &
Procedure"). “Because a client has the right,
and the ready ability, to obtain copies of documents gathered
or created by its attorneys pursuant to their representation
of that client, such documents are clearly within the
client's control." American Soc. for the
Prevention of Cruelty to Animals v. Ringling Bros. & Barnum &
Bailey Circus, 233 F.R.D. 209, 212 (D.D.C. 2006) (citing
Poole ex rel. Elliott v. Textron, Inc., 192 F.R.D.
494, 501 (D. Md. 2000); and Poppino v. Jones Store
Co., 1 F.R.D. 215, 219 (W.D. Mo. 1940)).
because documents gathered by an attorney are subject to the
client's control does not, however, automatically mean
they are discoverable. The work product doctrine and the
attorney-client privilege still apply and may be asserted in
opposition to discovery, along with the appropriate privilege
log. Ringling Bros., 233 F.R.D. at 211-213.
Substantive Law Applicable to Ms. ...