United States District Court, D. South Dakota, Western Division
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION TO COMPEL
WOLLMANN UNITED STATES MAGISTRATE JUDGE.
a bad faith diversity action brought by Plaintiff, Joseph
Leichtnam, against Defendants, American Zurich Ins. Co.,
Zurich American Ins. Co., and Zurich North American
(hereinafter collectively referred to as
“Zurich”). (Doc. 1). Pending before the court is
a motion filed by Leichtnam to compel Zurich to provide
certain discovery. (Doc. 38). The presiding district judge,
the Honorable Jeffrey L. Viken, Chief Judge, referred this
motion to this magistrate judge for a decision. (Doc. 37).
facts as pertinent to the pending motion are as follows.
Leichtnam sustained a work related injury to his back when he
fell off a forklift on August 29, 2007. Leichtnam incurred
medical expenses as a result of his work related injuries. In
May of 2009, Zurich arranged for Leichtnam to see Dr. Farnham
who opined that the Plaintiff's fall from the forklift
did not cause anything other than some “post concussion
headaches early on.” (Doc. 1 at p. 2). Thereafter,
Zurich ceased payments for Leichtnam's medical treatment.
Leichtnam filed a petition with the Department of Labor.
Leichtnam and Zurich negotiated a settlement of his
worker's compensation claim.
thereafter initialed this civil diversity action against
Zurich alleging bad faith. Leichtnam has included a request
for punitive damages. Zurich denies that it acted in bad
Whether Plaintiff Met and Conferred With Defendant
“On notice to other parties and all affected persons, a
party may move for an order compelling disclosure or
discovery. The motion must include a certification that 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).
moving party's motion may contain the equivalent of this
certification in which the attorney “confirms that it
has attempted in good faith to resolve this discovery dispute
[with opposing counsel]” prior to filing the motion.
See Highmark, Inc. v. Northwest Pipe Co., No. CIV
10-5089-JLV, 2012 WL 997007, *4 (D.S.D. Mar. 23, 2012).
Leichtnam's motion contains a statement that it has met
and conferred with opposing counsel. (Doc. 31).
purpose of the meet and confer requirement is to force
litigants to attempt to resolve, or at least narrow, the
disputed issues to prevent the unnecessary waste of time and
effort on any given motion.” Robinson v.
Napolitano, No. CIV. 08-4084, 2009 WL 1586959, *3
(D.S.D. June 4 2009) (internal quotations omitted) (citing
Alexander v. Federal Bureau of Investigation, 186
F.R.D. 197, 199 (D.D.C. 1999)).
parties' briefing and exhibits set forth the actions
taken by the parties satisfies met the meet and confer
requirements. The court will accept this description as
equivalent to the required certification and finds that
Leichtnam has satisfied its duty to confer in good faith with
counsel for Zurich to try to work out these differences
before filing the instant motion. Therefore, the court will
consider the motion on its merits.
Scope of discovery
scope of discovery for civil cases is set forth in Federal
Rule of Civil Procedure 26(b)(1) which provides as follows:
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
CIV. P. 26(b)(1).
party seeking discovery is merely required to make a
threshold showing of relevance, which is more relaxed than
the showing required for relevance in the context of
admissibility.” Klynsma v. Hydradyne, LLC, No.
CIV. 13-5016-JLV, 2015 WL 5773703, *16 (D.S.D. Sept. 30,
2015) (citing Oppenheimer Fund, Inc. v. Sanders, 437
U.S. 340, 350-51 (1978)). The party resisting discovery must
show specifically how each request is irrelevant or unduly
burdensome. Klynsma, 2015 WL 5773703 at *16 (citing
St Paul Reinsurance Co., 198 F.R.D. at 512).
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, 67 S.Ct. 385, 392, 91 L.Ed.2d 451
(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,
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
he is seeking punitive damages, Mr. Leichtnam must show that
Zurich acted with malice, actual or implied. See
Bertelsen v. Allstate Ins. Co., 2011 S.D. 13, ¶ 39,
796 N.W.2d 685, 698-99 (citing SDCL § 21-3-2).
“Actual malice is a positive state of mind, evidenced
by a positive desire and intention to injure one another,
actuated by hatred or ill-will towards that person.”
Id. at ¶ 40, 796 N.W.2d at 699 (quoting
Biegler, 2001 S.D. 13, ¶ 45, 621 N.W.2d at
605). Implied malice can be inferred or imputed by law.
Id. “Presumed malice may not ‘be
motivated by hatred or ill-will but is present when a person
acts willfully or wantonly to the injury of others.'
“ Id . (quoting Biegler,
2001 S.D. 13, ¶ 45, 621 N.W.2d at 605). When a party
seeks punitive damages, the jury must evaluate “(1) the
degree of reprehensibility of the defendant's misconduct,
(2) the disparity between the harm (or potential harm)
suffered by the plaintiff and the punitive damages award, and
(3) the difference between the punitive damages awarded by
the jury and the civil penalties authorized or imposed in
comparable cases.” Roth v. Farner-Bocken Co.,
2003 S.D. 80, ¶ 46, 667 N.W.2d 651, 665-66 (citing
State Farm v. Campbell, 538 U.S. 408, 418 (2003)).
The jury may consider evidence that the harm caused to a
plaintiff was a company policy or practice. Id. at
¶ 65, 667 N.W.2d at 669. With these claims in mind, the
court turns to the instant discovery dispute.
Requests for Production
Request for Production 2: Personnel files
requests the entire personnel file for each person that
handled or participated in his case in any way, as well as
their supervisors and personnel in the chain of command.
Plaintiff names fourteen specific individuals, as well as all
of those individuals' supervisors and anyone else in the
chain of command. Zurich provided personnel files of three of
the named individuals- Jason Sattler, Kimberly Duncan, and
Amy Mueller-and requests that the court limit the scope of
plaintiff's request to only those individuals who had
significant contact with his file. Zurich argues that nearly
half of the individuals that plaintiff identifies only
touched the file one or two times. Further, because those
individuals had little to do with plaintiff's case,
Zurich argues their files would not have any relevant
information. Therefore, Zurich argues plaintiff's request
is irrelevant and overbroad, and asks the court to limit the
scope of the request to compel information only from
individuals who had significant contact with plaintiff's
file. In his reply, Leichtnam reiterates that he is entitled
to anyone in the chain of command of upper level management.
settled case law in this district establishes that personnel
files in bad faith actions have routinely been found to be
relevant and discoverable. Lyon v. Bankers Life &
Cas. Co., CIV. 09-5070-JLV, 2011 WL 124629 at *8 (D.S.D.
Jan.14, 2011)). “Personnel files may reveal an
inappropriate reason or reasons for defendant's action
with respect to plaintiff's claim or an ‘improper
corporate culture.' ” Id. Furthermore, in
cases where the insurance company tried to limit discovery to
the claims handler and his or her immediate supervisor, that
attempt has been rejected. See Nye v. Hartford Acc. &
Indem. Co., 2013 WL 3107492 at *11-12, Civ. No. 12-5028
(D.S.D. June 18, 2013); Kirschenman v. Auto-Owners
Ins., 280 F.R.D. 474, 482-83 (D.S.D.2012); Hill v.
Auto Owners Ins. Co., No. 5:14-CV-05037-KES, 2015 WL
1280016, at *8 (D.S.D. Mar. 20, 2015). As was noted in
Fair v. Royal & Sun Alliance, the evidence of
institutional pressure that was brought to bear on an
insurance company's claims handlers was not in the
personnel file of the claims handler herself, nor was it in
her immediate supervisor's file; rather, the entirely
relevant evidence was found in the personnel file of the
regional claims manager. Fair v. Royal & Sun
Alliance, 278 F.R.D. 465, 474-76 (D.S.D.2012).
has made his initial showing of relevance of the discovery
request. The burden then shifts to defendant to show
specifically how each interrogatory or request for production
of document is not relevant or how each request is overly
broad, burdensome, or oppressive. Zurich's position as
outlined above fails to show irrelevance. Furthermore, the
request is limited to the fourteen individual who accessed
the file as well as those persons in the chain of command up
to the Senior Vice-President of Claims. The court finds the
scope to be reasonable in nature and not overly broad,
court grants Leichtnam's motion to compel as it relates
to request for production number 2. However, the court
authorizes defendant to redact any sensitive information from
the documents produced such as ...