United States District Court, D. Nevada
FOLEY, JR. United States Magistrate Judge
matter is before the Court on the following motions: (1)
Defendant State Farm's Motion to Quash Plaintiff's
Subpoena to Certified Medical Consultants Inc. (ECF No. 17),
filed on June 12, 2017; (2) Defendant State Farm's Motion
for Protective Order as to Plaintiff's Rule 30(b)(6)
Deposition Subpoena to Certified Medical Consultants Inc.
(ECF No. 18), filed on June 12, 2017; (3) Defendant State
Farm's Motion for Protective Order as to Plaintiff's
Rule 30(b)(6) Deposition Subpoena to State Farm (ECF No. 19),
filed on June 12, 2017; (4) Plaintiff's Countermotion to
Compel Production of Documents (ECF No. 27), filed on June
28, 2017; and (5) Defendant State Farm's Motion for
Protective Order as to Plaintiff's Second Rule 30(b)(6)
Deposition Subpoena to Certified Medical Consultants Inc.
(ECF No. 21), filed on June 22, 2017. The Court conducted a
hearing on these motions on July 10, 2017.
Lorene McCall filed her complaint against Defendant State
Farm Mutual Automobile Insurance Company in the District
Court, Clark County, Nevada on January 5, 2016. Petition
for Removal (ECF No. 1), Exhibit A, Complaint
(hereinafter Complaint). Defendant filed
its answer in the state court action on March 1, 2016.
Id. at Exhibit C. Defendant thereupon
removed the action to this court on May 11, 2016.
Petition for Removal (ECF No. 1).
alleges that she was injured in a July 22, 2013 motor vehicle
accident that was caused by the fault of the other driver.
She subsequently settled with the other driver for the $10,
000 limits of his liability insurance policy.
Complaint, at ¶¶ 6-8. On November 20,
2014, Plaintiff made a demand for payment of the $25, 000.00
underinsured motorist coverage limits under the insurance
policy issued to her by Defendant State Farm. State Farm
evaluated Plaintiff's claim and determined that there was
no underinsured motorist exposure arising from the July 22,
2013 accident. Id. at ¶¶ 11-12. Plaintiff
alleges causes of action against Defendant for breach of
contract, breach of the covenant of good faith and fair
dealing (bad faith), and unfair claims practices in violation
of Nevada Revised Statute (“NRS”) 686A.310.
Plaintiff states that State Farm has since paid the $25, 000
underinsured motorist coverage limits. She is therefore
proceeding on her causes of action for common law bad faith
and violations of NRS 686A.310.
attached as an exhibit to her oppositions a copy of her
attorney's November 20, 2014 demand letter to State Farm
which listed $33, 225.00 in past medical expenses and $21,
000.00 for future medical expenses. Opposition (ECF
No. 26), Exhibit 1. She also attached the April 24,
2015 letter from State Farm's claim representative which
[W]e have received the utilization report of Sanghamitra
Basu, MD who reviewed this matter at the request of State
Farm, and have enclosed a copy of his report for your review.
Based on our evaluation of the available information, along
with the report of Dr. Basu, it appears that the
tort-feasor's liability limits will sufficiently
reimburse your client for her bodily injuries. As such, we do
not believe that any UIM value exists for this loss.
(ECF No. 26), Exhibit 2.
alleges that State Farm relied on Dr. Basu's report to
deny her underinsured motorist claim. Neither party has
provided the Court with a copy of Dr. Basu's report. Nor
have they provided any summary of her medical opinions. State
Farm obtained Dr. Basu's services through Certified
Medical Consultants which provides physicians in various
medical fields to review claimants' medical records and
provide opinions on relevant medical issues in a claim. It is
the Court's understanding that State Farm pays a fee to
Certified Medical Consultants for obtaining the medical
expert's opinion and that Certified Medical Consultants,
in turn, pays the physician for his or her services. The fees
or rates charged for these services are presumably set forth
in the parties' contracts.
Court entered a scheduling order on August 2, 2016 which set
a discovery cut-off date of January 24, 2017, and initial and
rebuttal expert witness disclosure deadlines of November 28
and December 28, 2016, respectively. Order (ECF No.
10). On December 16, 2016, the Court granted the parties'
first stipulation to extend discovery by 90 days. The new
discovery cut-off date was April 24, 2017. Order
(ECF No. 13). On March 31, 2017, the Court granted the
parties' second stipulation to extend discovery by 90
days which set a discovery deadline of June 23, 2017.
Order (ECF No. 15). The parties' second
stipulation stated that they disclosed their expert witnesses
on November 28, 2016. Id. at pg. 2. State Farm
deposed Plaintiff's “bad faith” expert,
Frederick Berry, Jr., on May 23, 2017. See
Opposition (ECF No. 27), Exhibit 17.
served requests for production of documents on State Farm on
February 24, 2017.
(ECF No. 26), Exhibit 4. Plaintiff's requests
for production include the following:
Request No. 4: all correspondence, e-mail
correspondence, reports, opinions or other writings provided
to or obtained from any expert witness or specialist in this
Request No. 5: all documents relied on by an
expert witness or specialist in this case in forming his/her
opinion, including correspondence, e-mail correspondence,
reports, medical records, treatises, articles, photographs or
Request No. 10: all files related to
Defendant's handling of the Plaintiff's claim;
Request No. 12: all documents, writings, and
communications that are used by State Farm personnel for
reference, training and guidelines for the handling of
underinsured motorist claims. These items should include, but
not be limited to, all claims manuals, all written of (sic)
computerized guidelines, all information provided to
Defendant's claims personnel regarding the adjudication
of claims and all other resources used by Defendant's
personnel for the adjudication of claims;
Request No. 14: any and all written
contracts or agreements, by whatever name, between State Farm
and Certified Medical Consultants;
Request No. 15: any and all documents, in
whatever form, related to the approval of Certified Medical
Consultants as a vendor;
Request No. 16: any and all 1099s issued by
State Farm to Certified Medical Consultants in the past five
Request No. 17: any and all 1099s issued by
State Farm to Dr. Sanghamitra Basu in the past five years;
Request No. 18: any and all documents,
including but not limited to records review reports sent to
or received from Certified Medical Consultants and/or Dr.
Sanghamitra Basu in connection with the utilization review on
Request No. 19: any and all requests for
utilization reports in connection with an
uninsured/underinsured motorist claim, sent from State Farm
to Certified Medical Consultants in the past five years;
Request No. 20: any and all utilization
reports authored by Dr. Sanghamitra Basu on behalf of State
Farm, in connection with an uninsured/underinsured motorist
claim, in the past five years;
Request No. 21: any and all correspondence,
in whatever form, between State Farm and Certified Medical
Consultants regarding the present claim;
Request No. 22: any and all correspondence,
in whatever form, between State Farm and Dr. Sanghamitra Basu
regarding the present claim.
(ECF No. 26), Exhibit 4.
Farm served its responses to Plaintiff's requests for
production on April 18, 2017, and its supplemental responses
on April 26, 2017. Motion (ECF No. 17), Exhibits
C and D; Opposition (ECF No. 26),
Exhibits 5 and 6. Defendant attached to its
supplemental responses a proposed stipulated confidentiality
order. Id. In response to Request No. 1, State Farm
stated that it had produced its complete claim file regarding
Plaintiff's underinsured motorist claim except for
portions protected by the attorney-client privilege or work
product doctrine. In response to Request No. 4, State Farm
stated that its experts' written reports identified the
documents considered in forming their opinions which had
already been produced to Plaintiff, and that State Farm would
supplement its response if the experts had any additional
responsive documents that are discoverable and not protected
from disclosure under Rule 26. In response to Request Nos.
10, 18, 21 and 22, State Farm referred to its response to
Request No. 1 regarding its production of the claims file.
State Farm objected to Request No. 12 on the grounds that its
claims manuals contain confidential, proprietary business
information and trade secrets. State Farm stated that it
would produce relevant portions of the manuals that do not
contain privileged information, and would produce other
relevant claims manual documents upon entry of a protective
order. State Farm objected to Requests Nos. 14, 15, 16, 17,
19 and 20 on the grounds that they are irrelevant and seek
confidential, proprietary business information and trade
secrets. State Farm also objected to Request Nos. 19 and 20
as unduly burdensome. Motion (ECF No. 17),
Exhibit C. In its supplemental responses served on
April 26, 2017, State Farm produced some claims manual
documents. It also served a privilege log and a proposed
stipulated protective order. Motion (ECF No.
17), Exhibit D, at page 10, supplemental response to
Request No. 12.
23, 2017, Plaintiff served a notice to take the Rule 30(b)(6)
deposition of Certified Medical Consultants on June 20,
2017-three days before the discovery cut-off. Motion
(ECF No. 17), Exhibit A. The notice listed the
following topics: (1) the corporate structure of Certified
Medical Consultants; (2) all written contracts between
Certified Medical Consultants and State Farm; (3) all
communications between Certified Medical Consultants and
State Farm related to approval of Certified Medical
Consultants as a vendor; (4) all 1099s issued to Certified
Medical Consultants by State Farm in the past 5 years; (5)
all documents Certified Medical Consultants sent to or
received from State Farm in connection with the utilization
review of Plaintiff's UIM claim; (6) all requests for
utilization reports in connection with an
uninsured/underinsured motorist claim that Certified Medical
Consultants received from State Farm in the past 5 years; (7)
the doctors assigned to perform utilization reports requested
by State Farm; and (8) all correspondence between State Farm
and Certified Medical Consultants regarding Plaintiff. The
subpoena only required Certified Medical Consultants to
provide testimony on the listed topics. It did not include a
requirement to produce documents at the deposition.
Joinder (ECF No. 25), Exhibit A. On June
12, 2017, State Farm filed its emergency motions to quash the
subpoena and for protective order against the taking of the
deposition of Certified Medical Consultants. Motions
(ECF Nos. 17, 18).
14, 2017, Certified Medical Consultants' attorney
conducted a conference with Plaintiff's attorney in which
he proposed that in lieu of taking a live deposition,
Certified Medical Consultants would produce to Plaintiff (1)
the 1099s issued to Certified Medical Consultants by State
Farm for the past five years, (2) Certified Medical
Consultants' records showing the documents it sent to Dr.
Basu that were reviewed by her in connection with her
reports, and (3) the reports that Dr. Basu authored in the
last 5 years when she has been retained by State Farm through
Certified Medical Consultants. Joinder (ECF No. 25),
(declaration of counsel, pg. 3), and Exhibit B,
(June 15, 2017 letter from Certified Medical Consultants'
attorney to Plaintiff's counsel). Certified Medical
Consultants' counsel represents that he waited for a
response from Plaintiff to his proposed compromise. Instead
of responding to the proposal, Plaintiff served an amended
notice of deposition and subpoena on June 19, 2017 which
required the deponent to produce documents at the deposition
which was rescheduled for June 23, 2017. Joinder
(ECF No. 25), Exhibits D and E. This
prompted State Farm to file another motion for protective
order on June 22, 2017 to prohibit the Rule 30(b)(6)
deposition of Certified Medical Consultants.
23, 2017, Plaintiff also served a notice of Rule 30(b)(6)
deposition of Defendant State Farm to be taken on June 21,
2017. Opposition (ECF No. 27), Exhibit 8
(deposition notice). The deposition notice listed 30 topics
of inquiry. It did not require State Farm to produce any
documents at the deposition. Id. On June 5, 2017,
Plaintiff's and Defendant's counsel engaged in a meet
and confer conference regarding the deposition topics.
Opposition (ECF No. 27), Exhibit 10. State
Farm agreed to produce a deponent(s) to testify on topic Nos.
3, 4, 6, 7, 9, 19, 21, 24, 25 and 29. It agreed to produce a
deponent to testify to part of topic No. 10, and agreed to
produce a deponent(s) to testify on topic Nos. 1, 2, 11, 12,
14 and 28 subject to the limitations set forth in
counsel's letter. Id. The parties were unable to
reach an agreement on the other deposition topics.
Farm seeks an order prohibiting Plaintiff from deposing it on
the following topics:
5. State Farm's policies and procedures regarding audits,
file reviews, or any other review, as well as any such
audits/reviews of this file from the date of the subject ...