United States District Court, D. Nevada
ORDER (DOCKET NO. 32)
J. KOPPE UNITED STATES MAGISTRATE JUDGE
before the Court is Plaintiffs' motion to compel
production of documents and deposition testimony. Docket No.
32. Defendant filed a response in opposition. Docket No. 36.
Plaintiffs filed a reply. Docket No. 37. Plaintiffs ask the
Court to compel Defendant to produce: (1) documents in
response to Plaintiffs' requests for production 2, 3, 6,
7, and 11; (2) deposition witnesses David Standish, Bradley
Vatrt, James McQuaid, and Luigi Spadafora; and (3) a Rule
30(b)(6) deposition witness for deposition topics 1-11,
13-27, and 31-35. Docket No. 32. The Court finds the matter
properly resolved without oral argument. Local Rule 78-1. For
the reasons discussed below, the motion to compel is
GRANTED in part and DENIED
September 22, 2017, Plaintiffs filed the instant motion to
compel Defendant's responses to various requests for
production of documents, produce four witnesses for
deposition, and produce a Rule 30(b)(6) deposition witness on
various topics. Docket No. 32. Generally, Plaintiffs submit
that the requested documents and the information to be
derived from the depositions are relevant to their breach of
contract claim. Docket No. 32 at 13-14, 19-20, 22-23.
Plaintiffs have filed a motion for leave to file an amended
complaint asserting bad faith claims, which is currently
pending, and acknowledge that many of their requests would be
“even more relevant” if the motion for leave to
file an amended complaint is granted. Docket No. 37 at 2;
see also Docket No. 32 at 20. In response, Defendant
generally submits that Plaintiffs' requests are
irrelevant to the breach of contract claim, although
Defendant concedes that the requests could be relevant to bad
faith claims. Docket No. 36-1 at 3, 5, 7. Defendant also
submits that certain information is confidential, cumulative,
or duplicative to information that has already been provided
in documents propounded to Plaintiffs or that will be
provided in a Rule 30(b)(6) deposition. Id. at 8,
Docket No. 36-2 at 1. In reply, Plaintiffs generally submit
that Defendant fails to cite to binding case law that
Plaintiffs' requests are irrelevant and cumulative.
Docket No. 37 at 5.
discretion is vested in the trial court to permit or deny
discovery.” Hallett v. Morgan, 296 F.3d 732,
751 (9th Cir. 2002); see also Crawford-El v.
Britton, 523 U.S. 574, 598 (1998). Parties are entitled
to discover non-privileged information that is relevant to
any party's claim or defense and is proportional to the
needs of the case, including consideration of the importance
of the issues at stake in the action, 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. Fed.R.Civ.P.
26(b)(1). The most recent amendments to the discovery rules
are meant to curb the culture of scorched earth litigation
tactics by emphasizing the importance of ensuring that the
discovery process “provide[s] parties with efficient
access to what is needed to prove a claim or defense, but
eliminate unnecessary or wasteful discovery.”
Roberts v. Clark Cty. School Dist., 312 F.R.D. 594,
603-04 (D. Nev. 2016).
party fails to provide requested discovery, the requesting
party may move to compel that discovery. See
Fed.R.Civ.P. 37(a). Conversely, a party from whom discovery
is sought may move for a protective order. See
Fed.R.Civ.P. 26(c). For good cause shown, courts may issue a
protective order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense.
See id.; see also Fed.R.Civ.P. 26(b)(2)(C)
(courts must limit frequency or extent of discovery that is
otherwise permissible if that discovery is unreasonably
cumulative or duplicative, or can be obtained from some other
source that is more convenient, less burdensome, or less
expensive). When a discovery dispute is presented through the
filing of a motion to compel and that motion is denied,
courts may enter any protective order authorized under Rule
26(c). See Fed.R.Civ.P. 37(a)(5)(B).
REQUESTS FOR PRODUCTION OF DOCUMENTS
Request for Production 2
All Documents and Communications relating to the negotiation,
underwriting, drafting, issuance, placement and/or renewal of
the Illinois National Policy, including but not limited to
all Documents and Communications constituting, consisting of
or contained in Your underwriting file for the Illinois
National Policy, including any IGT application or
underwriting submission for or in connection with the
Illinois National Policy.
Docket No. 32-4 at 14.
objected to this request on grounds that is it, inter
alia, unintelligible, vague, ambiguous, and unduly
burdensome. Docket No. 32-5 at 6. Defendant further objected
to this request because information regarding the
underwriting of Plaintiffs' policy with Defendant does
not affect the coverage issues that are raised by
Plaintiffs' breach of contract claim and, therefore, is
submit that underwriting information is relevant to their
breach of contract claim because it could provide information
on the parties' intent when drafting the policy and what
requirements Plaintiffs allegedly failed to complete. Docket
No. 32 at 14-15. In response, Defendant submits that
underwriting information is irrelevant as extrinsic
information, and is discoverable only if Plaintiffs had
alleged ambiguities in the policy language. Docket No. 36-1
at 3. Defendant, however, fails to cite to any binding case
law that underwriting files are irrelevant to a breach of
contract claim. Id. at 3, 4.
relevancy of underwriting and policy drafting history
information is not exclusive to cases that involve bad faith
claims. See, Renfrow v. Redwood Fire & Cas. Ins.
Co., 288 F.R.D. 514, 521 (D. Nev. 2013) (finding that
underwriting files are relevant to claims of breach of
contract and bad faith); see also Phillips v. Clark Cty.
Sch. Dist., 2012 U.S. Dist. LEXIS 5309, *11-14 (D. Nev.
Jan. 18, 2012); Olin Corp. v. Cont'l Cas. Co.,
2011 U.S. Dist. LEXIS 98177, *9-10 (D. Nev. Aug. 30, 2011).
In Phillips, the Court overruled the defendant's
objections to the relevancy of documents related to the
underwriting files and negotiations of the insurance policy
at issue without specifying the relevancy only to the bad
faith claims. Philips, 2012 U.S. Dist. LEXIS 5309,
at *33. Underwriting information, as well as policy drafting
history, is relevant and, therefore, discoverable in a breach
of contract claim because it indicates what the coverage
included and also whether the insurer failed to meet its
obligation. Olin, 2011 U.S. Dist. LEXIS 98177, at
Olin, the Court found that underwriting information
was relevant to the defendant's affirmative defenses that
the insured failed to comply with an applicable policy
provision and that the claim at issue fell outside of the
insured's policy, even though those affirmatives defenses
were conditional. Id. In the instant case, Defendant
raises similar affirmative defenses: that Plaintiffs failed
to provide timely notice that they were involved in
litigation, as required by the policy, and their claim was
barred by the policy. Docket Nos. 32 at 14, 32-11, 36 at 8.
the Court GRANTS Plaintiffs' motion regarding request for
production number 2, and orders Defendant to provide all
responsive, non-privileged information requested by December
B. Request for Production 3
All Documents and Communications relating to the meaning,
purpose, interpretation, application, and scope of the terms,
provisions, conditions, and/or exclusions of the Illinois
National Policy, including but not limited to:
a. all Documents and Communications relating to the
definitions of "Wrongful Act" in the Illinois
National Policy, including the definitions in the BASE
section and TECH module of the Policy;
b. all Documents and Communications relating to the
definition of "Claim" in the Policy;
c. all Documents and Communications relating to the
definition of "Professional Services"in the Policy,
including the definition in the TECH Module of the Policy;
d. all Documents and Communications relating to the
definition of "Loss" in the Policy; e. all
Documents and Communications relating to ...