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International Game Technology v. Illinois National Insurance Co.

United States District Court, D. Nevada

November 16, 2017

INTERNATIONAL GAME TECHNOLOGY, et al., Plaintiffs,
v.
ILLINOIS NATIONAL INSURANCE CO., Defendants.

          ORDER (DOCKET NO. 32)

          NANCY J. KOPPE UNITED STATES MAGISTRATE JUDGE

         Pending 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 in part.

         I. BACKGROUND

         On 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.

         II. STANDARDS

         “[B]road 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).

         When a 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).

         III. REQUESTS FOR PRODUCTION OF DOCUMENTS

         A. 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.

         Defendant 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 irrelevant. Id.

         Plaintiffs 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.

         The 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 *9-10.

         In 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.

         Accordingly, the Court GRANTS Plaintiffs' motion regarding request for production number 2, and orders Defendant to provide all responsive, non-privileged information requested by December 15, 2017.

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 ...

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