United States District Court, D. Nevada
ORDER [DOCKET NOS. 42, 52]
J. KOPPO UNITED STATES MAGISTRATE JUDGE
before the Court is Defendant Juan Sanchez's motion to
compel Plaintiff's deposition pursuant to Rule 30(b)(6)
of the Federal Rules of Civil Procedure. Docket No. 42.
Plaintiff filed a response in opposition, and Mr. Sanchez
filed a reply. Docket Nos. 50, 51. Also pending before the
Court is Plaintiff's motion to strike an exhibit to the
reply. Docket No. 52. Mr. Sanchez filed a response in
opposition, and Plaintiff filed a reply. Docket Nos. 53, 54.
The motions are properly resolved without a hearing.
See Local Rule 78-1. For the reasons discussed
below, the motion to compel is GRANTED in
part and DENIED in part, while the motion to
strike is DENIED as moot.
Sanchez suffered a work-place injury in which he fell from a
scaffold. See Compl. (Docket No. 1) at ¶ 6. Mr.
Sanchez was an employee of Ace Demolition, an entity owned by
Defendant Allen Crumpler. See Id. at ¶¶ 3,
7. The incident was investigated by Ace Demolition's
workers' compensation insurer, Travelers Insurance
Company. See Id. at ¶¶ 7-9. Mr. Sanchez
alleges that Mr. Crumpler made certain misrepresentations to
Travelers regarding Mr. Sanchez and the circumstances of the
fall. See Id. at ¶ 11. Mr. Sanchez alleges
that, based in part on that representation, Travelers denied
his workers' compensation claim. See Id. at
¶ 8; see also Docket No. 28 at 7. Following
several appeals, Travelers reversed course to accept the
workers' compensation claim nearly two years later.
See Compl. at ¶ 9; see also Docket No.
28-7. Mr. Sanchez alleges that he was injured by this delay
in that it hindered his medical treatment, exacerbating his
injuries. See Compl. at ¶ 11.
Sanchez brought suit in state court against Mr. Crumpler,
alleging negligence, negligent misrepresentation, fraudulent
misrepresentation, and intentional interference with a
contract. See Id. at ¶ 12.
an insurance dispute arising out of claims asserted in that
underlying state-court lawsuit. Plaintiff is an insurer for
Mr. Crumpler and Ace Demolition. See Id. at ¶
13. Plaintiff seeks declaratory relief that its general
commercial liability policy does not apply to the events
alleged in Mr. Sanchez's state-court action in light of
certain exclusions in the policy. See Id. at
¶¶ 19-45. For example, Plaintiff relies on an
exclusion to “[b]odily injury” sustained by an
employee arising out of his employment or performance of his
duties. See Id. at ¶ 14. Plaintiff also
highlights that its policy coverage excludes intentional
conduct. See Id. at ¶¶ 22, 31, 40. Mr.
Sanchez contests that construction and application of the
policy terms, arguing that his claims in state court arose
out of misrepresentations by Mr. Crumpler and not from bodily
injury. See, e.g., Docket No. 28 at 8-9. Mr. Sanchez
also asserts that the claims are premised on assertions of
negligent conduct, rather than intentional conduct. See,
e.g., Docket No. 9 at 7.
April 22, 2019, Mr. Sanchez served a Rule 30(b)(6) deposition
notice on Plaintiff. Docket No. 42-1. That deposition notice
identified eleven topics of inquiry. Id. Plaintiff
responded to the notice with objections that culminated in a
meet-and-confer. See, e.g., Docket No. 42 at 4-5. On
May 1, 2019, Mr. Sanchez served an amended Rule 30(b)(6)
deposition notice that dropped one topic, but continued to
seek testimony on the remaining ten topics. Docket No.
42-2. Given that the efforts in bridging the gap
on those ten topics proved unsuccessful, Mr. Sanchez brought
a motion to compel that deposition testimony. Docket No. 42.
That motion is the matter currently before the Court.
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). The scope of
discovery is limited to nonprivileged matter that is relevant
to a party's claim or defense and is proportional to the
needs of the case. Fed.R.Civ.P. 26(b)(1). The party seeking
to avoid discovery bears the burden of showing why that
discovery should not be permitted. Blankenship v. Hearst
Corp., 519 F.2d 418, 429 (9th Cir. 1975). The party
resisting discovery must specifically detail the reasons why
each request is irrelevant or otherwise objectionable, and
may not rely on boilerplate, generalized, conclusory, or
speculative arguments. F.T.C. v. AMG Servs., Inc.,
291 F.R.D. 544, 553 (D. Nev. 2013). Arguments against
discovery must be supported by “specific examples and
articulated reasoning.” U.S. E.E.O.C. v. Caesars
Ent., 237 F.R.D. 428, 432 (D. Nev. 2006). “A
strong showing is required before a party will be
denied entirely the right to take a deposition.”
Blankenship, 519 F.2d at 429 (emphasis added).
instant dispute arises out of Mr. Sanchez's attempt to
obtain Plaintiff's deposition testimony pursuant to Rule
30(b)(6). Plaintiff raises a number of objections to the
deposition, which the Court will address in turn below.
raises an overarching challenge to the deposition notice by
asserting that there is no need for discovery because the
interpretation of insurance policies is
“typically” a legal issue. Resp. at 4. Plaintiff
also indicates that there has been no affirmative finding by
the Court that the policy language at issue is ambiguous, so
there is no clear need for discovery at this time.
Id. Mr. Sanchez counters that the discovery is
appropriate now as relevant to the interpretation of the
contract language. See Reply at 4, 6. Mr. Sanchez
has the better argument.
is limited to what is relevant to the claims and defenses in
the case. Fed.R.Civ.P. 26(b)(1); see also in re Bard
Filters IVC Prod. Liab. Litig., 317 F.R.D. 562, 563-64
(D. Ariz. 2016). Even after the 2015 amendments to the
discovery rules, this is a “broad” concept.
E.g., Fed. Nat'l Mortg. Assoc. v. SFR Invs. Pool 1,
LLC, 2016 WL 778368, at *2 n.16 (D. Nev. Feb. 25, 2016).
Courts routinely allow discovery into the meaning of
insurance policy provisions in breach of contract cases.
E.g., Phillips v. Clark Cty. Sch. Dist.,
2012 WL 135705, at *4-5 (D. Nev. Jan. 18, 2012) (collecting
cases). Moreover, “courts do not generally resolve the
issue of ambiguity through a motion to compel and will
instead allow the discovery to proceed notwithstanding
arguments of a lack of ambiguity.” Riverport Ins.
Co. v. State Farm Fire & Cas. Co., 2018 WL 6435883,
at *2 (D. Nev. Dec. 6, 2018).
case law makes clear, discovery into the meaning of an
insurance policy is relevant in breach of contract cases, and
such discovery is generally allowed. The Court discerns no
reason to chart a different course here. Moreover, Plaintiff
has put the cart before the horse in asserting that such
discovery is premature because there has been no judicial
finding yet of ambiguity. Whether the provisions will be
found to be ambiguous is a merits-based argument that is left
for another day. It is proper at this junction to proceed
with that discovery in the interim.
deposition testimony as to the meaning of policy provisions
is relevant and appropriate.
Preference for Written Discovery
also argues that the deposition testimony at issue is
unnecessarily burdensome because the information could
otherwise be provided through written discovery. See,
e.g., Resp. at 4, 7. Mr. Sanchez counters that a party
may be required to explain its interpretation of documents
and that depositions are an appropriate vehicle for obtaining
that information. See, e.g., Reply at 3, 6, 9. Mr.
Sanchez has the better argument.
long been clear that written discovery and depositions are
not equivalent forms of discovery that may be easily
substituted for one another. Great Am. Ins. Co. of N.Y.
v. VegasConstr. Co., 251 F.R.D. 534, 539 (D.
Nev. 2008) (citing in re Vitamins Antitrust Litig.,
216 F.R.D. 168, 174 (D.D.C. 2003)); see also Shoen v.
Shoen, 5 F.3d 1289, 1297 (9th Cir. 1983). Written
discovery responses are drafted through calm reflection with
the aid of attorneys, while depositions probe the facts while
witnesses are under the scrutiny of examination. See
Cardinali v. Plusfour, Inc., 2018 WL 7502644, at *6 (D.
Nev. Oct. 9, 2018); see also Hambleton Bros Lumber Co. v.
Balkin Enterps., Inc., 397 F.3d 1217, 1225 (9th Cir.
2005) (“Depositions differ from interrogatories in that
regard. A deposition is not a take home examination”
(quoting Garcia v. Pueblo Country Club, 299 F.3d
1233, 1242 n.5 (10th Cir. 2002)). As such, ...