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H&L Associates of Kansas City, LLC v. Midwestern Indemnity Company

United States District Court, Tenth Circuit

October 25, 2013

H&L ASSOCIATES OF KANSAS CITY, LLC, Plaintiff,
v.
THE MIDWESTERN INDEMNITY COMPANY, Defendant.

MEMORANDUM AND ORDER

David J. Waxse U.S. Magistrate Judge

In this insurance coverage dispute, the parties disagree on whether damages to a commercial building owned by Plaintiff are covered under an insurance policy issued by Defendant. This matter is presently before the Court on Plaintiff’s Motion to Compel (ECF No. 29). Plaintiff requests an order pursuant to Fed.R.Civ.P. 37 compelling Defendant to provide a full and proper response to its First Interrogatory No. 2 and to produce documents responsive to its First Request Nos. 7, 9, 10, 13–16, 18, 19, 21, and 30. As discussed below, the motion is granted in part and denied in part.

I. Relevant Background Facts

Plaintiff H&L Associates of Kansas City, LLC obtained a commercial insurance policy from Defendant The Midwestern Indemnity Company to insure a commercial building located in Kansas City, Missouri. Plaintiff alleges that on April 2, 2012, the building experienced a “roof collapse, ” which is a cause of loss covered under the policy. On April 30, 2012, Defendant denied coverage of Plaintiff’s claim. On November 7, 2012, Plaintiff filed this action asserting claims for breach of contract, vexatious refusal to pay, breach of duty of good faith and fair dealing, and willful and wanton misconduct.

Relevant to the instant motion, Plaintiff served its First Interrogatories and First Request for Production of Documents on Defendant on April 10, 2013. Defendant served its Responses to Plaintiff’s First Interrogatories Nos. 1–4 and First Request for Production of Documents Nos. 1–31 on May 28, 2013. After attempting to confer as required by Fed.R.Civ.P. 37(a)(1) and D. Kan. Rule 37.2, Plaintiff filed the instant motion to compel on June 18, 2013.

On July 5, 2013, Defendant served its First Supplemental Responses to Plaintiff’s First Request for Production of Documents Nos. 3–9, 11–16, 18–21, 24–28, and 30–31. That same day, it also produced a Privilege/Redaction Log. On July 9, 2013, Defendant filed its Response (ECF No. 40) in opposition to Plaintiff’s motion and served its Second Supplemental Responses for Request Nos. 18, 19, and 21.

II. Discovery Sought by Plaintiff

In its motion, Plaintiff initially requested an order compelling Defendant to fully respond to Interrogatory No. 2 and produce documents responsive to Request Nos. 3–6, 7–9, 11, 12, 13– 16, 18–19, 20, 21, 24–26, 27, 28, 30, and 31. In its reply brief, Plaintiff advises that the parties have resolved their dispute as to Request Nos. 3–6, 12, 24–26, and 27. Plaintiff further advises that the parties have resolved their dispute with regard Request Nos. 20, 28, and 31 but requests that the Court order Defendant to produce the documents it agreed to produce. Defendant advises in its response brief that it has withdrawn its objection to Request No. 11. Plaintiff also moved to compel with respect to Request No. 8, but neither party addresses it in the response or reply. The Court therefore concludes that any disputes as to Request No. 8 have been resolved. Finally, although Plaintiff did not specifically refer to Request No. 10 in its motion or memorandum in support, both parties discussed it in the response and reply, thus suggesting that its omission in the motion was in error. The Court will thus review the following discovery requests: Interrogatory No. 2 and Request Nos. 7, 9, 10, 13–16, 18, 19, 21, and 30.

A. Interrogatory No. 2 (Persons With Knowledge)

Interrogatory No. 2 asks Defendant to “[i]dentify by name all persons who have knowledge of the pertinent facts related to the underwriting of the Insurance Policy, the issuance of the Insurance Policy, the terms and conditions of the Insurance Policy, and/or the denial of the Insurance Claim . . . .” For those individuals, Plaintiff asks Defendant to “provide the person’s employer, job title, and contact information, and describe generally the nature of the person’s knowledge.”

Defendant objected to the interrogatory to the extent it sought information not relevant to the claims or defenses of the parties. It also objected to the interrogatory on the grounds it is overbroad, which would make responding to it unduly burdensome. It then answered the interrogatory as follows:

Without waiving these objections, and subject thereto, [Defendant] Midwestern refers Plaintiff to those individual[s] and entities identified in Midwestern’s Initial Disclosures and those individuals identified in the documents produced in response to Plaintiff’s requests for production.

Defendant states in its response brief that Interrogatory No. 2 is no longer in dispute because Plaintiff provisionally agreed to Defendant’s proposal to identify each of the individuals by identification number in the claim notes it produced. Defendant asserts that this will identify anyone involved in the handling of the claim, as requested by the interrogatory. Plaintiff disagrees that the interrogatory is no longer in dispute. It claims that its provisional agreement on this interrogatory was predicated on Defendant providing certain information that has not yet been provided. According to Plaintiff, Defendant has only provided names for some of the users listed by identification number in the claims logs, and it has not provided any job titles or any general descriptions of the knowledge held by any of its personnel. It requests that the Court overrule Defendant’s objections to Interrogatory No. 2 and order it to fully and properly answer the interrogatory by identifying the individuals with knowledge by their name rather than an identification number, and providing their job title, employer name, contact information, and description of their knowledge.

1. Relevancy and Overly Broad Objections

Defendant initially objected to Interrogatory No. 2 as irrelevant, but did not reassert that objection in its response to Plaintiff’s motion to compel. Accordingly, the Court deems Defendant’s relevancy objection to this interrogatory as abandoned.[1] Defendant does however reassert its related overly broad objection to the interrogatory. Defendant argues that the interrogatory is overly broad because answering it requires Defendant to identify every person who has ever sold, obtained, or adjusted a claim relating a policy of insurance that contains the same form language as the subject policy.

Plaintiff maintains that the interrogatory is not overly broad but is appropriately limited to the issues raised in the complaint, which include the underwriting, issuance, terms and conditions of the subject insurance policy, and the denial of the specific insurance claim at issue in this case. Plaintiff argues that identification of individuals and a description of the general nature of the knowledge possessed by each person is an important precursor to deposition testimony. Plaintiff states that this information is also pertinent in deciding who it should depose.

In Wichita Fireman’s Relief Association v. Kansas City Life Insurance Co., [2] the plaintiff propounded an interrogatory similar to the one at issue in this motion, seeking the identity of “all persons with knowledge of the pertinent facts related to the denial of the claim made by plaintiff . . . .”[3] The defendant had objected that the interrogatory was overly broad as it may implicate people beyond those who have personal knowledge.[4] Finding the objection to be meritless, the court noted that interrogatories that request the identity of persons with knowledge of a situation are a commonly used, and acceptable, discovery technique.[5]

Here, Interrogatory No. 2 asks Defendant to identify individuals who have knowledge of the Insurance Policy, referring to the underlying insurance policy at issue. Furthermore, the interrogatory is specifically limited to the underwriting and issuance of the insurance policy, the terms and conditions of the insurance policy, the denial of the insurance claim, and specific facts relating to the knowledge of individuals involved with these aspects of the insurance policy at issue. Given the interrogatory’s limitation to the underwriting, issuance, and terms and conditions of the subject insurance policy, and the denial of the insurance claim at issue, Defendant has failed to show how the interrogatory is overly broad. Defendant’s overly broad objection to Interrogatory No. 2 is therefore overruled.

2. Sufficiency of Interrogatory Answer

In addition to asking that Defendant’s objections be overruled, Plaintiff also asks that Defendant be compelled to provide a “full and proper” answer to Interrogatory No. 2. Specifically, Plaintiff takes issue with Defendant answering the interrogatory by generally referring to documents it produced in discovery. Plaintiff asserts that responding to the interrogatory in this manner is insufficient because the claim activity log produced by Defendant identifies the users only by an identification number and not by name. Plaintiff also complains that Defendant’s general reference to all 715 pages of documents it has produced—without specifying the particular records that are responsive—does not constitute a proper interrogatory response under Rule 33(d). And, because the interrogatory seeks information that is not readily apparent from the documents or easily discernable (such as a description of the general nature of each person’s knowledge), Plaintiff argues that the mere reference to documents previously produced is insufficient on its face to provide the information requested. It asks the Court to order Defendant to provide a full and proper answer to Interrogatory No. 2, including all information requested therein.

Fed. R. Civ. P. 33(d) gives the party served with an interrogatory the option of producing its business records from which the answer can be obtained instead of preparing a direct answer when the answer “may be determined by examining, auditing, compiling, abstracting, or summarizing a party’s business records . . . and the burden of deriving or ascertaining the answer will be substantially the same for either party.” In this case, Defendant’s interrogatory response referring to its Rule 26 initial disclosures and other unspecified documents it previously produced in response to requests for production does not comply with the Rule 33(d) option to produce its business records in lieu of answering the interrogatory. As this Court has previously noted in Allianz Insurance Co. v Surface Specialities, Inc., [6]a party answering an interrogatory may not merely refer to other pleadings or its Rule 26(a) disclosures hoping that the party propounding the interrogatory will be able to glean the requested information from them. In Allianz, the court addressed an interrogatory seeking identification of persons with knowledge, similar to the interrogatory at issue here. The Allianz court found that the generic interrogatory response that “information responsive to this request was previously provided as part of the Fed.R.Civ.P. 26 disclosures” did not constitute a responsive answer to the interrogatory. [7]

In this case, the Court likewise finds that Defendant’s interrogatory response referring Plaintiff to its Rule 26 initial disclosures and other unspecified documents it previously produced does not constitute a proper interrogatory answer. Even if Defendant’s response had specifically identified the documents it produced that contained responsive information—such as the claim activity log, its response would still be deficient. A review of the claim activity log produced by Defendant shows that it does not provide all the information requested by the interrogatory. The individuals listed in the claim activity log are only referenced by an identification number and not by their name or title. Nor does the claim activity log provide the individuals’ employer, contact information, or general description of their knowledge related to the insurance policy and claim at issue.

Defendant’s relevancy and overbreadth objections to Interrogatory No. 2 are therefore overruled and Plaintiff’s Motion to Compel is granted. Within 30 days of the date of this Memorandum and Order, Defendant must serve a fully responsive answer to Interrogatory No. 2 by providing all the information requested by the interrogatory, including the full name of all individuals with knowledge, their employer’s name, job title, contact information, and general description of the nature of each person’s knowledge related to the insurance policy and claim.

B. Request Nos. 7, 9, and 10 (Claims File, Correspondence, and Reports)

Request for Production of Documents No. 7 seeks the “entire contents of your claims file regarding the Insurance Claim.” Request No. 9 asks Defendant to produce “[a]ll correspondence and communications (including e-mail) between you and any person who investigated the Insurance Claim.” Request No. 10 seeks “[a]ll reports made by any person who investigated the Insurance Claim.” In its May 28, 2013 responses, Defendant objected to Request No. 7 and 9 (but not 10) on the grounds that they sought information protected by the attorney-client privilege and the work product doctrine.[8] It then referred Plaintiff to “claims materials produced with the responses” for all three requests for production and produced certain materials, such as the claim activity log, with portions redacted. Defendant contends that the information it redacted is protected from disclosure under the attorney-client privilege and/or work product doctrine.

In its motion to compel, Plaintiff requests that the Court find that Defendant has waived its assertion of attorney-client privilege and work product protection because it failed to produce a privilege log or otherwise substantiate the privilege or protection claimed for the information redacted or withheld. Plaintiff contends that Defendant’s privilege and work product objections should thus be overruled and Defendant compelled to produce complete copies of the redacted and withheld materials.

On July 5, 2013, thirty-eight days after it served its discovery responses (and presumably produced responsive documents) and seventeen days after Plaintiff filed the instant motion to compel, Defendant produced a two-page “Privilege/Redaction Log.”[9] The privilege log contains four columns identifying the page number(s), date(s), description of document, and privilege/protection claimed. The first ten privilege log entries are redactions on Defendant’s claim activity log.[10] The last eight entries are described as “internal emails involving counsel” or ...


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