United States District Court, D. Kansas
PROGRESSIVE NORTHWESTERN INSURANCE COMPANY, Plaintiff/Counterclaim Defendant,
GABRIEL GANT, et al., Defendants/Counterclaim Plaintiffs.
ORDER ON DEFENDANT'S MOTION TO COMPEL
KENNETH G. GALE United States Magistrate Judge.
before the Court is Defendant's Motion to Compel. (Doc.
116.) For the reasons set forth below, Defendant's motion
is GRANTED in part and DENIED in part as more fully set forth
a declaratory judgment action brought by Plaintiff
Progressive Northwestern Insurance Company
(“Plaintiff” or “Progressive”).
Plaintiff requests a finding that its handling of an
underlying claim and lawsuit, resulting from a fatal
automobile accident, “was appropriate, in good faith,
and consistent with the Progressive Policy and all duties
imposed upon it by law or otherwise.” (See
Doc. 1, at 5; Doc. 14, at 7.) Issues with the handling relate
specifically to counsel (Kevin McMaster) retained by
Plaintiff for its insured, who were defendants in the
underlying action. McMaster is alleged to have engaged in
conduct described as “obstructionist, ”
“highly prejudicial, ” and “to the extreme
detriment” of the defendants in the underlying lawsuit.
(See generally Doc. 6-5.)
facts relating to this case, as well as to the underlying
lawsuit, were summarized in the District Court's
Memorandum and Order granting Defendants leave to answer out
of time, Plaintiff's motion to strike, and
Plaintiff's motion to dismiss. (See Doc. 92, at
1-3.) That summary is incorporated herein by reference.
present motion relates to Plaintiff's responses to
Defendants' first Requests for Production and first
Interrogatories. (Docs. 116, 117.) In response to the
discovery requests, Plaintiff initially agreed to engage in a
rolling production of documents. Defendants contend that the
“production contained extensive redactions and
otherwise fell short of the production that was necessitated
in response to [Defendants'] First Requests.” (Doc.
117, at 4.) The parties met and conferred as required by
Fed.R.Civ.P. 37 and D. Kan. Rule 37.2 and also engaged in a
pre-motion telephone conference with the undersigned
Magistrate Judge. Even so, Defendants contend that “it
is clear that certain documents and information continue to
be withheld by Progressive from production.” (Doc. 117,
26(b) states that
[p]arties may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense
and proportional to the needs of the case, considering the
importance of the issues at state in the action, the amount
in controversy, 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. Information within this scope of discovery need not
be admissible in evidence to be discoverable.
such, the requested information must be both nonprivileged
and relevant to be discoverable. Within this framework, the
Court will review the contested discovery responses.
Progressive's Knowledge of McMaster's Conduct in
Prior Claims (Requests 9-16, Interrogatories 19-22).
argue that Progressive should be compelled to produce
“information and documentation demonstrating
Progressive's notice, prior to the [underlying
claim/lawsuit], of McMaster's conduct in prior claims and
cases that put Progressive's insureds at risk of excess
exposure and unnecessary litigation because such information
falls within the permissible scope of discovery.” (Doc.
117, at 5.)
Nos. 9-14 each reference a different case in which
Progressive retained McMaster in which McMaster is alleged to
have engaged in behavior ranging from uncooperative to
inappropriate or unethical. (See Doc. 117-1, at
15-23.) As to each specific case, Defendants request an
extensive amount of information, including pleadings, court
orders, transcripts of hearings, all discovery served in the
case, all correspondence exchanged between counsel, and all
correspondence between Progressive and McMaster or his law
firm. (Id.) As to Request No. 14,
Defendants also seek “[a] copy of any internal
communication and/or analysis of the issue of McMaster's
conflict of interest and/or perceived conflict of
interest.” (Id., at 23.)
objects that the Requests are overbroad, burdensome and
irrelevant as they seek information that is “completely
unrelated” to the underlying lawsuit. (Id., at
16-23.) Progressive also objects that the various cases
identified and the matters at issue therein “are not
relevant to the instant cause of action and this Request is
not within the proper scope of discovery.”
(Id.) Progressive continues that the Requests are
overbroad, vague, indefinite and burdensome to the extent it
requires Progressive to search every computer system and
source of electronic and hard copy information or all of its
communication systems in response to this Request.
Progressive also objects to the extent this Request poses an
undue burden and seeks to require the production of not
reasonably accessible data, including but not limited to,
backup tapes. Further, certain of the requested materials
appear to be available in the public record.
(Id., at 16-23.)
Court agrees that, generally, evidence of prior notice to the
insurer of McMaster's previous bad conduct in other cases
is relevant to Defendants' theory of Progressive's
potential negligence or bad faith in retaining McMaster to
represent its insureds. The Court also acknowledges
Defendants' argument that the requests are proportional
to the needs of the case pursuant to Fed.R.Civ.P. 26 given
the significant outstanding judgment in this case. (Doc. 117,
so, the Court finds the Requests at issue to be inherently
overbroad and unduly burdensome. This is especially true of
the information that is available to Defendants as public
record (pleadings, court orders, etc.) or through other
sources (transcripts). Plaintiff's objection as to
pleadings, court orders, and other documents of public record
requests for all discovery, all correspondence exchanged
between counsel, and all correspondence between Plaintiff
Progressive and McMaster are also facially overbroad.
Discovery exchanged and answered by both parties on any and
all topics relevant to other the lawsuits identified would
clearly encompass more information that was irrelevant than
relevant. All of the requested correspondence in these cases
would equally encompass volumes of documents that are
entirely irrelevant to these proceedings.
overbreadth and burdensome objections are sustained as to the
requested discovery and correspondence sought in Requests
Nos. 9-14. Defendants' motion is DENIED in regard to
Requests Nos. 9-14. Because the discovery requests are so
broadly written, the Court cannot endeavor to rewrite or
narrow them to make them appropriate. To the extent
Defendants want specific information that is encompassed
within these categories, Defendants are instructed to serve
revised discovery requests.
Request No. 15, Interrogatory No. 19.
No. 15 corresponds to Interrogatory No. 19, which seeks
information as to cases in which McMaster was sanctioned
while retained to represent one of Plaintiff's insureds.
(Doc. 117-1, at 24; Doc. 117-2, at 14.) As to such cases,
Defendants seek various subcategories of information,
including the case caption, the claims adjuster assigned, the
insured represented by McMaster, the sanction issued and
relevant events, identities of other attorneys involved.
(Doc. 117-2, at 14.) Defendant also requests “all
motions and orders related to the issue of sanctions as well
as transcripts of hearings where the issue of sanctions was
addressed.” (Doc. 117-1, at 24.)
objects that these discovery requests are overbroad, unduly
burdensome, and not within the proper scope of discovery as
they seek information unrelated to the underlying lawsuit as
well as information that is at least in part available in the
public record. (Doc. 117-1, at 25.) Even so, Plaintiff
“has undertaken a laborious electronic search of past
claims in which McMaster was involved, and cannot find any
additional claims in which McMaster, Progressive, or a
Progressive insured was actually sanctioned by a court”
until the underlying lawsuit. (Doc. 134, at 4, 6 (emphasis
removed).) The Court finds that Plaintiff's additional
investigatory efforts and offer to supplement its responses
sufficiently resolve the issues relating to Request No. 15
and Interrogatory No. 19. Plaintiff's objections are
overruled and the responses are deemed amended as stated.
Request No. 16, Interrogatory No. 20.
discovery requests seek information “providing
notification to Progressive that McMaster was or may be
acting with improper conduct and/or had a history of acting
with improper conduct with regard to his handling of a case
in which he was retained by Progressive to represent
Progressive and/or a Progressive Insured(s).” (Doc.
117, at 9; see also Doc. 117-1, at 25-26, Doc.
117-2, at 16-17.) Defendants ask Plaintiff to provide
identifying information as to each such claim or case, as
well as the adjuster assigned, the party insured, the
attorneys representing other parties, and the manner and date
of notification. (Doc. 117-2, at 16-17.)
initially objected, in part, that the “identification
of any such case and Mr. McMaster's conduct in same would
be wholly irrelevant to the matters at issue and would not be
reasonably calculated to lead to the discovery of admissible
evidence as to whether Progressive breached the at issue
contract.” (Id., at 17.) In its brief in
opposition, Plaintiff argues as to the vagueness of various
terms, including “improper conduct” and instances
in which it had notice that McMaster “may be”
acting in such a manner. Defendant clarified “improper
conduct” to encompass instances where McMaster
“may have” caused ...