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Progressive Northwestern Insurance Co. v. Gant

United States District Court, D. Kansas

February 16, 2017

PROGRESSIVE NORTHWESTERN INSURANCE COMPANY, Plaintiff/Counterclaim Defendant,
v.
GABRIEL GANT, et al., Defendants/Counterclaim Plaintiffs.

ORDER ON DEFENDANT'S MOTION TO COMPEL

          KENNETH G. GALE United States Magistrate Judge.

         Now 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 below.

         BACKGROUND

         This is 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.)

         Additional 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.

         The 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, at 4.)

         DISCUSSION

         Fed.R.Civ.P. 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.

         As such, the requested information must be both nonprivileged and relevant to be discoverable. Within this framework, the Court will review the contested discovery responses.

         A. Progressive's Knowledge of McMaster's Conduct in Prior Claims (Requests 9-16, Interrogatories 19-22).

         Defendants 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.)

         1. Requests 9-14.

         Requests 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.[1] (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.)

         Progressive 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.)[2]

         The 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, at 10-11.)

         Even 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 is sustained.

         Defendants' 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.

         Plaintiff's 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.

         2. Request No. 15, Interrogatory No. 19.

         Request 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.)

         Plaintiff 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.

         3. Request No. 16, Interrogatory No. 20.

         These 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.)

         Plaintiff 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 ...


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