Sowell v. GEICO Casualty Ins. Co.
Sowell v. GEICO Casualty Ins. Co.
2013 WL 11521847 (N.D. Fla. 2013)
November 26, 2013
Timothy, Elizabeth M., United States District Judge
Summary
The court denied the plaintiff's motion for reconsideration, which sought permission to inquire about additional areas of ESI, such as emails, documents, and activity logs. The court noted that the defendant must produce a corporate representative that can respond to the areas of inquiry specified by the court in the order under reconsideration. The court also noted that the defendant has supplied an affidavit from the corporate representative, which provides answers to many of the questions raised by the plaintiff.
Abigail Sowell, Plaintiff,
v.
GEICO Casualty Insurance Company, Defendant
v.
GEICO Casualty Insurance Company, Defendant
Case No.: 3:12cv226/MCR/EMT
Signed November 26, 2013
Counsel
Margery McGrew Thorp, Jonathan Robert Mayes, Robert Joseph Mayes, Mayes Law Firm, Gulf Breeze, FL, for Plaintiff.Jessica Lynne Lanifero, Kelley Kronenberg, Dennis Patrick Dore, Dore & Associates LLC, Jacksonville, FL, for Defendant.
Timothy, Elizabeth M., United States District Judge
ORDER
*1 This cause is before the court upon Plaintiff's “Motion for Clarification and/or Amendment of Order Denying Motion for Protective Order (doc. 111) and Memorandum in Support” (doc. 114); Defendant's “Motion for Protective Order Regarding Producing Corporate Representative(s) for Deposition Per the Court's Order Date [sic] October 7, 2013 (doc. 111) and Memorandum of Law in Support” (doc. 115); Plaintiff's response to Defendant's motion for protective order (doc. 117); and Defendant's response to Plaintiff's motion for clarification and affidavit in support (docs. 120, 121).
Background
The parties in this case are once again before the court seeking resolution of a discovery dispute (the ongoing dispute between the parties has resulted in the issuance of various court orders, as well as a telephonic hearing with the attorneys and an in-person hearing before the undersigned, the latter of which occurred on August 6, 2013). In short, the ongoing dispute can best be described as follows: Plaintiff seeks the entire claims file[1] from Defendant, Defendant contends the entire claims file has been produced, and Plaintiff responds to Defendant's contention by alleging that either (1) the entire claims file has not been produced, and to the extent Defendant has advised the court that the entire claims file has been produced, Defendant has misled the court, or (2) the entire claims file might have been produced, but Plaintiff cannot determine whether it has been produced in its entirety due to the manner in which Defendant has produced the underlying documents (the claims file is an electronic claims file, and Plaintiff has repeatedly alleged that portions of the claims file produced by Defendant demonstrate that other portions have been deleted or not produced).
At the in-person hearing held August 6, 2013, Defendant's counsel and Susan Michelle Chang, one of Defendant's employees, appeared. According to Defendant, Ms. Chang was prepared to testify regarding the mechanics of preparing a document inventory[2] for Plaintiff, among other matters. After being questioned directly by the court, Ms. Chang indicated that she would provide a complete inventory of the claims file to Plaintiff, and she agreed to do so by August 12, 2013. The court advised Plaintiff that following receipt of this document inventory, if Plaintiff was not satisfied that she had all the documents she should bring the matter to the court's attention.[3]
*2 On or about August 22, 2013, Plaintiff served upon Defendant a Notice of Taking Deposition of Susan Michelle Chang and a Notice of Taking Deposition of Defendant's Corporate Representative (see, e.g., doc. 107 & attachs.). Both Notices indicated that the depositions would occur on September 20, 2013 (id.). Prior to issuing the deposition Notices, Plaintiff did not notify the court—in any manner whatsoever—that she was dissatisfied with the document inventory supplied by Defendant. The Notice issued for Ms. Chang did not identify any areas of inquiry; the Notice issued for Defendant's corporate representative identified three, and only three, areas of inquiry, as follows:
1. The method by which documents produced by Defendant in its Fifth Supplemental Response to Plaintiff's Request to Produce were retrieved and printed from Defendant's computer system.
2. The individual(s) who retrieved and printed the documents produced by Defendant in its Fifth Supplemental Response to Plaintiff's First Request to Produce;
3. The supervisor(s) of the individual(s) described in paragraph 2 above.
(doc. 107, attach.).
On September 17, 2013, Defendant filed a motion for protective order, asserting—among other arguments—that the areas of inquiry listed in the corporate representative's Notice are irrelevant to the claims and defenses in this case (i.e., a bad faith action, which concerns whether Defendant handled the underlying bodily insurance claim (by Plaintiff against Defendant's insured) in good faith) and are otherwise improper (doc. 107). Defendant also asserted that it expected Plaintiff to attempt to question Ms. Chang “regarding the means, methods and outcome of GEICO's information gathering for purposes of investigating this bad-faith claim (post-filing suit) and for purposes of responding to Plaintiff's Request to Produce,” which areas of inquiry—Defendant contended—are irrelevant to the issues in this case and are likely to invade the work-product and attorney-client privileges (id.). Defendant concluded its motion for protective order by stating:
GEICO has produced all relevant and responsive documents that are available and that pertain to the claims brought by SOWELL. Not only has GEICO produced all relevant and responsive documents, GEICO has gone beyond that obligation by preparing and producing an inventory of all documents in the claims file, although
GEICO was under no obligation to do so. Thus, inquiry into GEICO's method of retrieval and printing of those documents is not warranted. Plaintiff's ongoing request for information regarding how GEICO has been compiling discovery responses is an improper “fishing expedition[,]” which invades the attorney-client and work-product privileges, and should be prohibited. Further, Plaintiff is attempting to harass and embarrass GEICO through the improper use of depositions, coupled with Plaintiff's vague and unsubstantiated allegations that GEICO “may” be perpetrating a fraud on this Court, by hiding discoverable documents, and the Court should put an end to Plaintiff's conduct immediately and enter a Protective Order in favor of Defendant.
(doc. 107 at 13).
On October 3, 2013, Plaintiff filed a response in opposition to Defendant's motion for protective order (doc. 110). Plaintiff's response began with a discussion of the facts of the underlying automobile accident and Plaintiff's subsequent claim against Ms. Reed, Defendant's insured (id. at 1–4). Plaintiff then offered approximately four pages of law and argument regarding bad faith litigation and the relevancy of the claims file, matters which really are not in dispute (id. at 4–7). Plaintiff then recounted her version of “GEICO's Discovery History” and explained that her “sole purpose of taking the Rule 30(b)(6) deposition is to determine what other GEICO documents may exist that still have not been produced” (id. at 8). Next, Plaintiff explained why she believed Defendant had not yet produced the entire claims file (id. at 8–10), and she explained why she wished to depose Ms. Chang (namely, to question her about her verified answers to interrogatories, because she “is the individual who most likely would be able to testify concerning the location of GEICO's complete claims file,” and she “was the person charged with the responsibility of gathering all the documents in response to PLAINTIFF's First Request to Produce”) (id. at 10–11). Plaintiff also contended that the document inventory/list supplied by Ms. Chang was incomplete, and that she ought to be able to question Ms. Chang about the list (id. at 11). Finally, Plaintiff contended that the information she sought from Ms. Chang and Defendant's corporate representative was relevant, because it was reasonably calculated to lead to the discovery of admissible evidence (i.e., the (alleged) missing portions of the claims file), and it would not be protected by any privilege (id. at 13–15).
*3 After carefully considering the parties' positions, the court concluded that Plaintiff was entitled to some of the information at issue but not all of it. The court first noted that the relevance of the topics listed by Plaintiff in the corporate representative's Notice was unclear, although Plaintiff had explained in her response to Defendant's motion (more specifically, in the section where Plaintiff explained why she believed Defendant had yet to produce the entire claims file) the relevance of these areas of inquiry. The court—concerned by Plaintiff's allegations that Defendant was withholding (or continuing to withhold) relevant evidence, but mindful of Defendant's contention that such allegations are untrue—reached a compromise position. The court determined that Plaintiff would be permitted to depose a corporate representative (whether that person was Ms. Chang or some other person designated by Defendant), not a corporate representative and Ms. Chang (see doc. 111). The court also specified the areas of inquiry that would be permitted at the corporate representative's deposition (irrespective of the areas identified by Plaintiff in the Notice served upon Defendant in August 2013), as follows:
(1) the meaning and/or content of the “Other Loss Information Tab” in the claims file; (2) the existence of a “home office file” (and, if such a file exists, Plaintiff may request that Defendant provide copies of the documents it contained); (3) whether Attorney Byron Wobeter received documents from Defendant's office in Lakeland, Florida, made entries into the Alog notes section of the claims file, or exchanged e-mails with Mr. Huret, one of Defendant's adjusters (and, if so, Plaintiff may request that Defendant provide copies of the documents, entries, or emails (see also subparagraph (2) and footnote 3 of this Order)); (4) whether the “parties” tab of the claims file includes documents or information pertaining to two of the independent witnesses to the underlying accident (and, if so, Plaintiff may request that Defendant provide the witnesses' names, state whether Defendant contacted or attempted to contact these witnesses, and provide copies of the documents the “parties” tab contained); (5) whether the claims file includes “Payment Detail” and “Referral” tabs (and, if so, Plaintiff may request that Defendant provide copies of any documents these tabs contained); and (6) whether Defendant kept a closed or hard-paper claims file and, if so, state its location and describe its contents (including, for example, whether it contains deleted emails or other documents that cannot be retrieved from Defendant's electronic databases).
(doc. 111 at 2) (footnotes omitted). The areas of inquiry specified by the court essentially mirror those identified by Plaintiff as bases for her belief that Defendant was withholding evidence (see doc. 110 at 8–10). The court also authorized Plaintiff to request copies of certain documents if the corporate representative testified that those documents exist and, similarly, specifically directed Defendant to produce—without awaiting the corporate representative's deposition—certain documents to the undersigned's chambers for an in camera review (including a hard copy of the claims file, which—Plaintiff suggested—Defendant likely had in a storage facility), if those documents exist, on or before October 21, 2013[4] (see doc. 111 & footnotes 3, 4).
Current Dispute and Standard of Review
*4 Plaintiff has now filed a motion for clarification or amendment of the order issued October 17, 2013 (i.e., doc. 111), which is in effect a motion for reconsideration of that order (doc. 114). In this motion Plaintiff seeks an order authorizing her: (1) to pursue lines of questioning beyond those specified in the court's order of October 7, 2013 (as discussed more fully infra); and (2) (apparently) to select the corporate representative (i.e., Ms. Chang) she will depose, as opposed to permitting Defendant to select its own corporate representative (doc. 114). Plaintiff also seeks clarification regarding whether Defendant submitted any documents to the undersigned's chambers for an in camera review (id.). Defendant opposes the relief sought by Plaintiff (see doc. 120).
The applicable standard for a motion for reconsideration is that the moving party “must demonstrate why the court should reconsider its prior decision and set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision. A motion for reconsideration should raise new issues, not merely address issues litigated previously.” Socialist Workers Party v. Leahy, 957 F. Supp. 1262, 1263 (S.D. Fla. 1997) (internal quotation and citations omitted). Similarly, a reconsideration motion may not be used to offer new legal theories or evidence that could have been presented in conjunction with the previously-filed motion or response, unless a reason is given for failing to raise the issue at an earlier stage in the litigation. Escareno v. Noltina Crucible and Refractory Corp., 172 F.R.D. 517, 519 (N.D. Ga. 1994) (citing O'Neal v. Kennamer, 958 F.2d 1044, 1047 (11th Cir. 1992)). “Courts have distilled three major grounds justifying reconsideration: (1) an intervening change in controlling law; (2) the availability of new evidence; and (3) the need to correct clear error or manifest injustice.” Cover v. Wal–Mart Stores, Inc., 148 F.R.D. 294, 295 (M.D. Fla. 1993) (citations omitted).
As previously noted, in the instant motion for reconsideration, Plaintiff seeks permission to inquire about additional areas, beyond those specified by the court in the order under reconsideration. More specifically, Plaintiff seeks permission to ask the following (or similar) questions of Ms. Chang:
(1) state whether a search of the handling adjusters' computers has been made for ECF/ALog emails and Outlook emails;
(2) identify who, if anyone, instructed Defendant's personnel to remove the second page of each of the four Reserve Reviews and why those instructions were given;
(3) state which dates and/or date ranges were used in the Activity Log period fields for the Activity Logs produced by Defendant and explain why those dates or ranges were selected and, in related matters, (a) state whether the Liability Activity Log shows no entries after April 29, 2009, and if there are no such entries, explain why there are none, and (b) explain the use of various fields on the Activity Logs;
(4) explain the significance of the Claims IQ screens, as produced by Defendant, and (a) state whether certain information is missing from those screens, and (b), if so, why[5];
(5) admit whether a discrepancy in the total number of documents on the document inventory lists exit (e.g., reflecting, at different times, a total of 234 documents, 213 documents, and 221 documents) and, if so, explain the discrepancy; and
(6) state whether Ms. Chang failed to produce the document inventory, as she said she would (and could), in the form and with the information discussed at the evidentiary hearing held August 6, 2013, and if yes, explain why she failed to do so.
(see doc. 114).
*5 Plaintiff also appears to seek reconsideration of any portion of the order that did not grant her the authority to ask the specific questions identified in the corporate representative's Notice and/or the additional areas of inquiry she identified in responding to Defendant's motion for protective order.
Conclusion
Plaintiff is not entitled to the relief she seeks. She has identified no intervening change in the law or the availability of new evidence, and there is no clear error or manifest injustice that needs correction. The order under review here was carefully crafted, essentially mirrored Plaintiff's response to Defendant's motion for protective order, and was designed to (and does) permit Plaintiff to discover whether Defendant has withheld—intentionally or otherwise—documents it was required to produce.[6] Moreover, the order largely favored Plaintiff's position and, arguably, granted her more relief that might have been warranted under similar circumstances. “Generally, the court is loathe to credit a party's mere hunch about the existence of additional documents responsive to a particular discovery request.” Huthnance v. District of Columbia, 255 F.R.D. 285, 289 (D.D.C. 2008); see also Hubbard v. Potter, 247 F.R.D. 27, 29 (D.D.C. 2008) (“Courts supervising discovery are often confronted by the claim that the production made is so paltry that there must be more that has not been produced or that was destroyed. Speculation that there is more will not suffice; if the theoretical possibility that more documents exist sufficed to justify additional discovery, discovery would never end.”) (citing Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 313 (S.D.N.Y. 2003)). As previously noted, however, in light of Plaintiff's repeated and ongoing allegations that Defendant has withheld evidence, the court reached a compromise position that permits Plaintiff to ascertain the veracity of her allegations. That Plaintiff is unsatisfied with the compromise position is an insufficient reason to grant the relief she seeks here.[7]
Finally, to the extent Plaintiff contends that she may select Defendant's corporate representative, she has provided no authority for such a proposition and the court is aware of none. To be sure, the relevant rule of procedure states just the opposite. See Fed. R. Civ. P. 30(b)(6) (“[t]he named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf”). Defendant's obligation at this juncture is to produce a corporate representative that can respond to the areas of inquiry specified by the court in the order under reconsideration (doc. 111). If Ms. Chang is the only person who has knowledge of those areas and can respond to inquiries concerning those areas, Defendant should produce her. If another employee has knowledge and is able to so respond, or if Defendant can educate another employee so that he or she can respond, it is Defendant's prerogative to produce someone other than Ms. Chang for the corporate representative's deposition. See, e.g., Newman v. Borders, Inc., 257 F.R.D. 1, 3 (D.D.C. 2009) (“It is equally clear that a party must produce as its 30(b)(6) designee a person who can speak knowingly as to the topic and, if necessary, educate that designee so that she can do so.”) (citation omitted).
*6 Accordingly, it is ORDERED:
1. Plaintiff's motion for reconsideration (doc. 114) is DENIED.
2. To the extent Plaintiff seeks clarification regarding whether Defendant submitted any materials to the undersigned's chambers for an in camera review, Plaintiff is advised that no such documents were submitted.
3. Defendant's motion for protective order (doc. 115) is DENIED as moot.
DONE AND ORDERED this 26th day of November 2013.
Footnotes
The court's use of the term “claims file” refers to the claims file associated with a motor vehicle negligence claim and subsequent action in state court brought by Plaintiff against Karen Reed, a person insured by Defendant. The underlying automobile accident occurred on January 9, 2009, and the relevant time frame regarding the claims file is January 9, 2009, through February 14, 2012 (see, e.g., doc. 61).
At the hearing held August 6, 2013, Defendant's counsel described the document inventory as a computer printout of every single document that ever existed in this case. He also stated that the document inventory would provide Plaintiff with every single assurance that every document from the claims file has been produced. He further explained that the document inventory is basically a table of contents for all of the documents in a claims file, and it allows one to confirm that all documents from a particular claims file have been printed out.
The court discussed with counsel the best way to notify the court if Plaintiff was dissatisfied with the document inventory and suggested that a telephonic conference would be appropriate if the issue was relatively minor. Otherwise, the court indicated, Plaintiff should file a brief motion or similar submission.
Given the contentious discovery litigation in this case, which centers around an electronic claims file (and, according to Plaintiff, Defendant's unwillingness to produce it in its entirety), the court was most surprised to read Plaintiff's allegations that a hard copy of the claims file exists, has existed all along, and is in a storage facility that is accessible to Defendant. The court thus directed Defendant to, without delay (i.e., on or before October 21, 2013), provide to the undersigned's chambers a copy of any such “hard or paper copy” of the claims file. Defendant's inaction by the October 21 deadline can only be construed as establishing that no hard copy of the claims file exists in storage (or elsewhere) as Plaintiff alleged.
Plaintiff also apparently seeks permission to make similar inquiries regarding other sections of the Claims IQ screens or other screens, including, but not limited to, the “Auto Generated Text,” “Question Guide,” “Pedestrian,” “Interviewee,” “Snapshots,” “View Snapshots,” “Feature Information,” “Reserve Log,” and “View Feature History” sections (see doc. 114).
The court also noted that Plaintiff need not frame her deposition questions in the precise manner specified by the court (see doc. 111 at 1 n.1). It should go without saying that depositions are fluid and that Plaintiff is permitted to ask follow-up questions pertaining to or reasonably related to the permissible areas of inquiry.