HOPEMAN BROTHERS, INC., Plaintiff, v. CONTINENTAL CASUALTY COMPANY, et al., Defendants Civil Action No: 4:16-cv-187 United States District Court, E.D. Virginia Filed January 12, 2018 Counsel Lyndsay Amelia Gorton, Kyle Philip Brinkman, John Albert Gibbons, Jeffrey Moore Johnson, Pro Hac Vice, Blank & Rome LLP, Justin Frank Lavella, Dickstein Shapiro LLP, Washington, DC, for Plaintiff. Eileen Therese McCabe, Pro Hac Vice, Jaimie Heather Ginzberg, Pro Hac Vice, Rebecca Shira Bardach, Mendes & Mount LLP, New York, NY, Stephen Thomas Roberts, Lynn Hagman Murray, Riley Caroline Mendoza, Pro Hac Vice, Shook Hardy & Bacon LLP, Chicago, IL, Maurice Francis Mullins, Spotts Fain PC, Richmond, VA, for Defendants. Leonard, Lawrence R., United States Magistrate Judge OMNIBUS ORDER *1 This action arises out of a coverage dispute between an insured, Plaintiff Hopeman Brothers, Inc. (“Plaintiff”), and its excess insurers, Defendants Continental Casualty Company and Lexington Insurance Company (collectively “Defendants”). Before the Court are five Motions which require resolution prior to trial, including: (1) Defendants' Motion to Strike Declaration of Ronald Van Epps (ECF No. 99); (2) Defendants' Motion in Limine to Exclude Evidence of Alleged Bad Faith, Reserves/Exposure Projections/Modeling and Evidence of Internal Settlement and Negotiating Positions and Deliberations From Trial (ECF No. 106); (3) Defendants' Motion in Limine to Preclude the Testimony of Plaintiff's Witness Jeffrey M. Posner (ECF No. 108); (4) Plaintiff's Motion in Limine to Preclude Defendants' Expert Witness George Priest (ECF No. 118); and (5) Defendants' Motion to Compel Compliance with Discovery Order (ECF No. 135). The aforementioned Motions are fully briefed and are now ripe for the Court's disposition. In the interest of clarity, the Court will separately address the disposition of each Motion. I. BACKGROUND The following background facts are taken, in large part, from the Stipulations of Undisputed Facts as provided by the parties' Final Pretrial Order. ECF No. 155. Prior to becoming inoperable in 2003, Plaintiff specialized in engineering, manufacture, and installation of marine interiors for ocean-going vessels. ECF No. 155 at ¶ 1. Beginning in 1937, Plaintiff purchased primary and, beginning in 1965, excess general liability insurance coverage. Certain primary-layer policies from 1937 through 1984 were issued by Liberty Mutual Insurance Company (“Liberty”) and Aetna Casualty & Surety Company (“Atena”), while the excess insurance policies were issued by Liberty and various other insurers, including Defendants. Specifically, Plaintiff procured excess insurance policies from Defendants for general liability coverage of Plaintiff for any and all sums Plaintiff would become legally obligated to pay as damages because of personal injury, property damage, or advertising injury that occurred during the relevant policy periods (1971-1974 and 1974-1977) after Plaintiff's underlying coverage layers were depleted. Beginning in 1979 and to the present, Plaintiff has been named in over one hundred thousand lawsuits brought by individuals who claimed to have suffered personal or bodily injury as a result of their alleged exposure to asbestos fibers contained in marine interior materials sold by Plaintiff. Plaintiff has incurred and continues to incur substantial costs and expenses in defending and settling these lawsuits. See ECF No. 159 at 7 (“There have been over 123,000 Asbestos-Related Claims against Hopeman during the nearly four decades since 1979.”). Until relatively recently, Plaintiff's defense and settlement costs were covered by the underlying primary insurance policies issued by other non-party insurers; however, in 2012, Plaintiff determined that such underlying policies were exhausted or nearing exhaustion. Upon making this determination, Plaintiff contacted Defendants, through the Defendants' claim administrator Resolute Management, Inc. (“Resolute”) to advise of the expected exhaustion (and eventual exhaustion in February 2013) of previous underlying policies, and the impending need for Defendants to honor their obligations under their respective excess coverage policies. Defendant Continental began making payments, but stopped on or about July 14, 2014. Defendant Lexington never made any payments. On December 27, 2016 Plaintiff filed a two count Complaint[1], after approximately four (4) years of pre-suit settlement negotiations proved unfruitful. Pursuant to the Order entered on January 2, 2018, the jury trial originally scheduled for January 9, 2018 was continued to an undetermined date. ECF No. 168. II. Defendants' Motion to Strike Van Epps Declaration (ECF No. 99) *2 On November 28, 2017, Defendants filed their Motion to Strike Declaration of Ronald Van Epps and accompanying memorandum of law in support, as well as eight exhibits[2]. ECF Nos. 99-100. The subject Declaration was filed by Plaintiff Hopeman Brothers, Inc. (“Plaintiff”) in support of Plaintiff's Motion for Partial Summary Judgment. See ECF No. 82 (Plaintiff's Motion for Partial Summary Judgment), attach. 36 (Declaration of Ronald Van Epps). In their Motion to Strike, Defendants seek an Order of Court striking the twenty-two paragraph Affidavit Declaration of Ronald Van Epps (“Van Epps Declaration”) in its entirety pursuant to Fed. R. Civ. P. 56(c)(2) and (c)(4), or alternatively, to strike Paragraphs 4-15, 17-19, and 21-22 of the Declaration based on the same subsections of Rule 56. Additionally, and for the reasons stated therein, Defendants also seek the striking of Van Epps Exhibit 1, which is an exhibit attached to the Van Epps Declaration. See ECF No. 82, attach. 36 (Van Epps Declaration); ECF No. 82, attach. 37 (Van Epps Exhibit 1). Plaintiff filed its Opposition on December 12, 2017, ECF No. 125, to which Defendants filed a Reply on December 18, 2017, ECF No. 144 (redacted)/148 (unredacted). Accordingly, the matter is now ripe for the Court's ruling and the Court will do so without a hearing pursuant to Federal Rule of Civil Procedure 78(b)and Eastern District of Virginia Local Civil Rule (“Local Rule”) 7(J). As previously explained, Plaintiff filed the Van Epps Declaration in support of its Motion for Partial Summary Judgment. See ECF No. 82, attach. 36. In its initial disclosures, Plaintiff identified Ronald Van Epps (“Van Epps”) as an individual with information regarding “communications with Defendants and other insurers of Hopeman” and an individual “likely to have knowledge of the facts relating to the parties' claims and defenses in this action.” ECF No. 100, attach. 6 at 2. Pursuant to these disclosures, Defendants deposed Van Epps twice, once, on October 18, 2017 in Washington, D.C. for six hours and fifty-four minutes as a Rule 30(b)(6) witness, see Rule 30(b)(6) Deposition Excerpt, ECF No. 100, attach. 3 (“Exhibit 2 to Roberts Decl.”), and again on October 26, 2017 in Boston for four hours and forty-seven minutes in his personal capacity, see Personal Deposition Excerpt, ECF No. 100, attach. 7 (“Exhibit 7 to Roberts Decl.”). During his Rule 30(b)(6) deposition, Van Epps described himself as a “Managing Director of The Claro Group” and testified that he began working with Plaintiff's counsel Jeffrey Johnson (“Johnson”) on the Hopeman account around late 2004/early 2005. ECF No. 100 at 2; ECF No. 100, attach. 3, Rule 30(b)(6) Dep. 13:16-18. In its Opposition to the Motion to Strike, Plaintiff describes Van Epps as an insurance consultant retained by Johnson. See Plaintiff's Opposition, ECF No. 125 at 5-6 (“Mr. Van Epps, as an insurance consultant, assists Hopeman in calculating and tracking its insurance allocations.”). Van Epps testified that from the time of his retention in late 2004/early 2005 to the present, whenever he had substantive conversations with Plaintiff's former president and/or Plaintiff's current partial owner and founder of SCS (the claims administrator for Plaintiff), Johnson was normally always involved. See ECF No. 100, attach. 3, Rule 30(b)(6) Dep. 15:9-23. *3 Defendants argue that the Van Epps Declaration should be struck either in its entirety, or in part, pursuant to Fed. R. Civ. P. 56(c)(2), (c)(4). Rule 56provides, in pertinent part that (c) Procedures. (1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact. (2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence. (3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record. (4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated. Fed. R. Civ. P. 56(c). Here, Defendants argue that at his Rule 30(b)(6) deposition, Plaintiff's counsel Johnson repeatedly instructed Van Epps not to answer questions on the basis of privilege, and Johnson stated that all of Van Epps' actions “in connection with the Hopeman account” were done at the direction and request of Johnson. See ECF No. 100, attach. 3, Rule 30(b)(6) Dep. 232:13-22. Additionally, and as evidenced by a twenty page Privilege Log dated July 19, 2017, Plaintiff and Johnson specifically withheld nearly four hundred documents on the grounds that they were “Confidential Wellington ADR Communications” between Van Epps and various insurer representatives. See ECF No. 100, attach. 8 passim.[3]Significantly, during his personal deposition in Boston, when Van Epps was asked about his involvement in negotiations with other insurers, Van Epps stated (at least once)[4] that he could not answer and that Defense counsel was “going to have to put documents in front of me,” yet these documents/communications were withheld from Defendants during discovery on the grounds of privilege. See ECF No. 100, attach. 5, Plaintiff's Objections to Defendants' First Set of RPDs and ATIs (Ex. 4 to Roberts Decl.) at 17 (objecting to production of “all communications between Claro and Hopeman regarding the factual bases for the calculation of the liability and defense costs resulting from asbestos claims paid by or on behalf of Hopeman” on the grounds that “communications between [Van Epps] and his team at Claro Group and Hopeman are protected by the attorney client privilege and, in many cases, the work product doctrine”). See also ECF No. 100, attach. 7, Van Epps Personal Dep. 16:2-21; 33:2-18. According to Defendants, because Van Epps has been held out by Plaintiff as an essential agent of Plaintiff's counsel, it renders the attachment of the Van Epps Declaration in support of Plaintiff's Motion for Partial Summary Judgment impermissible because it is based “in toto” on what Plaintiff previously described as undiscoverable and inadmissible evidence. Relying heavily on the principles espoused in a recent Eastern District of Virginia bankruptcy case, Defendants argue that Plaintiff is barred from selectively asserting “attorney-client privilege” to block discovery while concomitantly proffering Van Epps as a declarant in support of its Motion for Partial Summary Judgment. See Galaxy Computer Servs., Inc. v. Baker, 325 B.R. 544, 559 (E.D. Va. 2005) (“The weight of authority indicates that to permit Mouer to testify to issues which she refused to testify to during her deposition based on privilege would allow the Defendants to use the attorney-client privilege as both a shield and a sword. Thus, Mouer may only testify at trial within the scope of her deposition and Plaintiff may not refer to the rulings of Judge Mitchell and Judge Brinkema concerning the crime-fraud exception to the attorney-client privilege.”). *4 Unsurprisingly, Plaintiff vehemently opposes Defendants' Motion to Strike, arguing that there is no basis for striking the Van Epps Declaration in its entirety, or by a piecemeal approach. See ECF No. 125 passim.According to Plaintiff, Defendants appear to suggest that a competent fact witness (such as Van Epps) is disqualified from providing the Court with relevant information if that witness also has communications that are subject to privilege. To that end, Plaintiffs contend that Defendants run afoul of their own contention by virtue of individuals listed as trial witnesses, who also appear on their original Privilege Log, to include employees of Resolute, Defendants' claims management company. ECF No. 125 at 7-8. Plaintiff concedes that its production of its communications with other non-party insurers did not include communications that occurred during the Wellington Agreement ADR negotiation phase or arbitration proceedings with certain insurers, and that these withheld communications were logged. ECF No. 125 at 5. See also ECF No. 164, attach. 1 (Ex. 6 to Roberts Declaration). Plaintiff also argues that Defendants' “assertion that Hopeman blocked access to Mr. Van Epps' testimony in any manner is belied by the record” based on the fact that Van Epps was deposed twice and Defendants “were apparently satisfied with Mr. Van Epps' testimony [in his personal capacity and his capacity as a Rule 30(b)(6) designee] (or at least unwilling to contest it), because they filed no motion in connection therewith.” ECF No. 125 at 6. The Court disagrees with this assertion because the excerpt of Van Epps' Rule 30(b)(6) deposition transcript shows that Plaintiff's counsel blocked Defendants' inquiry into at least some matters about which the Van Epps Declaration opines. For example, the very first entry on Plaintiff's September 8, 2017 Supplemental Privilege Log is a January 16, 2012 email correspondence between Van Epps and other parties, described by Plaintiff as an “[e]mail regarding Hopeman insurance allocation projections, including Continental and Lexington” and withheld on the grounds of “Attorney-Client Privilege.” See ECF No. 100, attach. 8 (Ex. 8 to Roberts Decl.) at 1. The next four entries on the Supplemental Privilege Log appear to be four separate attachments to the January 16, 2012 email correspondence, which are described in the Log entries as: (1) “Attachment: draft analysis and calculation of SCS allocation to INA (prepared by Claro Group**)”; (2) “Attachment: draft analysis and calculation of SCS allocation to INA (prepared by Claro Group**)”; (3)“Attachment: draft analysis and calculation of Wellington allocation (prepared by Claro Group**)”; (4) “Attachment: draft analysis and calculation of Wellington allocation (prepared by Claro Group**).” ECF No. 100, attach. 8 (Ex. 8 to Roberts Decl.) at 1. Like the actual January 16, 2012 email correspondence, Plaintiff withheld these “attachments” on the grounds of “Attorney-Client Privilege.” ECF No. 100, attach. 8 (Ex. 8 to Roberts Decl.) at 1. During Van Epps' Rule 30(b)(6) deposition, Defense counsel attempted to ask Van Epps about this particular January 16, 2012 entry, inquiring “[w]hy was this allocation -- what was the nature of the allocation projections being done at this time?” ECF No. 100, attach. 3 (Ex. 2 to Roberts Decl.), Rule 30(b)(6) Dep. 232:10-12. However, without allowing Van Epps to respond, Plaintiff's counsel Johnson stated [t]his is privileged for a reason. I'm not going to allow him to answer questions concerning attorney/client privileged material. As Mr. Van Epps has indicated earlier in his testimony, all of his actions in connection with the Hopeman account, as we've been calling it, were at my direction and at my request, and so we're not going to get into that. ECF No. 100, attach. 3 (Ex. 2 to Roberts Decl.), Rule 30(b)(6) Dep. 232:13-22. It is unclear, based on Plaintiff's failure to identify further portions of the Rule 30(b)(6) deposition, whether Johnson ever permitted Defense counsel to further inquire about “allocations.” What is clear, is that the Van Epps Declaration makes multiple references to the “allocations” performed by Van Epps (and others) on behalf of Plaintiff and pursuant to the Wellington Agreement. See e.g., ECF No. 82, attach. 36 at 2, ¶ 6 (“Under the Wellington Agreement approach, participating insurers' obligations for asbestos-related claims were spread pro rata across all policies from a claimant's date of first exposure access a ‘coverage block,’ which in Hopeman's case eventually extended to 1984.”); id. at 3-4, ¶ 9 (“... Hopeman has allocated to coverage above the exhausted Liberty policies per the terms of the coverage-in-place agreements with the participating insurers, pursuant to an agreed pro rata methodology derived from the Wellington Agreement (‘SCS Allocation’).”); id. at 4, ¶ 10 (“... Hopeman allocated amounts to those policies for asbestos-related claims pursuant to the SCS's allocation ...”). *5 Furthermore, the Court finds that while Plaintiff accurately recounts that Defendants deposed Van Epps in both his personal capacity and in his capacity as a Rule 30(b)(6) corporate designee, and until now, filed no motion in connection therewith, Defendants' failure to immediately file such a motion does not preclude Defendants' filing of the same now. To be sure, it was not until Plaintiff attempted to use the testimony of Van Epps to the detriment of Defendants that the need for Defendants to formally take action to prevent the Court from considering such testimony arose. Additionally, as evidenced by the Rule 30(b)(6) deposition transcript excerpt, it is clear that Defense counsel noted her objection to Plaintiff's assertions of privilege, thereby preserving the instant objection to Plaintiff's attempted use of the privilege as both a sword and a shield. See e.g., ECF No. 100, attach. 3 (Ex. 2 to Roberts Decl.), Rule 30(b)(6) Dep. 232:23-25 (“MS. MCCABE: Okay. I would just note an objection, since the assertion is attorney/client privilege ...”). As Defendants articulated in their Reply, “[i]ndeed, Defendants are not saying they require further discovery in this regard. What Defendants are saying is that Plaintiff must live with its litigation strategy.” ECF No. 148 at 4. As the Fourth Circuit has explained, “[g]enerally, an affidavit filed in opposition to a motion for summary judgment must present evidence in substantially the same form as if the affiant were testifying in court.” Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996) (citing Fed. R. Civ. P. 56(e)) (noting that the rule specifically requires that affidavits submitted on summary judgment contain admissible evidence and be based on personal knowledge); Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991) (evidence submitted in opposition to summary judgment motion must be admissible and based on personal knowledge)). Additionally, “summary judgment affidavits cannot be conclusory ... or based upon hearsay.” Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996) (citing Rohrbough v. Wyeth Labs., Inc., 916 F.2d 970, 975 (4th Cir. 1990); Maryland Highways Contractors Ass'n v. Maryland, 933 F.2d 1246, 1252 (4th Cir. 1991), cert. denied, 502 U.S. 939 (1991)) (internal citations omitted). Based on the aforementioned Fourth Circuit case law, it is axiomatic that the contents of an affidavit submitted in support of a Motion for Summary Judgment (or Partial Summary Judgment) must set out facts that would be admissible at trial. If such contents do not conform to this standard, then the opposing party is entitled to object to the Court's consideration of the affidavit. Here, the Court agrees with Defendants that certain portions of the Van Epps Declaration should be stricken, and will GRANT Defendants' Motion to Strike (ECF No. 99) as to those portions, but will DENY Defendants' request to strike the Van Epps Declaration in its entirety. See Morrison v. Jordan, No. 7:08-CV-00643, 2010 WL 3783452, at *3 (W.D. Va. Sept. 28, 2010) (“When an affidavit contains both inadmissible and admissible portions, courts are free to strike only the inadmissible portions.”) (citing Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996)). Specifically, Defendants seek an Order of Court striking Paragraphs 4, 5-6, 7-10, 11-14, 15, 17-19, 21, and 22. Thus, only Paragraphs 1-3, 16, and 20[5] are outside the Court's consideration. Paragraph 4 Pursuant to Paragraph 4, Defendants inexplicably argue that Van Epps cannot authenticate Van Epps Ex. 1 (ECF No. 82, attach 37), therefore to the extent that Paragraph 4 relies on the contents of the summary chart, Paragraph 4 must be stricken. The Court finds this argument to be misplaced. In his Declaration, Van Epps specifically states that the summary exhibit in question is “a true and correct copy of an ‘Exhaustion of Policy Limits Report’ that I regularly maintain and update for Hopeman as part of my consulting representation to Mr. Johnson for Hopeman, updated through [SCS] billings ...” ECF No. 82, attach. 36/ECF No. 100, attach. 2 at 2 (emphasis added). Clearly, based on this sworn statement, Van Epps possesses the personal knowledge required to authenticate this chart. Defendants' second basis for striking Paragraph 4 is slightly more persuasive. Pursuant to Fed. R. Evid. 1006, “[t]he proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court.”Fed. R. Evid. 1006. In their Reply, Defendants appear to abandon the claim that the underlying billings which are summarized by Van Epps Exhibit 1 have not been produced (“the veracity of them is simply not the subject of this motion”) and rely heavily on the argument that Van Epps simply lacks the personal knowledge required to authenticate the billing records. SeeECF No. 148 at 6-7. As explained herein, this argument is not persuasive. What is persuasive, however, is the fact that Paragraph 4 and Van Epps Exhibit 1 (ECF No. 82, attach. 37) relate to “allocation,” a subject into which Plaintiff blocked discovery with this specific declarant by instructing Van Epps not to answer and withholding production of documents and communications on the subject. Accordingly, Defendants' Motion to Strike with respect to Paragraph 4 is GRANTED, and Paragraph 4 is STRICKENin its entirety. Consequently, and for the same reasons, Defendants' Motion to Strike as to Van Epps Exhibit 1 (ECF No. 82, attach. 37) is also GRANTED and the same is STRICKEN. Paragraphs 5-6 *6 Defendants contend that Paragraphs 5-6 should be stricken because Van Epps lacks personal knowledge to make such factual statements, the facts are based on blocked discovery, and any statements regarding exhaustion of underlying insurance policies engender legal conclusion. It does appear that some of these paragraphs relate to the Wellington Agreement and allocation pursuant to the “Wellington Approach.” Additionally, Plaintiff appears to concede that communications with various insurers were withheld, but argues that communications with insurers such as Century and INA that occurred before Wellington ADR commenced have been produced to Defendants. See ECF No. 125 at 4. It does not appear that discovery into the general existence of the Wellington Agreement, or general recitation of signatories thereto is an area into which discovery was blocked by Plaintiff. See ECF No. 82, attach. 36 at 2, ¶ 5. Accordingly, because Paragraph 5 simply recounts general facts about the Wellington Agreement, Defendants' Motion to Strike with respect to Paragraph 5 is DENIED. Paragraph 6 is more specific and explains the specific actions taken by Plaintiff pursuant to “the Wellington Agreement approach.” This appears to be the exact type of “allocation” that Defense counsel attempted to ask Van Epps about during his deposition, and based on the excerpts provided to the Court, Plaintiff's counsel Johnson rebuffed such defense efforts. SeeECF No. 100, attach. 3 (Ex. 2 to Roberts Decl.) Rule 30(b)(6) Dep. 232:10-22.[6] Accordingly, Defendants' Motion to Strike as to Paragraph 6 is GRANTED, and the entirety of Paragraph 6 is STRICKEN. Paragraphs 7-10 Defendants argue that Paragraphs 7-10 should be stricken because they predate Plaintiff's counsel Johnson's retention of Van Epps and therefore cannot be based on personal knowledge, and to the extent that they are based on personal knowledge, that knowledge was gained through privileged communications between Van Epps and Johnson, and also amount to conclusions of law with regards to the “exhaustion” of Liberty Mutual policy limits. Defendants' constrained approach as to what constitutes personal knowledge is not persuasive. Taken to the logical extreme, technically everything is hearsay – reading the time on a clock, an individual's name, etc. An individual can acquire personal knowledge (as we can assume Van Epps did in his role as an insurance consultant) by making himself familiar with accounting and tracking payments and reviewing documents, etc. For instance, if Van Epps has seen a document that purports to be the written agreement between Hopeman and Liberty Mutual to exhaust policy limits for products/completed operations for a certain amount of money, then Van Epps can be said to have personal knowledge of that fact. Furthermore, the need to rely on a document to verify a date or fact therein, as Van Epps requested in his personal deposition, see ECF No. 100, attach. 7, Personal Dep. 33:13-18, does not mean that Van Epps lacks personal knowledge of a fact or a date. At trial, a witness can refresh his or her recollection as to something he or she once knew, but cannot recall at the time of testimony without the aid of a refresher tool, see Fed. R. Evid. 612. See also United States v. Rydland, 461 F. App'x 208, 210 (4th Cir. 2012) (“It is, of course, obvious from everyday experience that the latent memory of a witness may be revived by prior written statements which he or others may have made. Thus, most courts today hold that in examining a witness at trial, counsel may hand him a memorandum to inspect for the purpose of refreshing his memory, with the result that when he testifies, he does so on the basis of his own recollection, not the writing. Proper foundation for such procedure requires that the witness' recollection be exhausted. A contrary holding would permit a party to substitute the prior statement of a witness for his actual testimony.”) (quoting United States v. Morlang, 531 F.2d 183, 190–91 (4th Cir. 1975)) (internal citations omitted); In re 1616 Reminc Ltd. P'ship, 9 B.R. 679, 690 (Bankr. E.D. Va. 1981)(“Case law construing what constitutes the proper foundation for the admission of a writing to refresh a witness' recollection requires that the movant establish the following elements: first, the witness' recollection must be exhausted; second, the movant must establish the time, place and person to whom the writing was given; third, the Court must be satisfied that the writing accurately reflects the witness' statements, or that the witness acknowledges the accuracy of the writing.... Only when the Court is satisfied that these criteria have been met and ‘is further satisfied that it may be of help in refreshing the (witness') memory should the witness be allowed to refer to the document.’ ”) (quoting Goings v. United States, 377 F.2d 753, 760 (8th Cir. 1967)) (internal citation omitted). Accordingly, Defendants' Motion to Strike with regards to Paragraphs 7 and 8 is DENIED. *7 However, it does appear that Paragraphs 9 and 10 include statements related to formulaic “allocation,” applied pursuant to Wellington Agreement principles. The Court's review of the documents produced by the parties in support of their filings leads the Court to only one conclusion: such documentation was not produced to Defendants, and instead was withheld by Plaintiff on the grounds of privilege and pursuant to the confidentiality obligations attendant to the Wellington Agreement and its signatories. Specifically, Paragraph 9 includes the statement that “Hopeman has allocated to coverage above the exhausted Liberty policies per the terms of the coverage-in-place agreements with the participating insurers, pursuant to an agreed pro rata methodology derived from the Wellington Agreement (“SCS allocation”).” Accordingly, with respect to this portion of Paragraph 9, Defendant's Motion to Strike is GRANTED, and the aforementioned portion of Paragraph 9 is STRICKEN. Paragraph 10 includes two references to allocation. The first is minimal, providing in pertinent part, that “[t]he $77.4 million in indemnity payments did not include any amounts allocated to Liberty primary policy ...” This portion of Paragraph 10 will not be stricken, and Defendants' Motion to Strike with respect to this specific portion of Paragraph 10 is DENIED. However, the second allocation reference is more substantial, and encapsulates an area of blocked discovery about which Van Epps attempts to submit his sworn statements, specifically, that “Hopeman allocated amounts to those policies for asbestos-related claims pursuant to SCS allocation.” Accordingly, Defendants' Motion to Strike with respect to this second quoted portion of Paragraph 10 is GRANTED, and the same is STRICKEN. Paragraphs 11-14 Like Paragraphs 5-6, Defendants contend that Paragraphs 11-14 should be stricken because Van Epps lacks personal knowledge to make such factual statements, the facts are based on blocked discovery, and any statements regarding exhaustion of underlying insurance policies engender legal conclusion. The second sentence of Paragraph 11 states: “[t]he Aetna policy was exhausted by amounts paid pursuant to the December 2012 SCS allocation billing.” The quoted portion of Paragraph 11 is an example of the practical application of SCS allocation, pursuant to the Wellington Agreement approach, under which insurer obligations were spread pro rata. It does appear that discovery into this subject was blocked on the grounds that it involved Wellington ADR settlement negotiations. Accordingly, as to Paragraph 11, Defendant's Motion to Strike is GRANTED in part, and the second sentence quoted supra is STRICKEN. The Court does not find Defendants' arguments persuasive with respect to any portion of Paragraph 12. Accordingly, Defendants' Motion to Strike is DENIED with respect to Paragraph 12. Paragraph 13 includes the statement: “but Hopeman continued to allocate to the Home Umbrella Policy” and “pursuant to the SCS allocation.” The Court finds that both of these statements should be STRICKEN based on Plaintiff's decision to block discovery of the allocation topic. Accordingly, Defendants' Motion to Strike is GRANTED in part, with respect to the two aforementioned portions of Paragraph 13. Consequently, the amended sentence should read: “Hopeman sold its claim to the Home insolvency proceeding to a third party for $4,593,750 (approximately 30.6% of the allowed claim amount), and paid the full $15 million products/completed operations aggregate limits for asbestos-related claims in Home's stead.” *8 Paragraph 14 concludes with the statement “related to SCS allocations to this policy.” For reasons stated previously, Defendants' Motion to Strike is GRANTED in part and this portion of Paragraph 14 is STRICKEN. Paragraph 15 Paragraphs 15 asserts that in December 2012, Plaintiff began allocating to the “quota share” layer provided by the excess insurance layer provided by Defendants because of the exhaustion of the preceding Aetna Policy, and Hopeman notified Defendants when exhaustion was near, and then when actually exhaustion occurred. Defendants seek the exclusion of Paragraph 15 based on the fact that it consists of Van Epps attempting to testify as to the legal conclusion of “exhaustion.” The Court does not find merit in this argument, because Van Epps is simply explaining actions taken by Plaintiff based on its position that the Aetna policy was exhausted. However, Paragraph 15 speaks extensively about the “allocation” actions taken by Plaintiff. Since discovery into this area was blocked, for reasons stated previously, Defendants' Motion to Strike is GRANTED and Paragraph 15 is STRICKEN. Paragraph 17 Paragraph 17 provides that “[t]hrough June 30, 2017, Hopeman has never assigned any costs or received recovery for any asbestos-related claims or other claims under any insurance policy incepting before March 14, 1974 and attaching above $10.5 million in underlying policy limits.” ECF No. 82, attach. 36. Defendants argue that Paragraph 17 should be stricken because Van Epps cannot establish that he bases his contention therein on his personal knowledge. The Court disagrees. Van Epps has been working as Plaintiff's retained consultant on this particular issue since at least early 2005. Defendants have failed to identify any specific reason why the contents of Paragraph 17 would not fall squarely within his purview as an insurance consultant for Plaintiff and Plaintiff's counsel, or alternatively, within the scope of Van Epps' personal knowledge. Accordingly, with respect to Paragraph 17, Defendants' Motion to Strike is DENIED. Paragraph 18 Defendants argue that Paragraph 18 should be stricken for the same reasons as Paragraph 15, namely, that it should be stricken because it consists of legal argument, conclusions of law and conclusory statements, with Van Epps purporting to testify as to the “exhaustion” of the Aetna policy. ECF No. 104 at 10. The Court disagrees that this is an attempted legal conclusion for the reasons articulated previously. Here, Van Epps is merely relaying the statement of fact that Plaintiff notified Defendants, first that the Aetna policy was nearing exhaustion, and then, that it had been exhausted. However, Paragraph 18 does posit in the second sentence that it relied on “the December 2012 SCS allocation billing” as the basis for its position that the Aetna policy was exhausted, and this, again, was an area of discovery blocked by Plaintiff. Accordingly, this reference should be STRICKEN for the reasons previously stated herein, and, as to Paragraph 18, Defendants' Motion to Strike is GRANTED in part. Consequently, the second sentence of Paragraph 18 should read: “Then in February 2013, Hopeman notified Resolute that the Aetna Policy limits were in fact exhausted.” Paragraphs 19, 21, 22 *9 With respect to Paragraphs 19, 21, and 22, Defendants argue that any references to “SCS billings” or “SCS allocations” should be stricken “for the reasons set forth in Paragraph 1.” ECF No. 104 at 10. The Court is unclear as to which “Paragraph 1” Defendants are referring. Paragraph 1 of the Van Epps Declaration provides: “I am a Managing Director with The Claro Group, a consultant for Jeffrey Johnson of Blank Rome LLP, insurance coverage counsel for Hopeman Brothers, Inc. (“Hopeman”).” ECF No. 82, attach. 36 at 1/ECF No. 100, attach. 2 at 1. However, the Court assumes that Defendants' reference to “Paragraph 1” was intended to refer to the first bullet point of their Memorandum in Support of the Motion to Strike. SeeECF No. 104 at 9-10 (arguing that “Mr. Van Epps is unable to meet the authentication requirements with respect to the ‘SCS billings’ ”). The aforementioned Paragraphs (19, 21, and 22) state essentially that Defendant Continental initially accepted allocation of claims and made payments totaling a certain amount through certain dates, and then provide the amount left unpaid by Defendant Continental, offset by the amount paid, and also that Defendant Lexington has paid nothing and states the amount left unpaid by Lexington. See ECF No. 82, attach. 36 at 6/ECF No. 100, attach. 2 at 6. As it has previously done, the Court rejects Defendants' contention that Van Epps lacks personal knowledge to make these statements. Rather, the Court finds problematic the repeated references to “allocation” after discovery into this subject was blocked by Plaintiff's counsel Johnson. Plaintiff should not be permitted to proffer its specific allocation calculations when it prohibited Defendant from inquiring about this subject at Van Epps' depositions. Accordingly, Defendants' Motion to Strike is GRANTED as to Paragraphs 19, 21, and 22, and said Paragraphs are STRICKEN. In conclusion, upon consideration of Defendants' Motion to Strike Declaration of Ronald Van Epps and accompanying memorandum in support (ECF Nos. 99-100/104 (unredacted)), Plaintiff's Opposition (ECF No. 125), and Defendants' Reply thereto (ECF No. 144), Defendants' Motion to Strike (ECF No. 99) is GRANTED IN PART and DENIED IN PART, as described herein. III. Defendants' Motion in Limine to Exclude Evidence of Bad Faith, Reserves/Exposure Projections/Modeling, and Internal Settlement and Negotiating Positions and Deliberations (ECF No. 106) Defendants move in limine to exclude from trial evidence of their alleged bad faith, reserves/exposure projections/modeling, and evidence of internal settlement and negotiating positions and deliberations. See ECF Nos. 106-07. In support of their argument for exclusion of the aforementioned evidence, Defendants rely, in part on Fed. R. Evid. 403 (“The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”) and Fed. R. Evid. 408 (“Evidence of the following is not admissible--on behalf of any party--either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction: (1) furnishing, promising, or offering--or accepting, promising to accept, or offering to accept--a valuable consideration in compromising or attempting to compromise the claim; and (2) conduct or a statement made during compromise negotiations about the claim--except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.”). Plaintiff filed its Opposition on December 14, 2017. ECF No. 129/132 (unredacted). Defendants filed their Reply thereto on December 20, 2017. ECF No. 152. Accordingly, the matter is now ripe for the Court's disposition, and the Court does so without a hearing, pursuant to Fed. R. Civ. P. 78(b); Eastern District of Virginia Local Civil Rule (“Local Rule”) 7(J), notwithstanding Defendants' request for one. ECF No. 172. Although not specifically provided for in the Federal Rules of Evidence, motions in limine “ha[ve] evolved under the federal courts' inherent authority to manage trials.” United States v. Verges, No. 1:13cr222, 2014 WL 559573, at *2 (E.D. Va. Feb. 12, 2014). “The purpose of a motion in limine is to allow a court to rule on evidentiary issues in advance of trial in order to avoid delay, ensure an even-handed and expeditious trial, and focus the issues the jury will consider.” Id. However, a motion in limine “should be granted only when the evidence is clearly inadmissible on all potential grounds.” Id. at *3. During the Final Pretrial Conference, the Court reserved ruling on approximately twenty-eight exhibits that are subject to the disposition of this Motion. See Final Pretrial Order Part 2, ECF No. 155, attach. 1 at 71-74.[7] Bad Faith *10 The issue of “bad faith” arises in this case because the Complaint includes in its prayer for relief, a request for attorneys' fees pursuant to Va. Code § 38.2-209, which permits an insured to recover costs and attorneys' fees if its insurer denied coverage in bad faith.[8] On October 2, 2017 the Court entered an Order granting Defendants' Motion to Bifurcate the issue of bad faith from the breach of contract issue, but denied Defendants' Motion to Stay Discovery of the issue of bad faith. See ECF No. 64. The Court does not construe anything in the record as overruling or superseding that ruling with respect to the bifurcation of the bad faith issue at trial. As Defendants note in their Reply, the only issue is whether Defendants were obliged to pay the claims on the model presented without any reference to the terms of their policies, or whether they should have paid the claims because the terms of their policies were met. Mr. Eirich decided to pay the Continental portion on an interim basis; Hopeman is free to argue that he was correct to pay, and incorrect to stop. But whether he was forced to do so because of a master plan set forth by David Gold is speculation and conjecture. ECF No. 152 at 8. The Court agrees wholeheartedly with Defendants' assertion, and for this reason will continue to uphold its original bifurcation of the bad faith issue from that of whether there was a breach of contract. See ECF No. 64. To be sure, evidence offered exclusively for the purpose of establishing animus by Defendants and their representatives when denying Plaintiff's requests for payment is not admissible. See United States v. Verges, No. 1:13cr222, 2014 WL 559573, at *3 (E.D. Va. Feb. 12, 2014) (“A motion in limine should only be granted when the evidence is undoubtedly inadmissible on all potential grounds.”) (citing United States v. Brawner, 173 F.3d 966, 970 (6th Cir. 1999)). However, as the Court has previously observed, evidence that tends to establish that a party had an obligation to perform a contractual duty, and acknowledged such obligation, but failed to fulfill the obligation may assume a unique crosssection status wherein such evidence is both probative of a contract breach as well as indicative of bad faith. The Court's position is informed by the very definition of “relevant evidence” as provided by Fed. R. Evid. 401: “[e]vidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” See United States v. Verges, No. 1:13CR222 JCC, 2014 WL 559573, at *4 (E.D. Va. Feb. 12, 2014) (citing United States v. Sutherland, Nos. 1:00CR00052, 1:00CR00093, 2001 WL 420376, at *1 (W.D.Va. Feb. 8, 2001) (“Relevant evidence is admissible unless it is excluded for some other purpose authorized by the Federal Rules of Evidence.”)). Thus, whether evidence is offered as conduct or communications that tend to establish Defendants' acknowledgment of their contractual obligations or for the impermissible purpose of establishing bad faith will depend on the “proffered purpose and factual context. Indeed, it is for this reason that ‘[o]rders in limine which exclude broad categories of evidence should rarely be employed. A better practice is to deal with questions of admissibility of evidence as they arise.’ ” Intelligent Verification Sys., LLC v. Microsoft Corp., No. 2:12-CV-525, 2015 WL 1518099, at *10 (E.D. Va. Mar. 31, 2015), aff'd sub nom. Intelligent Verification Sys., LLC v. Majesco Entm't Co., 628 F. App'x 767 (Fed. Cir. 2016) (quoting Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975)) (alterations in original). Accordingly, to the extent that the twenty-eight exhibits on which the Court reserved ruling in the Final Pretrial Order are probative of the issue of contractual breach (namely, whether conditions existed that triggered Defendants' obligation to pay) they are admissible. To the extent that Defendants argue that the exclusion of such exhibits is required by Fed. R. Evid. 403, the appropriateness of a limiting instruction to ameliorate such potential danger of unfair prejudice is a decision better left to the discretion of the trial court. See United States v. Seko, No. 1:15CR301 (JCC), 2017 WL 1318008, at *3 (E.D. Va. Apr. 10, 2017) (“To ensure that the jury makes appropriate use of this evidence, however, the Court will provide a proper limiting instruction.”). *11 Because the Court cannot find that the alleged evidence of “bad faith” is clearly inadmissible on all potential grounds, in this posture, the Court will DENY at this time Defendants' Motion in Limine (ECF No. 106) as to evidence of Defendants' alleged bad faith, finding that such a determination is better left to the District Court during trial on a question by question/exhibit by exhibit basis. See United States v. Verges, No. 1:13CR222 JCC, 2014 WL 559573, at *3 (E.D. Va. Feb. 12, 2014) (“This principle applies because ‘a court is almost always better situated during the actual trial to assess the value and utility of evidence’.... Thus, a court considering such a motion may reserve judgment until trial so that the disputed evidence is placed in the appropriate factual context.”) (quoting Silicon Knights, Inc. v. Epic Games, Inc., No. 5:07–CV–275–D, 2011 WL 5439156, at *1 (E.D.N.C. Nov. 8, 2011) (citations omitted); citing Nat'l Union Fire Ins. Co. v. L.E. Myers Co. Grp., 937 F. Supp. 276, 287 (S.D.N.Y. 1996); Luce v. United States, 469 U.S. 38, 41 (1984) (noting that courts are “handicapped in any effort to rule on subtle evidentiary questions outside a factual context”)). Accordingly, in the trial posture, Defendants are entitled (and encouraged should the need arise) to raise these issues again through objections at trial. See Columbia Gas Transmission, LLC v. Martin, No. 3:11-cv-060, 2011 WL 9974802, at *1 (E.D. Va. Dec. 19, 2011). Internal Analysis/Reserves/Modeling/Settlement Negotiations Defendants also move in limine to exclude evidence of settlement negotiations, their internal analysis performed in response to Plaintiff's advisement in late 2012 regarding the imminent exhaustion of underlying policies and request for payment, including evidence of Defendants' generation of “reserves.” According to Plaintiff, “[i]n the insurance context, ‘reserves’ are ‘the amount anticipated to be sufficient to pay all obligations for which the insurer may be responsible under the policy with respect to a particular claim.” ECF No. 46 at 12 (citing Lipton v. Superior Ct., 48 Cal. App. 4th 1599, 1613, 56 Cal. Rptr. 2d 341 (1996)). See also Nicholas v. Bituminous Cas. Corp., 235 F.R.D. 325, 329–30 (N.D.W. Va. 2006) (“Setting reserves is a method of managing litigation in which attorneys, claims adjusters and/or line personnel compile their mental impressions and opinions concerning the substance of the litigation as well as the cost of litigation.... Specifically, when setting a reserve, attorneys and claims personnel not only assess the value of the claim based on the available evidence and the strengths and weaknesses of the claim, but also take into consideration the probability of an adverse judgment, the jurisdiction, and the fees and expenses that may be incurred in defense of the claim.”) (citing Rhone–Poulenc Rorer Inc., v. Home Indemnity Company, 139 F.R.D. 609, 615 (E.D. Pa. 1991); ex rel. Erie Ins. Prop. & Cas. Co. v. Mazzone, 218 W. Va. 593, 625 S.E.2d 355, 358-59 (2005)). Plaintiff argues that “there is no basis to restrict Hopeman's use of [reserves] information for purposes other than establishing liability”because Plaintiff has not asserted that the establishment of reserves establishes liability. ECF No. 132 at 11-12 n.11. Instead, Plaintiff argues that the reserve information “shows that [Defendant] Continental had admitted exhaustion of the underlying coverage, had accepted coverage, had accepted the cost share arrangement proposed by Hopeman, and had acted consistently with those decisions by reserving the amounts expected to be incurred in the coming year.” ECF No. 132 at 11. In support of their argument regarding the exclusion of evidence of internal analysis and settlement negotiations pursuant to Fed. R. Evid. 408, Defendants cite to various courts in the Fourth Circuit, including in the Eastern District of Virginia. See ECF No. 152 at 13. For example, Defendants cite to a July 2015 decision from the Alexandria Division, wherein the Honorable Gerald Bruce Lee granted the defendant's motion in limine to exclude confidential settlement communications pursuant to Fed. R. Evid. 408, clearing the way for the defendant to succeed on its motion for summary judgment. Middle E. Broad. Networks, Inc. v. MBI Glob., LLC, No. 1:14-CV-01207-GBL, 2015 WL 4571178, at *4 (E.D. Va. July 28, 2015). However, MBI Glob. is distinguishable from the instant case because in the former, Judge Lee “[found] that MBI's breach of contract argument [was] premised on the notion that MEBN breached a contract it created in settlement discussions.” Id. at *4. Here, Plaintiff alleges Defendants' breach of a contractual obligation that existed well before settlement negotiations began in or around December 2012. Additionally, unlike MBI Glob., which involved two corporate entities arguing whether a contractor was excused from its duty to deliver a blast resistant building to a media company on the basis of a force majeure defense when delivery routes were blocked by an ongoing conflict with a terrorist organization (ISIS), the instant dispute is one of insurance coverage, and settlement negotiations between an insured and insurer are custom and practice in the industry. *12 The Court finds that principles governing its decision to deny Defendants' Motion in Limine regarding evidence of Defendants' alleged bad faith apply with equal force to the Court's consideration of Defendants' Motion in Limine regarding the other disputed topics such as reserves, settlement negotiations, and internal analysis in the forms of projections and modeling. The Court will, however, make additional general observations regarding the admissibility of contested documents: in order to introduce a contested exhibit or document into evidence, Plaintiff must establish the probative value of the evidence to the disputed issues. See United States v. Byers, 649 F.3d 197, 208 (4th Cir. 2011) (“[E]vidence, to be relevant, ‘need only to have any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ ”) (citation omitted). In the Court's estimation, there are essentially two issues in dispute. First, whether Defendants had an obligation to pay and failed to do so, thereby breaching their respective contracts; and second, as a predicate inquiry, whether conditions existed that triggered an obligation to pay. Thus, Plaintiff's obligation to establish the probative value of such evidence, and Defendants' corresponding counter-duty to establish that the relevant evidence is inadmissible because the danger of unfair prejudice is substantially outweighed by any such probative value (and that a limiting instruction would not ameliorate Defendants' prejudice concerns) or inadmissible because of some other Federal Rule of Evidence, operate as prerequisites to the admissibility of any contested evidence. See e.g., Barr Co. v. Safeco Ins. Co. of America, 1988 WL 64558, at *6 (N.D. Ill. June 15, 1988) (... “[A]dmission of these computations into evidence would only tend to mislead the jury by giving it a false idea of the dollar amount that [insurer] thinks is its total exposure for loss and litigation expenses”); Light v. Allstate Ins. Co., 48 F.Supp.2d 615, 619 (S.D. W.Va. 1998) (holding that reserves were inadmissible because “the probative value of the reserves, as applied to this case, is substantially outweighed by its prejudicial aspects”). For example, Plaintiff may not - and represents that it does not intend to[9] - assert that Defendants' establishment of reserves is an admission of Defendants' liability and for the amount of damages requested by Plaintiff “[b]ecause reserves do not amount to an admission of liability ... and because there may have been reasons for setting reserves unrelated to the instant claims, such information is of little relevance and is potentially misleading.” Rhone-Poulenc Rorer Inc. v. Home Indem. Co., No. CIV. A. 88-9752, 1991 WL 237636, at *4 (E.D. Pa. Nov. 7, 1991) (citing Champion International Corp. v. Liberty Mutual Insurance Co., 128 F.R.D. 608, 612 (S.D.N.Y. 1989)). The Court notes that Plaintiff is faced with a significantly limited universe of potentially permissible uses of reserve information, as compared to other types of evidence covered by the instant Motion in Limine. Further compounding the likelihood of admissibility of reserves information is the real and appreciable danger that a jury may be confused by the concept of reserves in relation to proof of liability, even when the most carefully crafted limiting instruction is delivered by the Court. See e.g., Federal Realty Inv. Trust v. Pacific Ins. Co., 760 F. Supp. 533, 540 (D. Md. 1991) (holding that the probative value of evidence of reserves substantially outweighed by its prejudicial value). Nevertheless, in this posture, the Court will not foreclose the potential admissibility of such because “[a] motion in limine to exclude evidence, such as that presented here, should be granted only when the evidence is clearly inadmissible on all potential grounds. ‘This principle applies because ‘a court is almost always better situated during the actual trial to assess the value and utility of evidence.’ ” United States v. Verges, No. 1:13CR222 JCC, 2014 WL 559573, at *3 (E.D. Va. Feb. 12, 2014) (quoting Silicon Knights, Inc. v. Epic Games, Inc., No. 5:07–CV–275–D, 2011 WL 5439156, at *1 (E.D.N.C. Nov. 8, 2011) (internal citations omitted). Similarly, Plaintiff may not offer evidence of Defendants' communications or conduct during settlement negotiations for an improper purpose as defined by Fed. R. Evid. 408. See e.g., Waytec Elecs. Corp. v. Rohm & Haas Elec. Materials, LLC, 459 F. Supp. 2d 480, 487 n.7 (W.D. Va. 2006), aff'd, 255 F. App'x 754 (4th Cir. 2007) (“Defendants moved in limine to exclude the other alleged incidents of cracking and prior settlements. After reviewing the submissions of the parties, the court provisionally excluded the evidence because its probative value was substantially outweighed by the danger that the evidence would confuse the issues or mislead the jury... The court determined that admitting evidence of the other cracking incidents and the settlement of those incidents had a high probability to mislead the jury into making causal conclusions that were totally unsupported by the evidence. Waytec could not show that the other cracking incidents were ‘substantially similar’ to those that occurred at Waytec, and proof of cracking and settlements is not proof that the CopperGleam caused the cracking. Moreover, under Fed. R. Evid. 408, the evidence of prior settlements is not admissible to prove causation because the four ‘settled’ claims were never adjudicated, and their validity was disputed.”) (citing Fed. R. Evid. 403). Beyond that general proclamation, the Court is not in a position to categorically deem all evidence regarding functions of Defendants' internal analysis inadmissible or admissible. This is especially true in light of the sheer volume of information Defendants' Motion in Limine seeks to exclude, including approximately six hundred of the documents ordered to be produced by the Court, in addition to the documents ordered to be produced from the RAPID databases, used by Defendants' claims management personnel. See ECF No. 107 at 5-6. Accordingly, Defendants' Motion in Limine (ECF No. 106) with respect to evidence of Reserves/Exposure Projections/Modeling, and Internal Settlement and Negotiating Positions and Deliberations is DENIED at this juncture. IV. Defendants' Motion in Limine to Exclude Plaintiff's Expert Witness Jeffrey Posner (ECF No. 108) As noted, this case involves determination of Plaintiff's rights to payment under certain excess commercial general liability insurance policies issued by Defendants. The parties agree that the insurance policies at issue in this case include the general principles of “non-cumulation clauses,” although they disagree as to the meaning as applied to the instant factual background. Plaintiff designated Jeffrey M. Posner (“Posner”) as a testifying expert witness who will “opine on two narrow issues concerning [non-cumulation clauses] and triggering excess policy coverage, based on his 40+ years of experience in the insurance industry and knowledge of its customs, practices and standards.” ECF No. 128 at 2. Defendants contend that Plaintiff has designated Posner “as an insurance expert to offer opinions about what the policies mean,” and have filed the instant Motion in Limine and Memorandum in Support to preclude Posner's testimony at trial. See ECF Nos. 108-09. Plaintiff filed its Opposition to Defendants' Motion in Limine on December 14, 2017, ECF No. 128, to which Defendants filed their Reply, ECF No. 149. The matter is now ripe for the Court's disposition. Notwithstanding Defendants' Request for a Hearing on the matter (ECF No. 172), the Court will exercise its discretion to rule on the Motion without oral argument pursuant to Federal Rule of Civil Procedure 78(b) and Eastern District of Virginia Local Civil Rule 7(J). *13 In support of its Motion in Limine, Defendants argue that the Court should reject and exclude Posner's proffered testimony for two reasons. First, Posner is not qualified to offer expert testimony on the proffered topics, and thus pursuant to Fed. R. Evid. 702, Posner's testimony is unreliable, would not assist the trier of fact, and is therefore inadmissible. Second, and as a corollary to their first argument for rejecting Posner's testimony, Defendants submit that Posner's interpretation of an insurance policy amounts to an improper legal opinion (which, as a non-lawyer, he is not qualified to provide), and is therefore not a proper subject for expert testimony because it improperly invades the province of the Court. The Court will begin its consideration of Defendants' Motion in Limine by addressing Defendants' first argument. As a court in our sister division observed, [i]t is axiomatic that one must be deemed an “expert” in order to testify under Fed. R. Evid. 702, which provides that a witness can be qualified as an expert by “knowledge, skill, experience, training, or education.” These bases for qualification are disjunctive ... and whether a witness is qualified as an expert can only be determined by the nature of the opinion offered. Piankatank River Golf Club, Inc. v. Selective Way Ins. Co., No. CIV.A. 3:08CV606, 2009 WL 1321512, at *4 (E.D. Va. May 11, 2009) (citing Fed. R. Evid. 702; Friendship Heights Assoc. v. Vlastimil Koubek, 785 F.2d 1154, 1158 (4th Cir. 1986)) (internal citations omitted). By virtue of Posner's curriculum vitae and his deposition testimony the Court finds that Defendants have correctly asserted that Posner is not an attorney. See ECF No. 109, attach. 3 at 3-4 (curriculum vitae). See also ECF No. 128, attach. 2, Posner Dep. 28:7-12. Plaintiff does not contest this fact. The Court finds Plaintiff's position in response to Defendants' argument incongruent. In one sentence, Plaintiff concedes that “legal opinions are not the proper subject of expert testimony, and Mr. Posner is not offering a legal opinion,” but in the very next sentence, Plaintiff contends that “to the extent Defendants suggest Mr. Posner lacks the requisite knowledge to apply case law to interpretation of insurance policy provisions merely because he lacks a law degree, they are wrong in any event.” ECF No. 128 at 3 n.2. The Court finds that Defendants' first argument is essentially two-pronged: that Posner is not qualified and that his proffered testimony is not relevant. With respect to the first prong, the Court finds that Posner is qualified to provide expert testimony about the insurance industry, based on his approximately forty years of training, professional experience, as well as previous acceptance by other courts as an insurance expert. See e.g., ECF No. 109, attach. 3 at 3-6. (“Mr. Posner has more than 40 years of experience in the insurance, claims, brokerage, and risk management areas. He specializes in providing insurance and risk management consulting services to policyholders, insurers, brokers and the legal profession.”). “Generally, courts have been reluctant to exclude an expert on the ground that he is unqualified.” Piankalank River Golf Club, Inc. v. Selective Way Ins. Co., No. CIV.A. 3:08CV606, 2009 WL 1321512, at *4 (E.D. Va. May 11, 2009). To the extent that Defendants argue (and Plaintiff contests[10]) that “Posner's experience in the insurance industry does not include underwriting insurance policies,” ECF No. 109 at 3, the Court finds that the fact that Posner may or may not lack specific experience with a particular topic at issue does not automatically dispossess him of the qualifications required for him to testify as an expert. See Friendship Heights Assocs. v. Vlastimil Koubek, A.I.A., 785 F.2d 1154, 1159 (4th Cir. 1986) (citing Garrett v. Desa Industries, Inc., 705 F.2d 721, 724 (4th Cir. 1983) (overruling district court's limitation of scope of testimony of the plaintiff's proffered engineering expert because although proposed expert lacked specific, practical experience with stud drivers prior to the case, as a professional engineer and a naval gunnery officer, he was familiar with small arms using cartridges similar to those used in stud drivers on the basis of his education, knowledge, training, and skill)). *14 The second prong of the first argument is concerned with the relevance of Posner's proffered expert testimony. Stated another way, Posner must not only be qualified to offer an expert opinion, but his expert testimony must also be “’helpful” to the trier of fact. Friendship Heights Assocs. v. Vlastimil Koubek, A.I.A., 785 F.2d 1154, 1159 (4th Cir. 1986) (“Helpfulness is the touchstone of Rule 702.”) (quoting Breidor v. Sears, Roebuck and Co., 722 F.2d 1134, 1139 (3rd Cir. 1983)). As further explained herein, the Court will not permit Posner (nor any other expert) to offer a legal opinion, however, the Court finds that general principles underlying the insurance industry, and specifically, the purpose served by a non-cumulation clause is “beyond the realm of common experience and which require the special skill and knowledge of an expert witness.” Certain Underwriters at Lloyd's, London v. Sinkovich, 232 F.3d 200, 203 (4th Cir. 2000) (citing Randolph v. Collectramatic, Inc., 590 F.2d 844, 846 (10th Cir. 1979)). Because Posner appears to “possess some specialized knowledge or skill or education that is not in the possession of the jurors,” his testimony on the generalprinciples underlying this specialized insurance industry knowledge could be helpful to the jury's understanding of the context of this case. Certain Underwriters at Lloyd's, London v. Sinkovich, 232 F.3d 200, 203 (4th Cir. 2000) (quoting Redden & Saltzburg, Federal Rules of Evidence Manual 225 (1975)). The Court finds Defendants' second argument for precluding Posner's testimony to be far more persuasive than the first. In the Fourth Circuit, (and in other circuits), it is well-established that “it is typically improper for a court to rely on expert testimony for the purposes of interpreting certain terms and/or clauses of a contract.” Piankatank River Golf Club, Inc. v. Selective Way Ins. Co., No. CIV.A. 3:08CV606, 2009 WL 1321512, at *4 (E.D. Va. May 11, 2009) (citing Forest Creek Assoc. v. McLean Savs. And Loan Ass'n, 831 F.2d 1238, 1242 (4th Cir. 1987) (“Here again the commitment agreement speaks for itself, and its proper interpretation is a question of law. Thus, we find that the district court was correct in excluding expert testimony proffered by the plaintiffs for the purposes of interpreting the [contract].”) (alteration in original)). During his deposition, and in response to defense counsel inquiry, Posner summarized the opinion he intended to offer at trial as the following: [u]nder the customs, practices and/or standards of the insurance industry, once an amount equal to the underlying limits of an excess policy has been paid by a policyholder and/or its insurers or the policyholder has been held liable to pay such amounts, excess insurers payment obligations are triggered by amounts to be paid thereafter. ECF No. 128, attach. 2, Posner Dep. 52:8-15. The Court finds that this general principle does not run afoul of the Court's prohibition on expert testimony that offers legal opinions. See e.g., Donnert v. Feld Entm't, Inc., No. 1:13-CV-40, 2013 WL 12097618, at *3 (E.D. Va. Nov. 8, 2013) (“Under federal law, experts cannot testify as to conclusions of law, and an interpretation of a contract is a conclusion of law. Specifically, the Fourth Circuit has found that whether a party breached a contract, as well as the proper interpretation of a contract, are ‘question[s] of law,’ and an expert cannot give an opinion as to the legal obligations of parties under a contract.”). See also Coe v. Perzanowski, No. 5:04CV8, 2004 WL 6033978, at *2 (N.D.W. Va. Dec. 20, 2004) (“However, a witness may not generally offer to the jury his opinion as to the governing law at issue in the case.”) (citing Adalman v. Baker, Watts & Co., 807 F.2d 359, 366 (4th Cir. 1986) (affirming the exclusion of testimony by expert witness which included legal conclusions), disapproved on other grounds in Pinter v. Dahl, 486 U.S. 622 (1988)); Am. Online, Inc. v. St. Paul Mercury Ins. Co., 207 F. Supp. 2d 459, 466 n.1 (E.D. Va. 2002), aff'd, 347 F.3d 89 (4th Cir. 2003) (“[T]he Court also declines to consider St. Paul's expert testimony on the issue of physical damage. The issues presented herein are ones of contract. It is typically improper for a court to rely on expert testimony for purposes of interpreting the terms and clauses of a contract.”) (citing Forest Creek Assoc. v. McLean Savs. and Loan Ass'n, 831 F.2d 1238, 1242 (4th Cir. 1987) (affirming district court's decision to exclude expert testimony proffered by plaintiffs for the purpose of interpreting contract clause because the matter was a question of law for the court)). Thus, to the extent that Posner intends to offer expert testimony based on his training, education, and experience regarding general customs, practices, and standards of the insurance industry, at this juncture, the Court finds, preliminarily, that Posner is qualified to do so, and such expert testimony will be helpful to the jury. The continued application of the Court's preliminary determination at trial will depend on Plaintiff's ability to appropriately tender the witness as such and the factual context that develops in the course of trial. See United States v. Verges, No. 1:13CR222 JCC, 2014 WL 559573, at *3 (E.D. Va. Feb. 12, 2014) (“Accordingly, the Court will reserve judgment on this motion until trial when there is an appropriate factual context.”) (citing Hawthorne Partners v. AT & T Techs., Inc., 831 F. Supp. 1398, 1400 (N.D. Ill. 1993) (noting that evidence should be excluded in limine “only when evidence is clearly inadmissible on all potential grounds ... [and] [u]nless evidence meets this high standard, evidentiary rulings should be deferred until trial”)). However, the Court finds that Posner may not offer expert testimony regarding the meaning of specific clauses at issue in the current case, or any other legal opinions. Specific objections to questions and answers should be dealt with on a case by case basis at trial. Counsel for both parties should remain vigilant in their direct and cross examination to anticipate and avoid such impermissible areas of inquiry. Accordingly, and for the reasons detailed herein, Defendants' Motion in Limine to Preclude the Testimony of Jeffrey M. Posner (ECF No. 108) is DENIED, but his testimony will be limited as described. V. Plaintiff's Motion in Limine to Exclude George Priest (ECF No. 118) *15 Defendants have identified Professor George L. Priest (“Priest”) as an expert witness who will testify at trial on behalf of Defendants to explain the economic rationale behind non-cumulation clauses in order to rebut Plaintiff's expert witness, Jeffery M. Posner. As explained and disposed of in the immediately preceding section, see Part IV, supra, Defendants filed a Motion in Limine to Exclude the Testimony of Posner (ECF No. 108). On December 6, 2017, Plaintiff filed its counter-Motion in Limine to Exclude Defendants' Expert Witness George L. Priest, and memorandum of law in support. ECF Nos. 118-19. Therein, Plaintiff argues that Priest's testimony should be precluded because his opinions offered in this case regarding the economic rationale for non-cumulation clauses in liability insurance policies are unreliable, irrelevant, and would not assist the jury, and that he is not qualified to render the economic opinions offered. See ECF No. 118 at 1. On December 20, 2017, Defendants filed their Opposition, arguing that Priest should not be excluded because Priest is highly qualified and has been accepted by many other courts to provide expert testimony of this nature. See ECF No. 150 at 1 (“Professor Priest is more than qualified to render his opinion, which is the product of reliable methods. Furthermore, Professor Priest's testimony would be helpful to a jury because he explains the economic reasons why Non-Cumulation clauses make sense and reflect a rational decision by policyholders to only secure the amount of coverage necessary.”). Additionally, to the extent that Plaintiff attempts to insert empirical studies as a prerequisite for expert witness testimony, Defendants contend that “[t]here is no requirement that an expert perform empirical research on the particular subject on which his opinion is offered and by emphasizing same, Hopeman obscures Professor Priest's background and experience that render him qualified to testify in this matter.” ECF No. 150 at 8. Plaintiff filed its Reply Memorandum on December 27, 2017. ECF No. 157. Accordingly, the matter is ripe and ready for the Court's disposition. Notwithstanding Defendants' Request for a Hearing on the matter (ECF No. 172), and Plaintiff's request that the matter be decided without a hearing (ECF No. 170), the Court will exercise its discretion to rule on the Motion without oral argument pursuant to Federal Rule of Civil Procedure 78(b) and Eastern District of Virginia Local Civil Rule 7(J). The Court's disposition of Plaintiff's Motion in Limine to Preclude Priest's Testimony is governed by the same considerations which governed its review of Defendants' Motion in Limine to Exclude Posner's Testimony. Accordingly, the Court reaches a similar conclusion with respect to Plaintiff's counter-Motion in Limine to Exclude Priest's Testimony. As an initial matter, the Court notes that Plaintiff's arguments in support of excluding Priest's testimony necessarily undermine Plaintiff's arguments in support of accepting Posner's proffered testimony. Specifically, Plaintiff argued in its Opposition to Defendants' Motion to Exclude Posner's Testimony that the determination of whether a proffered expert is qualified is a “disjunctive” inquiry, and that Posner's lack of personal experience underwriting policies is not dispositive of his qualifications as an expert, seeECF No. 128 at 4-5, yet in its own Motion in Limine to Exclude Priest's Testimony, Plaintiff strenuously argues that Priest is not qualified to offer an expert opinion on the economic ramifications of non-cumulation clause interpretation because “[h]e has done no studies or economic analyses of NCCs nor authored any scholarly work pertaining to [non-cumulation clauses],” ECF No. 119 at 16. The incongruence of these positions detracts from the persuasiveness of Plaintiff's argument in support of its Motion in Limine. As articulated in its disposition of Defendants' Motion in Limine to Exclude Posner's Testimony, the Court's ruling is guided by several overarching principles, including the tenet that “[e]xpert testimony has its place, but courts are permitted to exclude expert testimony when ‘it concerns matters within the everyday knowledge and experience of a lay juror.’ ” Pitt Ohio Exp., LLC v. Pat Salmon & Sons, Inc., 532 F. App'x 439, 442 (4th Cir. 2013)(quoting Kopf v. Skyrm, 993 F.2d 374, 377 (4th Cir. 1993)). The Court finds that the concept of a non-cumulation clause in the context of the insurance industry is not such a matter that is within the ken of the average layperson, and that expert testimony (from both parties) will assist the jury by providing necessary context to the case. To the extent that Plaintiff is concerned that Priest's “entire testimony is grounded on the false premise that the impact of non-cumulation clauses (“NCC”) will operate to reduce the total coverage limits available to Hopeman,” ECF No. 157, at 1, Plaintiff should find solace in the Court's ruling that no expert witness, whether proffered by Plaintiff or Defendants, shall be permitted to opine on the application or meaning of non-cumulation clauses at issue in the instant case. Thus, to the extent that Priest intends to offer expert testimony based on his training, education, and experience regarding the general use of non-cumulation clauses in the insurance industry, at this juncture, the Court finds, preliminarily, that like Posner, Priest is qualified to do so, and such expert testimony will be helpful to the jury. The continued application of the Court's preliminary determination at trial will depend on Defendants' ability to appropriately tender the witness as such. However, the Court finds that Priest may not offer expert testimony regarding the meaning or economic impact of the specific clauses at issue in the current case, or any other impermissible opinions, including the parties' motivation for inclusion of such clauses in the policies at issue. Specific objections to questions and answers should be dealt with on a case by case basis at trial. Again, counsel for both parties should remain vigilant in their direct and cross examination to avoid such impermissible areas of inquiry. Accordingly, and for the reasons detailed herein, Plaintiff's Motion in Limine to Exclude Report and Testimony of George L. Priest (ECF No. 118) is DENIED, but his testimony will be limited as described. VI. Defendants' Motion to Compel Compliance with Court Order (ECF No. 135) *16 Following a November 2, 2017 hearing, the Court signed an Order on November 6, 2017 granting in part and denying in part Defendants' Motion to Compel Plaintiff's Compliance with Discovery Obligations[11] (ECF No. 56). See ECF No. 80. Pertinent to Defendants' current Motion, at the hearing the Court determined that Defendants' should be permitted access to certain claim files in order to be able to evaluate for themselves the propriety of resolutions made with respect to those files. The Court provided its ruling from the bench, and then memorialized it in its November 6, 2017 Order (“November 6th Order”). Defendants' Motion now seeks sanctions against Plaintiff, claiming that Plaintiff failed to comply with that Order. The November 6th Order provided that, “for the reasons stated on the record,” Defendants' motion to compel would be granted in part, and that Defendants are entitled to review both the SCS files and the underlying local counsel files for the approximately five thousand five hundred (5,500) claims, originating in or about 2012 and the period thereafter, until approximately 2016, which allegedly triggered the excess insurance policy coverage by Defendant insurers. Plaintiff is DIRECTED to immediately provide Defendants with indicies of files (if any) and to advise Defendants of the location of the files. ECF No. 80 at 1-2. The genesis for this Order began with the Court's attempt to elicit from Defendants what production they sought with respect to the 5,500 claims. THE COURT: All right, Mr. Mullins. Am I misunderstanding what it is you're asking for? I thought you were asking for the opportunity in the universe of 5,000 or 5,500 claim files that Hopeman Brothers is looking to have your clients pay, that you wanted to be able to select which among those files you could review, and that Hopeman should make them available through their local counsel? MR. MULLINS: Your Honor, that is correct. I don't, I can't tell you what number of that 5,000 that the defendant would want to collect. THE COURT: Well, if your expert said 280 would be appropriate, then that would be a good guess.... ECF No. 142 at 66:14-25. As the Court made clear at the hearing, while Plaintiff was directed to make the files available, it was not required to produce all 5,500: With respect to the defendant's motion to compel, I am interpreting the defendant's motion – I'm going to overrule anything except to the extent of the 5,500 or 5,000 claims files that are at issue in the 2012/2016 time period. I will require the plaintiff to make those claim files available. And by that I mean they don't have to copy them, they just have to make arrangements so, if the defendant wants to look at all 5,000 of them -- well, we're not going to do that. The defendant should indicate which files they want to review and if they want to, at their own expense, go out [to] these places to look at them, they can do that. Id. at 76:11-21. Instead, Plaintiff was to provide an index of the files and Defendants would then identify a sample from the index that they wished to have produced. The Court, in questioning Defendants' counsel, made clear what information it thought appropriate to include in such an index: THE COURT: Is there an index of all the claims? I mean, apparently the parties are not in disagreement that there were 5,000 claims at issue. Is there some kind of master index about all of these claims so that you all know who the claimant is, where the claim was filed, how much it was settled for? *17 ECF No. 142 at 46:16-20.[12] That information—the identity of the claimant, location of the claim, and amount of settlement—is plainly sufficient to enable Defendants to have determined which claims files they wished to review. Moreover, based on the opinion of Defendants' own expert, it was expected that 280 of these claim files would be sufficient for Defendants to perform this review. Inasmuch as Defense counsel Mr. Mullins could not say exactly how many claim files would be necessary to constitute a sufficient sample, the Court left it to the parties to negotiate an appropriate number. Certainly it was clearly not the Court's intention that all 5,500 claim files would be required to be produced for Defendants' inspection, and Mr. Mullins denied seeking such. As the submissions by the parties makes clear, Plaintiff relied on the index attached to Mishkin's report as satisfying the Court's requirement that it provide an index to Defendants. That index is entirely sufficient, as it provides, inter alia, for each claimant, their name, social security number, location (by State), amount, if any, of indemnity payments by insurance company, and amount of defense costs paid by insurance company. ECF No. 159, attach. 4. This information should have been sufficient for Defendants to determine which claim files to review. And, in fact, Defendants did utilize this information to identify 280 claim files. Id., attach. 5. Plaintiff has represented that it produced all of the files in its possession with respect to the 280 claim files identified by Defendants. ECF No. 159, attach. 1 at ¶ 19. Consequently, it has complied with both the letter and spirit of the Court's November 6th Order. Defendants' Motion is without merit.[13] Accordingly, Defendants' Motion to Compel Compliance (ECF No. 135) is DENIED. VII. Conclusion To summarize, the Court's disposition of the pending Motions is as follows: • Defendants' Motion to Strike Declaration of Ronald Van Epps (ECF No. 99) is GRANTED in part and DENIED in part, as provided herein. • Defendants' Motion in Limine to Exclude Plaintiff's Expert Jeffrey Posner (ECF No. 108) is DENIED, but his testimony will be circumscribed as provided herein. • Plaintiff's Motion in Limine to Exclude Defendants' Expert George Priest (ECF No. 118) is DENIED, but his testimony will be circumscribed as provided herein. • Defendants' Motion to Compel Compliance (ECF No. 135) is DENIED. This Omnibus Order contains references to confidential documents filed by the parties under seal. Accordingly, the Clerk is DIRECTED to file this Order under seal for a period of thirty (30) days from the date of this Order. The parties are DIRECTED to review this Order and provide the Court with any proposed redactions by no later than thirty (30) days from the date of this Order. The parties are DIRECTED to submit their proposed redactions by jointly filing a single PDF document bearing the proposed redactions. The Clerk is further DIRECTED to forward a copy of this Order to all counsel of record. IT IS SO ORDERED. Newport News, Virginia [1] Count One seeks a Declaratory Judgment against both Defendants and Count Two alleges Breach of Contract by both Defendants. ECF No. 1. [2] Attach. 1 = Declaration of Defense counsel Stephen T. Roberts Attach. 2 = Declaration of Ronald Van Epps (originally filed as ECF No. 82, attach. 36) [“Ex. 1 to Roberts Decl.”] Attach. 3 = Excerpt of Ronald Van Epps Rule 30(b)(6) Deposition [“Ex. 2 to Roberts Decl.”] Attach. 4 = Def. Rule 45 Notice of Non-party Subpoena Duces Tecum for Claro Group [“Ex. 3 to Roberts Decl.”] Attach. 5 = Plaintiff's Objections to Defendants' First Set of RPDs and ATIs [“Ex. 4 to Roberts Decl.”] Attach. 6 = Plaintiff's Rule 26 Initial Disclosures [“Ex. 5 to Roberts Decl.”] Attach. 7 = Excerpt of Ronald Van Epps Personal Deposition [“Ex. 7 to Roberts Decl.”] Attach. 8 = Plaintiff's September 8, 2017 Supplemental Privilege Log of documents withheld from production [“Ex. 8 to Roberts Decl.”] Plaintiff refers to “Ex. 6 to Roberts Decl.” as the July 19, 2017 Privilege Log, but did not attach any such document to ECF No. 100. Rather, “Ex. 6 to Roberts Decl.” has been attached as an exhibit to ECF No. 104. See ECF No. 104, attach. 1. [3] The Court notes that this July 2017 Privilege Log covers Plaintiff's production for Bates Numbered documents HBI-00020987 to HBI-00031201. See ECF No. 104, attach. 1 (“Ex. 6 to Roberts Decl.”). In contrast, the September 8, 2017 “Supplemental Privilege Log” covers Plaintiff's production for Bates Numbered documents HBI-00000001 to HBI-00031201 and the privilege assertions appear to all be on the basis of “Attorney-Client Privilege” and/or “Attorney Work Product.” Unlike the July 2017 Privilege Log, the September 8, 2017 Supplemental Privilege Log is devoid of assertions of privilege based on “Confidential Wellington ADR Communication.” SeeECF No. 100, attach. 8 (Ex. 8 to Roberts' Decl.). [4] Defendants claim that Van Epps made this type of statement “repeatedly;” however, in support of this characterization Defendants only produced ONE clear example of this from the Van Epps Personal Deposition Transcript. See ECF No. 100, attach. 7, Van Epps Personal Dep. 33:8-18. To the extent that Defendants submit a previous page from the Deposition Transcript, see ECF No. 100, attach. 7, Personal Dep. 6:2-21, it is less clear whether Van Epps is testifying that he needs a settlement agreement document to be put in front of him to say for sure when negotiations ended and that Van Epps was involved in such negotiations, or that it was his understanding that settlement negotiations went on for eighteen to twenty-four months prior to his involvement with insurers on behalf of Plaintiff. [5] See ECF No. 148 at 8 n. 16 (“Defendants' request for alternative relief in the Motion to Strike did not seek to strike Paragraph 20 on its own”). [6] As the Fourth Circuit observed, “[b]y selectively asserting his Fifth Amendment privilege, Edmond attempted to insure that his unquestioned, unverified affidavit would be the only version. But the Fifth Amendment privilege cannot be invoked as a shield to oppose depositions while discarding it for the limited purpose of making statements to support a summary judgment motion.” In re Edmond, 934 F.2d 1304, 1308 (4th Cir. 1991). [7] These twenty-eight exhibits include: Hopeman Exhibit Nos. 286, 288, 290-314, 316. [8] See Va. Code § 38.2-209 (“Notwithstanding any provision of law to the contrary, in any civil case in which an insured individual sues his insurer to determine what coverage, if any, exists under his present policy or fidelity bond or the extent to which his insurer is liable for compensating a covered loss, the individual insured shall be entitled to recover from the insurer costs and such reasonable attorney fees as the court may award. However, these costs and attorney's fees shall not be awarded unless the court determines that the insurer, not acting in good faith, has either denied coverage or failed or refused to make payment to the insured under the policy.”). [9] See ECF No. 132 at 11-12 n.11. [10] See ECF No. 128 at 8 n.3. [11] The title Defendants have assigned to this Motion (“Motion to Compel Compliance with Court Order”) is a misnomer. The relief Defendants seek is Federal Rule of Civil Procedure 37(b) (“Rule 37”) sanctions against Plaintiff for its alleged noncompliance with the November 6, 2017 Order of Court (ECF No. 80). SeeECF No. 137 at 11 (“It follows that Fed. R. Civ. P. 37(b)(2)(A)applies and justifies the relief sought in this case.”). [12] Although Defendants had such an index all along as an attachment to Plaintiff's expert Mishkin's report, ECF No. 137 at 3, counsel responded that he did not know if such an index existed. ECF No. 142 at 46:21-22. [13] While the Court believes its rulings from the bench and the reasons therefore were clear, it gives Defendants the benefit of the doubt that they may have believed they had a legitimate basis for their Motion since the Court's November 6th Order might be interpreted, in a vacuum, as requiring more production from Plaintiff than the Court conveyed at the hearing was required.