I. Background

In this first-party insurer-insured dispute involving breach of contract and breach of the duty of good faith and fair dealing claims, State Farm seek production of text messages between Plaintiff Sarah Galbraith and Plaintiffs' contractor Jamie Sherman. State Farm previously sought and received the Court's assistance in compelling Mr. Sherman's company, Proficient Homes and Remodeling, LLC, to produce records in response to a subpoena duces tecum issued by State Farm's counsel. See Order Setting Show Cause Hearing, Doc. No. 31; Order of Dec. 21, 2017, Doc. No. 34; Minute Order of Jan. 4, 2018, Doc. No. 37. However, State Farm now indicates that Proficient Homes did not produce text messages between Ms. Galbraith and Mr. Sherman, despite such messages being within the scope of the subpoena duces tecum.[1] State Farm also seeks (i) production of an electronic document maintained by Plaintiffs in multiple versions regarding the actions that occurred during handling of the insurance claim and Plaintiffs' impressions of the same, (ii) production of estimates for Plaintiffs' home not directly tied to the repair of leak-caused damage, and (iii) to depose Ms. Galbraith (for a second time) regarding the now-sought documents.

Plaintiffs' lawsuit relates to a water leak from a bathroom at their home. SeePet., Doc. No. 1-1. State Farm is Plaintiffs' homeowners' insurer. Plaintiffs claim that State Farm did not adequately compensate them for damages caused by the leak and for damages caused by delay in repairing the leak. Among other allegations, Plaintiffs indicate that State Farm accused them of seeking a “kitchen remodel” through the requested repairs instead of limiting their repairs to those necessitated by the leak (id. ¶ 15) and that State Farm unduly delayed in handling Plaintiffs' insurance claim. Plaintiffs deny that a “remodel” was their intent in making their insurance claim with State Farm, and they allege that multiple contactors (including Proficient Homes) determined the necessary scope of repairs to be in-line with what Plaintiffs seek from their insurer. Proficient Homes, in addition to being the company chosen to perform repairs at Plaintiffs' home, was the original builder of the home.

Two of State Farm's requests for production are at issue:

*2 Mot. 3-4, Doc. No. 40.[2] Plaintiffs' objections to Request No. 3 are over-breadth, undue burden, and relevance. See id. Plaintiffs' objections to Request No. 4 are over-breadth, undue burden, and privilege/work-product protection. See id. State Farm's other requests addressed herein stem from the document production it claims it is due by virtue of these discovery requests.

II. Analysis

Federal Rule of Civil Procedure 26(b)(1) applies, and it provides in relevant part:

“When requested discovery appears relevant, the party objecting to production has the burden of establishing the lack of relevance by demonstrating that the request falls outside the scope set forth in Rule 26(b)(1), or that the requested discovery is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure.” Shotts v. Geico Gen. Ins. Co., No. CIV-16-1266-R, 2017 WL 4681797, at *1 (W.D. Okla. Oct. 17, 2017)(citation omitted).

A. Request for Production No. 3

State Farm requests the production of all repair, remodeling, and reconstruction estimates for the period of January 2015 through May 2017.[3] State Farm argues that these documents are relevant to Plaintiffs' claims and State Farm's defenses because they “will help to show the full extent [of] work performed by Sherman (or other contractors) at Plaintiffs['] residence” and “may also help to show that Sherman, not State Farm, was the true cause of delays in this case.” Mot. 3, Doc. No. 40. State Farm also hypothesizes that these documents may show that it “was asked to reimburse Plaintiffs for living expenses for periods of work unrelated to the water damage at issue.” Id. Finally, at the hearing on its motion, State Farm indicated that estimates could show the urgency with which Plaintiffs acted to repair the leak, as well as to repair pre-existing water and mold damage that State Farms indicates may exist in the areas of the home damaged by the leak. State Farm claims this information may affect its mitigation defense.

*3 Plaintiffs oppose production by arguing that “information that was not known or relied upon by the insurer at the time its performance was requested and during which claims decisions were made is irrelevant and inadmissible in an insurance bad faith suit” and by asserting that State Farm's intent in requesting production is to “create an after-the-fact defense utilizing information it did not possess or rely upon when it was handling this claim.” Resp. 7-8, Doc. No. 42. Plaintiffs also indicate that one of State Farm's employees admitted during a deposition that any delays caused by Mr. Sherman occurred after the time at issue in this lawsuit. See id. at 8. State Farm contends that the time at issue in this lawsuit is different from the period that Plaintiffs indicate.

Having considered the parties' arguments and cited authorities, the Court finds that the requested documents are, in part, within the scope of Rule 26(b)(1) and should be produced. The Court compels production of the following estimates for the time period indicated in State Farms' Request for Production No. 3:

Regardless of whether these materials are ultimately admissible, they are discoverable and their production is proportional to the needs of this case. See Fed. R. Civ. P. 26(b)(1) (“Information within this scope of discovery need not be admissible in evidence to be discoverable.”). Moreover, the requested documents are at least relevant to the subject matter of this case, and the Court finds that good cause has been shown for their production. See In re Cooper Tire & Rubber Co., 568 F.3d 1180, 1188, 1192 (10th Cir. 2009). And the testimony by State Farm's employee regarding the period during which Mr. Sherman is alleged to have caused delay or whether he was required to provide information to the insurer does not affect the proper scope of discovery in this case.

Plaintiffs argue that the requested production is not proportional to the needs of this case under Rule 26(b)(1) because of the documents' low level of relevancy. See Resp. 9-10, Doc. No. 42. This argument essentially doubles as Plaintiffs' burdensomeness objection. The Court fails to see how the production of estimates related to repairs, remodeling, and reconstruction for a single property for a less-than-three-year period imposes anything more than a minimal burden or expense on Plaintiffs when the estimates either are for the areas for which Plaintiffs claim damages or by the contractor involved in the repairs at issue. This is especially true here because Plaintiffs indicate they “have already produced estimates and invoices related to the repairs necessitated by the water leak,” meaning that it is unlikely many additional documents exist to produce. Id. at 7-8. Likewise, at least the amount in controversy (potentially substantial to State Farm with punitive damages claimed by Plaintiffs) and the relative access to information (none for State Farm) tip the scales overall in favor of allowing the requested discovery. However, for estimates that do not involve either (i) Mr. Sherman or Proficient Homes or (ii) an area of the home at issue in this case, the documents do not reach the relevancy bar, and they need not be produced.

Accordingly, State Farm's request that Plaintiffs be compelled to produce additional documents responsive to Request for Production No. 3 is GRANTED IN PART and DENIED IN PART. Plaintiffs shall make their production within 14 days of this order.

B. Request for Production No. 4

*4 State Farm next seeks production of correspondence relating to the leak and any resulting damage. Although State Farm's discovery request is broader, its motion only seeks text messages between Ms. Galbraith and Mr. Sherman. See Mot. 1, 4-5, Doc. No. 40. The Court limits its decision to these text messages.

State Farm argues that the text messages exchanged by Ms. Galbraith and Mr. Sherman are relevant because of Mr. Sherman's status as the contractor who made repairs to Plaintiffs' home, and who offered estimates for the same. Id. at 5. State Farm also indicates that relevance exists to show “whether Mrs. Galbraith complained to [Mr.] Sherman about the length of time it took for him to provide an estimate, and also about the continuing delays during his oversight of the work.” Id.

Plaintiffs respond by indicating that “Ms. Galbraith has conducted a review of her telephone and email records and has no such communications between herself and Mr. Sherman that pre-date August 25, 2016.”[4] Resp. 10, Doc. No. 42. Plaintiffs are correct that a party generally cannot produce what does not exist. However, the fact that Ms. Galbraith does not currently possess copies of her text messages with Mr. Sherman on her phone does not end the Court's analysis because Ms. Galbraith admits that she—at some point after the insurance claim was submitted to State Farm—had text messages with Mr. Sherman that she has deleted. At the hearing on State Farm's motion, Ms. Galbraith's counsel indicated that Ms. Galbraith had a semi-regular practice of deleting those text messages she deemed to be unimportant and, while Ms. Galbraith maintained copies of her text messages with one of State Farm's adjusters, she did not maintain copies of her text messages with Mr. Sherman.

To the extent Ms. Galbraith has possession, custody, or control of text messages with Mr. Sherman that fall within the scope of Request for Production No. 4—i.e., “relating to the Water Leak”—such text messages must be produced. Plaintiffs only develop a relevancy objection in their Response (generally as to communications from the post-August 2016 period), and the mere passage of some time between the primary claim-handling time and communications with an individual involved in the subject matter of this suit (Mr. Sherman) does not mean that the text messages are not “relevant to any party's claim or defense.” Fed. R. Civ. P. 26(b)(1). And production is proportionate to the needs of the case as contemplated by Rule 26(b)(1) because there is minimal burden to Plaintiffs for production, which should have involved merely printing or otherwise capturing images of the text messages that she should have possession, custody, or control over. Finally, the Court finds that there is obvious relevance to this litigation as the scope of requested text messages has been limited in State Farm's discovery request because all requested message relate to the leak that led to Plaintiffs' insurance claim. To the extent Plaintiffs do not possess currently copies of the text messages, but they have an avenue to obtain such copies, Plaintiffs are required by the rules of discovery to do so. See Hamstein Cumberland Music Grp. v. Estate of Williams, No. 06-CV-63-GKF-PJC, 2008 WL 2682697, at *3 (N.D. Okla. June 30, 2008) (“For purposes of Rule 34, documents are deemed to be in a party's possession, custody or control if that party has actual possession, custody or control or has the legal right to obtain the documents on demand.” (quotation marks and citation omitted)).

*5 As to State Farm's request for an adverse inference or other sanction for spoliation due to Plaintiffs' deletion of Ms. Galbraith's text messages with Mr. Sherman, the Court finds this issue insufficiently briefed at this time. Neither party could inform the Court at the hearing on State Farm's motion whether Mr. Sherman or another third party is able to produce copies of the text messages, which may bear on prejudice. See Albertson's, LLC v. HFC, Inc., No. CIV-16-276-HE, 2017 WL 4128316, at *2 (W.D. Okla. Sept. 18, 2017) (“A spoliation sanction is proper where: (1) a party had a duty to preserve evidence because it knew, or should have known, that litigation was imminent, and (2) the adverse party was prejudiced by the destruction of the evidence.” (quotation marks and citation omitted)). Nor has either party submitted briefing regarding how courts treat when the duty to preserve evidence arises as to communications with insurance-claim-involved third parties. Absent more comprehensive briefing regarding whether an adverse inference or other sanction is proper, the Court declines to decide this issue now, without prejudice to State Farm re-submitting this issue so it is squarely before the Court.

Accordingly, State Farm's request that Plaintiffs be compelled to produce additional text messages responsive to Request for Production No. 4 is GRANTED. Plaintiffs shall make their production within 14 days of this order. State Farm's request for an adverse inference instruction or other spoliation sanction is DENIED at this time.

C. Ms. Galbraith's notes regarding repair work

In its motion, State Farms indicates:

Mot. 5, Doc. No. 40. These documents (referred to herein as “Plaintiffs' claim log”) do not fall within either Request for Production No. 3 or No. 4, which are at issue in State Farm's motion. However, both parties have briefed this production issue, Plaintiffs have set forth their objections to the request, the issue was addressed by both parties at the hearing on State Farm's motion, and Plaintiffs have treated State Farm's informal discovery request as if it was a formal one. In this instance, the Court will not require additional formality when Plaintiffs have not objected on this ground.[5] See Lujan v. Exide Techs., No. 10-4023-JTM, 2011 WL 1594952, at *3 (D. Kan. Apr. 27, 2011) (“Typically, and preferably, a party would proceed by informally seeking discovery. If the responding party refuses the request, the party seeking the information should make a formal request for such discovery. And, if refused or no response is forthcoming, a party should file a motion to compel discovery as a last resort. Plaintiff skipped the second step. Not the best approach, but not fatal to the discovery he seeks.”).

Based on Plaintiffs' evidentiary showing (via Ms. Galbratih's affidavit) the Court could find Plaintiffs' claim log (in all its iterations) to fall within the work-product protection based on federal common law. See Frontier Refining, Inc. v. Gorman-Rupp Co., 136 F.3d 695, 702-03 & n.10 (10th Cir. 1998). The protection provided by the work-product doctrine extends not just to materials prepared by counsel, but also to materials prepared by a client for counsel. See Fed. R. Civ. P. 26(b)(3)(A) (“[A] party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent).”). Here, Ms. Galbraith has submitted an affidavit indicating Plaintiffs' claim log was prepared for their current or potential counsels, which implicates work-product protection. See Goff v. Harrah's Operating Co., 240 F.R.D. 659, 661 (D. Nev. 2007) (indicating that “[d]ocuments related to ‘shopping’ for an attorney” qualify for work-product protection). Moreover, a review of the excerpt of Plaintiffs' claim log made available to the Court [Doc. No. 43-2] shows it to include not just facts, but Plaintiffs' opinions and impressions as well. And State Farm has not made a substantial-need showing to overcome the otherwise-applicable work-product protection. See Fed. R. Civ. P. 26(b)(3)(A)(ii).[6]

*6 However, State Farm has submitted excerpts from Plaintiffs' claim log that were emailed by Ms. Galbraith to Mr. Sherman, raising the issue of subject-matter work-product waiver. See Email from Sarah Galbraith to Jamie Sherman (Feb. 23, 2016, 10:52 PM), Doc. No. 43-2.[7] There is no indication that—other than this publication of excerpts of one version (from more than 32 different versions) of Plaintiffs' claim log to both Mr. Sherman and to State Farm—Plaintiffs published the claim log to anyone except their current or potential counsels. In this case, subject-matter waiver is not implicated because there is no indication Plaintiffs seek to use Plaintiffs' claim log as a sword in this litigation. The policies behind subject-matter waiver are fairness, “to prevent a one-sided presentation of evidence to a jury,” and prevent a party from using otherwise-protected information as both a sword and a shield in litigation. In re Commercial Fin. Servs., Inc., 247 B.R. 828, 847 (Bankr. N.D. Okla. 2000); cf. Frontier Refining, 136 F.3d at 704 (“[A] litigant cannot use the work product doctrine as both a sword and shield by selectively using the privileged documents to prove a point but then invoking the privilege to prevent an opponent from challenging the assertion.”). If Plaintiffs seek to use Plaintiffs' claim log in a manner that implicates the policies underlying subject-matter waiver, the Court's determination may change. To date, however, there is no indication that Plaintiffs seek “to secure a tactical advantage” through use of Plaintiffs' claim log. In re Commercial Fin. Servs., Inc., 247 B.R. at 847. While Plaintiffs waived any work-product protection that existed in the excerpts of Plaintiffs claim log that were emailed to Mr. Sherman by virtue of that email, Plaintiffs did not waive work-product protection as to the remainder of or other versions of the claim log. See id. at 846 (explaining the difference between waiver for a specific document by disclosure to a third party and subject-matter waiver).[8]

State Farm's request that the Court compel Plaintiffs to produce Plaintiffs' claim log (beyond that already produced as part of correspondence with Mr. Sherman) is therefore DENIED.

D. Additional deposition of Ms. Galbraith

Finally, State Farm seeks an additional deposition of Ms. Galbraith regarding the documents to be produced. Absent consent of the opposing party (which does not exist here), a party must receive leave of the Court to depose an already-deposed person. See Fed. R. Civ. P. 30(a)(2)(A)(ii). Leave is to be granted “to the extent [it is] consistent with Rule 26(b)(1) and (2).” Id. R. 30(a)(2).

Because State Farm's request is based on an assumed need for a second deposition after it receives the documents requested in its motion, the Court finds State Farm's request to be premature. The documents to be produced by Plaintiffs may not necessitate a second deposition of Ms. Galbraith. If, after the production ordered to occur herein has taken place, State Farm believes a second deposition to be warranted on topics that could not have reasonably been included in the first deposition of Ms. Galbraith with appropriate diligence, it may re-urge its request. At this time, State Farms' request for leave of the Court to conduct a second deposition of Ms. Galbraith is DENIED.

III. Rule 37(a)(5)(A) request for attorneys' fees and costs

State Farm requests the payment of its attorneys' fees and costs pursuant to Rule 37(a)(5)(A) based on Plaintiffs' production of responsive documents after State Farm filed its motion seeking to compel the same. However, State Farm does not provide any proof as to which documents were produced after it filed its motion or how such documents fit within Request for Production Nos. 3-4. In this case, the lack of authority indicating how Plaintiffs' produced discovery fits into the category of production that qualifies for Rule 37(a)(5)(A) payments makes an award unjust. See Fed. R. Civ. P. 37(a)(5)(A)(ii). Moreover, because the Court finds that Plaintiffs' motion should only be granted in part, Plaintiffs' failure to produce documents earlier was substantially justified. See id. R. 37(a)(5)(A)(ii); see also EEOC v. Midwest Reg'l Med. Ctr., LLC, No. CIV-13-789-M, 2014 WL 1745080, at *2 (W.D. Okla. Apr. 30, 2014).

IV. Conclusion

IT IS THEREFORE ORDERED that Plaintiffs' Motion to Compel is GRANTED IN PART and DENIED IN PART as set forth herein.

*7 IT IS SO ORDERED this 27th day of Aril, 2018.

Where a distinction is necessary between the plaintiffs, the Court uses Mr. Galbraith or Ms. Galbraith.

“Residence” and “Water Leak” both appear to be defined terms for purposes of State Farms' requests for production. Neither party has submitted the entirety of State Farm's requests for production (instead quoting from them), including any definitions. Accordingly, the Court assigns common-sense meanings to these terms and assumes (i) “Residence” to refer to Plaintiffs' home and (ii) “Water Leak” to refer to the leak that led to Plaintiffs' insurance claim and any damages allegedly caused by the leak or by State Farm's handling of Plaintiffs' insurance claim.

State Farm does not assign a terminating date to the range of its request, but the Court assumes State Farm did not intend to request documents which could not, at the time of Plaintiffs' response, exist yet. Plaintiffs' responses and objections were served on May 26, 2017. See Pls.' Resp. to Def.'s First Disc. Reqs., Doc. No. 42-6.

It is unclear from the parties' submissions what significance August 25, 2016 holds in this litigation unless it is when Plaintiffs discontinued their deletion of text messages with Mr. Sherman. Regardless, the Court does not perceive any relevant distinction to exist between the pre-and post-August 2016 periods. To the extent Plaintiffs claim the post-August 2016 period is not discoverable, the Court disagrees. Any communications with Mr. Sherman—at least for a reasonable period before the date of loss and at any time after the date of loss—are within Rule 26(b)(1)'s scope of discovery.

This is not to say that, if circumstances were different—e.g., if the discovery period had ended, if at least 30 days had not passed since the request was made, or if the opposing party objected—the Court would not deny a motion to compel based on the lack of a discovery request propounded pursuant to Rule 34.

Plaintiffs claim both work-product protection and attorney-client privilege apply to the requested documents. See Resp. 11-13, Doc. No. 42. Because the primary document at issue—Plaintiffs' claim log—was prepared separately from its transmission to counsel, it falls within the ambit of work product, not of the attorney-client privilege. Separately, Plaintiffs' transmissions of Plaintiffs' claim log to current or potential counsels are protected by attorney-client privilege, but State Farm has not requested the transmissions to Plaintiffs' current or potential counsels, so this issue is not before the Court.

Although this email was submitted with State Farm's Reply, Plaintiffs had an opportunity to respond both in their Sur-reply and at the hearing on State Farm's motion.

The Court skips the threshold question of whether subject-matter waiver applies to work-product protection in the same way it may apply to attorney-client privilege. See generally In re Commercial Fin. Servs., 247 B.R. at 850. Assuming arguendothat subject-matter waiver can apply in the work-product context, it is not implicated here.