Sill v. State Farm Lloyds
Sill v. State Farm Lloyds
2013 WL 12393984 (W.D. Tex. 2013)
April 8, 2013
Mathy, Pamela A., United States Magistrate Judge
Summary
The court denied the motion for an extension of time, finding that the parties had not sufficiently briefed the issue of State Farm's control over the homeowner's roof and had not provided any evidence of ESI that would be relevant to the case. The court thus did not consider any ESI in its decision and denied the motion for an extension of time.
Additional Decisions
Jeff SILL, Plaintiff,
v.
STATE FARM LLOYDS, Defendant
v.
STATE FARM LLOYDS, Defendant
Civil No. SA-12-CA-544-DE
United States District Court, W.D. Texas, San Antonio Division
Signed April 08, 2013
Counsel
William Joseph Baine, The Baine Firm, P.C., Jerry A. Gibson, Plunkett & Gibson, Inc., San Antonio, TX, for Plaintiff.Benjamin Gayle Kemble, David Vernon Jones, Edward J. Batis, Jr., Jones, Andrews & Ortiz, P.C., San Antonio, TX, for Defendant.
Mathy, Pamela A., United States Magistrate Judge
ORDER
*1 Came on this day to be considered:
• defendant State Farm Lloyds’ (“State Farm” or “defendant”) motion for protective order on plaintiff’s Rule 30(b)(6) deposition notice, filed March 19, 2013;[1]
• plaintiff Jeff Sill’s (“Sill” or “plaintiff”) response, filed March 25, 2013;[2]
• State Farm’s reply, filed April 1, 2013;[3]
• plaintiff’s opposed motion to extend scheduling order deadlines, filed March 25, 2013;[4]
• State Farm’s reply, filed April 1, 2013;[5] and
• State Farm’s advisory to the Court, filed April 3, 2013.[6]
The District Judge referred State Farm’s motion for protective order on plaintiff’s Rule 30(b)(6) deposition notice and plaintiff’s motion to extend scheduling order deadlines to the undersigned for disposition on April 2, 2013.[7]
I. BACKGROUND
A. Summary of Relevant Procedural History
After calling for scheduling recommendations from the parties,[10] the Court entered an initial scheduling order on August 10, 2012.[11] On January 11, 2013, the Court granted the parties’ joint motion to extend scheduling order deadlines, implementing the parties’ requested 90-day extension of deadlines, such that motions to amend or supplement the pleadings must be filed by February 25, 2013; expert materials for parties asserting claims must be served by March 25, 2013; expert materials for parties resisting claims must be served by April 26, 2013; mediation must be completed on or before April 30, 2013; discovery must be completed by June 17, 2013; and dispositive motions must be filed by July 12, 2013.[12] The case is not set for trial.
On January 6, 2013, State Farm filed a motion for leave to exceed the page limitations on a motion for protective order on plaintiff ‘s document requests, with exhibits.[13] Plaintiff filed a response, with exhibits, on January 6, 2013,[14] and State Farm filed a reply on January 7, 2013.[15] On February 7, 2013, the District Judge referred State Farm’s motion for leave to the undersigned for disposition, and the undersigned granted the motion.[16]
*2 On February 25, 2013, State Farm filed an unopposed motion for leave to amend its answer[17] as well as a motion for protective order with exhibits,[18] and plaintiff filed an unopposed motion to amend his complaint.[19] On February 26, 2013, the District Court granted plaintiff’s motion to amend his complaint and mooted State Farm’s motion to amend its answer in light of plaintiff’s first amended complaint.[20] Plaintiff’s first amended complaint was filed on February 26, 2013.[21]
On March 4, 2013, the District Judge referred State Farm’s motion for protective order to the undersigned for disposition.[22] On March 7, 2013, plaintiff filed an unopposed motion for leave to exceed the page limitation on his combined response to State Farm’s motion for protective order and cross-motion to compel discovery responses,[23] which the undersigned granted.[24] Plaintiff filed a combined response and cross-motion to compel, with exhibits, on March 8, 2013.[25] State Farm filed its combined reply and response to the cross-motion to compel on March 15, 2013.[26] On March 27, 2013, the undersigned entered an order granting in part and denying in part State Farm’s motion for protective order and plaintiff’s motion to compel.[27]
On March 7, 2013, State Farm filed a motion to dismiss, for judgment on the pleadings, and to strike the amended complaint, and subject thereto, its first amended answer to the first amended complaint.[28] On March 21, 2013, plaintiff filed a response to State Farm’s motion to dismiss, for judgment on the pleadings, and to strike;[29] and an opposed motion for leave to file a second amended complaint, seeking to amend his complaint “to address the typographical errors [as to the date of the defamation] and to more specifically plead the basis of his claims against Defendant.”[30] On March 28, 2013, State Farm filed a response to plaintiff’s motion for leave to amend,[31] and a reply in support of its motion to dismiss, for judgment on the pleadings, and to strike.[32] On April 2, 2013, the District Court entered an order granting plaintiff’s motion to amend his complaint, and mooting State Farm’s motion to dismiss, for judgment on the pleadings, and to strike the amended complaint.[33] Plaintiff’s second amended complaint—his “live” pleading—was filed April 2, 2013.[34]
On March 19, 2013, State Farm filed a motion for protective order on plaintiff’s Rule 30(b)(6) deposition notice, with exhibits.[35] On March 25, 2013, plaintiff filed a response to the motion for protective order, with exhibits;[36] and an opposed motion, with exhibits, to extend scheduling order deadlines by “at least four (4) months, or as the Court deems just and proper.”[37] On April 1, 2013, State Farm filed a reply in support of its motion for protective order, and a response in opposition to the motion to extend scheduling order deadlines.[38] On April 2, 2013, the District Court referred State Farm’s motion for protective order and plaintiff’s motion to extend scheduling order deadlines to the undersigned for disposition.[39] On April 3, 2013, State Farm filed an advisory stating that it did not object to a one-month extension of the scheduling order deadlines.[40]
B. Second Amended Complaint
*3 Plaintiff’s second amended complaint identifies Jeff Sill as the sole plaintiff in the caption, and states that “Jeff Sill is an individual residing in Round Rock, Texas and is the owner of Newport Construction Services, Inc.” (“Newport”) and that plaintiff “brings this claim in his individual capacity and in his capacity as owner of Newport Construction Services, Inc.”[41] In a single paragraph identified by the heading “Defamation,” the second amended complaint identifies the following claims:
State Farm defamed Sill and Newport by making both oral and written statements that Newport and/or its employees intentionally damaged property as alleged herein. Under Texas law, Sill, as owner of Newport, is entitled to seek damages for injury to his reputation. Additionally, State Farm acted with actual malice, and in a negligent manner. Because the statements made by State Farm defame Plaintiff in his occupation and impute business criminal activity, State Farm is liable for defamation per se, both statutory as defined in Tex. Civ. Prac. & Rem. Code § 73.001 and under the common law.[42]
With respect to the allegedly defamatory statements, plaintiff alleges:
(1) In the fall of 2010, “State Farm falsely accused Sill of causing intentional damage to the roofs of State Farm’s insureds in order to substantiate claims made by State Farm’s insureds for hail damage, thereby invoking insurance coverage to pay for the repairs. Additionally, State Farm made the same and/or similar allegations against [Newport];”[43]
(2) State Farm, through its investigators, advised homeowner Gary Radvansky (“Radvansky”) that: his roof damage “was caused by Sill and that State Farm had other instances where Sill intentionally caused damage to roofs;” “State Farm was having problems with Sill intentionally causing damage to other roofs;” Sill used a tool to damage gutters; “Sill was under investigation for intentionally causing damage to roofs;” and “State Farm intended to prosecute Sill for intentionally causing damages to the roofs of State Farm insureds;”[44]
(3) “State Farm Companies® wrote a letter to Radvansky falsely accusing ‘Newport Construction Services of intentionally causing damage to the roof of [Radvansky’s] home;’ ”[45]
(4) In connection with the home of Raul Nino (“Nino”), State Farm, through its investigators, “made unfounded and false allegations that Newport, owned by [Sill], intentionally caused damage to support a hail damage claim;” “[u]pon information and belief, State Farm made statements, both written and oral, to Nino that [Sill] and/or [Newport] intentionally caused damage to [Nino’s] roof;” and “Sill believes that State Farm has made similar accusations, both direct and implied, against him and Newport to other insureds of State Farm;”[46]
(5) similar to a lawsuit filed in Indiana state court which is pending on appeal, “State Farm has accused Sill and his company [Newport], of intentionally manipulating roofs to look like hail damage. Thus, Sill believes and alleges that the conduct and/or actions taken by State Farm in this case were consistent with a corporate-wide plan to target specific roofing contractors.”[47]
In a single paragraph identified by the heading “Damages,” plaintiff seeks the award of:
presumed damages for defamation per se, general damages for injury to character or reputation, injury to feelings, mental anguish and similar wrongs, injury to Sill’s business, [Newport], special damages including loss of existing and potential contracts and a decrease of roofing jobs in 2011, exemplary damages; pre and post-judgment interest and court costs.[48]
*4 Plaintiff also seeks “such other and further relief to which the Plaintiff may be justly entitled.”[49]
C. Related Litigation in Texas State Courts
The parties’ briefing identifies two Texas state court actions related to this suit. Defendant State Farm, as subrogee to homeowner Nino, filed suit against Newport in Justice of the Peace Court, Precinct 4, Tarrant County, Texas, to recover payments made to Nino in connection with a roof damage claim in which Newport and/or Sill were involved.[50] The Tarrant County Justice Court action was transferred to Justice of the Peace Court, Precinct 3, Bexar County, Texas and is now pending in cause numbers 30-C-12-01727-01, 30-C-12-01727-02, and 30-13-00014 (the “J.P. Action”).[51] In the J.P. Action, Newport counterclaimed against State Farm for tortious interference, business disparagement, and defamation “arising out of the same or similar facts which are involved in this litigation.”[52] In December, 2012, the Justice Court granted a motion to dismiss Newport’s counterclaim for defamation or libel for lack of subject matter jurisdiction.[53]
In February, 2013, Newport re-filed its business disparagement claim against State Farm arising out of the Nino home project in cause no. 2013-CI-02722, in the 150th Judicial District Court, Bexar County, Texas (the “District Court Action”).[54] According to the information provided by the parties, this case also remains pending.
II. STANDARDS
A. Scope of Discovery
Rule 26 of the Federal Rules of Civil Procedure generally addresses the methods and scope of permissible civil discovery, specifying that certain types of information must be initially disclosed without a discovery request and providing for the discovery of additional matters through such methods as written interrogatories, requests for production of documents, and depositions. With respect to the scope of discovery, Rule 26(b)(1) states in part:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense—including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know if any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).[55]
Discovery must not be “unreasonably cumulative or duplicative.”[56] The Court, even on its own motion, also may limit the frequency or extent of discovery if, for example, the movant has had ample opportunity to obtain the information or if the burden or expense of the proposed discovery outweighs its likely benefit.[57]
*5 Rule 26 provides that the parties may obtain additional discovery through written interrogatories or requests for production of documents and other items. Rule 33 of the Federal Rules of Civil Procedure provides that a party may serve upon any other party written interrogatories to discover any information relevant under Rule 26(b).[58] Interrogatories are not to exceed twenty-five (25) in number including discrete subparts, without first obtaining leave of court.[59] Rule 34 of the Federal Rules of Civil Procedure permits discovery of documents in the “possession, custody, or control” of the party upon whom the request is served.[60]
B. Compelling Discovery
Rule 37(a) of the Federal Rules of Civil Procedure provides that if a party fails to answer an interrogatory or produce requested documents, the discovering party may move for an order compelling an answer.[61] An “evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.”[62]
The Fifth Circuit requires a party who objects to discovery to specifically show how each request for production is burdensome or irrelevant.[63] A producing party may request a protective order for good cause to narrow the scope of discovery or limit the dissemination of privileged or confidential information to protect the party from annoyance, embarrassment, oppression, or undue burden or expense.[64] As a general rule, the producing party must show “good cause” for the issuance of any protective order, with the standard of proof varying with the type of information and protective order sought.[65] Courts have identified several factors the producing party may need to address to show good cause, including:
(1) whether disclosure will violate any privacy interests;
(2) whether the information is being sought for a legitimate purpose or for an improper purpose;
(3) whether disclosure of the information will cause a party embarrassment;
(4) whether confidentiality is being sought over information important to public health and safety;
(5) whether the sharing of information among litigants will promote fairness and efficiency;
(6) whether a party benefitting from the order of confidentiality is a public entity or official; and
(7) whether the case involves issues important to the public.[66]
A producing party must support its claim of good cause through specific facts, not conclusory allegations.[67]
C. Attorney Client and Work Product Privilege
*6 The attorney-client privilege generally protects all communications between lawyers and clients regarding matters within the scope of the representation. The privilege is said to belong to the client who may assert or waive it.[70] The term “communications” is broad enough to include not only discussions or conversations between lawyers and clients, but also correspondence between lawyers and clients, documents generated during the course of the legal relationship, and other information.
The work product privilege is intended to balance the need for “[m]utual knowledge of all the relevant facts gathered by both parties” to ensure proper litigation with a lawyer’s need to “work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel.”[71] Work product includes “interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs,” and other work done by the lawyer in preparation of her client’s litigation.[72] Unlike the attorney-client privilege, the work product privilege belongs to the lawyers and the client, and either may assert it.[73] The privilege is codified in Rule 26(b)(3) of the Federal Rules of Civil Procedure, which provides that work product is discoverable only if the party seeking discovery “shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.”[74]
Rule 26(b)(5) of the Federal Rules of Civil Procedure requires a party resisting discovery to notify opponents that it is withholding information subject to the claim of privilege or work product.[75] Rule 26(b)(5) does not attempt to define, for all cases, precisely what information must be provided when a party asserts a claim of privilege or work product protection.[76] But, Rule 26(b) does provide a party can withhold only the information sought to be protected and must serve a response that provides information sufficient to allow the requesting party to evaluate the applicability of the claimed privilege for each item or, if applicable, each group of items withheld.[77] More specifically, the party withholding information under a claim of privilege generally must serve a “privilege log” for the withheld information which, “without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.”[78] On the one hand, cursory descriptions are not sufficient to support a claim of privilege,[79] but, on the other hand, recording details about the information withheld may be unduly burdensome when, for example, voluminous documents are claimed to be protected that might be reported in categories or classifications and requiring too many details to be set out in the log effectively could force a breach the privilege. The level of detail required to identify the information being withheld on a claim of privilege without breaching the privilege is likely a matter that can only be determined on a case-by-case basis. It has been held that, when practicable, the privilege log should generally include a document number (“Bates number”), author or source, recipient, persons receiving copies, date, document title, document type, number of pages, and any other relevant nonprivileged information.[80] A party must seek a protective order if compiling the information for a privilege log would impose an unreasonable burden,[81] after conferring in an attempt to fashion a way of proceeding satisfactory to all concerned parties.
*7 The proponent of the attorney-client privilege bears the burden of showing the applicability of the privilege to the particular information in question.[82] If a party withholds information on a claim of privilege without notice to the other parties, sanctions can be imposed[83] and the privilege or protection may be waived.[84] Similarly, if privileged documents are not listed in a privilege log or are misrepresented as cumulative or duplicative, the privilege may be waived.[85]
D. Amendment of Scheduling Order
Rule 16(b) of the Federal Rules of Civil Procedure, which governs pretrial conferences, scheduling, and management, applies when a request is made to conduct discovery after the relevant scheduling order deadline has expired.[86] Rule 16(b) provides, in part, that a scheduling order “shall not be modified except upon a showing of good cause and by leave of the district judge[.]”[87] The “good cause” standard requires the “party seeking relief to show that the deadlines cannot reasonably be met despite the diligence of the party needing the extension.”[88] The absence of prejudice to the nonmovant or the ability to address prejudice through a further continuance in the dispositive motion deadline or trial are generally insufficient to demonstrate “good cause.”[89] The Fifth Circuit has identified four factors relevant to a good cause determination: (1) the explanation for the failure to timely move for leave to amend; (2) the importance of the amendment; (3) potential prejudice in allowing the amendment; and (4) the availability of a continuance to cure such prejudice.”[90]
III. DISCUSSION
A. State Farm’s Motion for Protective Order
1. summary of arguments
On March 12, 2013, plaintiff served State Farm with a deposition notice pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure, identifying ten topics of testimony:[91]
1. “Corporate structure of State Farm, including the distribution and management of departments responsible for handling claims, including hail damage claims;”
2. Identity of State Farm employees who handled (a) the Nino claim, and (b) any other claim of a State Farm insured which involved roof repair by Newport or Sill;
3. Identity of State Farm employees who determined Newport or Sill intentionally damaged (a) the Nino roof, and (b) any other roof of a State Farm insured;
*8 4. Identity of non-State Farm employees (specifically including State Farm-related entities, and state and federal agencies) who received communications from State Farm employees who handled (a) the Nino claim, and (b) any other claim of a State Farm insured which involved roof repair by Newport or Sill;[92]
5. Identity of non-State Farm employees who received communications (including “communication ... of the investigation and/or the results of the investigation”) from State Farm employees who determined Newport or Sill intentionally damaged (a) the Nino roof, and (b) any other roof of a State Farm insured;
6. “The name of any files, logs or other form of recording” relating to hail damage claims;
7. “The computer systems in place for handling hail damage claims and/or used to communicate within [State Farm] relating to hail damage claims,” including identification of the platform, type of data files used, systems used for communicating, and method and manner of storage and retrieval of data;
8. State Farm’s “maintenance, storage and retrieval of electronically stored information;”
9. State Farm’s “litigation holds” for this lawsuit; and
10. The location, storage and accessibility of (a) documents identified in State Farm’s initial disclosures, (b) documents and electronic information to be made available by State Farm, and (c) documents responsive to requests for production; and the efforts made to locate and produce responsive documents.[93]
Defendant State Farm moves for a protective order on the deposition notice arguing, in sum, the topics are not limited in geographic scope or time and as such “are actually innumerable;” are burdensome, not limited in scope, for an impermissible purpose, invasive of privacy, and irrelevant; seek material protected by the attorney-client privilege and comprising work product; and are irrelevant to any claim or defense.[94] State Farm asks the Court to quash the notice in its entirety or, in the alternative, limit the testimony of the Rule 30(b)(6)witness(es) to relevant areas of inquiry.[95]
Plaintiff Sill responds that the testimony is sought to obtain information necessary to permit plaintiff to properly serve additional discovery requests on State Farm.[96] Plaintiff argues he is entitled to obtain the requested testimony because, in sum, it is an appropriate method of discovering “how State Farm stores and retains information relevant to this proceeding” and the identity of “those who are involved in various aspects of State Farm’s business operations relative to the issues raised by Sill in this case,” and State Farm has already objected to other discovery on the grounds that illustrates plaintiff does not understand how information is processed by State Farm.[97] In reply, State Farm argues the March 27, 2013 order of the undersigned concerning State Farm’s motion for protective order on plaintiff’s requests for production and plaintiff’s corresponding cross-motion to compel “contains a compelling rationale in support of State Farm’s positions in several regards” and State Farm “incorporates the holdings of the Court in that Order into its arguments herein.”[98]
2. analysis
*9 As noted, plaintiff filed his second complaint on April 2, 2013, after the filing of State Farm’s motion for protective order, plaintiff’s response, and State Farm’s reply.[99] To be clear, this order considers plaintiff’s deposition notice in reference to plaintiff’s claims asserted in his second amended complaint.
a. topic 1: testimony concerning corporate structure
State Farm seeks protection from topic 1 of the deposition notice, which seeks testimony regarding the corporate structure of State Farm, on the grounds the request is overbroad and the material is irrelevant to any cause of action in the lawsuit.[100] State Farm argues plaintiff can obtain the requested information from publicly available filings with the Texas Department of Insurance (at plaintiff’s own initiative and expense), and “a deposition would only be necessary if this information was somehow insufficient.”[101] In response, plaintiff argues he has pleaded “the conduct of targeting roofing contractors and making unfounded allegations against them in an effort to limit insurance claims,”State Farm is related to State Farm Fire & Casualty which is involved in a lawsuit in Indiana state court involving “similar unfounded allegations” against a roofer, and the similarities between the Indiana case and the allegations in this lawsuit “reflect a corporate policy.”[102]Plaintiff further argues that, although he may be able to obtain some information from the Texas Department of Insurance, plaintiff should not have to engage in third-party discovery when State Farm can easily produce the information, and “it is extremely unlikely” State Farm has disclosed sufficient information to the agency to satisfy plaintiff’s discovery needs.[103]
As discussed, plaintiff has pleaded defamation claims against State Farm arising from allegedly defamatory statements made in connection with roof repair work completed by plaintiff on behalf of “his” company. Plaintiff has not alleged that he or his company repaired roofs outside the immediate vicinity of San Antonio or in states other than Texas. Plaintiff has not provided argument or authority to explain how discovery pertaining to State Farm-related entities—including the relationship between defendant State Farm and entities involved in the Indiana case—“is relevant to any party’s claim or defense” in this case or is reasonably calculated to lead to the discovery of admissible evidence.[104]Further, plaintiff’s response indicates he has not attempted to obtain any information from the Texas Department of Insurance, as he does not specify how the information available from the agency is insufficient. Accordingly, based on the current briefing, the portions of State Farm’s motion for protection that seek protection from producing testimony concerning State Farm’s corporate structure (topic 1) are granted.
b. topics 2, 3, 4, 5, and 6: testimony about the Nino roof claim, and other roof claims of State Farm insureds involving roof work by Newport
State Farm seeks protection from topics 2, 3, 4, 5, and 6 of the deposition notice, which seek testimony concerning the identity of individuals involved in handling the Nino roof claim and any claims filed by State Farm insureds in connection with which Newport performed roof work, and information about the computer systems used in connection with all “hail damage claims.”[105] With respect to claims involving Newport, State Farm argues Newport, which “had dealings with State Farm and its insureds,” is not a party to this lawsuit, and “Newport is the only entity with the capacity to bring a defamation suit, or seek such discovery.”[106] In response, plaintiff argues he is entitled to the testimony because “it has long been the law in Texas that the owner of a corporation has a right to bring claims for defamation made against the business.”[107]
*10 Under Texas law, a corporation may be defamed.[108] In that case, the defamation is of the corporation, as distinguished from the corporation’s business.[109] “[R]ecovery of ... damages will be for defamation of the owner [of the business], whether the owner be an individual, ... or a corporation.”[110] The entity to which the defamatory statements refer must be the plaintiff in a suit alleging defamation claims.[111]
The second amended complaint describes three events that form the factual basis for the pleaded defamation claims: (1) statements made by State Farm representatives to homeowner Radvansky that: his roof damage was caused by Sill, State Farm was having problems with Sill causing damage to other roofs, Sill was under investigation for causing damage, and State Farm intended to prosecute Sill for the damage to the roofs; (2) statements made by a State Farm entity to Radvansky in written correspondence that Newport intentionally damaged Radvansky’s roof; and (3) statements made by State Farm representatives that Newport and Sill intentionally caused damage to support the Nino hail damage claim.[112]
The second amended complaint identifies Newport as a corporation (Newport Construction Services, Inc.) that is engaged in the business of construction.[113] Newport, as owner of the construction business, owns any defamation claim arising from allegedly defamatory statements made about Newport; and Sill owns any defamation claims based on allegedly defamatory statements made about Sill individually. Even if plaintiff has “standing” to pursue a claim for the defamation of “his” business as it allegedly affected plaintiff, as plaintiff appears to argue, and/or even if plaintiff may be awarded “personal” damages based on injury to his business reputation or defamation of his work in “his” business, Sill is the only named party plaintiff.[114]
*11 A party is entitled to discovery of information that is “relevant to any party’s claim or defense” and/or reasonably calculated to lead to the discovery of admissible evidence.[115] To the extent plaintiff asserts he is entitled to obtain testimony from State Farm regarding any claim made by any State Farm insured when Newport performed the roof work for the insured, he has not demonstrated State Farm is not entitled to the protection it seeks. Plaintiff has not explained why the information is relevant to his defamation claims or is reasonably calculated to lead to the discovery of admissible evidence. Again, even if plaintiff has “standing” to pursue a claim for the defamation of “his” business and even it plaintiff may be awarded “personal” damages based on injury to his business reputation or defamation of his work on behalf of “his” business, Sill has not provided argument and authority to show his broad requests for testimony concerning the identity of individuals who handled claims of State Farm insureds that involved any roof work performed by Newport or received related communications, or State Farm’s computer systems relating to “hail damage claims” seeks nonprivileged information that is relevant to his claims or reasonably calculated to lead to the discovery of admissible evidence.
Just as plaintiff has not explained why his broad requests for testimony concerning the identity of individuals who handled claims of State Farm insureds that involved roof work performed by Newport or received related communications, or State Farm’s computer systems relating to “hail damage claims” falls within the scope of Rule 26, State Farm has not demonstrated plaintiff’s requests for testimony about the identity of individuals who handled the roof claims of homeowners Nino, Radvansky, Woodruff, and Cole, the identity of individuals who received related communications, or State Farm’s computer systems relating to these homeowners’ roof claims is impermissible.[116]Without citation to authority, State Farm objects to the discovery regarding the Nino roof claim on the grounds that plaintiff seeks “to circumvent the discovery rules” in the J.P. Action, and this suit and the discovery is plaintiff’s improper attempt to bring Newport’s claims “where (1) those claims have already been dismissed, (2) where discovery in the parallel suit will not be permitted, and (3) where the statute of limitations for Newport to pursue the claims has clearly run.”[117]
Plaintiff argues discovery concerning Nino and Radvansky is permissible because the discovery in this case and the pending actions in Texas state court “are inextricably intertwined in terms of facts;” and State Farm has identified in its initial disclosures materials encompassed by the Nino and Radvansky claim files and it would be improper to permit State Farm to rely on materials but not be required to produce them to plaintiff.[118] Plaintiff further argues discovery concerning the identity of State Farm employees who handled claims involving Sill and Newport is relevant “to establish the practices of Sill and/or Newport in dealing with State Farm, [and] whether other claims were the subject of investigation which determined that Sill/Newport did not intentionally damage [sic],” and discovery seeking the identity of non-State Farm employees who received communications concerning the Nino claim or other claims involving Newport is “directly relevant to this proceeding as seeking fact witness information.”[119]
*12 Plaintiff is entitled to “obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.”[120] Plaintiff has identified an individual defamation claim against State Farm arising from allegedly defamatory statements made in connection with roof repair work completed on the Radvansky home in San Antonio, Texas, and alleges State Farm made defamatory statements about Newport in connection with roof repair work completed on the Nino home in San Antonio, Texas.[121] To the extent Plaintiff’s requests for testimony include testimony concerning the roof claims of State Farm insureds Nino, Radvansky, Woodruff, and Cole, those requests appear to be relevant to plaintiff’s defamation claim and appear reasonably calculated to lead to the discovery of admissible evidence, and State Farm has not shown good cause to prevent this discovery.
Accordingly, based on the current briefing, the portions of State Farm’s motion for protection that seek protection from producing testimony concerning all “hail damage claims” and any roof claim by any State Farm insured when Newport performed the roof repair work are granted. Further, based on the current briefing, the portions of State Farm’s motion for protection that seek protection from producing testimony concerning the roof claims of Nino, Radvansky, Woodruff, and Cole are denied. With respect to topics 2, 3, 4, 5, and 6 of plaintiff’s Rule 30(b)(6) deposition notice, State Farm must produce a witness(es) to testify regarding the Nino, Radvansky, Woodruff, and Cole roof claims.
c. topics 6, 7, 8, and 10: testimony concerning computer systems and document production
State Farm seeks protection from topics 7, 8, and 10 of the deposition notice, which seek testimony concerning “the electronic creation, duplication, and/or storage of the documents or things requested, any and all document retention/destruction policies that would relate to any of the documents requested, the location of the documents or things requested, etc.,” on the grounds the information is irrelevant to any claims or defenses in this lawsuit, and duplicative of State Farm’s inherent discovery obligations. Further, State Farm argues allowing “discovery into discovery” would require State Farm to expend significant amounts of time preparing a witness to testify as to “potentially limitless areas of inquiry concerning irrelevant topics with no nexus to the actual claims made in this case.”[122]
Plaintiff responds as to topics 6, 7, 8, and 10 which each seek testimony concerning State Farm’s computer systems and document production. With respect to topic 6, which seeks “testimony as to the name of files, logs or other forms of recording data and information relating to claims, including hail damage claims,” plaintiff argues the discovery is necessary for him to accurately and sufficiently identify any subsequent discovery so as to avoid objections from State Farm that plaintiff did not sufficiently identify the requested discovery.[123] By way of example, plaintiff explains:
State Farm identified the Nino claim file as evidence it intends to rely upon in this case. However, when Sill served discovery requests for that claim file, State Farm responded by stating that the request was overly broad and specifically object[ed] to the term “claim file” as “ambiguous and overbroad as it assumes a physical file exists.” State Farm then stated that the information is stored in the “Enterprise Claim System (“ECS”). State Farm is clearly willing to play games with terminology and Sill seeks testimony as to the method and manner of storing information so that proper discovery requests can be made to eliminate issues of semantics and gamesmanship.[124]
Plaintiff argues topics 7 and 8, which seek testimony “concerning computer systems in place for handling hail damage claims and the methods of storing information electronically,” are permissible for the same reasons topic 6 is permissible.[125] With respect to topic 10, which seeks testimony concerning “the location of documents identified in the Initial Disclosures, documents and electronic documents to be produced and/or made available in this case and those responsive to Sill’s Requests for Production and efforts made to locate and produce response documents,” plaintiff argues the information “is important as Sill is entitled to know and understand how State Farm stores and keeps its records and to ensure that appropriate requests were made seeking production of those documents.”[126]
*13 Plaintiff is entitled to obtain discovery relevant to any party’s claims and defenses, and reasonably calculated to lead to the discovery of admissible evidence. State Farm has not demonstrated good cause for denying plaintiff the discovery he seeks. More specifically, plaintiff is entitled to discovery concerning State Farm’s computer systems and document production as those systems are relevant to (1) the roof claims of homeowners Nino, Radvansky, Woodruff, and Cole, and (2) the documents, data, and information State Farm has been ordered to produce in this order and the Court’s March 27, 2013 order on State Farm’s motion for protection and plaintiff’s cross-motion to compel. State Farm has not demonstrated the discovery sought concerning State Farm’s computer systems and document production—as those systems are relevant to (1) the roof claims of homeowners Nino, Radvansky, Woodruff, and Cole, and (2) the documents, data, and information State Farm otherwise is obligated to produce—will subject State Farm to “annoyance, embarrassment, oppression, or undue burden or expense.”[127] Accordingly, based on the current briefing, the portions of State Farm’s motion for protection that seek protection from producing testimony about State Farm’s computer systems which (1) relate to hail damage claims or (2) are unlimited in scope, are granted. Further, based on the current briefing, the portions of State Farm’s motion for protection that seek protection from producing testimony concerning State Farm’s computer systems and document production—as those systems are relevant to (1) the roof claims of homeowners Nino, Radvansky, Woodruff, and Cole, and (2) the documents, data, and information State Farm has been ordered to produce in this order and the Court’s March 27, 2013 order on State Farm’s motion for protection and plaintiff’s cross-motion to compel—are denied. With respect to topics 6, 7, 8, and 10, State Farm must produce a witness(es) to testify regarding (1) the roof claims of Nino, Radvansky, Woodruff, and Cole, and (2) the documents, data, and information State Farm otherwise has been ordered to produce in this order and the Court’s March 27, 2013 order.
d. topic 9: testimony concerning “litigation holds”
State Farm seeks protection from topic 9, which seeks testimony about “litigation holds ... in this lawsuit,” to the extent plaintiff seeks testimony covered by the attorney-client privilege or comprising work product.[128] Plaintiff responds that he “seeks testimony as to whether a litigation hold was implemented for this lawsuit and does not seek production of any letters or actual communications with State Farm’s attorneys” and further clarifies that he “is not seeking the substance of communications with State Farm’s attorneys but rather whether State Farm implemented a hold on the destruction of relevant documents consistent with its obligations to preserve information that may be sought in litigation.”[129]
Plaintiff “may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.”[130] Responsive documents that contain attorney-client privileged information or comprise work product exceed the scope of discovery as defined by Rule 26. Plaintiff’s response indicates he is not seeking testimony protected by the attorney-client privilege or comprising work product. Accordingly, based on the current briefing, the portions of State Farm’s motion for protection that seek protection from producing testimony covered by attorney-client privilege or comprising work product are granted. Otherwise, the portions of State Farm’s motion for protection regarding topic 9 which seek protection from producing any documents or testimony about litigation holds is denied.
3. other grounds for protection
The Court carefully considered all relevant submissions and arguments, even if not discussed in this order. The Court cannot conclude, based on the current briefing and the record as currently developed by the parties, that State Farm’s motion for protection should be granted in any respect other than as expressly provided in this order. To the extent not expressly addressed, State Farm’s motion for protection is denied other than as expressly provided in this order.
B. Plaintiff’s Motion to Extend Scheduling Order Deadlines
1. background
The Court entered an initial scheduling order on August 10, 2012 implementing the following deadlines, among others:
• motions to amend or supplement the pleadings or joint additional parties to be filed by November 26, 2012;
• expert materials for parties asserting claims to be served by December 13, 2012;
• expert materials for parties resisting claims to be served by January 14, 2013;
• mediation to be completed on or before April 30, 2013;
• discovery to be completed by March 15, 2013; and
• dispositive motions to be filed by January 30, 2013.[131]
On December 14, 2012, the parties filed a joint motion to extend the scheduling order deadlines by 90 days.[132] In the joint motion, the parties explained they had “had numerous discussions about consolidation of [the] J.P. [Action] into this case,” but the parties have concluded that they cannot agree to consolidate the J.P. [A]ction into this action.”[133] Thus, the parties sought a 90-day extension of the existing deadlines “to allow the parties to combine the respective claims in the J.P. [Action] into this suit, exchange written discovery, submit discovery disputes to the Court and to take depositions in an orderly fashion prior to designating experts.”[134] On January 11, 2013, the Court granted the parties’ joint motion and implemented the requested 90-day extension of deadlines, such that the following deadlines became operative:
*14 • motions to amend or supplement the pleadings or join additional parties to be filed by February 25, 2013;
• expert materials for parties asserting claims to be served by March 25, 2013;
• expert materials for parties resisting claims to be served by April 26, 2013;
• mediation to be completed on or before April 30, 2013;
• discovery to be completed by June 17, 2013; and
• dispositive motions to be filed by July 12, 2013.[135]
2. summary of arguments
On March 25, 2013, plaintiff filed an opposed motion to extend scheduling order deadlines, seeking an extension of the deadlines by “at least four (4) months, or as the Court deems just and proper.”[136] Plaintiff explains that after this case was removed from Texas state court, plaintiff understood the parties to have agreed to join the J.P. Action with this case, and in reliance on that understanding, he delayed taking discovery in this case.[137] In December, 2012, when it became apparent to plaintiff that the J.P. Action would not be “joined” with this case, plaintiff began discovery efforts.[138] But, State Farm has refused “to cooperate in any respect concerning discovery,” as demonstrated by State Farm’s delayed discovery responses, refusal to permit inspection of homeowner Nino’s property, and motions for protection filed in connection with plaintiff’s discovery requests.[139] Based on State Farm’s actions in response to plaintiff’s discovery efforts, plaintiff seeks a four-month extension to the scheduling order deadlines.[140]
State Farm advances several arguments in response to plaintiff’s motion. State Farm argues plaintiff’s motion is premature because it seeks to extend the discovery deadline which does not expire for over two months, and State Farm objects to plaintiff’s use of informal communications among the parties to make his case for extension of deadlines.[141] State Farm also argues plaintiff has not shown he exercised “due diligence” in obtaining information needed to complete discovery, as the parties never agreed to abate this case—or its discovery—while the parties discussed the joinder/consolidation of the J.P. Action with this case.[142] In addition, State Farm objects to plaintiff’s characterization of its actions, contends that plaintiff’s failure to pursue discovery is solely his own doing, and repeats that it has not prevented plaintiff from conducting any discovery that was not facially objectionable.[143] Finally, in a separate filing, State Farm advises the Court it does not oppose a “one (1) month extension on current deadlines.”[144]
3. analysis
*15 To the extent plaintiff seeks to reopen an expired deadline, plaintiff must show “good cause” to reopen the deadline.[145] As of the date plaintiff filed his motion for extension of deadlines (March 25, 2013), the deadline for amending pleadings and joining parties (February 25, 2013) had expired.[146] None of plaintiff’s arguments are directed to reopening the deadline to amend pleadings and join parties and, as such, plaintiff has not demonstrated good cause to reopen the deadline.
With respect to unexpired deadlines, the standard for determining whether to extend the deadlines is abuse of discretion.[147] Plaintiff contends the current deadlines are unworkable because he did not begin discovery efforts until December, 2012—in “justifiable reliance” on an agreement that the J.P. Action would be joined with this case, and an understanding that discovery would be streamlined once the two cases were joined—and State Farm has resisted the discovery plaintiff has pursued since December, 2012.[148] But, plaintiff has not demonstrated the January 11, 2013 amended scheduling order did not already confer on the parties any benefit of a deadline extension due to any discussions among the parties concerning the joinder of the J.P. Action with this case.[149] Moreover, plaintiff has not demonstrated State Farm’s objections and motion practice concerning written discovery and depositions require an extension of the scheduling order deadlines.[150]
Nonetheless, State Farm “does not oppose a one (1) month extension on current deadlines,” the Court entered an order on the parties’ cross-motions concerning plaintiff’s first set of requests for production on March 27, 2013, and this order addresses’ State Farm’s motion for protection on plaintiff’s Rule 30(b)(6) deposition notice for State Farm.[151] Accordingly, plaintiff’s motion for extension of deadlines should be granted in part and denied in part, such that the scheduling order filed on August 10, 2012,[152] and amended on January 11, 2013,[153] is amended in the following respects:
1. All parties asserting claims for relief shall file their designation of potential witnesses, testifying experts, and proposed exhibits, and shall serve on all parties, but not file, the materials required by Fed. R. Civ. P. 26(a)(2)(B) by April 25, 2013. Parties resisting claims for relief shall file their designation of potential witnesses, testifying experts, and proposed exhibits, and shall serve on all parties, but not file, the materials required by Fed. R. Civ. P. 26(a)(2)(B) by May 26, 2013. All designations of rebuttal experts shall be designated within 15 days of receipt of the report of the opposing expert.
*16 2. The parties shall complete all discovery on or before July 17, 2013. Counsel may by agreement continue discovery beyond the deadline, but there will be no intervention by the Court except in extraordinary circumstances, and no trial setting will be vacated because of information obtained in post-deadline discovery.
3. All parties shall mediate this case on or before May 30, 2013, unless the parties seek an order from the Court excusing them from mediation.
4. All dispositive motions shall be filed no later than August 12, 2013. Dispositive motions as defined in Local Rule CV-7(h) and responses to dispositive motions shall be limited to 20 pages in length.
In all other respects, plaintiff’s motion for extension is denied. Except for the changes indicated above, the Scheduling Order filed August 10, 2012 and amended on January 11, 2013 remains in effect as issued.
IV. CONCLUSION
For the reasons discussed, based on the current briefing,
IT IS ORDERED that State Farm’s motion for protective order, filed March 19, 2013,[154] is GRANTED in part and DENIED in part as provided in this order. Unless relief requested in the motion for protection has been expressly granted, the relief requested is denied.
IT IS ORDERED that plaintiff’s opposed motion to extend scheduling order deadlines, filed March 25, 2013,[155] is GRANTED in part and DENIED in part as provided in this order.
IT IS ALSO ORDERED that the limited matters referred to the undersigned having been addressed, this case is RETURNED to the District Judge.
NOTICE OF RIGHT TO OBJECT
Rule 72 (a) of the Federal Rules of Civil Procedure provides that a party may file and serve any objection to an order entered by a magistrate judge on a nondispositive matter within 14 days after being served with a copy of the order. The District Judge must consider timely objections and modify or set aside any part of the order that is clearly erroneous or contrary to law.
Footnotes
Docket no. 36.
Docket no. 40.
Docket no. 45.
Docket no. 39.
Docket no. 44.
Docket no. 48.
Text-only entries dated Apr. 2, 2013.
Docket no. 1 at 1, and exhibit A at original petition.
Docket no. 5. Plaintiff filed his original petition on September 1, 2011, but did not serve State Farm with the lawsuit until May 22, 2012. Docket no. 1 at 1, and exhibit A at officer’s return of service.
Docket no. 8.
Docket no. 14.
Docket no. 18. See docket no. 16. Upon filing, the case was randomly assigned to District Judge Orlando Garcia. On January 10, 2013, Judge Garcia transferred the case to the docket of Senior District Judge David Ezra. Docket no. 17.
Docket no. 19, and exhibits 1-6.
Docket no. 20, and exhibits 1-6.
Docket no. 22.
Text-only entry dated Feb. 7, 2013; docket no. 23.
Docket no. 24.
Docket no. 25, and exhibits 1-4.
Docket no. 26.
Text-only entry dated Feb. 26, 2013.
Docket no. 27.
Text-only entry dated Mar. 4, 2013.
Docket no. 29.
Docket no. 31.
Docket no. 32, and exhibits 1-2.
Docket no. 35.
Docket no. 41.
Docket no. 28.
Docket no. 37.
Docket no. 38 at 2.
Docket no. 43.
Docket no. 42.
Docket no. 46.
Docket no. 47.
Docket no. 36, and exhibit 1 (plaintiff’s Rule 30(b)(6) deposition notice).
Docket no. 40, and exhibits 1-12 (exhibit 1: plaintiff’s Rule 30(b)(6) deposition notice; exhibit 2: correspondence between counsel regarding corporate representative deposition; exhibit 3: correspondence reflecting service of Rule 30(b)(6) deposition notice; exhibit 4: first amended Rule 30(b)(6) deposition notice; exhibit 5: Gary Radvansky’s statement; exhibit 6: State Farm’s Rule 26 initial disclosures; exhibit 7: plaintiff’s Rule 26 initial disclosures; exhibit 8: State Farm website excerpt; exhibit 9: State Farm website excerpt; exhibit 10: news article regarding Indiana lawsuit; exhibit 11: State Farm website excerpt; and exhibit 12: excerpt of State Farm’s responses and objections to plaintiff’s first set of requests for production).
Docket no. 39, and exhibits 1-11 (exhibit 1: pleading from J.P. Action; exhibit 2: email correspondence between counsel; exhibit 3: plaintiff’s Rule 26 initial disclosures; exhibit 4: State Farm’s Rule 26 initial disclosures; exhibit 5: correspondence reflecting transmission of plaintiff’s requests for production to defendant; exhibit 6: correspondence between counsel regarding requests for production; exhibit 7: correspondence reflecting transmission of plaintiff’s request to enter land and second set of requests for production; exhibit 8: correspondence between counsel regarding discovery; exhibit 9: State Farm’s responses and objections to plaintiff’s second set of requests for production, and request to enter land; exhibit 10: correspondence between counsel regarding request to enter land; and exhibit 11: correspondence from State Farm entity to Gary Radvansky).
Docket nos. 44, 45.
Text-only entries dated Apr. 2, 2013.
Docket no. 48.
Docket no. 47 at 1.
Id. at 5-6.
Id. at 2.
Id. at 2-3.
Id. at 3.
Id. at 3-4.
Id. at 4-5.
Id. at 6.
Id.
Docket no. 16 at 1; docket no. 32 at 3 & n.3.
Docket no. 32 at 3 & n.3.
Id. at 3-4 & n.4. See docket no. 16 at 1-2; docket no. 27 at 2-3.
Docket no. 25, exhibit 4. See TEX. GOV’T CODE § 27.031(b)(3) (“A justice court does not have jurisdiction of: ... a suit to recover damages for slander or defamation of character.”).
Docket no. 32 at 3-4, 14, & n.4.
FED. R. CIV. P. 26(b)(1) (emphasis added).
FED. R. CIV. P. 26(b)(2)(C)(i).
FED. R. CIV. P. 26(b)(2)(C)(ii) and (iii).
FED. R. CIV. P. 33(a) & (c).
FED. R. CIV. P. 33(a).
FED. R. CIV. P. 34(a)(1).
FED. R. CIV. P. 37(a)(3).
FED. R. CIV. P. 37(a)(4).
McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990). See also SEC v. Brady, 238 F.R.D. 429, 436 (N.D. Tex. 2006).
FED. R. CIV. P. 26(c)(1).
See e.g., Shingara v. Skiles, 420 F.3d 301, 305-06 (3rd Cir. 2005).
Id. at 306 (citing Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995) ) (further citation omitted).
In re Terra Int’l, 134 F.3d 302, 306 (5th Cir. 1998) (“Rule 26(c)’s requirement of a showing of good cause to support the issuance of a protective order indicates that ‘[t]he burden is upon the movant to show the necessity of its issuance, which contemplates a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements.’ United States v. Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir. 1978); see also 8 CHARLES ALAN WRIGHT, ARTHUR R. MILLER AND RICHARD L. MARCUS, FEDERAL PRACTICE AND PROCEDURE § 2035, at 483–86 (2d ed. 1994).”).
Regan-Touhy v. Walgreen Co., 526 F.3d 641, 647 (10th Cir. 2008).
Hastings v. N.E. Ind. Sch. Dist., 615 F.2d 628, 631 (5th Cir. 1980).
United States v. Juarez, 573 F.2d 267, 276 (5th Cir.), cert. denied, 439 U.S. 915, 99 S. Ct. 289 (1978).
Hickman v. Taylor, 329 U.S. 495, 507-10, 67 S. Ct. 385, 392-93 (1947).
Id. at 511, 67 S. Ct. at 393.
In re Grand Jury Proceedings, 43 F.3d 966, 972 (5th Cir. 1994).
FED. R. CIV. P. 26(b)(3)(A)(ii).
FED. R. CIV. P. 26(b)(5); FED. R. CIV. P. 26, 1993 Advisory Comm. Notes at ¶ 33.
Id.
FED.R.CIV.P. 26(b)(5)(A)(ii); FED. R. CIV. P. 26, 1993 Advisory Comm. Notes at ¶ 34.
FED. R. CIV. P. 26(b)(5). See, e.g., United States v. Constr. Prods. Res., Inc., 73 F.3d 464, 473 (2d Cir.) (“To facilitate its determination of privilege, a court may require ‘an adequately detailed privilege log in conjunction with evidentiary submissions to fill in any factual gaps.’ ”), cert. denied, 519 U.S. 927, 117 S. Ct. 294 (1996); Estate of Manship v. United States, 232 F.R.D. 552, 561 (M.D. La. 2005) (explaining Rule 26(b)(5) “employs the mandatory term, ‘shall,’ requiring that the responding party prepare a privilege log where a privilege is asserted”), rec. adopted, 97 A.F.T.R. 2d 2006-1068 (Jan. 13, 2006); Newpark Envtl. Serv., L.L.C. v. Admiral Ins. Co., No. Civ. A 99-033, 2000 WL 136006, at *4 (E.D. La. Feb. 3, 2000)(detailed log in support of attorney-client and work product privileges required). Former Local Rule CV-26(e) specified a procedure for preserving and presenting claims of privilege. But, that rule was amended effective December 1, 2000, to delete former subsection (e) because “[t]he local rule simply restates the procedure clearly established by case law and thus serves no good function.” Local Civil Rule CV-26(e) and Committee Notes, LOCAL COURT RULES, UNITED STATES DIST. CT., WEST. DIST. TEXAS.
Constr. Prods. Res., 73 F.3d at 473.
See Alleyne v. N.Y. State Educ. Dept., 248 F.R.D. 383, 386 (N.D.N.Y. 2008).
FED. R. CIV. P. 26, 1993 Advisory Comm. Notes at ¶ 35.
Hodges, Grant & Kaufmann v. United States, 768 F.2d 719, 721 (5th Cir. 1985). See also United States v. Rodriguez, 948 F.2d 914, 916 (5th Cir. 1991), cert. denied, 504 U.S. 987, 112 S. Ct. 2970 (1992) (attorney-client privilege must be specifically asserted with respect to particular documents) (citing United States v. El Paso Co., 682 F.2d 530, 539 (5th Cir. 1982) ).
FED. R. CIV. P. 37(b)(2).
Dorf & Stanton Commc’ns. v. Molson Breweries, 100 F.3d 919, 923 (Fed. Cir. 1996), cert. denied, 520 U.S. 1275, 117 S. Ct. 2455 (1997); FED. R. CIV. P. 26, 1993 Advisory Comm. Notes at ¶ 33.
Ritacca v. Abbott Labs., 203 F.R.D. 332, 335-36 (N.D. Ill. 2001); Grossman v. Schwarz, 125 F.R.D. 376, 386-87 (S.D.N.Y. 1989). But see United States v. British Am. Tobacco (Invs.) Ltd., 387 F.3d 884, 890-91 (D.D.C. 2004).
See Leza v. City of Laredo, No. 12-40273, 2012 WL 5295625, at *1 (5th Cir. Oct. 29, 2012).
FED. R. CIV. P. 16(b).
S&W Enter., L.L.C. v. SouthTrust Bank of Ala., N.A., 315 F.3d 533, 536 (5th Cir. 2003).
Bakner v. Xerox Corp. Employee Stock Ownership Plan, No. SA-98-CA-0230-OG, 2000 WL 33348191, at *14 (W.D. Tex. Aug. 28, 2000).
Sw. Bell Tele. Co. v. City of El Paso, 346 F.3d 541, 546 (5th Cir. 2003).
Docket no. 36, exhibit 1.
The request does not identify the subject matter of the communications.
Docket no. 36, exhibit 1.
Docket no. 36 at 3-10.
Id. at 2.
Docket no. 40 at 1.
Id. at 8, 6-7.
Docket no. 45. at 1.
Docket nos. 36 (motion for protective order), 40 (response), 45 (reply), 47 (second amended complaint).
Docket no. 36 at 8-9.
Id. at 9.
Docket no. 40 at 4.
Id. at 5.
FED. R. CIV. P. 26(b)(1).
Docket no. 36 at 3-4. See id., exhibit 1 at 1-2 (deposition topics 2-6). Topics 2, 3, 4, and 5 seek the identity of individuals involved in various types of insurance claims. Topic 6 seeks testimony about:
The name of any files, logs or other form of recording either written and/or electronic dat[a] relating to hail damage claims, investigations of hail damage claims, determinations made that hail damage was intentionally caused, reports to internal committees concerning investigations and/or determinations that hail damage claims were the result of intentional manipulation and not naturally occurring hail damage
Docket no. 36, exhibit 1. State Farm opposes the production of testimony on topics 2-6 on the same grounds. Docket no. 36 at 3-6. Plaintiff’s response to State Farm’s motion separately addresses topics 2 and 3, 4 and 5, and 6. Docket no. 40 at 5-7. The aspects of topic 6 that seek testimony concerning “hail damage claims” and other roof claims of State Farm insureds involving roof work by Newport are discussed in this subsection (b); the aspects of topic 6 that seek testimony concerning State Farm’s computer systems are discussed in subsection (c).
Id. at 4.
Docket no. 40 at 2 (citing Newspapers, Inc. v. Matthews, 339 S.W. 2d 890, 893 (Tex. 1960) (citing Bell Publ’g Co. v. Garrett Eng’g Co., 170 S.W. 2d 197 (Tex. 1943) ); Snead v. Redland Aggregates, Ltd., 998 F.2d 1325, 1328 n.3 (5th Cir. 1993) (citing Brown v. Petrolite, 965 F.2d 38, 43 n.5 (5th Cir. 1992); Gen. Motors Acceptance Corp. v. Howard, 487 S.W. 2d 708, 712 (Tex. 1972) ).
Newspapers, 339 S.W.2d at 893.
Id.; Howard, 487 S.W.2d at 712. See Snead, 998 F.2d at 1328 n.3 (“We similarly reject [plaintiff’s] argument that a corporation may not sustain a cause of action under Texas law for libel. The Texas Supreme Court has held that corporations, as opposed to businesses, may bring a cause of action for libel.”) (emphasis added).
Newspapers, 339 S.W.2d at 893. It is notable that in Newspapers, the plaintiff was an individual who brought suit on his own behalf and on behalf of his business—an auto body repair shop—which was not a corporate entity, it only operated as a d/b/a of the individual plaintiff. Id. at 891. See Snead, 998 F.2d at 1328 n.3.
Id. at 893 (“The rule in this and other jurisdictions is that the asserted libel must refer to some ascertained or ascertainable person, and that person must be the plaintiff.”); 50-Off Stores, Inc. v. Banque Paribas (Suisse) S.A., No. SA-95-CA-159, 1997 WL 790739, at *3-*5 (W.D. Tex. May 20, 1997) (“Since the definition of libel is expressed in terms of injury to an individual, yet those entitled to sue for libel include corporations and partnerships, it follows that the term “ascertainable person” should be similarly interpreted to apply to ascertainable corporations or partnerships.”).
Docket no. 47 at 2-4.
See id. at 2-3.
There is no representation or evidence to show Sill has been authorized by the corporation, Newport, to bring a suit on its behalf. No attorney has entered an appearance for the corporation. See 28 U.S.C. § 1654; Sw. Express Co., Inc. v. Interstate Commerce Comm’n, 670 F.2d 53, 56 (5th Cir. 1982) (“Corporations and partnerships, by their very nature, are unable to represent themselves, and the consistent interpretation of Section 1654 is that the only proper representative of a corporation or partnership is a licensed attorney, not an unlicensed layman, regardless of how close his association with the corporation or partnership.”); Lowery v. Hoffman, 188 F.R.D. 651 (M.D. Ala. 1999) (would-be representative of corporation was corporate president and sole shareholder). As pleaded, any relief awarded to plaintiff on plaintiff’s claims would accrue to plaintiff Sill individually, not to Newport.
FED. R. CIV. P. 26(b)(1).
Plaintiff’s deposition notice specifically seeks testimony regarding the Nino roof claim (topics 2-5). Docket no. 36, exhibit 1 at 1-2. Radvansky, Woodruff, and Cole are not identified in comparable discovery requests. But, materials comparable to that of Nino which pertain to the roof claims of Radvansky, Woodruff, and Cole may fall within the topics’ requests for information concerning “any other roof of a State Farm insured,” and such discovery would appear relevant to plaintiff’s claims (as pleaded, and as developed in connection with the briefing on State Farm’s motion for protective order on plaintiff’s requests for production, and plaintiff’s corresponding cross-motion to compel). Thus, this order includes materials related to the Radvansky, Woodruff, and Cole roof claims when it references the Nino roof claim.
Docket no. 36 at 4.
Docket no. 40 at 3.
Id. at 5-6.
FED. R. CIV. P. 26(b)(1).
Docket no. 47 at 2-4.
Id. at 10.
Docket no. 40 at 6.
Id. at 6-7. Plaintiff’s requests for production were the subject of a motion for protection by State Farm, plaintiff’s cross-motion to compel, and this Court’s March 27, 2013 order. See docket no. 41. In his requests for production, plaintiff sought, among other things, the “claim files” of three specific homeowners: Nino, Cole, and Woodruff. Docket no. 32, exhibit 1 (requests 1-3, 34-39, 118-120). State Farm interposed a number of objections to the requests, docket no. 32, exhibit 1, and it does not appear that State Farm produced any documents in response to requests, docket no. 32 at 1-2 & n.1.
Id. at 7.
Id. at 8.
See FED. R. CIV. P. 26(c)(1).
Docket no. 36 at 7-8.
Docket no. 40 at 7.
FED. R. CIV. P. 26(b)(1).
Docket no. 14.
Docket no. 16.
Id. at 1-2.
Id. at 2.
Docket no. 18.
Docket no. 39 at 2. Plaintiff filed his motion for extension on the deadline for parties claiming relief to serve expert materials (March 25, 2013). Plaintiff’s proposed amended scheduling order does not provide a deadline for the parties to complete mediation (which previously has been set forth in the original and first amended scheduling orders), and sets out the following deadlines, based on a four-month extension:
• motions to amend or supplement the pleadings and join additional parties to be filed by June 25, 2013;
• expert materials for parties asserting claims to be served by July 25, 2013;
• expert materials for parties resisting claims to be served by August 26, 2013;
• discovery to be completed by October 17, 2013; and
• dispositive motions to be filed by November 12, 2013.
Docket no. 39, proposed order.
Docket no. 39 at 1, 2-3.
Id. at 2.
Id. at 2-5.
Id. at 5-6.
Docket no. 44 at 1, 2.
Id. at 2-3.
Id. at 3-4.
Docket no. 48.
See FED. R. CIV. P. 16(b).
See docket no. 18.
Macklin v. City of New Orleans, 293 F.3d 237, 240 (5th Cir. 2002) (“We review the district court’s administrative handling of a case, including its enforcement of the local rules and its own scheduling orders for abuse of discretion.”) (citing Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 509 (5th Cir. 1999) ).
Docket no. 39 at 2, 3-5.
See docket no. 16 at 2 (In December 14, 2012 motion, the parties jointly requested an extension of scheduling order deadlines “by ninety (90) days to allow the parties to combine the respective claims in the JP Court case into this suit, exchange written discovery, submit discovery disputes to the Court and to take depositions in an orderly fashion prior to designating experts.”).
Among other things, plaintiff appears to argue, without citation to authority, that State Farm’s delay in responding to a request to enter onto Nino’s roof to conduct an inspection is grounds for an extension of time. Docket no. 39 at 4-5. But, neither party has sufficiently briefed the issue of State Farm’s control over the homeowner’s roof for the Court to determine whether State Farm’s alleged delay in responding to plaintiff’s request for inspection supports an extension of the deadlines.
Docket nos. 41, 48.
Docket no. 14.
Docket no. 18.
Docket no. 36.
Docket no. 39.