Sill v. State Farm Lloyds
Sill v. State Farm Lloyds
2013 WL 12393983 (W.D. Tex. 2013)
March 27, 2013
Mathy, Pamela A., United States Magistrate Judge
Summary
The court granted State Farm's motion for protection from producing documents concerning policies, training documents, and internal procedures. The court also granted State Farm's motion for protection from producing documents related to the GLBA and denied the corresponding portions of plaintiff's cross-motion to compel. The court ordered the parties to negotiate a protective order providing proper geographic and temporal limits for the discovery requests, and limited the scope of the discovery requests to events and circumstances that occurred in San Antonio, Bexar County, Texas.
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 March 27, 2013
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, filed February 25, 2013;[1]
• plaintiff Jeff Sill's (“plaintiff” or “Sill”) combined response and cross-motion to compel discovery, filed March 8, 2013;[2] and
• State Farm's combined reply and response, filed March 15, 2013.[3]
The District Judge referred State Farm's motion for protective order to the undersigned for disposition on March 4, 2013.[4]
I. BACKGROUND
A. Summary of Relevant Procedural History
After calling for scheduling recommendations from the parties,[7] the Court entered an initial scheduling order on August 10, 2012.[8] On December 14, 2012, the parties jointly filed a motion to extend the scheduling order deadlines by 90 days.[9] On January 11, 2013, the Court granted the joint motion to extend scheduling order deadlines and implemented the following deadlines: 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; discovery to be completed by June 17, 2013; and dispositive motions to be filed by July 12, 2013.[10] The case is not set for trial.
On January 6, 2013, State Farm filed a motion for leave to exceed the page limitations on its motion for protective order, with exhibits.[11]Plaintiff filed a response, with exhibits, on January 6, 2013,[12] and State Farm filed a reply on January 7, 2013.[13] 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.[14]
On February 25, 2013, State Farm filed an unopposed motion for leave to amend its answer[15] as well as its motion for protective order with exhibits (the subject of this order),[16] and plaintiff filed an unopposed motion to amend his complaint.[17] 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.[18] Plaintiff's first amended complaint—plaintiff's live pleading—was filed on February 26, 2013.[19]
*2 On March 4, 2013, the District Judge referred State Farm's motion for protective order to the undersigned for disposition.[20] 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,[21] which the undersigned granted.[22] Plaintiff filed his combined response and cross-motion to compel, with exhibits, on March 8, 2013.[23] State Farm filed its combined reply and response to the cross-motion to compel on March 15, 2013.[24] At the time of tendering this order for filing, the docket sheets do not show that plaintiff has filed a reply in support of his cross-motion to compel.
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.[25] As grounds for the motion to dismiss and for judgment on the pleadings, State Farm argues: (1) the amended complaint lacks sufficient details for a defamation claim; (2) the defamation claims appear to be time-barred; (3) defamation damages are not adequately pleaded; (4) statements made in connection with a pending state-court action are privileged and not grounds for a defamation claim; and (5) “deliberately vague allegations concerning so-called ‘other’ statements” are not grounds for a defamation claim.[26] State Farm seeks to strike from the first amended complaint the narrative concerning the alleged acts of non-parties State Farm Mutual Automobile Insurance Company (“State Farm Mutual”) and State Farm Fire & Casualty Company (“State Farm Fire”) because it has “no bearing on the claims in this suit.”[27] On March 19, 2013, State Farm filed a motion for protective order on plaintiff's Rule 30(b)(6) deposition notice.[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 25, 2013, plaintiff filed an opposed motion to extend scheduling order deadlines by “at least four (4) months, or as the Court deems just and proper,”[31] as well as his response to State Farm's motion for protective order on plaintiff's Rule 30(b)(6) deposition notice.[32]
B. First Amended Complaint
Plaintiff's first 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”).[33] In a single paragraph identified by the heading “Defamation,” the first amended complaint identifies the following claims:
State Farm defamed Sill by making oral statements and by its conduct that constitute defamation. State Farm published a statement of fact that referred to Sill and/or Newport Construction Services, which were false. Additionally, State Farm acted with actual malice, in a negligent manner and is also liable without regard to fault. Because the statements made by State Farm impute 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.[34]
*3 With respect to the allegedly defamatory statements, plaintiff alleges:
(1) “In early 2010, State Farm made false allegations against [Sill] individually which injured Sill's reputation,” and “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;”[35]
(2) State Farm, through its investigator, 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 and that State Farm was having problems with Sill causing damage to other roofs;”[36]
(3) in connection with the home of Raul Nino (“Nino”), State Farm “made unfounded and false allegations that [Newport], owned by [Sill], intentionally caused damage to support a hail damage claim,” which are the subject of pending lawsuits in Texas state court;[37]
(4) “Sill believes that State Farm has made similar accusations, both direct and implied, against him and [Newport] to other insureds of State Farm;”[38]
(5) similar to a lawsuit filed in Indiana state court which is currently 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 with the knowledge, consent, direction and agreement of State Farm's executives, including those with related entities such as State Farm Mutual and State Farm Fire;”[39] and
(6) “State Farm defamed Sill by making oral statements and by its conduct that constitute defamation. State Farm published a statement of fact that referred to Sill and/or [Newport], which were false.”[40]
In a single paragraph identified by the heading “Damages,” plaintiff seeks the award of “presumed damages for defamation per se;” general, special, nominal, and exemplary damages; pre and post-judgment interest; costs; and “such other and further relief to which the Plaintiff may be justly entitled.”[41] Notably, the first amended complaint seeks relief on behalf of Sill individually.[42]
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.[43] 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”).[44] 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.”[45] In December, 2012, the Justice Court granted a motion to dismiss Newport's counterclaim for defamation or libel for lack of subject matter jurisdiction.[46]
*4 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”).[47] 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).[48]
Discovery must not be “unreasonably cumulative or duplicative.”[49] 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.[50]
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).[51] Interrogatories are not to exceed twenty-five (25) in number including discrete subparts, without first obtaining leave of court.[52] 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.[53]
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.[54] An “evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.”[55]
The Fifth Circuit requires a party who objects to discovery to specifically show how each request for production is burdensome or irrelevant.[56] 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.[57] 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.[58] Courts have identified several factors the producing party may need to address to show good cause, including:
*5 (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.[59]
A producing party must support its claim of good cause through specific facts, not conclusory allegations.[60]
C. Attorney Client and Work Product Privilege
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.[63] 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.”[64] 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.[65] Unlike the attorney-client privilege, the work product privilege belongs to the lawyers and the client, and either may assert it.[66] 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.”[67]
*6 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.[68] 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.[69] 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.[70] 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.”[71] On the one hand, cursory descriptions are not sufficient to support a claim of privilege,[72] 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.[73] A party must seek a protective order if compiling the information for a privilege log would impose an unreasonable burden,[74] after conferring in an attempt to fashion a way of proceeding satisfactory to all concerned parties.
The proponent of the attorney-client privilege bears the burden of showing the applicability of the privilege to the particular information in question.[75] If a party withholds information on a claim of privilege without notice to the other parties, sanctions can be imposed[76] and the privilege or protection may be waived.[77] Similarly, if privileged documents are not listed in a privilege log or are misrepresented as cumulative or duplicative, the privilege may be waived.[78]
III. DISCUSSION
A. Preliminary Matters
*7 On January 11, 2013, plaintiff served State Farm with its first set of requests for production containing 131 discrete requests.[79] State Farm served plaintiff with its objections and responses on February 18, 2012.[80] Plaintiff does not argue State Farm's objections and responses were not timely served and this order does not address the issue.
As noted, plaintiff filed his first amended complaint on February 26, 2013, after the filing of State Farm's motion for protective order (but before plaintiff filed his combined response and cross-motion to compel and State Farm filed its reply).[81] To be clear, this order considers plaintiff's discovery requests in reference to plaintiff's claims asserted in his first amended complaint.
When responding to State Farm's motion for protection, plaintiff advances a cross-motion to compel. In response to the cross-motion, State Farm argues, in an apparent reference to the cross-motion to compel, “this discovery issue is not ripe for adjudication” because State Farm has moved to dismiss and strike plaintiff's amended complaint, and plaintiff's amended complaint “is and continues to be legally deficient.”[82] After review, it appears fair to observe that plaintiff's cross-motion to compel requests relief that is the mirror image of that sought by State Farm in its motion for protection. State Farm has not withdrawn its motion for protection. State Farm also presents no argument or authority to explain why its motion for protection is ripe, but the mirror-imaged cross-motion to compel is not ripe. Therefore, this order addresses the relief sought in State Farm's motion for protective order and plaintiff's cross-motion to compel.
The Court has carefully reviewed the parties' lengthy submissions to determine which of the approximately 131 requests for production are at issue. In its motion for protective order, State Farm
respectfully moves the Court to grant State Farm's Motion for Protective Order barring Plaintiff[']s discovery requests that are irrelevant, oppressive, duplicitous, and unduly intrusive. Alternatively, Defendant respectfully moves the Court issue an umbrella Protective Order limiting the scope of the discovery to information specific to Plaintiff[']s cause of action and dictate proper geographic and temporal limits and further order that use of the information by Plaintiff be limited to the prosecution, defense, or settlement of this action, and for no other purpose, both now and in the future, and award Defendant any and all relief to which it may be entitled in law or in equity.[83]
*8 In his response and cross-motion to compel, plaintiff
requests that this Court deny State Farm's Motion for Protective Order, and Order production of documents responsive to Requests for Production: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 17, 18, 19, 28, 29, 30, 33, 34, 39, 48, 53, 54, 55, 56, 60, 61, 62, 63, 67, 68, 69, 70, 74, 75, 76, 77, 81, 82, 83, 84, 88, 89, 90, 91, 95, 96, 97, 98, 102, 103, 104, 105, 108, 109, 116, 118, 119 and [sic] 120, 123, 124, 125, 126 and [sic] 127, 128, 129, 120, [and] 131 within fourteen (14) days of the date of the order hereon, and for such other and further relief to which they may be justly entitled.[84]
State Farm represents in its motion for protective order that, based on discussions between the parties, plaintiff withdrew request numbers 47, 50, 52, 57, 59, 64, 66, 70, 71, 73, 78, 80, 85, 87, 88, 92, 94, 99, 101, 112, 113, and 114.[85] Plaintiff does not contest this representation, except as to request numbers 70 and 88.[86] In his combined response and cross-motion to compel, plaintiff withdraws request numbers 31, 32, 52, 59, and 106.[87] Accordingly, State Farm's motion for protection and plaintiff's cross-motion to compel are each denied as moot as they might apply to requests 31, 32, 47, 50, 52, 57, 59, 64, 66, 71, 73, 78, 80, 85, 87, 92, 94, 99, 101, 106, 112, 113, and 114. The Court further observes that neither party identifies any portion of their arguments as applying to request numbers 27, 42-45, 49, and 117. Therefore, State Farm's motion for protection and plaintiff's cross-motion to compel are each denied as they might apply to requests 27, 42-45, 49, and 117.
Further, State Farm seeks protection from responding to request numbers 20-26, 115, 121, and 122,[88] and plaintiff does not move to compel a response to those requests. Accordingly, State Farm's motion for protective order as to request numbers 20-26, 115, 121, and 122 is granted. To be clear, State Farm also represents in its motion for protective order that plaintiff withdrew requests number 70 and 88.[89]But, plaintiff includes a reference to those requests in his motion to compel.[90] Therefore, the Court has considered the parties' arguments as to requests 70 and 88.
Finally, based on the foregoing review, the rulings made in the following sections of this order apply to plaintiff's request numbers 1-19, 28-30, 33-41, 46, 48, 51, 53-56, 58, 60-63, 65, 67-70, 72, 74-77, 79, 81-84, 86, 88-91, 93, 95-98, 100, 102-105, 107-111, 116, 118-120, and 123-131.[91] Together, the parties have submitted hundreds of pages of briefing and exhibits concerning the requests for protection at issue and their cross-motions. As should be readily understood, this order (or any court hearing that might have been held on the submissions) cannot expressly address everything each party presents or the length of the order might match the hundreds of pages submitted by the parties. Although this order is relatively brief, and, for the purpose of the discussion, is primarily organized by certain topics and issues raised in the parties' cross-motions (and does not proceed, request by request), the parties may be assured that all relevant portions of the record have been carefully considered.[92] The rulings are made based on the record as currently developed by the parties. As plaintiff's motion to compel was filed with his response to State Farm's motion for protection and seeks relief that is a mirror image of that sought by State Farm's motion for protection, and as State Farm's earlier-filed motion for protection is the motion expressly referred to the undersigned, the following discussion focuses on State Farm's motion for protection. In all respects, unless an aspect of State Farm's motion for protection or plaintiff's cross-motion to compel is expressly granted in this order, the motion is denied. Further, if State Farm's motion for protection is granted in any respect, the corresponding portions of plaintiff's cross-motion to compel are denied. If State Farm's motion for protection is denied in any respect, the corresponding portions of plaintiff's cross-motion to compel are granted if this order expressly so provides.
B. Categories of Documents
1. Jeff Sill and Newport Construction Services, Inc.
*9 State Farm seeks protection from discovery requests seeking information “relating to” Newport and related to claims filed by State Farm insureds in connection with which Newport performed roof work.[93] State Farm argues the requests seek “irrelevant and unauthorized” information because (1) Sill filed this lawsuit in his individual capacity, (2) Newport is a corporate entity and not a party to the lawsuit, (3) Newport, not Sill, had dealings with the insureds and State Farm, and (4) Sill's dealings with the insureds and State Farm was not in his individual capacity.[94] In response, plaintiff seeks to compel State Farm to respond to requests and produce documents that implicate work performed by “Sill and/or Newport” on the homes of State Farm insureds.[95] Plaintiff argues that “[i]t is long standing Texas law that Sill, as owner of Newport, has standing to pursue a defamation claim in his individual capacity when his business has been defamed [sic],” and that “as owner of Newport, [he] is entitled to bring a defamation claim in his own right for defamatory statements made against Newport.”[96]
Under Texas law, a corporation may be defamed.[97] In that case, the defamation is of the corporation, as distinguished from the corporation's business.[98] “[R]ecovery of ... damages will be for defamation of the owner [of the business], whether the owner be an individual, ... or a corporation.”[99] The entity to which the defamatory statements refer must be the plaintiff in a suit alleging defamation claims.[100]
The first amended complaint describes two events which form the factual basis for the pleaded defamation claims: (1) statements made by State Farm representative Alberto Garza to homeowner Gary Radvansky “that the damage [to Radvansky's roof] was caused by Sill and that State Farm had other instances where Sill intentionally caused damage to roofs and that State Farm was having problems with Sill causing damage to other roofs;” and (2) statements made by State Farm (in an unspecified manner to an unspecified audience) that Newport “intentionally caused damage [to the Nino roof] to support a hail damage claim.”[101]
The first amended complaint identifies Newport as a corporation (Newport Construction Services, Inc.) that is engaged in the business of construction.[102] 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.[103]
*10 A party is entitled to discovery of information that is “relevant to any party's claim or defense”[104] and/or reasonably calculated to lead to the discovery of admissible evidence. To the extent plaintiff asserts he is entitled to the production of documents retained by State Farm “relating to” Newport or regarding any claim made by any State Farm insured when Newport performed the roof work for the insured, he has not explained why the information is relevant to Sill's 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 documents regarding all roof work performed by Newport for State Farm insureds seek 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 request for State Farm's documents about all roof work performed by Newport falls within the scope of Rule 16, State Farm has not demonstrated why plaintiff's requests at issue for information regarding the Nino, Woodruff, Cole, and Radvansky roof claims is impermissible.[105] State Farm objects to the discovery on the grounds that Newport, not plaintiff, had “dealings” with the insureds; plaintiff has pleaded only an individual defamation claim against State Farm; and discovery into the files “is clearly irrelevant [to the pleaded defamation claim] and unauthorized.”[106] Without citation to authority, State Farm further argues plaintiff's attempt to obtain discovery concerning the Nino roof claim is sought “to pursue a third party's claims that 1) have already been dismissed, and 2) were filed where discovery is not permitted,” and are an attempt “to circumvent the discovery rules” in the J.P. Action.[107]
Plaintiff argues the discovery is relevant because the files relate to “State Farm insureds who were told that Sill and/or Newport intentionally caused damage to their roofs,” and the discovery in this case and the pending actions in Texas state court “does and will overlap” but denies he is attempting to circumvent limitations in the J.P. Action.[108] Plaintiff is entitled to “obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.”[109] 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,[110] and alleges State Farm made defamatory statements about Newport in connection with roof repair work completed on the Nino home in San Antonio, Texas.[111] Plaintiff's requests for claim files and related materials concerning State Farm insureds Radvansky, Nino, Woodruff, and Cole appear to be relevant to plaintiff's defamation claim and appear reasonably calculated to lead to the discovery of admissible evidence.
Accordingly, based on the current briefing, the portions State Farm's motion for protection that seek protection from plaintiff's discovery requests at issue that seek production of documents “relating to” Newport and related to any roof claim by any State Farm insured when Newport performed the roof repair work are granted (and the corresponding portions of plaintiff's cross-motion to compel are denied). Further, based on the current briefing, State Farm's motion for protective order as it applies to the relevant requests for production of documents concerning the roof claims of Nino, Woodruff, Cole, and Radvansky is denied (and the corresponding portions of plaintiff's cross-motion to compel are granted). State Farm must produce nonprivileged information in its possession, custody, or control regarding the Nino, Woodruff, Cole, and Radvansky roof claims, including nonprivileged documents pertaining to any investigation by State Farm of plaintiff and/or Newport's work on the roofs, correspondence concerning plaintiff and/or Newport's work on the roofs, as well as emails and text messages regarding the four individual's roof claims.
2. State Farm Lloyds and affiliated companies
*11 State Farm seeks protection from plaintiff's discovery requests to the extent the requests seek information from a large number of State Farm-affiliated non-parties due to the definitions used in the requests.[112] Plaintiff clarifies, in his response and cross-motion, that with respect to all requests except request numbers 28, 40-46, and 49, “Sill only seeks documents from State Farm Lloyds.”[113] Plaintiff provides no further argument in support of his request numbers 28, 40-46 , and 49 and, as such, does not explain how discovery from non-party entities that are affiliated or related to defendant State Farm is relevant or reasonably calculated to lead to the discovery of admissible evidence.[114] Accordingly, based on the current briefing, the portions of State Farm's motion for a protective order that seek protection from plaintiff's discovery requests at issue that seek information from State Farm-affiliated non-parties are granted (and the corresponding portions of plaintiff's cross-motion to compel are denied). State Farm must produce responsive, nonprivileged documents within its possession, custody, and control as otherwise provided in this order, but State Farm is not obligated to respond on behalf of any non-party, related or affiliated entities.
3. temporal limitations
State Farm seeks protection from the discovery requests at issue to the extent they are not reasonably limited in time.[115] Plaintiff's requests identify a blanket temporal limitation to the “three (3) years preceding March 14, 2010 unless otherwise stated specifically in the requests,”[116] and some requests have further specific limitations.[117] State Farm does not explain how these temporal limitations do not adequately limit the scope of plaintiff's discovery requests. Accordingly, based on the current briefing, State Farm's motion for protective order on the ground that plaintiff's requests for production are not reasonably limited in time is denied (and the corresponding portions of plaintiff's cross-motion to compel are granted).
4. materials covered by the attorney-client privilege and work product
State Farm seeks protection from the discovery requests to the extent they seek materials covered by the attorney-client privilege and/or constituting work product.[118] State Farm contends the definitions of “document” and “person” are so “vague, overbroad, and ambiguous” that the requests could include protected material.[119] Neither party indicates State Farm has tendered a “privilege log.” Plaintiff does not respond to State Farm's arguments concerning the requests seeking protected material.
*12 Plaintiff “may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.”[120] Responsive documents that contain attorney-client privileged information or comprise work product exceed the scope of discovery as defined by Rule 26. Accordingly, based on the current briefing, to the extent State Farm seeks protection from the production of documents governed by the attorney-client privilege or comprising work product, State Farm's motion for protective order is granted such that State Farm must produce responsive, nonprivileged documents within its possession, custody, and control and a privilege log[121] for any responsive documents withheld on a claim of attorney-client privilege or work product; (the corresponding portions of plaintiff's motion to compel are denied).
5. materials concerning Indiana lawsuit
State Farm seeks protection from the discovery requests that seek materials concerning a lawsuit between two non-parties in 2006 in Indiana state court, styled State Farm Fire & Casualty Company v. Radcliffe, and the parties to that suit.[122] State Farm argues the discovery is for an impermissible purpose because a “defendant's ‘bad acts’ cannot be introduced as evidence of a defendant's intent, absence of mistake, or to show a basis for imposition of punitive damages,” and plaintiff seeks the material not “for relevant information as to his own claims, but to attempt to argue State Farm [ ] should be liable by implication.”[123] Plaintiff responds that the facts underlying the Indiana suit “are amazingly similar to the facts and circumstances in this case,” and the similarity of the two cases “raises the consideration and probability that this is a corporate scheme.”[124] Plaintiff provides no citation to authority in support of his argument.
*13 Plaintiff has not demonstrated that State Farm's production should be compelled and State Farm is not entitled to the protection it seeks with respect to the Indiana lawsuit. Plaintiff has not provided argument or legal authority to show the discovery concerning the Indiana lawsuit and its parties is relevant to plaintiff's pleaded defamation claims or is reasonably calculated to lead to the discovery of admissible evidence. Accordingly, State Farm's motion for protective order concerning the Indiana lawsuit and its parties is granted (and the corresponding portions of plaintiff's motion to compel are denied).
6. materials concerning all other claims, complaints, and lawsuits
State Farm seeks protection from the discovery requests that seek information concerning claims by State Farm insureds which are not related to plaintiff, including claims within a three mile radius of the Cole and Woodruff homes, claims by State Farm insureds for roof damage in which intentional damage was suspected, investigated, or found; communications with the Texas Department of Insurance concerning hail claims of State Farm insureds; complaints against claim representatives related to any type of claim; and lawsuits filed by State Farm against insureds or third parties for hail damage.[125] State Farm provides extensive arguments, and citation to legal authority, that the discovery is “grossly overbroad and would require a file-by-file search,” sought for an impermissible purpose, establishes plaintiff is engaged in a fishing expedition, and violates the privacy interests of State Farm's customers.[126]
Plaintiff argues that various requests that seek information about roof claims in proximity to the Woodruff and Cole homes “are relevant to explain whether or not Sill and/or Newport would have intentionally damaged the Radvansky, Nino, Woodruff and Cole” roofs, and a three mile radius of certain homes is “a reasonable geographic limitation.”[127] With respect to discovery concerning claims by State Farm insureds for roof damage in which intentional damage was suspected, investigated, or found, plaintiff states, in sum, without support, the discovery is relevant to “the method and manner” and practices of State Farm's handling of claims in which Sill and/or Newport were involved, and references the “pattern and practice” of State Farm accusing others of intentionally damaging roofs as it allegedly has done with plaintiff.[128] With respect to communications with the Texas Department of Insurance “relating to hail damage claims,” plaintiff argues the information sought “is relevant to the rights, duties and responsibilities of both insureds ... and insurance companies.”[129] With respect to complaints against claim representatives, plaintiff argues the discovery “is relevant” to “the investigation into Sill and Newport” and relates to “methods and practices” of claims handling and “relates not only to the burden of proof Sill is required to meet to establish his claim, including malice [sic].”[130] With respect to hail damage lawsuits, plaintiff argues the discovery “is relevant” to whether State Farm is “targeting” roofing contractors and “[c]onsistent behavior or inconsistent behavior in these circumstances relates to the potential requirement for Sill to establish malice.”[131]
*14 Many of plaintiff's requests are not limited in geographic scope.[132] Plaintiff alleges a defamation claim against State Farm arising from statements made in connection with roof repair work completed by plaintiff on behalf of “his” company in the San Antonio, Texas area.[133]Other than stating that a substantial part of the events giving rise to plaintiff's claims “occurred in San Antonio, Bexar County, Texas,” plaintiff does not indicate where he has performed roof repair work, or if he has ever performed roof repair work outside San Antonio, Bexar County, Texas, or why such work is relevant to his defamation claims or is reasonably calculated to lead to admissible evidence.
Plaintiff's arguments in support of his motion to compel regarding the requests for production at issue are not supported by legal authority. Further, plaintiff's categorical assertions that the discovery is relevant is not, without some explanation and factual proffer in support, sufficient to demonstrate the requests at issue seek information within the scope of Rule 26. Even if plaintiff has properly pleaded a factual basis for a defamation claim based on other, unspecified statements made by State Farm to its insureds, there is no basis in the first amended complaint to conclude such statements did not occur in San Antonio, Bexar County, Texas. Even if plaintiff were to discover a “pattern and practice” of State Farm's, plaintiff has not demonstrated how it would be relevant to plaintiff's pleaded individual claim for defamation against State Farm.
The Court has carefully considered plaintiff's arguments that the discovery requests at issue that seek documents regarding claims involving the work of roofing contractors other than plaintiff and Newport is permissible because:
• the “method and manner of handling” claims State Farm paid in which Sill and/or Newport completed roof work is relevant to the “method and manner of handling” the roof claims of Nino, Woodruff, and Cole who “were told that Sill and/or Newport intentionally caused damage to their roofs,”[134]
• the “method and manner” in which State Farm handled all claims in the area “is relevant” to “to explain whether or not Sill and/or Newport would have intentionally damaged the Radvansky, Nino, Woodruff, and Cole” homes;[135]
• whether State Farm has made similar defamatory statements against other contractors “is relevant to the method and manner of handling the Sill/Newport claims” and “goes to a pattern and practice by State Farm of accusing ... contractors of intentionally damaging roofs to support hail damage claims;”[136]
• complaints made against State Farm claim representatives who were involved in the Nino and Radvansky claims, and the claims of others who would have used Sill and/or Newport to repair their roof hail damage “is relevant” to “the investigation into Sill and Newport,” “the methods and practices into handling hail damage claims,” and “the burden of proof Sill is required to meet to establish his claim, including malice;”[137]
• claims and lawsuits involving third parties concerning intentional roof damage “relate to” “whether State Farm is targeting contractors” and “the potential requirement for Sill to establish malice;”[138] and
• State Farm's objection that the discovery is for an impermissible purpose “suffers from vague assertions,” does not specify “bad acts,” and whether evidence of “bad acts” is admissible is not an issue for discovery.[139]
*15 Despite plaintiff's arguments, plaintiff has not demonstrated how discovery concerning claims involving other roofing contractors and claims not involving plaintiff is relevant or reasonably calculated to lead to the discovery of admissible evidence. Again, merely asserting that State Farm's handling of other hail damage roof claims “is relevant” to plaintiff's defamation claims is insufficient. Plaintiff must provide specific argument and proffers to illustrate the relevance of the information sought in the requests at issue to a claim or defense or explain why the discovery is reasonably calculated to lead to the discovery of admissible evidence, as it is not the province of the Court to fashion such explanations for him. Plaintiff has not presented argument or proffers to show the discovery requests at issue would reveal such a “pattern and practice” that is relevant or reasonably calculated to lead to admissible evidence.
In sum, based on the briefing presented, plaintiff has not provided sufficient argument or authority to support an order requiring State Farm to produce responsive documents to the requests at issue for roof work performed outside of San Antonio, Bexar County, Texas. Based on the briefing presented, State Farm's motion for protection from producing materials concerning events occurring outside San Antonio, Bexar County, Texas is granted (and corresponding portions of plaintiff's cross-motion to compel are denied). Further, State Farm's motion for protective order is granted to the extent State Farm seeks protection from producing documents concerning claims by State Farm insureds which are not related to plaintiff, including claims within a three mile radius of the Cole and Woodruff homes, claims by State Farm insureds for roof damage in which intentional damage was suspected, investigated, or found; communications with the Texas Department of Insurance concerning hail claims of State Farm insureds; complaints against claim representatives related to any type of claim; and lawsuits filed by State Farm against insureds or third parties for hail damage (and the corresponding portions of plaintiff's cross-motion to compel are denied). At the same time, State Farm's motion for protection is denied to the extent it seeks protection from producing responsive, nonprivileged documents within its possession, custody, and control which pertain to State Farm's handling of the Nino, Woodruff, Cole, and Radvansky claims (and the corresponding portions of plaintiff's cross-motion to compel are granted).
7. policies, training documents, and internal procedures
State Farm seeks protection from requests seeking policies, procedures, and training materials for a five year period concerning hail or roof claims and document/data retention; and training records for certain State Farm employees.[140] But, State Farm, without waiving its objections that the discovery is “entirely objectionable and that the underlying allegations in the Complaint are fatally vague,” does offer to produce:
• “the policies and procedures utilized by its adjusters in the actual adjustment and evaluation of the specific hail claims identified by Plaintiff in his Initial Disclosures for the time period those claims were investigated;” and
• “a State Farm Operation Guide Compliance Statement which explains that the Company's general Operation Guides are guidelines that apply throughout the country, subject to the caution that employees must follow state and local laws when acting on behalf of the Company.”[141]
In his response and cross-motion, plaintiff “accepts this offer” without waiving his right to seek further the discovery identified in his requests.[142] Accordingly, based on the current briefing, State Farm's motion for protective order is denied as it applies to policies, procedures, compliance statements, and internal procedures it has offered to produce and plaintiff has accepted (and the corresponding portions of plaintiff's cross-motion to compel are granted). State Farm's motion for protective order is granted as it applies to any other policies, procedures, compliance statements, and internal procedures requested in plaintiff's requests for production at issue for the reason the requests are not reasonably limited in time (and the corresponding portions of plaintiff's cross-motion to compel are denied).
8. salary information
*16 State Farm seeks protection from discovery seeking “salary and bonus information on certain of the individuals” involved in the Nino roof claim on the grounds that such discovery is private and plaintiff has not identified any allegedly defamatory statements made by the individuals about plaintiff.[143] State Farm also states that if the Court has concerns about requiring the production of the information, it can provide “an exemplar performance review” for the Court's in camera review.[144] In response, plaintiff states he withdraws the request for “bonus and pay information for specific employees” (request number 106), and seeks documents showing “the method and manner, including criteria of calculating pay, bonus or financial remuneration to State Farm employee[s] handling the Nino claim.”[145] Plaintiff's withdrawal of request number 106 appears to address State Farm's concerns.
Accordingly, based on the current briefing, the portions of State Farm's motion for a protective order that seek protection from plaintiff's discovery requests at issue that seek responsive, nonprivileged documents reflecting “the method and manner, including criteria of calculating pay, bonus or financial remuneration to State Farm employee[s] handling the Nino claim” are denied (and the corresponding portions of plaintiff's cross-motion to compel are granted). At the same time, to the extent State Farm seeks protection from producing other requested salary information, based on the current briefing, State Farm's motion for protection is granted (and the corresponding portions of plaintiff's cross-motion to compel are denied).
9. appointment books and vehicle logs
State Farm seeks protection from requests seeking the appointment books of eight specific State Farm employees who plaintiff identifies in his response and cross-motion as being “involved in the Nino and/or Radvansky claims,” and vehicle logs of any State Farm employee handling hail damage claims in San Antonio for the past five years including six specific State Farm employees on the grounds that “the quantity of materials covered in the requests would be prohibitively expensive to search in relation to the actual claims brought by Plaintiff.”[146] Plaintiff responds that the appointment books and vehicle logs are “important for Sill to establish when and where these adjusters were working and which roofs they inspected in order to create [a] timeline of activities to establish when and where inspections occurred and whether Sill and/or Newport could have intentionally damaged the roofs.”[147] Although plaintiff is entitled to the production of nonprivileged responsive information relating to the repair work plaintiff performed on the Nino and Radvansky roofs, he has not presented argument or authority to show the appointment books of the eight identified persons “involved in the Nino and/or Radvansky claims” and vehicle logs of any State Farm employee handling hail damage claims (without limiting those books and logs as they pertain to a person's work on the Nino and Radvansky claims) is relevant to plaintiff's claims or is reasonably calculated to lead to the discovery of admissible evidence. Accordingly, based on the current briefing, State Farm's motion for protection is denied to the extent State Farm must produce appointment books for the eight identified State Farm employees and vehicle logs for the six identified State Farm employees as those books and logs reflect their work on the Nino, Radvansky, Woodruff, and Cole claims (and the corresponding portions of plaintiff's motion to compel are granted). In all other respects, based on the current briefing, State Farm's motion for protection is granted (and the corresponding portions of plaintiff's motion to compel are denied).
10. corporate affiliation and structure documents
*17 State Farm seeks protection from requests seeking documents pertaining to corporate affiliation and structure, including the relationship between non-parties State Farm Fire and State Farm Mutual.[148] 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 that plaintiff should be required to provide “a good faith basis” to obtain the information from State Farm.[149] In response, plaintiff argues he “has alleged that State Farm has a corporate policy, dictated by parent companies, of accusing contractors of intentionally manipulating roofs to support hail damage claims,” and the information sought pertains to “the relationship between [State Farm] and the entity involved in the Indiana suit and the parent corporation of both. Thus, the discovery is specifically tailored to claims in this case.”[150]
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 of 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 the Indiana case—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.[151]Moreover, plaintiff has not responded to State Farm's assertion that plaintiff is able to obtain some, if not most, of the information at issue from publicly available filings with the Texas Department of Insurance. Accordingly, based on the current briefing, State Farm's motion for protective order is granted as it pertains to plaintiff's requests for production of documents reflecting defendant State Farm's corporate affiliations and structure (and the corresponding portions of plaintiff's cross-motion to compel are denied).
C. Other Grounds for Protection or to Compel Summary
As stated, 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 either State Farm's motion for protection or plaintiff's cross-motion to compel should be granted in any respect other than as expressly provided in this order.
IV. CONCLUSION
For the reasons discussed, based on the current briefing,
IT IS ORDERED that State Farm's motion for protective order filed February 25, 2013,[152] and plaintiff's cross-motion to compel filed March 8, 2013[153] are each granted in part and denied in part as provided in this order. Unless relief requested in the motion for protection or motion to compel has been expressly granted, the relief requested in either motion is denied.
IT IS ALSO ORDERED that the limited matter 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. 25.
Docket no. 32.
Docket no. 35.
Text-only entry dated Mar. 4, 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. 16.
Docket no. 18. 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. Exhibit 1 is plaintiff's first requests for production; exhibit 2 is a record of the Texas Comptroller of Public Accounts reflecting the franchise tax certification of account status for Newport Construction Services, Inc.; exhibit 3 is plaintiff's Rule 26 initial disclosures; and exhibit 4 is an order entered in a related action pending in the Justice of the Peace Court, Precint 3, Bexar County, Texas, granting a motion to dismiss a counterclaim for defamation or libel for lack of subject matter jurisdiction. See infra text accompanying notes 43-47.
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. Exhibit 1 is State Farm's responses and objections to plaintiff's first set of requests for production; and exhibit 2 is correspondence from a State Farm entity to Gary Radvansky.
Docket no. 35.
Docket no. 28. To be clear, the District Judge has not referred State Farm's motion to dismiss, for judgment on the pleadings, and to strike. The matters are referenced in this summary of procedural history as context for State Farm's referred motion for protective order.
Id. at 2-8.
Id. at 8.
Docket no. 36.
Docket no. 37.
Docket no. 38 at 2.
Docket no. 39.
Docket no. 40.
Docket no. 27 at 1.
Id. at 4-5.
Id. at 2-3.
Id.
Id. at 2-3; docket no. 32 at 3-4 & nn.3-4.
Docket no. 27 at 3.
Id. at 3-4.
Id. at 4.
Id. at 5.
Id. at 5.
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. New York State Educ. Dept., 248 F.R.D. 383, 386 (N.D.N.Y. 2008).
FED. R. CIV. P. 26, 1993 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); 1993 Notes to FED. R. CIV. P. 26 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).
Docket no. 19, exhibit 1. State Farm attaches to its motion for protective order a copy of plaintiff's first requests for production, which are dated December 28, 2012 and set forth 116 requests. Docket no. 25, exhibit 1. Prior briefing indicates plaintiff delivered the 116 requests for production to State Farm via facsimile, State Farm objected to the method of service, and plaintiff subsequently “reviewed the requests and made modifications to some of the Requests and added other requests and re-served Plaintiff's First Requests for Production to Defendant, State Farm Lloyds via hand delivery.” Docket no. 20 at 4, and exhibit 1; docket no. 19, exhibit 2. The revised set of requests for production—the subject of this order—number 131 requests and were served on January 11, 2013 via hand delivery. Docket no. 20 at 4, and exhibit 3; docket no. 19, exhibit 1.
Docket no. 32, exhibit 1.
Docket nos. 25 (motion for protective order), 27 (first amended complaint), 32 (combined response and cross-motion to compel), 35 (combined reply and response).
Docket no. 35 at 2.
Docket no. 25 at 20-21.
Docket no. 32 at 19-20.
Docket no. 25 at 2.
Docket no. 32 at 9, 16, 19.
Id. at 6.
Docket no. 25 at 5, 6, 19.
Id. at 2.
Docket no. 32 at 9, 16, 19.
Plaintiff does not specifically itemize requests number 15, 16, 35-38, 40-41, 46, 51, 58, 65, 72, 79, 86, 93, 100, 107, and 110-111 in his “wherefore” clause, but those requests are addressed in his briefing. Docket no. 32 at 6, 10, 15-17, 19.
The approach of this order is consistent with the manner in which the parties have presented their arguments. That is, by and large, the parties present arguments in their briefing concerning the 131 discovery requests by category or topic, and not on a request-by-request basis. For example, State Farm objects to plaintiff's requests for “other claims, complaints and lawsuits” and identifies 14 categories of requests (which themselves address over 60 discrete requests) that fall within that topic. Docket no. 25 at 3-6. State Farm then sets out nine pages of argument applicable to the 14 categories of requests, but does not relate arguments to the requests on a request-by-request basis. Id. at 6-14.
Id. at 4, 5, 6, & n.2.
Id. at 4. See id. at 6-14.
Docket no. 32 at 6, 7, 9, 10.
Id. at 6 (citing Newspapers, Inc. v. Matthews, 339 S.W.2d 890, 893 (Tex. 1960), Langston v. Eagle Publ'g, 719 S.W.2d 612, 618 (Tex. App.—Waco, writ ref'd n.r.e.)).
Newspapers, 339 S.W.2d at 893.
Id.; Gen. Motors Acceptance Corp. v. Howard, 487 S.W.2d 708, 712 (Tex. 1972).
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.
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. 27 at 2.
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 discovery requests specifically seek the claim files related to the roofs of Nino, Cole, and Woodruff (requests number 1-3, 34-39, and 118-120). Docket no. 32, exhibit 1. Radvansky is not identified in comparable discovery requests. But, materials comparable to those of Nino, Cole, and Woodruff which pertain to the Radvansky roof claim may fall within other, broad requests seeking materials of State Farm insureds, and such discovery would appear relevant to plaintiff's claims. Thus, this order includes materials related to the Radvansky roof claim when it orders production of documents related to the Nino, Woodruff, and Cole roof claims.
Docket no. 25 at 4.
Id. at 13-14
Docket no. 32 at 6, 14.
FED. R. CIV. P. 26(b)(1).
Docket no. 27 at 2.
Id. at 2-3.
Docket no. 25 at 3 n.1. See docket no. 19, exhibit 1 at 6 (“ ‘Defendant’, ‘you’ or ‘your’ means State Farm Lloyds, its agents or representatives, and all other persons acting in concert with it or under its control, whether directly or indirectly, including any attorney, as well as its successor companies, predecessor companies, joint ventures, subsidiaries and assigns.”).
Docket no. 32 at 10.
The requests seek: contracts “between the Plaintiff and Defendant” (number 28); “standard management practices, operational procedures and administrative policies” relating to the investigation of hail damaged roof claims and alleged mechanical manipulation of roofs (numbers 40 and 41); tax returns, balance sheets, net worth, “sources of capital funds for operations” (number 42-45); policies and procedures relating to filing, processing, and inspecting hail damaged roof claims, manipulation discovered during inspection, document and data retention (number 46); and documents identified in response to interrogatories (number 49). Docket no. 32, exhibit 1.
Docket no. 32 at 16 (with respect to internal policies and procedures, and training documents, “... Plaintiff's discovery requests are truly staggering, encompassing a vast range of documents and electronic discovery, most without any regard for reasonable limits on time, geographical boundary, or even parties to this litigation.”) (emphasis omitted); at 19 (seeking a blanket protective order providing “proper geographic and temporal limits”).
Docket no. 19, exhibit 1 at 6.
See, e.g., docket no. 32, exhibit 1 at requests number 4-5 (2008 through 2009, and since 2010); requests number 40-46 (the five-year period prior to 2012).
Docket no. 25 at 18.
Id.
FED. R. CIV. P. 26(b)(1).
See supra text accompanying notes 68-78.
Docket no. 25 at 5, 8-9.
Id. at 8-9. State Farm raises the same objection to the discovery requests at issue that seek documents regarding claims involving other roofing contractors, and claims not involving plaintiff as an individual. Docket no. 25 at 8-11. In addition, among other points, State Farm also argues the discovery “interferes with legitimate privacy concerns” of its insureds and is prohibited by the Gramm-Leach Bliley Act (“GLBA”). As State Farm argues, State Farm as an insurance company is covered by the GLBA, and the regulations implementing the GLBA generally do prohibit the disclosure of “personally identifiable financial information,” which includes “the fact that an individual is or has been one of your customers or has obtained a financial product or service from you,” and “any information about your customer if it is disclosed in a manner that indicates that the individual is or has been your consumer.” 15 U.S.C. § 6827(4) (financial institution includes “any insurance company”); 12 C.R.F. § 323.3(o)(2)(C) and (D) (“personally identifiable financial information” includes customer status), and §§ 332.10-332.12 (limits on disclosure of non-public personal information). But, the GLBA also provides several exceptions to the limits on disclosure, and properly issued discovery in a federal lawsuit would appear to fall within such exceptions. See 12 C.F.R. § 332.15(a)(7) (Disclosure may occur “(i) [t]o comply with Federal, State, or local laws, rules and other applicable legal requirements; (ii) [t]o comply with a properly authorized civil, criminal, or regulatory investigation, or subpoena or summons by Federal, State, or local authorities; or (iii) [t]o respond to judicial process or government regulatory authorities having jurisdiction over you for examination, compliance, or other purposes as authorized by law.”).
Docket no. 32 at 18-19.
Docket no. 25 at 4-6.
Id. at 6-13. See, e.g., id. at 6 (objecting to discovery requests “pertaining to the claims of Defendant's insureds for every claim involving virtually every kind of insurance offered by State Farm and its affiliates across the country”), at 8 (“Moreover, Plaintiff cannot cite a single authority allowing a plaintiff to require a defendant to engage in a nationwide search for evidence of other litigation or supposed ‘bad acts’ regardless of where they had occurred or whether the same employees of the defendant were involved in those alleged ‘bad acts.’ ”), at 16 (“... Plaintiff's discovery requests are truly staggering, encompassing a vast range of documents and electronic discovery, most without any regard for reasonable limits on time, geographical boundary, or even parties to this litigation.”) (emphasis omitted). See also supra note 123.
Docket no. 32 at 7.
Id. at 8, 9, 9-10.
Id. at 8.
Id. at 9.
Id. at 10.
See, e.g., docket no. 32, exhibit 1 at requests numbers 17-18 (materials related to “any contractors State Farm has accused of ‘manipulating roofs’ ”), 40-41 (policies and procedures relating to the investigation of damaged roof claims).
Docket no. 27 at 1 (“[A] substantial part of the events and circumstances giving rise to Sill's claims occurred in San Antonio, Bexar County, Texas.”).
Docket no. 32 at 6-7.
Id. at 7.
Id. at 8.
Id. at 9.
Id. at 9-10.
Id. at 11-12.
Docket no. 25 at 15-17.
Id. at 16-17.
Docket no. 32 at 15
Docket no. 25 at 17-18.
Id. at 18.
Docket no. 32 at 16.
Docket no. 25 at 18-20.
Docket no. 32 at 16-17.
Docket no. 25 at 19.
Id. at 20.
Docket no. 32 at 17-18.
FED. R. CIV. P. 26(b)(1).
Docket no. 25.
Docket no. 32.