The Catholic Mutual Relief Society of America, Plaintiff, v. Arrowood Indemnity Company, Defendant Court File No. 17-cv-3141 (JRT/LIB) United States District Court, D. Minnesota Filed May 24, 2019 Counsel Danita Lea Davis, Pro Hac Vice, Dennis Neri Ventura, Pro Hac Vice, Kathleen Marie Hart, Pro Hac Vice, Tressler LLP, Chicago, IL, for Plaintiff. Joseph F. Lulic, Olivia Moreland Cooper, Robert D. Brownson, Brownson Norby, PLLC, Minneapolis, MN, for Defendant Brisbois, Leo I., United States Magistrate Judge ORDER *1 This matter comes before the undersigned United States Magistrate Judge pursuant to a general assignment made in accordance with the provisions of 28 U.S.C. § 636(b)(1)(A), and on Catholic Mutual’s Motion to Compel. [Docket No. 113]. The Court held a Motions Hearing on April 25, 2019. (Minute Entry [Docket No. 130] ). At the hearing, the Court took Catholic Mutual’s Motion to Compel, [Docket No. 113], under advisement. (Id.). After the hearing, Catholic Mutual filed a Motion to Supplement Record, [Docket No. 135], and the Court took it under advisement on May 13, 2019. [Docket No. 141]. For the reasons discussed below, Catholic Mutual’s Motion to Compel, [Docket No. 113], is GRANTED in part and DENIED in part, and Catholic Mutual’s Motion to Supplement Record, [Docket No. 135], is DENIED as moot. I. BACKGROUND This is a declaratory action between co-insurers to determine the existence of insurance coverage for, and any accompanying duty to defend against, state tort claims of sexual abuse against Minnesota religious organizations which both Plaintiff, The Catholic Mutual Relief Society of America (“Catholic Mutual”), and Defendant, Arrowood Indemnity Company (“Arrowood”), once insured. (Compl. [Docket No. 1] ). Catholic Mutual seeks a declaration that there were insurance policies issued by Arrowood to the Dioceses of St. Cloud and its parishes which provided coverage for the relevant timeframe, and that Catholic Mutual therefore has a right of contribution from its coinsurer, Arrowood, stemming from its duty to defend against underlying sexual abuse state tort claims brought against Catholic Mutual’s insured member parishes and dioceses. (Id. at 17–23). On August 10, 2018, the Honorable Chief Judge John R. Tunheim held the following: Catholic Mutual has standing to seek declaratory judgment for contribution under Minnesota law to determine whether Arrowood, an alleged co-insurer, owes a duty to defend. In determining whether Catholic Mutual is entitled to contribution from Arrowood, the Court must necessarily determine the threshold questions of whether the purported contracts with Arrowood exist and whether Arrowood is liable under them. (Order, [Docket No. 69], at 14–15) (emphasis added). On January 9, 2019, the Court granted in part Arrowood’s Motion for Protective Order, holding that Catholic Mutual’s 30(b)(6) deposition topics were temporally limited to the years between 1964 and 1971, and geographically limited to Minnesota dioceses and parishes. (Order [Docket No. 106] ). On March 27, 2019, Catholic Mutual filed the present Motion to Compel. [Docket No. 113]. On April 3, 2019, Arrowood filed its opposition to Catholic Mutual’s Motion to Compel. [Docket No. 120]. The Court held a motions hearing on April 25, 2019, and took Catholic Mutual’s Motion to Compel under advisement. [Docket No. 130]. Thereafter, on May 3, 2019, Catholic Mutual filed a Motion to Supplement Record. [Docket No. 135]. Arrowood filed its opposition to the motion on May 10, 2019, [Docket No. 143], and the Court took the motion under advisement. [Docket No. 141].[1] II. CATHOLIC MUTUAL’S MOTION TO COMPEL. [DOCKET NO. 113]. *2 Catholic Mutual requests this Court order Arrowood to “conduct reasonable, additional searches of its index of hard-copy stored material and allow Catholic Mutual to review, at its own expense, the results of those searches.” (Mem. in Supp., [Docket No. 115], at 2). Specifically, Catholic Mutual included a list of 28 search terms that it requests this Court compel Arrowood to search for. (Id.).[2] Catholic Mutual also requests that this Court compel Arrowood to produce a knowledgeable representative for a continued Rule 30(b)(6) deposition. (Id. at 15).[3] A. Analysis i. Additional Searches As for Catholic Mutual’s requests that this Court order Arrowood to “conduct reasonable, additional searches of its index of hard-copy stored material and allow Catholic Mutual to review, at its own expense, the results of those searches,” it maintains that “Arrowood used certain terms to search its electronic index for evidence of the missing policies at issue in this litigation. However, Arrowood did not consult Catholic Mutual on those terms and unreasonably limited its search terms.” (Id. at 4). Catholic Mutual further argues that the deposition testimony in this case shows that Arrowood’s limited search terms were likely not sufficient to find all policy-related documents responsive to Catholic Mutual’s requests and that it is entitled to physically review any located boxes and files itself. (Id.). Catholic Mutual lastly argues that deposition testimony has shown that it would be “easy” for Arrowood to run the additionally requested search terms. (Id.). Catholic Mutual’s several arguments are unpersuasive. First and foremost, Catholic Mutual’s Motion to Compel fails to comply with Local Rule 37.1, which states that motions presenting a discovery dispute must include the following: (b) a specification of the disclosure or discovery in dispute; (c) the text (which may appear in an exhibit to which the motion or memorandum refers) of any interrogatory, request, question, or notice in dispute, together with each answer, response, or objection to any such interrogatory, request, question, or notice; (d) a concise statement of why the disclosure, answer, response, production, or objection is insufficient, evasive, incomplete, or otherwise improper. Local Rule 37.1 is intentionally designed to assist the Court in effectively and efficiently addressing discovery disputes by requiring the parties to specifically identify the precise nature and parameters of the subject dispute. In its present Motion, Catholic Mutual fails to include any of the aforementioned requirements of Local Rule 37.1. Instead, Catholic Mutual only takes issue in the broadest of terms with Arrowood’s document production generally; production, the Court notes, which has been in Catholic Mutual’s possession since December 2017. Notably, Catholic Mutual makes no specific challenges to any discrete Arrowood responses to any particular request for production; it does not actually claim that Arrowood failed to respond to any particular request for production; it does not claim that Arrowood improperly withheld the production of any documents on an unfounded assertion of privilege; it does not claim that Arrowood withheld any relevant document files that Arrowood claimed would not have been helpful to Catholic Mutual; and it does not actually claim that Arrowood failed to produce any responsive documents. Instead, when synthesized down, Catholic Mutual’s arguments merely amount to contending that they simply “feel like there ought to be more documents ... we do not believe that no responsive documents exist.” Motions to compel, however, based merely on a vague and generalized argument that a party believes there ought to be additional responsive evidence are ineffective. Furthermore, by representing that there are no other responsive documents, the risk is on the responding attorneys in the event their document production responses are later shown by evidence (not mere supposition) to be false or incomplete. See, Lumber v. PPG Indus., Inc., 168 F.R.D. 641, 643 (D. Minn. 1996) (“[O]f necessity, the Court must accept, at face value, a party’s representation that it has fully produced all materials that are responsive to a specific discovery request....[The Court has] no means to test the veracity of such avowals, other than to appropriately sanction a recalcitrant party for failing to responsibly honor its discovery obligations.”). *3 Ultimately, as described above, Catholic Mutual’s motion and accompanying memorandum is in violation of Local Rule 37.1 and entirely unhelpful to the Court. On this basis alone, the Court could summarily deny Catholic Mutual’s Motion to Compel. However, as discussed below, the Court finds that Arrowood’s explanation at the hearing of its procedure for locating and producing any responsive documents is unsupported by the record, and therefore, the Court will grant Catholic Mutual’s Motion to Compel in part. When responding to requests for production, producing attorneys are required to certify their Rule 34 responses by signing the responses themselves; thereby certifying that the responses are complete and thorough. See, Rule 26(g). The signature “certifies that to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry.” Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 358 (D. Md. 2008) (citing and quoting Fed. R. Civ. P. 26(g) advisory committee’s notes to the 1983 amendments). Moreover, “if a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. See, Rule 26(g). At the motions hearing, Arrowood’s counsel represented on the record that Ms. Lynne Gadd (hereinafter “Ms. Gadd”), Arrowood’s document archivist, after running a term search of the archive index, would check all source documents identified by the computer searches and determine, in conjunction with counsel, whether the documents were responsive and therefore discoverable. (April 25, 2019, Motion Hearing, Digital Recording at 9:51–9:52 a.m.). Thus, in signing the Rule 34 responses, Arrowood’s counsel of record certified that all of the underlying source documents identified as “hits” by Arrowood’s term searches of the archive index were examined by someone and that a determination after direct review of the source documents was made that the identified documents were not responsive to Catholic Mutual’s Rule 34 requests. Upon examining Ms. Gadd’s actual deposition testimony, however, it appears Arrowood’s counsel’s representation to the Court during the April 25, 2019, motions hearing regarding Ms. Gadd’s review of the source documents was inaccurate. Specifically, in her deposition, Ms. Gadd explicitly testified to the following: I don’t look at the documents. I return the - - the spreadsheets to the claim adjusters and they look at the documents. They ask me to pull the documents, I order them under their name, and I don’t look at the documents themselves. (Ex. B, [Docket No. 138-1], at 124–125). Thus, the record presently before the Court shows that, unlike the process described at the April 25, 2019, motion hearing, Ms. Gadd did not actually review any source documents, but instead she merely returns a spreadsheet that indicates if a search term of the archive index resulted in a “hit” to the claims adjuster, and thereafter, an unidentified claims adjuster instructs her as to which source documents to pull. After pulling the documents, without reading over them, Ms. Gadd converts them into PDFs and sends them to the claims adjusters.[4] *4 Based on the above-described inaccuracy between the actual search and production process and the representations made by Arrowood at the April 25, 2019, motion hearing, the Court cannot be confident that Arrowood’s counsel of record fully complied with the Rule 26(g) obligation of the counsel of record to certify that responses to requests for production are complete and thorough when signing Arrowood’s responses to Catholic Mutual’s Rule 34 requests. Arrowood’s counsel’s representations at the April 25th motions hearing, in light of Ms. Gadd’s actual deposition testimony, does not eliminate this present lack of confidence. Thus, because Arrowood’s representations at the motion hearing regarding Ms. Gadd’s method of searching for responsive documents were not fully accurate, the Court finds that Arrowood’s Rule 34 certification is deficient and not compliant with their obligations pursuant to Rule 26(g). Despite the Court’s finding that Arrowood’s Rule 34 certification is deficient, this deficiency alone does not entitle Catholic Mutual to an Order compelling Arrowood to permit “Catholic Mutual to review, at its own expense, the results of those searches.” (Mem. in Supp., [Docket No. 115], at 2). Rather, the two cases cited by Catholic Mutual do not support Catholic Mutual’s contention that it is broadly entitled to physically inspect for itself any of Arrowood’s source document files that are returned as “hits” on the term searches of the archive index. In Anderson v. City of Chicago, the plaintiff was released from jail after 27 years because he was exonerated by DNA evidence, and he thereafter sued the city and its officers. 2019 WL 423144, at *1 (N.D. Ill. Feb. 4, 2019). During discovery, the defendant officers issued a subpoena to the Illinois Prisoner Review Board, a non-party, seeking the plaintiff’s criminal records. Id. The Board resisted the subpoena, arguing that the plaintiff’s criminal history records did not contain any helpful information other than the fact that the plaintiff had been convicted. Id. at *3. The Court, however, disagreed and held that the defendant officers were “entitled to review the documents themselves and come to their own conclusions so long as production is warranted under the relevance and proportionality standards ....” Id. Thus, the Court found that the plaintiff’s criminal history could potentially be used as impeachment evidence and was therefore relevant and discoverable. Id. Accordingly, the Anderson Court’s holding does not support Catholic Mutual’s broad contention here. Rather, the Anderson Court, after first finding that production of the documents was warranted because the documents sought were both relevant and proportional, held that the defendants had to disclose the criminal records, and the Court was merely commenting that the defendants could thereafter conclude how the records may be helpful to their case. The Court did not find that the moving party was entitled to go to the Review Board’s location and physically inspect the source document files themselves on site. Catholic Mutual also relies on a footnote in Baykeeper v. Kramer Metals, Inc., 2009 WL 10671577, at *5 n.2 (C.D. Cal. Feb. 27, 2009). Upon review by this Court, the Baykeeper Court was not in any way suggesting that the plaintiff was actually entitled to undertake an on site review of the defendant’s files themselves. Id. Rather, the dispute in Baykeeper, involved the discoverability of the defendant’s tax returns with regard to calculating the underlying issue of the case, an “economic benefit” analysis. Id. The defendant argued that the tax returns were not relevant (therefore, not discoverable) to that analysis, however, the Court disagreed, and it held that, “[s]uch information is clearly relevant to plaintiff’s claims,” and thus, because the Court found that the document were relevant, the plaintiff was entitled to “review and interpret the documents themselves.” Id. Thus, the Court was merely commenting on the general discoverability of the documents and that the specific use to be made of the documents was to be made after production by the party seeking the discovery. Again, the Baykeeper Court did not find that the moving party was entitled to physically inspect the producing party’s document files themselves. *5 Nothing cited by Catholic Mutual entitles it to physically review the archived boxes and document files identified as search term “hits” of Arrowood’s archive index. Instead, where, as in the present case, courts have found that a party’s Rule 34 certification was deficient and inconsistent with Rule 26(g), they have applied a variety of remedies. See, St. Paul Reinsurance Co. v. Commercial Fin. Corp., 198 F.R.D. 508, 518 (N.D. Iowa 2000) (requiring counsel to write an article explaining why it is improper to assert boilerplate objections); Hersheberger v. Ethicon Endo–Surgery, Inc., 2011 WL 4434929 (S.D. W. Va. Sep. 23, 2011) (recommending that the presiding judge admit into evidence certain testimony and exhibits regarding subject of the improper certification and deny the party’s motion in limine on the issue); Gonsalves v. City of New Bedford, 168 F.R.D. 102, 116 (D. Mass. 1996) (finding $15,000 sanction on counsel to be appropriate). In Jalin Realty Capital Advisors, LLC v. Rhythm Stone Media Grp. LLC, No. 11-cv-165 (JRT/LIB), 2012 WL 12895689, at *5 (D. Minn. Feb. 22, 2012), for example, this Court found that the plaintiff failed to adequately respond to the defendant’s requests for production. Because the plaintiff failed to adequately respond, the Court found that the plaintiff violated Rule 26(g). Id. at *6. In order to remedy the deficient Rule 34 certification, the Court, in its discretion, barred the plaintiff from relying on any evidence it did not provide in response to the defendant’s discovery requests, as well as, imposed a monetary sanction. Id. In the present case, in order to remedy Arrowood’s deficient Rule 34 certification, the Court will require Arrowood to provide a detailed written explanation of its source document search process.[5] Specifically, with regard to the 19[6] terms of the 28 archive index search terms proposed by Catholic Mutual that Arrowood has already searched for, Arrowood must provide a detailed written explanation that includes an explanation of which search terms returned “hits,” who examined the source files for each of the “hits” that were identified by the search terms, and which counsel of record, as well as, what process those counsel of record used to determine whether the source documents identified were responsive to any of Catholic Mutual’s Rule 34 document requests.[7] *6 With regard to the 9 remaining search terms suggested by Catholic Mutual that Arrowood has not previously searched its archive index for, the Court finds that four of the additional search terms (Bartholme, Speltz, Mid State Agency, and Murphy) are relevant because all four search terms were individuals or entities involved in various capacities with the Diocese of St. Cloud during the relevant time period as previously determined by this Court. Thus, with regard to these four search terms, the Court will require Arrowood to search its archive index for the additional search terms limited geographically to Minnesota dioceses or parishes, and limited temporally to between the years 1964 and 1971. Additionally, Arrowood must provide a written explanation that includes an explanation of which of these four search terms returned “hits,” who examined the source files and documents represented by those “hits,” and which counsel of record, as well as, what process those counsel of record used to determine whether the source documents identified were responsive to any of Catholic Mutual’s Rule 34 document requests. With regard to the remaining five search terms proposed by Catholic Mutual (Hanus, Kinney, Janson, Schmitt, and Minnesota), which Arrowood has not to date utilized, the Court finds that these five terms are patently overbroad. Specifically, neither Hanus, Kinney, Janson, nor Schmitt were associated with the Diocese of St. Cloud between the relevant years of 1964 and 1971. With regard to the search term “Minnesota,” this search term couldn’t possibly be more patently overbroad given the narrow scope of the issue in this case, and it would result in “hits” for an untold number of insureds for every different type of insurance product sold by Arrowood. Accordingly, to the extent Catholic Mutual requests this Court order Arrowood to search for these five additional search terms, its motion is denied. Arrowood shall conduct the additional searches and provide any resulting production, as well as, the written explanations as required herein no later than June 14, 2019. ii. Rule 30(b)(6) Deposition Catholic Mutual next requests that this Court compel Arrowood to produce a knowledgeable representative for a continued Rule 30(b)(6) deposition. (Mem. in Supp., [Docket No. 115], at 15). Specifically, Catholic Mutual contends that Arrowood’s previously produced 30(b)(6) deponent, Mr. Santiago Medeiros (hereinafter “Mr. Medeiros”), “was unknowledgeable and unprepared to testify about the method and accuracy of Arrowood’s searches for the insurance policies at issue in this case.” (Id.). Because of this, Catholic Mutual contends that upon the “prompt completion of the additional search [it requested] above, Catholic Mutual should have the opportunity to conduct an additional deposition of a prepared and knowledgeable Rule 30(b)(6) representative of Arrowood.” (Id.). The Court disagrees. At the motions hearing, Catholic Mutual argued a number of issues that it had with Arrowood’s 30(b)(6) deponent’s testimony that it did not brief in its memorandum. Specifically, at the motions hearing Catholic Mutual argued that Mr. Medeiros’ deposition testimony was deficient regarding “membership and industry organizations, potential reinsurance collections that may have never been submitted, document retention, and the existence of the terms and condition of the policies Arrowood was writing back in the 1960s.” (April 25, 2019, Motions Hearing, Digital Recording at 9:25–9:26 a.m.). In fact, Catholic Mutual primarily focused its April 25th motion hearing argument on membership and industry organization (Id. at 9:26–9:27 a.m.). Catholic Mutual, however, with the exception of Arrowood’s document retention policies, did not brief any of these issues in its memorandum of law in support of its motion to compel. Rather, Catholic Mutual merely included a footnote in its brief that identified various pages of Mr. Medeiros’ deposition transcript, without any explanation as to their importance whatsoever. (See, Plf.’s Mem., [Docket No. 124], at 15). A footnote merely citing to a portion of Arrowood’s 30(b)(6) deponent’s deposition testimony does not constitute proper briefing of an issue. Hewitt v. City of Minneapolis, 2013 WL 718189, at *5, n. 6 (D. Minn. 2013) (failure to brief an issue results in waiver of arguments); Graham v. Rosemount, Inc., 40 F. Supp. 2d 1093, 1101 (D. Minn. 1999) (failure to respond to [a party’s] arguments results in waiver). Therefore, aside from Catholic Mutual’s issue with Mr. Medeiros’ deposition testimony regarding Arrowood’s document retention policies, there was nothing else properly made a part of the record by way of proper briefing in advance of the motions hearing related to Mr. Medeiros’ 30(b)(6) deposition testimony. *7 To the extent Catholic Mutual did argue in its written memorandum that Mr. Medeiros was unprepared to testify about Arrowood’s document retention policies, Catholic Mutual’s “proposed” standard regarding how prepared a Rule 30(b)(6) deponent must be is inaccurate. “Rule 30(b)(6) designees need not be ‘perfect’; designees are responsible for information ‘known or reasonably available to the corporation.’ ” Mallak v. Aitkin Cty., No. 13-cv-2119 (DWF/LIB), 2016 WL 8607391, at *7–8 (D. Minn. June 30, 2016), aff’d, 2016 WL 8607392 (D. Minn. Sept. 29, 2016) (quoting Bombardier Recreational Prod., Inc. v. Arctic Cat, Inc., No. 12-cv-2706 (MJD/LIB), 2014 WL 10714011, at *10 (D. Minn. Dec. 5, 2014)). Moreover, a “Rule 30 (b)(6) deponent is not expected to be clairvoyant, so as to divine the specific questions that could [be presented].” Id. On the record presently before the Court, Arrowood’s 30(b)(6) deponent, Mr. Medeiros, was sufficiently prepared to testify about Arrowood’s document retention policies. Notably, Mr. Medeiros was prepared, in part, by Ms. Gadd who, as previously discussed, is Arrowood’s document retention expert. (See, Cooper Decl., Ex. I, [Docket No. 122-11], at 4). In any event, to the extent that Catholic Mutual was dissatisfied with Mr. Medeiros’ testimony regarding Arrowood’s document retention policies, Catholic Mutual had the opportunity to very shortly thereafter follow up on Mr. Medeiros’ deposition testimony when they in fact deposed Ms. Gadd on the matter only a month later. Accordingly, to the extent Catholic Mutual requests that this Court compel Arrowood to produce another knowledgeable representative for a continued or second Rule 30(b)(6) deposition, Catholic Mutual’s motion is denied. III. CONCLUSION Based on all of the files, records, and proceedings herein, IT IS HEREBY ORDERED THAT: 1. Catholic Mutual’s Motion to Compel, [Docket No. 113], is GRANTED in part and DENIED in part, as set forth above; and 2. Catholic Mutual’s Motion to Supplement Record, [Docket No. 135], is DENIED as moot. Footnotes [1] Catholic Mutual’s Motion to Supplement the Record, [Docket No. 135], which included the entirety of Ms. Lynn Gadd’s deposition testimony was mostly already part of the record. Thus, the motion is moot and the Court construes the motion simply as additional argument. Furthermore, there is no prejudice to Arrowood because it was given an opportunity to respond. The Court exercises its discretion to consider these supplemental arguments. [2] In its opposition memorandum and at the motions hearing, Arrowood represented that it has already searched 19 of the 28 search terms proposed by Catholic Mutual. (Mem. in Opp., [Docket No. 120], at 8–10). [3] In its Memorandum, Catholic Mutual also requested that this Court “issue an Order as it deems appropriate to ensure that Arrowood’s refusal to offer earlier deposition dates [of its expert] does not unduly restrict discovery.” (Mem. in Supp., [Docket No. 115], at 18). At the April 25, 2019, Motions Hearing, however, Catholic Mutual withdrew this argument since as the Court pointed out the deposition of Arrowood’s expert had in fact been completed before the close of discovery. (April 25, 2019, Motions Hearing, Digital Recording at 9:32–9:33 a m.). [4] The Court notes that Arrowood cited to a portion of Ms. Gadd’s deposition testimony, which it contends shows that she actually does physically look at the documents identified as “hits.” Upon reviewing Ms. Gadd’s deposition testimony, it is clear that Ms. Gadd was only referring to a single instance where she did in fact review the underlying documents identified as “hits.” She did not, however, testify that it was her normal practice to review the documents returned as “hits.” (See, Ex. B [Docket No. 138-1], at 235–236). [5] This is a process directive. The Court is not requiring Arrowood to disclose its strategic thinking or attorney work product. [6] The 19 search terms that have already been searched are as follows: St. Cloud, Saint Cloud, 60-62-65, 43-73-94, 314009, Joseph Johnson, 34-035035, 3939-033-90, Malecha, 34-036631, L092366, Skillingstad, 34-037455, 3939-070-93, Scepaniak, 9113.4, 85000475700, Suess, 34060111. (Mem. in Opp., [Docket No. 120], at 8–10). [7] If Arrowood concluded that certain source documents identified as “hits” would not have been “admissible” at trial, and therefore, it did not produce them, that does not constitute a sufficient basis to have withheld the documents. Relevancy for purposes of discovery is not limited or defined by relevancy for admission of evidence at trial. Furthermore, if any documents were withheld on the basis of privilege, those documents must be reflected in a proper privilege log somewhere.