I. Background

Plaintiffs were injured in a collision with a vehicle operated by a driver insured by Defendant. (Doc. 2, 7). Plaintiffs complain that Defendant improperly handled the settlement of the resulting insurance claim and allege that Defendant did so in bad faith. (Doc. 2).

In this suit, Plaintiffs submitted a request for production, seeking: “Performance evaluations, statistical reviews, and other data pertaining to the job performance of the adjusters, supervisors, in-house attorneys and/or other Progressive employees more than incidentally involved in handling the Claim, including salary and bonus information, from December 6, 2013 through the date of the Final Judgment.” (Doc. 23-1). In its response, Defendant objected that: “Only personnel files of certain adjusters are permissible for discovery. Without waiver of foregoing, appropriately discoverable materials have been requested and will be produced after the appropriate confidentiality agreement is in place.” (Doc. 23-2).

After the parties completed a confidentiality agreement, Plaintiffs’ counsel sent an email to Defendant's counsel which specified five employees whose personnel records Plaintiffs requested, including Todd Parnell, Esq. (Doc. 23-3). Defendant later sent a letter regarding the deposition of Mr. Parnell, objecting that Mr. Parnell was not involved in the claim and his communications were privileged. (Doc. 23-6). Mr. Parnell was, however, eventually deposed, but his personnel file was not provided. (Doc. 26-1). This motion to compel production of Mr. Parnell's personnel file then followed. (Doc. 23).

II. Standard

Motions to compel discovery under Rule 37(a) of the Federal Rules of Civil Procedure are committed to the sound discretion of the trial court. See Commercial Union Ins. Co. v. Westrope, 730 F.2d 729, 731 (11th Cir. 1984). “The overall purpose of discovery under the Federal Rules is to require the disclosure of all relevant information so that the ultimate resolution of disputed issues in any civil action may be based on a full and accurate understanding of the true facts, and therefore embody a fair and just result.” Oliver v. City of Orlando, No. 6:06-cv-1671, 2007 WL 3232227, at *2 (M.D. Fla. Oct. 31, 2007).

The moving party “bears the initial burden of proving that the information sought is relevant.” Douglas v. Kohl's Dep't Stores, Inc., No. 6:15-cv-1185, 2016 WL 1637277, at *2 (M.D. Fla. Apr. 25, 2016) (quoting Moore v. Lender Processing Servs. Inc., No. 3:12-cv-205, 2013 WL 2447948, at *2 (M.D. Fla. June 5, 2013)). Relevancy is based on the “tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action.” Garcia v. Padilla, No. 2:15-cv-735, 2016 WL 881143, at *2 (M.D. Fla. March 8, 2016) (quoting Fed. R. Evid. 401).

III. Discussion

*2 In its response to Plaintiffs’ motion to compel, Defendant argues that Mr. Parnell's personnel file is not relevant because “Mr. Parnell is not an adjuster and was not involved in the handling of the underlying claim.” Defendant also argues that any attorney work product in Mr. Parnell's personnel file is privileged and not discoverable.[1]

“In Florida, the question of whether an insurer has acted in bad faith in handling claims against the insured is determined under the ‘totality of the circumstances’ standard.” O'Connor v. GEICO Indem. Co., No. 8:17-cv-1539, 2018 WL 1409750, at *3 (M.D. Fla. Mar. 21, 2018) (quoting Berges v. Infinity Ins. Co., 896 So. 2d 665, 681 (Fla. 2005)). The material considerations are “reasonable diligence” and “ordinary care,” focusing on the actions of the insurer. Id.; Moore v. GEICO Gen. Ins. Co., 633 Fed. Appx. 924, 928 (11th Cir. 2016).

Therefore, in bad faith insurance cases, courts generally find documents regarding insurance employees’ “job performance, compensation, evaluation, discipline, training, educational background, work duties and hours of work to be relevant.” Wiggins v. Gov't Emps. Ins. Co., No. 3:16-cv-01142, 2017 WL 3720952, at *3 (M.D. Fla. Jul. 10, 2017); see also O'Connor v. GEICO Indem. Co., No. 8:17-cv-1539, 2018 WL 1409750, at *2 (M.D. Fla. Mar. 21, 2018); Maharaj v. GEICO Cas. Co., 289 F.R.D. 666, 672 (S.D. Fla. 2013). However, these documents are only relevant if they pertain to “individuals who had more than incidental or minimum contact with Plaintiff's [insurance] claim for a reasonable time.” Wiggins, 2017 WL 3720952 at *3; see also Maharaj, 289 F.R.D. at 672–73 (denying plaintiff's discovery of personnel files of employees where plaintiff provided no factual basis for those employees’ involvement in the claim).

While Defendant claims that Mr. Parnell's role in adjusting the claim was “limited” and not “direct,” Defendant concedes that Mr. Parnell was involved to some extent in the claim. Mr. Parnell's deposition shows he advised and consulted the claims adjusters and made entries in the claim notes. (Doc. 26-1 at 15). Mr. Parnell stated in his deposition that while he generally did not work as a claims adjuster, he would sometimes work as a claims handler on certain more complex claims like the Aldana's claim. (Doc. 26-1 at 7). In this case specifically, he explained that he “reviewed some documents with [the claims adjuster], and spoke to her a time or two about the claim” in a “consultation, sort of, role.” (Doc. 26-1 at 15).

It also appears, from the claim notes and his deposition, that Mr. Parnell approved sending a letter regarding Defendant's settlement position, approved an offer to tender a global settlement conference letter, and indicated that he would be in communication with the Plaintiffs’ attorney about a global settlement conference. (Doc. 23-17; Doc. 26-1 at 24). Thus, it appears that Mr. Parnell's involvement in this claim was more than incidental. Wiggins, 2017 WL 3720952 at *3 (finding that the supervisor of an adjuster who worked on a claim was more than incidentally involved); Maharaj, 289 F.R.D. at 672 (finding that an adjuster who communicated the insurance company's settlement status to the plaintiff's attorney was more than incidentally involved).

*3 As for attorney work product or attorney–client privilege, Defendant does not appear to take the position that the entirety of the documents requested by Plaintiff are covered under those privileges. In fact, beyond generally acknowledging the hypothetical existence of privileged documents, it is not clear whether Defendant is even asserting that any of the responsive documents would be subject to a privilege especially given that the request seeks personnel records for Mr. Parnell, not work product or claims-specific information. To the extent that Defendant believes that performance evaluations, statistical reviews, salary and bonus information, and other data pertaining to job performance are privileged, Defendant should submit a privilege log in compliance with Rule 26(b)(5) that will allow for a proper assessment of the privilege.[2]

IV. Conclusion

Accordingly, Plaintiff's motion to compel (Doc. 23) is GRANTED. On or before March 14, 2019, Defendant is directed to provide performance evaluations, statistical reviews, and other data pertaining to the job performance of Mr. Parnell, including salary and bonus information, from December 6, 2013 through the date of the Final Judgment. To the extent Defendant claims any of this information is protected by either the attorney–client or work-product privilege, Defendant should list those privileged documents in a privilege log as required by Rule 26(b)(5).

DONE and ORDERED in Ocala, Florida on March 7, 2019.

Notably, Plaintiffs argue Defendant waived any objections due to the vagueness of Defendant's initial objection. (Doc. 23, p. 6–7). See Moss v. GEICO Indemo. Co., No. 5:10-cv-104, 2012 WL 682450, at *3 (M.D. Fla. Mar. 2, 2012) (“The time to make this argument was when the objection was made, not after the motion to compel was filed.”). Despite Defendant's somewhat vague initial objection, it does appear from the attached correspondence that Defendant raised the issue of the relevancy of Mr. Parnell's file as well as the possible privilege issue more specifically in its subsequent responses. See (Doc. 23-6).

Defendant's timeliness argument is likewise unpersuasive. The motion to compel was brought a month before the close of discovery, and trial is set for the January 2020 trial term—almost a year away. (Doc. 20). Cf. Pushko v. Klebener, 2007 WL 2671263, at *2–3 (M.D. Fla. Sept. 7, 2007) (rejecting motion to compel as untimely where filed after the discovery deadline, which itself had been extended several times).