On January 24, 2018, Plaintiff served her First Request for Production to Defendant (Doc. 42-1). Plaintiff's Request No. 13 seeks:

In response, Defendant filed a Motion for Protective Order (Doc. 22) in which it objected to Plaintiff's Request No. 13 on the grounds that it was overly broad, unduly burdensome, harassing, and seeks information that is confidential, sensitive, and not subject to discovery. Upon consideration of the motion, the Court found as follows:

Doc. 29 at p. 4.

Counsel for Plaintiff subsequently narrowed her request as follows: “the performance evaluations, statistical reviews, and other data pertaining to the job performance (including salary and bonus information) from January 2007 through the date of the final judgment”[2] for Robert Ritchie, David Cuellar, Susan Winkler, Carol Brittain-Cutaia, Robert Flayman, Kenneth Oleksyk, Joyce Richardson, and Gary Feuerstein (Doc. 42-2). Defendant agreed to produce the performance evaluations for Robert Ritchie, David Cuellar, Susan Winkler, Carol Brittain-Cutaia, and Robert Flayman for the years in which they handled the claim until Plaintiff's rejection of Defendant's tender (Doc. 42-3). Specifically, Defendant agreed to produce the performance reviews for Robert Ritchie for the years 2007 to 2008,[3] David Cuellar for the years 2007 to 2009, Susan Winkler for the years 2008 to 2009, Carol Brittain-Cutaia for the years 2007 to 2009, and Robert Flayman for the years 2007 to 2009. Defendant now seeks protection for the remainder of Plaintiff's narrowed request.

*2 Rule 26 permits “discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case .... Information within this scope of discovery need not be admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1). The term “relevant” is “construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978).

Under Rule 26(c), “[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense ....” Fed. R. Civ. P. 26(c)(1); Farnsworth v. Proctor & Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985). The moving party has the burden to demonstrate good cause and must make “a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements” supporting its need for the protective order. Auto-Owners Ins. Co. v. Southeast Floating Docks, Inc., 231 F.R.D. 426, 429-30 (M.D. Fla. 2005) (citation omitted). In deciding whether a movant has established good cause, a court balances the respondent's interest in obtaining the discovery against the movant's stated harm that would result from allowing the deposition. Celentano v. Nocco, No. 8:15-cv-1461-T-30AAS, 2016 WL 4943939, at *2 (M.D. Fla. Sept. 16, 2016).

Performance Evaluations for Oleksyk, Richardson, and Feuerstein

Defendant requests that this Court enter a protective order to preclude discovery of the performance evaluations for Oleksyk, Richardson, and Feuerstein asserting their involvement was incidental and not germane to any issue in this matter. Defendant asserts that, because Oleksyk was not involved in Progressive's pre-suit handling of Plaintiff's claim, his performance evaluations are not relevant, and the request is overbroad and not tailored to the facts of this case. Plaintiff counters that the relevant period for discovery runs through the entry of judgment in the underlying action.

The date of the rejection of the settlement offer does not dictate the relevant period for discovery purposes, and Defendant has not cited any case law that supports this proposition. To the contrary, “[i]t is clear that in an action for bad faith against an insurance company for failure to settle a claim within policy limits, all materials, including documents, memoranda and letters, contained in the insurance company's file, up to and including the date of judgment in the original litigation, should be produced.” Allstate Indem. Co. v. Ruiz, 899 So.2d 1121, 1126 (Fla. 2005)(quoting Stone v. Travelers Ins. Co., 326 So.2d 241, 243 (Fla. 3d DCA 1976)). “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.” Berges v. Infinity Ins. Co., 896 So.2d 665, 680 (Fla. 2005), cited with approval in Hinson v. Titan Ins. Co., 656 F. App'x 482, 486 (11th Cir. 2016)(“Whether an insurer acted in good faith is judged by the ‘totality of the circumstances.’ ”). As such, Oleksyk's performance evaluations are relevant and discoverable.[4]

*3 Defendant argues that protection is warranted as to Richardson and Feuerstein because neither had any impact on the handling of Plaintiff's claim, and they were not more than incidentally involved. Richardson testified that she did not handle the claim and could not remember if any of the Progressive employees that she oversaw ever consulted with her regarding the same (Doc. 35-3 at p. 19, ln 2 – p. 20, ln. 21). She reviewed the file twice during the course of the claim and entered notes on December 26, 2007, and April 9, 2009 (Doc. 51-2 at PRG 1238 and PRG 1248). The Court agrees that Richardson's involvement was not more than incidental. Therefore, the motion is granted as to Richardson. Feuerstein, on the other hand, was more than incidentally involved on Plaintiff's claim. Feuerstein made three file entries in a supervisory role including input regarding settlement. See Doc. 42-4 at PRG 1251, PRG 1253 and PRG 1254; Doc. 42-5 at PRG 61. As such, the motion is denied as to Feuerstein.

Performance Evaluations of Ritchie, Cuellar, Winkler, Brittain-Cutaia, and Flayman

Defendant seeks to limit the time frame of the performance evaluations discoverable as to Ritchie, Cuellar, Winkler, Brittain-Cutaia, and Flayman. In addition to its assertion that the time frame should not include the period after the settlement offer was rejected, Defendant argues that the time frame should only encompass years in which the employees were involved in the claim. Defendant contends that the performance evaluations are otherwise irrelevant to any issue in this action and overly broad. As discussed above, the relevant time frame runs through the final judgment; not just up to the rejection of the settlement. As such, the motion is denied as to Cuellar, Brittain-Cutaia and Flayman.

Defendant's argument regarding a limitation to the years of an employee's involvement in the claim only applies to Ritchie and Winkler. Ritchie ceased to be involved with the bodily injury or wrongful death claims at the end of 2007. On September 19, 2007, the claim at issue was transferred from Ritchie to Brittain-Cutaia. Defendant notes that it mistakenly agreed to produce Ritchie's performance evaluations through 2008 and will do so. Defendant argues that Ritchie's performance evaluations for all years he was not directly involved with the bodily injury and wrongful death claims are irrelevant and should be protected. Similarly, Winkler was not assigned to the claim until November 2008, and she did not hold the same job position in 2007. Defendant argues that Winkler's 2007 performance evaluation, therefore, is not relevant and should be precluded from discovery. Defendant's argument is well-taken, and the Court finds that Ritchie's performance evaluations after 2008 and Winkler's 2007 performance evaluation are irrelevant to the instant action. Accordingly, the motion is granted as to Ritchie and Winkler.

Progressive's Employees’ Salary and Bonus Information

Defendant argues that salary and bonus information is irrelevant, excessively broad and highly sensitive personal information. Defendant points to the fact that the instant action does not involve a dispute over the value of the claim and asserts that salary and bonus information has absolutely no connection or correlation to any issue in this case. Plaintiff counters that all the requested documents are related to that employee's “overall competence” in handling claims and negotiating settlements. Because this case does not involve a dispute over the value of the claim and the issues seem centered on the rejection of the settlement offer as opposed to the competency of any employees handling the claim, the Court finds the wholesale production of salary and bonus information overly broad. Accordingly, as to salary and bonus information, production is limited to documents relating compensation, including bonuses, to the adjustment of claims and settlements.

Accordingly, it is hereby ORDERED:

DONE AND ORDERED in Tampa, Florida, this 21st day of September, 2018.

The Court will hereinafter refer to the documents and information sought in Request No. 13 cumulatively as “performance evaluations.”

The date of final judgment was October 31, 2011 (Doc. 2 at ¶ 20).

Defendant inconsistently references “2007 to 2008” on pages 3-4 of its motion and “2007 to 2009” on pages 13-14 as to Ritchie (Doc. 42). It appears from the argument contained in the motion that 2007 to 2008 is the date range intended to be referenced by Defendant.

Defendant does not argue that Oleksyk's involvement was no more than incidental. Plaintiff emphasizes the extent of Oleksyk's involvement by noting that “[a] review of the claims file shows that Mr. Oleksyk's name appears one hundred and three (103) times” (Doc. 51 at p. 13).