eDiscovery Assistant

Wolverine World Wide v. Am. Ins. Co.

2022 WL 4986930 (W.D. Mich. 2022)

May 13, 2022

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Summary

The court ordered First State to provide the requested information within 21 days, including any ESI. First State must also provide a comprehensive and current privilege and redaction log for each document produced.

Additional Decisions

WOLVERINE WORLD WIDE, INC., Plaintiff,
v.
THE AMERICAN INSURANCE COMPANY, et al., Defendants

Case No. 1:19-cv-00010-JTN-SJB

United States District Court, W.D. Michigan, Southern Division

Filed May 13, 2022

Counsel

Anthony C. Sallah, Charles M. Denton, Barnes & Thornburg LLP, Grand Rapids, MI, Kevin Bernard Dreher, Barnes & Thornburg LLP, Chicago, IL, for Plaintiff.
Bradford S. Moyer, Plunkett Cooney, Grand Rapids, MI, Sara D. Corbello, Dykema Gossett PLLC, Bloomfield Hills, MI, Stephanie M. Brochert, Plunkett Cooney, Bloomfield Hills, MI, William Gerald McElroy, Jr., Zelle LLP, Framingham, MA, for Defendant American Insurance Company.
Bradley K. Glazier, Carole D. Bos, Bos & Glazier PLC, Grand Rapids, MI, Brian C. Coffey, Cohn Baughman & Martin, Chicago, IL, Daniel F. Gourash, Seeley Savidge Ebert & Gourash Co. LPA, Cleveland, OH, Robert D. Anderle, Seeley, Savidge & Ebert Co., LPA, Westlake, OH, William Gerald McElroy, Jr., Zelle LLP, Framingham, MA, for Defendants Century Indemnity Company, Pacific Employers Insurance Company, Federal Insurance Company.
Jason T. Newman, Anthony F. Caffrey, III, Cardelli Lanfear PC, Royal Oak, MI, Wayne S. Karbal, Michelle Anne Miner, Karbal Cohen Economou Silk & Dunne, LLC, Chicago, IL, William Gerald McElroy, Jr., Zelle LLP, Framingham, MA, for Defendant First State Insurance Company.
Richard McDermott, Brent J. Graber, Seth M. Jaffe, Hinkhouse Williams Walsh LLP, Chicago, IL, for Defendant SPARTA Insurance Company.
Drew Louis Block, Olivia M. Paglia, Patrick E. Winters, Charles W. Browning, Plunkett Cooney, Bloomfield Hills, MI, William Gerald McElroy, Jr., Zelle LLP, Framingham, MA, for Defendant The Travelers Indemnity Company.
Richard McDermott, Brent J. Graber, Seth M. Jaffe, Hinkhouse Williams Walsh LLP, Chicago, IL, William Gerald McElroy, Jr., Zelle LLP, Framingham, MA, for Defendant North River Insurance Company.

Manderfield, Paula J., Special Master

OPINION AND ORDER ON PLAINTIFF'S AMENDED MOTION TO COMPEL DISCOVERY RESPONSES AND PRODUCTION OF DOCUMENTS FROM DEFENDANT FIRST STATE

*1 Pending before the Court is Plaintiff Wolverine World Wide, Inc.’s (“Wolverine”) Amended Motion to Compel Discovery Responses and Production of Documents from Defendant, First State Insurance Company (ECF Nos. 1455, 1456 and 1465). First State Insurance Company's (“First State”) Response in Opposition to Wolverine's Amended Motion is at ECF No. 1486.

Wolverine asserts in its motion that as part of Phase II discovery, Wolverine issued two sets of Document Production Requests and Interrogatories to First State relating to the umbrella and excess policies issued by First State (collectively “Phase II Discovery Requests”). The Phase II Discovery Requests generally requested information related to the following categories: (1) claims handling files, which include correspondence, notes, claims logs and diaries; (2) claims handling manuals, policies, guidelines, and procedures; (3) underwriting files and all related documents and correspondence; (4) reinsurance policies and related documents and correspondence; (5) information and documents responsive to Wolverine's Phase II interrogatories regarding First State's defenses to the present action; and (6) information and documents concerning policy exclusions and any provisions that First State contends might limit or preclude its coverage obligations in this action ((ECF No. 1465, PageID.126320-21).

Wolverine asserts that First State refused to distinguish between the umbrella and excess policy in its responses and documents (by category or otherwise) and Wolverine hereby moves to compel separate and individualized responses and productions of documents and information responsive to those requests, relating to the umbrella and excess policies. Wolverine asks that the Court order First State to produce individually and separately the withheld documents, supplement its deficient responses related to each umbrella and excess policies accordingly, and provide a comprehensive and current privilege and redaction log for each (ECF No. 1456, PageID.125613).

In its brief in opposition First State asserts that it was in the process of compiling supplemental responses and production of documents consistent with the prior discovery orders (ECF Nos. 1357 and 1391) recently entered and that this motion could have been avoided as a result. First State contends it informed Wolverine that it fully intends to comply with those parts of the Order entered against the primary insurers that are final and also to meet and confer following any ruling from the district court on the pending objections so as to potentially avoid exactly this type of unnecessary motion practice (ECF No. 1486, PageID.126620).

First State alleges that there was no meet and confer following this Court's rulings against the primary insurers and if Wolverine had simply picked up the phone and contacted First State's counsel prior to filing the present Motion, it would have been advised that First State was in the process of supplementing its production, finalizing its privilege log, and preparing its responses consistent with the discovery Orders against the other Insurers in the event the District Court adopted the Special Master's Opinion and Orders. This meet and confer, however, did not take place until after Wolverine filed the present Motion. First State argues this motion is simply redundant and unnecessary and objects to the filing of same (ECF 1486 PageID.126620-21)

A. General Discovery Standards

*2 Fed. R. Civ. P. 26(b)(1). “Rule 26 is to be liberally construed to permit broad discovery.” State Farm Mut. Auto. Ins. Co. v. Warren Chiropractic & Rehab Clinic, P.C., 315 F.R.D. 220, 222 (E.D. Mich. 2016). As such, Rule 26 “encompass[es] 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.” Marsico v. Sears Holding Corp., 370 F. App'x 658, 664 (6th Cir. 2010) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)) (internal quotations omitted).

District courts have broad discretion over docket control and the discovery process. In re Air Crash Disaster, 86 F.3d 498, 516 (6th Cir. 1996). “It is well established that the scope of discovery is within the sound discretion of the trial court.” Lavado v. Keohane, 992 F.2d 601, 604 (6th Cir. 1993); Pittman v Experian Info Sols., Inc, 901 F3d 619, 642 (CA 6, 2018).

In exercising its discretion on a motion to compel discovery, a court must be mindful that parties are permitted to obtain discovery regarding any matter, not privileged, which is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within the scope of discovery need not be admissible in evidence to be discoverable. Fed. R. Civ. P. 26(b)(1); § 7:131. Ruling on motion, 2 Motions in Federal Court § 7:131 (3d ed.).

Where a party from whom discovery is sought seeks to withhold information based on a claim of privilege or trial preparation materials, the party withholding the information must expressly make the claim and “describe the nature of the documents, communications, or tangible things not produced or disclosed-and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” Fed.R.Civ.P. 26(b)(5)(A)(i) and (ii). “Such a description of the documents or communications is commonly referred to as a privilege log.” Cozzens v City of Lincoln Park, No. 08-11778, 2009 WL 152138, at *2 (ED Mich., January 21, 2009).

Analysis

The Special Master's Original Orders concerning the primary insurers contained the following determinations relevant to the relief sought by Wolverine in its current Motion:

Claim files and underwriting files must be produced with a privilege or redaction log if any privileges are claimed (ECF No. 1357, PageID.123206-123209).
Claims handling materials including manuals, guidelines, policies, and procedures must be produced for the period of one year before and one year after the end of Defendants policy periods, as well as those used during the time in which the claims were initiated. (Id. at PageID.123205.)
“Reinsurance policies” must be produced, but other reinsurance related documents and communications are irrelevant and not discoverable. (Id. at PageID.123203- 123204.)
Responses to Interrogatory Nos. 3 and 4 of Wolverine's Second Set of Phase II discovery requests must list all exclusions and affirmative defenses as well as the facts and/or documents relied on in support of each exclusion and affirmative defense. (Id. at PageID.123210-123212.).

*3 In its Order on Remand, the Special Master reaffirmed its ruling with respect to reinsurance policies and clarified its ruling with respect to claim handling materials to hold that claim communications with respect to Wolverine's claims at issue from 2017 to present and claim handling manuals, guidelines, policy and procedure manuals from 2014 to present must be produced. (ECF No. 1391, PageID.123837-123840.) Although, First State does not agree with each one of these prior orders and noted there are partial objections pending it was prepared to comply with them.

First State further alleges that this motion is the first time that Wolverine demanded that First State respond and produce documents “separately and individually” for each of First State's umbrella and excess policies and that nowhere in the nearly 15 pages of instructions and definitions preceding Wolverine's First and Second Set of Phase II discovery requests ... did Wolverine request that First State provide separate responses and productions for each individual policy. (Karbal Decl., ¶¶ 4-5 and Exs. A and B, ECF No. 1486, PageID.126623-24).

First State Insurance Company asserts that only one claim file is maintained for First State's Policies for the underlying environmental actions and they do not maintain a separate claim file for each of the First State policies at issue, or separate claim files for the umbrella and excess policies (ECF No. 1486, PageID.126624). This is supported by the Declaration of Katherine Wendt, a representative of First State Insurance Company (ECF No. 1489, PageID.126668-69). She states “First State maintains a single claim file for the underlying environmental actions. First State does not maintain a separate claim file for each of the First State policies at issue, or separate claim files for the umbrella and excess policies” (Id. at PageID.126668).

In light of the above, the Special Master finds that requiring separate and individual responses pertaining to each of First State's policies is unnecessary. After reviewing the deficiency letters and the discovery requests, Wolverine had not previously requested this relief and therefore that request is denied.

Although, this motion could have been avoided, First State must still respond to the discovery requests previously entered.

IV. Conclusions and Order

In view of the foregoing, First State is Ordered to respond to Wolverine's Phase II Discovery Requests and produce and respond as follows:

Claim files and underwriting files must be produced with a privilege or redaction log if any privileges are claimed.
Claims handling materials including manuals, guidelines, policy and procedure manuals must be produced for the period of one year before and one year after the end of First State's policy periods; and all claim handling manuals, guidelines, policy and procedure manuals from 2014 to the present date must be produced.

All claims communications with respect to Wolverine's claims at issue from 2017 to the present date.

Produce copies of any reinsurance policies, but other reinsurance related documents and communications are irrelevant and not discoverable.

-Responses to Interrogatory Nos. 3 and 4 of Wolverine's Second Set of Phase II discovery requests must list all exclusions and affirmative defenses First State relies on to preclude or limit coverage, as well as the facts and/or documents relied on in support of each exclusion and affirmative defense.

IT IS HEREBY ORDERED that Wolverine's Amended Motion to Compel Discovery Responses and Production of Documents from Defendant, First State Insurance Company (ECF Nos. 1455, 1456 and 1465) are GRANTED in part and DENIED in part.

*4 IT IS FURTHER ORDERED that First State provide the information required by this Order within 21 days of the date hereof.

IT IS SO ORDERED.