*1 Before the court is a Motion to Compel [doc. 25] filed by plaintiffs Curtis and Brandie Jackson, relating to defendant United Property and Casualty Insurance Company's failure to produce certain documents as part of its initial discovery protocol. Defendant opposes the motion. Doc. 27.

This suit arises from damage to plaintiffs' home in Hurricane Laura, which made landfall in Southwest Louisiana on August 27, 2020, and Hurricane Delta, which struck the same area on October 9, 2020. At all relevant times the property was insured under a homeowner's policy issued by defendant. Plaintiffs filed a claim with defendant for their losses suffered during the storms, and allege that the defendant failed to timely and adequately pay on the claim. Accordingly, plaintiffs filed suit in this court on June 21, 2021, raising claims of breach of insurance contract and bad faith. Doc. 1.

The court issued its Case Management Order (“CMO”), setting forth certain initial disclosure and mediation deadlines for cases arising from Hurricanes Laura and Delta in 2020. Doc. 2. The parties exchanged their initial disclosures under the CMO and proceeded through the streamlined settlement process outlined therein, but the case did not resolve. Doc. 14. On February 2, 2022, the case was set for jury trial before the undersigned on September 12, 2022. Doc. 15.

On April 22, plaintiffs filed the instant Motion to Compel. Here they complain that defendant failed to comply with the initial discovery protocols outlined in the CMO by (1) withholding certain documents without identifying them in the privilege log and (2) identifying other documents in its privilege log but failing to do so with sufficient information to allow plaintiffs or the court to evaluate its claims of privilege. Doc. 25, att. 3. Accordingly, they request that the court compel production of all withheld documents and grant them attorney fees and costs incurred with the motion. Id. Defendant opposes the motion, arguing that plaintiffs should have raised this issue while the matter was still under the CMO and that if the documents are still sought, plaintiffs should propound written new written discovery. Doc. 27.

A. Legal Standard

Federal Rule of Civil Procedure 26(b) defines the scope of discovery as follows:

Fed. R. Civ. P. 26(b)(1). Rule 37(a) governs motions to compel discovery responses and provides, as applies here, that a party may move to compel a discovery response if the opposing party fails to answer an interrogatory submitted under Rule 33 or fails to produce a document requested under Rule 34. Id. at 37(a)(3)(iii)–(iv). For purposes of this rule, “an evasive or incomplete disclosure, answer, or response must be treated as a failure to respond.” Id. at 37(a)(4). If the motion is granted or if the requested discovery is only provided after the motion is filed, “the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.” Id. at 37(a)(5)(A).

B. Application

*2 Part of the CMO includes the Initial Discovery Protocols (“Disaster Protocols”), which generally require that both parties produce certain initial disclosures within 45 days after the filing of a responsive pleading by the insurer. Doc. 2, att. 1, pp. 7, 9. For the insurer, these disclosures include complete and unaltered copies of the following documents:

Id. at 10–11.

The CMO further provides that information produced under the Disaster Protocols is subject to an Interim Protective Order. Id. at 13–14. The order states, however, that it “does not diminish the right of any party to apply to the court for a different or additional Protective Order relating to Confidential Information, to object to the production of documents or information, to apply to the court for an order compelling production of documents or information, or to modify this Order.” Id. at 14. Furthermore, in adopting the Disaster Protocols, the court recognized that some of the information subject to disclosure could also be subject to a claim of privilege and stated:

Doc. 2, p. 3 (emphasis added).

Plaintiffs admit that defendant produced a privilege log, as required under the CMO, but that they did not submit their disputes with the sufficiency of that log to the Deputy Special Master. Now that the case is no longer under the CMO, they request that the court review their disputes with the privilege log even though they have not propounded any additional written discovery on defendant. They reason that defendant has not changed its position, despite multiple emails and phone calls on the dispute in recent weeks, on the privilege applicable to these documents and that to require plaintiffs to go through the motions of making the request again will simply delay a resolution of the matter. Doc. 28.

Regardless of the delay, the court cannot reward plaintiffs for failing to seek relief when it was required under the CMO. Because plaintiffs failed to seek relief, the court will not sanction defendant for refusing to alter its position as the case proceeded. Plaintiffs must propound written discovery for all the withheld documents they seek and then request relief as required under the Federal Rules of Civil Procedure and the deadlines set forth under the scheduling order in this matter.

For the reasons stated above, IT IS ORDERED that the Motion to Compel and Motion for Attorney Fees [doc. 25] be DENIED.

THUS DONE AND SIGNED in Chambers this 18th day of May, 2022.