Vandervert Constr., Inc. v. Allied World Specialty Ins. Co.
Vandervert Constr., Inc. v. Allied World Specialty Ins. Co.
2022 WL 18781103 (E.D. Wash. 2022)
February 14, 2022
Dimke, Mary K., United States District Judge
Summary
The court granted Plaintiff's Motion to Compel and ordered Defendants to respond to Interrogatories and Requests for Production, including four Requests for Production related to claims handling standards, bad faith standards, resumes and curricula vitae, and cost containment programs. The court also ordered Defendants to produce all ESI in its native format, with all metadata intact, to ensure that the ESI is not altered and all relevant information is included in the production.
VANDERVERT CONSTRUCTION, INC., Plaintiff,
v.
ALLIED WORLD SPECIALTY INSURANCE COMPANY (f/k/a Darwin National Assurance Company), and Westchester Fire Insurance Company, Defendants
v.
ALLIED WORLD SPECIALTY INSURANCE COMPANY (f/k/a Darwin National Assurance Company), and Westchester Fire Insurance Company, Defendants
No. 2:21-cv-00197-MKD
United States District Court, E.D. Washington
Signed February 14, 2022
Counsel
John Charles Black, Richard T. Wetmore, Dunn & Black PS, Spokane, WA, for Plaintiff.Michael Edward Ricketts, Gordon Thomas Honeywell LLP, Seattle, WA, Ian M. Leifer, Gordon Thomas Honeywell LLP, Tacoma, WA, for Defendants.
Dimke, Mary K., United States District Judge
ORDER DENYING DEFENDANT'S MOTION TO QUASH AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO COMPEL ECF Nos. 9, 14
*1 Before the Court are Defendants’ Motion to Quash Subpoena Duces Tecum to Selvin Wraith Halman, LLP, ECF No. 9, and Plaintiff's Motion to Compel Discovery, ECF No. 14. These matters were heard together on February 1, 2022. Richard Wetmore appeared on behalf of Plaintiff and Michael Ricketts appeared on behalf of Defendants. The Court has reviewed the relevant pleadings and supporting materials and is fully informed.
BACKGROUND
In 2016, Plaintiff operated as a general contractor and contracted with Washington Square Hotel Holdings (Washington Square) for the construction and completion of a Hilton Garden Inn located in Bellevue, Washington (the Project). ECF No. 1-2 at 8. Pursuant to express terms of the construction contract, Washington Square purchased a Builder's Risk Xtra insurance policy from Defendants, under which Plaintiff was an additional insured. Id. at 8-9.
Plaintiff alleges that the Project suffered property damage in late 2016 and on April 27, 2018, Plaintiff filed a claim with Defendants for losses relating to the damage. ECF No. 1-2 at 10. Defendants retained Engle Martin & Associates (Engle Martin) to independently evaluate Plaintiff's claim. ECF No. 13 at 1. On November 26, 2019, Defendants denied Plaintiff's claims on the basis that the damage was not a covered occurrence under the insurance policy. ECF No. 1-2 at 11.
On May 14, 2021, Plaintiff filed suit against Defendants in Spokane County Superior Court alleging violation of Washington's Insurance Fair Conduct Act, bad faith, breach of contract, and negligence. ECF No. 1-2. On June 21, 2021, Defendants removed the action to this Court. ECF No. 1.
On May 19, 2021, while the matter was pending in state court, Plaintiff served Defendants with the First Set of Interrogatories and Requests for Production. ECF No. 13 at 4. On June 15, 2021, Plaintiff served a subpoena duces tecum on Engle Martin, which is not a party to this action, seeking Engle Martin's files and documents related to its work as the independent adjusters of Plaintiff's claim. Id. In July 2021, Defendants’ counsel disclosed that he had directed Engle Martin to deliver to him all documents responsive to the June 15, 2021 subpoena. Id. Engle Martin did so, and Defendants’ counsel thus took possession of the responsive documents from the non-party Engle Martin.
On September 9, 2021, Plaintiff re-served Defendants with the First Set of Interrogatories and Requests for Production which were “materially the same” as those previously served on May 15, 2021 when the matter was pending in state court. ECF No. 13 at 5. Because Defendants had not produced the Engle Martin documents of which Defendants’ counsel had previously taken possession, Plaintiff also issued and served a new subpoena from this Court to Engle Martin on September 22, 2021, seeking the same documents that were previously requested through the June 15, 2021 subpoena. Id. Engle Martin did not produce the documents to Plaintiff in response to the subpoena, serve objections to the subpoena, see Fed. R. Civ. P. 45(d)(2)(B), and neither Engle Martin nor Defendants filed a motion to quash the subpoena, see Fed. R. Civ. P. 45(d)(3).
*2 Defendants’ responses to Plaintiff's First Set of Interrogatories and Requests for Production were due on October 9, 2021. On October 7, 2021, Defendants’ counsel requested 30 additional days to respond to Plaintiff's discovery requests. Id. During a discovery conference on October 8, 2021, Plaintiff agreed to allow Defendants until October 21, 2021 (a ten-day extension) to respond to Plaintiff's discovery requests. Id. at 6.
On October 21, 2021, in response to the subpoena served on Engle Martin, Defendants’ counsel provided redacted copies of documents from Engle Martin, along with a privilege log. Id. The same day, Defendants responded to Plaintiff's interrogatories and requests for production, but produced only the Engle Martin documents. Plaintiff contends that, otherwise, Defendants “produced woefully incomplete, evasive, and non-responsive answers and responses ... as well as improper objections.” Id.
The parties participated in another discovery conference on October 27, 2021. Id. Defendants agreed to consider the issues identified by Plaintiff. Id. On November 9, 2021, Defendants provided some additional responsive documents, but Plaintiff asserts that Defendants “continued to refuse to produce significant categories of requested documents” and relied on insufficient boilerplate objections. Id. at 7. Ultimately, Defendants also created and sent to Plaintiff three separate purported privilege logs documenting a substantial number of e-mails and correspondence withheld under the auspices of attorney-client privilege and/or attorney-work product. See ECF Nos. 13-9, 13-10 and 13-11.
Apparently dissatisfied with Defendants’ answers and responses to their discovery requests, on November 12, 2021, Plaintiff served a subpoena duces tecum issued by this Court on Selvin Wraith Halman, LLP (Selvin Wraith). ECF No. 13 at 7. Selvin Wraith is a law firm that is not a party in this action and which represented Defendants before this action was commenced. Id. The Selvin Wraith subpoena commanded production of documents relating to Plaintiff's claim, including the entire claim file relating to Plaintiff's insurance claim with Defendants. Id. Pursuant to the subpoena, the documents and claim file were to be produced in Oakland, California, which is located in the Northern District of California; the subpoena demanded compliance no later than December 8, 2021 at 9:00 a.m. Id. Selvin Wraith did not produce the documents to Plaintiff in response to the subpoena, serve objections to the subpoena, see Fed. R. Civ. P. 45(d)(2)(B), and neither Selvin Wraith nor Defendants filed a motion to quash the subpoena prior to the date set for compliance, see Fed. R. Civ. P. 45(d)(3). Defendants’ communications with Plaintiff indicate they took possession of the responsive Selvin Wraith documents. ECF No. 12 at 4.
On December 8, 2021, at 4:43 p.m., after the time for compliance, Defendants’ counsel e-mailed an objection to the Selvin Wraith subpoena to Plaintiff's counsel. Id. at 9. The untimely objection was served on behalf of “Defendants Allied World Specialist Insurance Company and Westchester Fire Insurance Company,” not on behalf of Selvin Wraith, the subpoenaed third-party. Id.; see Fed. R. Civ. P. 45(d)(2)(B) (the subpoenaed person may serve objections to the party that issued the subpoena at the earlier of 14 days after the subpoena is issued or prior to the date compliance is required). During oral argument, Defendants’ counsel indicated that he also represented Selvin Wraith for purposes of the issues raised in these motions.
*3 On December 13, 2021, five days after the date for compliance, Defendants filed a Motion to Quash the Selvin Wraith subpoena with this Court. ECF No. 9. Thereafter, on December 27, 2021, Plaintiff filed a Motion to Compel discovery with respect to Interrogatory Nos. 6, 7, 11-14 and Requests for Production Nos. 1, 28-32, 34, 37-40, and 42-46. ECF Nos. 13-6, 13-7, 14.
LEGAL STANDARD
Nonprivileged information is discoverable under Federal Rule of Civil Procedure 26 if it is (1) relevant to any party's claim or defense, and (2) proportional to the needs of the case. Fed. R. Civ. P. 26(b). Information need not be admissible to be discoverable. Id. The Court has broad discretion in determining relevancy for discovery purposes. Surfvivor Media Inc. v. Survivor Prods., 406 F.3d 625, 635 (9th Cir. 2005).
Under Federal Rule of Civil Procedure 37, a party may bring a motion to compel discovery if a party fails to answer an interrogatory or produce a requested document. Fed. R. Civ. P. 37(a)(3)(iii), (iv). “[A]n evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.” Fed. R. Civ. P. 37(a)(4). The party seeking to avoid discovery bears the burden of showing why the discovery should not be permitted. Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975). Boilerplate objections constitute an evasive or incomplete answer or response and are therefore treated as a failure to answer or respond under Rule 37. See Halsey v. Croskrey, No. 2:20-CV-00371-SMJ, 2021 WL 6139659, at *3 (E.D. Wash. Oct. 4, 2021).
District courts have broad discretion to manage discovery. Laub v. United States DOI, 342 F.3d 1080, 1093 (9th Cir. 2003); Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). This discretion extends to crafting discovery orders that may expand, limit, or differ from the relief requested. See Crawford-El v. Britton, 523 U.S. 574, 598 (1998) (trial court has “broad discretion to tailor discovery narrowly and to dictate the sequence of discovery”).
ANALYSIS
A. Defendants’ Motion to Quash
Federal Rule of Civil Procedure 45 governs subpoenas. “A subpoena must issue from the court where the action is pending.” Fed. R. Civ. P. 45(a)(2). When the issuing court is not the same as the court where compliance is required, motions to quash or modify a subpoena must be filed in “the court for the district where compliance is required.” Fed. R. Civ. P. 45(d)(3). This is true unless the parties move the court where compliance is required to transfer the motion to the issuing court. Under Fed. R. Civ. P. 45(f), the court where compliance is required “may transfer a motion under this rule to the issuing court if the person subject to the subpoena consents or if the court finds exceptional circumstances.” Fed. R. Civ. P. 45(f).
This Court issued the Selvin Wraith subpoena because the action is pending in the Eastern District of Washington. The district where compliance is required, however, is the Northern District of California. Therefore, Defendants should have moved to quash the Selvin Wraith subpoena in the District Court for the Northern District of California. Defendants could have then moved to transfer the Motion to Quash to this Court under Rule 45(f). Defendants did not do so. Instead, five days after the date for compliance, Defendants filed their untimely Motion to Quash with this Court. During argument, Defendants contended that this Court has authority to rule on the motion because Rule 45 would allow for transfer of the motion and because this Court is the most convenient forum for the motion to be heard. However, when the court for the district of compliance differs from the issuing court, Rule 45 does not authorize the issuing court to hear a motion to quash based on the convenience of the parties. Moreover, while it is true that Rule 45(f) provides a procedure through which Defendants’ motion could have been transferred to this Court, Defendants failed to follow that procedure. Defendants’ Motion to Quash, ECF No. 9, is not properly before this Court, and is therefore DENIED.
*4 The Court is troubled by Defendants’ repeated failure to abide by the Federal Rules of Civil Procedure and encouragement of subpoenaed third-party entities to not comply with the rules governing this action. On two occasions when Plaintiff has issued subpoenas from this Court to third-party entities, Defendants have directed those entities to provide responsive documents to Defendants. The third-party entities have not served objections to the subpoena on the party issuing the subpoena or filed motions to quash. In the first instance, Defendants did not file a motion to quash and in the second instance, they filed an untimely motion to quash (five days after the date for compliance had expired) and filed the motion in an improper court.
B. Plaintiff's Motion to Compel
Plaintiff seeks an order compelling Defendants to provide discovery responses to Interrogatory Nos. 6, 7, 11-14 and Requests for Production Nos 1, 28-32, 34, 37-40, 42-46. As Plaintiff contended, many of Defendants’ answers, responses, and supplements stated and relied upon various combinations of the following blanket, boilerplate objections:
overbroad, unduly burdensome, not relevant to any party's claim, not proportional to the needs of the case, confidential, proprietary, harassing, seeking privileged work-product and attorney-work product
See, e.g., ECF Nos. 13-6 and 13-7; 14 at 4. As referenced above, such objections are so meaningless to a court tasked with resolving discovery disputes, that some courts deem boilerplate objections unworthy of any discussion at all. Ramirez v. Cty. Of Los Angeles, 231 F.R.D. 407, 409 (C.D. Cal. 2005) (“The parties can assume that the court has determined that any objection not discussed in this Order has been overruled because it is too general to merit consideration.”).
1) Interrogatories
For the reasons set forth on the record, Plaintiffs Motion to Compel is GRANTED as to Interrogatories 6-7 and 11-14. Defendants are directed to respond to Interrogatory No. 6, which provides:
Identify the specific reserve originally set for Plaintiff's claim and how such reserve was calculated. If the reserve was changed over time, identify when the change was made, who made the change, and the basis for the change.
Defendants are directed to respond to Interrogatory No. 7, which provides:
Identify the specific reserve originally set for Washington Square Hotel Holding's claim and how such reserve was calculated. If the reserve was changed over time, identify when the change was made, who made the change, and the basis for the change.
Defendants are directed to respond to Interrogatory No. 11, which provides:
From 2013 to the present, state whether you received any formal or informal customer complaints regarding independent claims adjuster Steve DeKoekkoek and/or his handling of insurance claims. For each such complaint, state: the date the complaint was received; the nature of the complaint with reasonable particularity; the name and telephone number of the complaining party; what actions, if any, were taken by you to investigate the complaint; and the present status, or disposition, of each complaint.
Defendants are directed to respond to Interrogatory No. 12, which provides:
From 2013 to the present, state whether you or any of your employees, agents, or supervisors disciplined or reprimanded independent claims adjuster Steve DeKoekkoek. If so, state the conduct for which Mr. DeKoekkoek was disciplined, the nature of the disciplinary action, and the date of the disciplinary action.
Defendants are directed to respond to Interrogatory No. 13, which provides:
From 2013 to the present, state whether you received any formal or informal customer complaints regarding independent claims adjuster Kim Cleveland and/or her handling of insurance claims. For each such complaint, state: the date the complaint was received; the nature of the complaint with reasonable particularity; the name and telephone number of the complaining party; what actions, if any, were taken by you to investigate the complaint; and the present status, or disposition, of each complaint.
*5 Defendants are directed to respond to Interrogatory No. 14, which provides:
From 2013 to the present, state whether you or any of your employees, agents, or supervisors disciplined or reprimanded independent claims adjuster Kim Cleveland. If so, state the conduct for which Ms. Cleveland was disciplined, the nature of the disciplinary action, and the date of the disciplinary action.
2) Requests for Production
For the reasons set forth on the record, Plaintiff's Motion to Compel is DENIED as to Requests for Production Nos. 30, 37, 38, and 46.
For the reasons set forth on the record, Plaintiff's Motion to Compel is GRANTED as to Requests for Production Nos. 1, 28, 29, 31, 32, 34, and 43-45.
Defendants are directed to respond to Request for Production No. 1, which provides:
Provide a true, correct and complete copy of all items or documents identified or relied upon in answering each of the previous interrogatories.
Defendants are directed to respond to Request for Production No. 28, which provides:
Produce a copy of the complete underwriting files referring or relating in any way to the Policy.
Defendants are directed to respond to Request for Production No. 29, which provides:
Produce a true, correct and complete copy of all correspondence, including but not limited to letters, minutes, memos, reports, emails or other document and any record of oral communications, whether in person or by telephone, to, from or between any employee, agent, independent adjuster or any other person acting on your behalf referring or relating in any way to the issuance of the Policy.
Defendants are directed to respond to Request for Production No. 31, as modified by the Court as follows:[1]
Produce a true, correct, and complete copy of any and all claims manuals, memoranda, directives, letters, or other forms of written or computerized communications that were in effect at the time the claim in this case was evaluated and denied and which governed the handling and determination of the claim at issue in this case.
Defendants are directed to respond to Request for Production No. 32, as modified by the Court as follows:[2]
Produce a true, correct, and complete copy of any and all written or computerized memoranda, communications, reports, directives, letters, or other documents that reflect, express, refer, or relate to your claim settlement policies that were in effect at the time the claim in this case was evaluated and denied and which governed the handling and determination of the claim at issue in this case.
*6 Defendants are directed to respond to Request for Production No. 34, as modified by the Court as follows:[3]
Produce a true, correct, and complete copy of any and all written or computerized memoranda, communications, reports, directives, letters, or other documents that reflect, express, refer, or relate to any changes to your claim settlement policies that were in effect at the time the claim in this case was evaluated and denied and which governed the handling and determination of the claim at issue in this case.
Defendants are directed to respond to Request for Production No. 43, as modified by the Court as follows:[4]
Produce a true, correct and complete copy of all claims handling standards, manuals, training materials, and related documents that were in effect at the time the claim in this case was evaluated and denied and which governed the handling and determination of the claim at issue.
Defendants are directed to respond to Request for Production No. 44, as modified by the Court as follows:[5]
Produce a true, correct and complete copy of all bad faith standards, manuals, training materials that were in effect at the time the claim in this case was evaluated and denied and which governed the handling and determination of the claim at issue.
Defendants are directed to respond to Request for Production No. 45, as modified by the Court as follows:[6]
For both Steve DeKoekkoek and Kim Cleveland, produce if it is in your possession a true, correct, and complete copy of the resume and/or curricula vitae on file.
3) Request for Production Nos. 39, 40, and 42
The Court previously reserved ruling on Plaintiff's Motion to Compel as to Request for Production Nos. 39, 40, and 42. Requests for Production 39 and 40 seek the contracts and agreements executed between Engle Martin and its independent adjusters, Steve DeKoekkoek and Kim Cleveland, including information about the compensation rate for these individuals. Request for Production 42 seeks documents relating to cost containment measures or bonus and incentive programs for claims handling.
*7 Incentive programs, bonus structures, and other similar information are relevant to this action as “any discovery request aimed at uncovering unfair deceptive acts or practices” is within the broad scope of discovery. Hover v. State Farm Mut. Auto. Ins. Co., No. CV-13-05113-SMJ, 2014 WL 4239655, at *3 (E.D. Wash. Aug. 26, 2014) (“[I]ncentive programs, bonus structures, and other similar information could help Plaintiff determine whether Defendant encourages its employees to undervalue claims.”). Thus, Plaintiff may inquire about bonus structures or other similar incentives for the employees who handled Plaintiff's claim. See Langley v. GEICO Gen. Ins. Co., No. 1:14-CV-3069-SMJ, 2015 WL 10937557, at *3 (E.D. Wash. Feb. 18, 2015). However, general compensation information does not “have the same relevance or capability to create bias or incentives to devalue claims.” Id.
Accordingly, Plaintiff's Motion to Compel regarding Requests for Production Nos. 39 and 40 is DENIED. Plaintiff's Motion to Compel regarding Request for Production No. 42 is GRANTED as follows:
Defendants are directed to respond to Request for Production No. 42, modified by the Court as follows:[7]
Produce a true, correct, and complete copy of any and all documents relating to cost containment, benefits, perks, bonuses, incentives, and quotas for claims handling that relate to Steve DeKoekkoek and Kim Cleveland and that were in effect at the time the claim at issue in this case was evaluated and denied.
C. Defendants’ Privilege Logs and Document Production
Defendants objected to many of Plaintiff's discovery requests under the auspice of attorney-client privilege and the work product doctrine. Because this is a diversity action, state law controls questions of attorney-client privilege. Home Indem. Co. v. Lane Powell Moss & Miller, 43 F.3d 1322, 1326 (9th Cir. 1995).
In Cedell v. Farmers Ins. Co. of Washington, the Supreme Court of Washington addressed attorney-client privilege in the context of insurance bad faith claims. 176 Wash. 2d at 698 (2013). Recognizing that an insured must have access to an insurer's file to discover facts in support of a bad faith claim, the court found that permitting “a blanket privilege in insurance bad faith claims because of the participation of lawyers hired or employed by insurers would unreasonably obstruct discovery of meritorious claims and conceal unwarranted practices.” Id. at 696–97. Therefore, the court adopted “the presumption that there is no attorney-client privilege relevant between the insured and the insurer in the claims adjusting process,” and that the attorney-client privilege is “generally not relevant” in bad faith claims. Id. at 698–99. In other words, there is a “presumption of discoverability” in bad faith cases. Id.
An insurer may rebut this presumption, however, “by showing its attorney was not engaged in the quasi-fiduciary tasks of investigating and evaluating or processing the claim, but instead in providing the insurer with counsel as to its own potential liability; for example, whether or not coverage exists under the law.” Id. at 699. If the insurer meets this showing, “[it] is entitled to an in camera review of the claims file, and to the redaction of communications from counsel that reflected the mental impressions of the attorney to the insurance company, unless those mental impressions are directly at issue in its quasi-fiduciary responsibilities to its insured.” Id. If an insurer successfully shows that the attorney-client privilege applies, Cedell holds that the insured nevertheless may be entitled to allegedly protected documents under the civil-fraud exception.
*8 Here, Defendants made no attempt to show and thus failed to demonstrate that Selvin Wraith was not engaged in the quasi-fiduciary tasks of investigating and evaluating or processing the claim, and therefore Defendants are not entitled, as a matter of right, to an in camera review of the documents Defendants deem privileged. However, in the Court's discretion it will undertake an in camera review of those documents and rule accordingly.
Similar to how Defendants’ responses to Plaintiff's discovery requests contained blanket, boilerplate objections, Defendants’ privilege logs are also devoid of the critical information that would have permitted Plaintiff—and this Court—to evaluate whether attorney-client privilege was properly asserted.
Defendants’ claims of work product protection are governed by federal law. Gamble v. State Farm Mut. Auto. Ins. Co., No. 3:19-CV-05956-RJB, 2020 WL 4193217, at *3 (W.D. Wash. July 21, 2020) (citing Fed. R. Evid. 501; Fed. R. Civ. P. 26(b)(3)). The work-product doctrine protects “from discovery documents and tangible things prepared by a party or his representative in anticipation of litigation.” United States v. Richey, 632 F.3d 559, 566 (9th Cir. 2011) (citing Fed. R. Civ. P. 26(b)(3)). “The work-product doctrine covers documents or the compilation of materials prepared by agents of the attorney in preparation for litigation.” Id. Like the assertions of attorney-client privilege, Defendants’ assertions of work product protection are devoid of the critical information that would have permitted evaluation of whether the protection was properly asserted.
When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents ... that ... will enable other parties to assess the applicability of the privilege or protection.
Fed. R. Civ. P. 26(b)(5).
Because of the deficiencies in Defendants’ privilege logs, and as set forth on the record, Defendants shall provide the Court and Plaintiff with an updated privilege log that is legally and factually sufficient for this Court to make a proper ruling as to whether the attorney-client privilege or work product doctrine applies to any documents withheld on one or both of these bases. Defendants shall produce to this Court and Plaintiff the updated privilege log no later than March 1, 2022. No later than March 1, 2022, Defendants shall also provide the Court with copies—in proposed redacted and unredacted form—of any documents Defendants deem protected or privileged for in camera review. The parties may provide the Court with briefing as to which documents should be deemed privileged or protected no later than March 15, 2022.
D. Attorney Fees and Costs
Plaintiff's Motion to Compel also seeks attorney fees and costs for the expenses it incurred in bringing the Motion to Compel. ECF No. 22 at 11. Under Fed. R. Civ. P. 37(a)(5), “[i]f a motion to compel discovery responses is granted in part and denied in part, or discovery is only provided after the motion has been filed, the court may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.” Carbon v. Seattle Reprod. Med. Inc. PS, No. 219CV01491RAJJRC, 2020 WL 5513600, at *1 (W.D. Wash. Sept. 14, 2020). “The party seeking fees bears the burden of documenting the hours expended in the litigation and must submit evidence supporting those hours and the rate claimed.” Welch v. Metro. Life Ins. Co., 480 F.3d 942, 945-46 (9th Cir. 2007).
*9 Pursuant to Fed. R. Civ. P. 37(a)(5), this Court will entertain an award of attorney fees and costs upon proper showing of the expenses Plaintiff incurred in bringing its Motion to Compel. Plaintiff is directed to file its motions for attorneys’ fees and costs no later than February 28, 2022.
As set forth above, IT IS HEREBY ORDERED:
1) Defendants’ Motion to Quash, ECF No. 9, is DENIED.
2) Plaintiff's Motion to Compel is GRANTED in part and DENIED in part. Defendants shall respond to Interrogatory Nos. 6-7 and 11-14. Defendants shall also respond to Request for Production Nos. 1, 28, 29, 31, 32, 34, and 42-45 as set forth in this Order.
3) Defendants shall submit to Plaintiff and the Court updated privilege logs no later than March 1, 2022.
4) Defendants shall submit for in camera review no later than March 1, 2022 the documents, in both redacted and unredacted form, which they assert are protected by attorney-client privilege and/or the work product doctrine.
5) The parties may submit briefing relating to the privilege logs and withheld documents no later than March 15, 2022.
6) Plaintiff may file a motion for attorney fees associated with the costs it incurred in bringing its Motion to Compel no later than February 28, 2022.
IT IS SO ORDERED.
Footnotes
The original text of RFP No. 31 read as follows: From 2011 to the present, produce a true, correct and complete copy of any and all claims manuals, memoranda, directives, letters, or other forms of written or computerized communications directed to claims personnel, claims counsel, claims managers, claims supervisors, claims adjusters, independent adjusters or any other person acting on your behalf in the handling of Builder's Risk or construction related claims.
The original text of RFP No. 32 read as follows: Produce a true, correct and complete copy of any and all written or computerized memoranda, communications, reports, directives, letters, or other documents that reflect, express, refer, or relate to your claim settlement policies as they existed at the time you denied Plaintiff's claim on the Project/Policy.
The original text of RFP No. 34 read as follows: Produce a true, correct and complete copy of any and all written or computerized memoranda, communications, reports, directives, letters, or other documents that reflect, express, refer, or relate to any changes in or to your claim settlement policies subsequent to the time you denied Plaintiff's claim on the Project/Policy.
The original text of RFP No. 43 read as follows: Produce a true, correct and complete copy of all claims handling standards, manuals, training materials, and related documents from 2011 to the present.
The original text of RFP No. 44 read as follows: Produce a true, correct and complete copy of all bad faith standards, manuals, training materials, and related documents from 2011 to the present.
The original text of RFP No. 45 read as follows: For each individual identified in the Interrogatories above, who is or was your employee, produce a true, correct and complete copy of his or her resume and/or curricula vitae showing his or her education, experience, and employment information for at least the last ten (10) years.
The original text of RFP 42 read as follows: Produce a true, correct and complete copy of any and all documents relating to the creation, implementation and application of any cost containment, pay, bonus or incentive programs for claims handling, claims handling employees, claims handling supervisors, and independent claims adjusters from 2011 to the present.