Before the Court is Travelers Indemnity Company's (“Travelers”) Motion for Protective Order Regarding Wolverine's Supplemental Notice of 30(b)(6) Deposition and Individual Depositions (ECF Nos. 1557 and 1560). Wolverine's Response is at ECF No. 1627.

Defendants Century, North River, First State, AIC, and SPARTA filed Joinder Motions to Travelers’ Motion for Protective Order.[1]

Travelers filed a Motion for Leave to File a Reply (ECF No. 1649) and Wolverine filed a Response in Opposition to Travelers’ Motion for Leave to File a Reply (ECF No. 1651). The Motion for Leave to File a Reply is hereby DENIED.

After reviewing the briefs, appended exhibits, cases cited, and having heard oral argument on August 25, 2022, the Special Master recommends that the Motion be Granted in Part and Denied in Part for the reasons stated herein. The Special Master notes that Travelers’ Motion, along with the five joinder motions, involves eight 30(b)(6) deposition notices and objections/responses to those notices. First State received one notice for its Umbrella policy and one notice for its Excess policy and AIC received one notice for its Pre-1985 Policies and one notice for its 1985-1986 policy. The Special Master has reviewed all eight responses and objections to each of those notices, hence the length of this Report and Recommendation.

I. The Motions for Protective Order

In summary, Travelers’ Motion claims that Wolverine's Supplemental Notice of 30(b)(6) deposition is overly broad, unduly burdensome, seeks legal analysis and conclusions from lay witnesses, seeks duplicative discovery, seeks discovery regarding claims, seeks information on policies and policy holders not at issue in this action, and seeks discovery protected from disclosure by the attorney-client privilege and the work product doctrines. Travelers also alleges that the Supplemental Notice requests testimony on reserves and reinsurance despite the fact that the Special Master has prohibited discovery on such subjects in prior orders.

The Umbrella/Excess Insurers that filed joinder motions to Travelers’ Motion mostly adopt and incorporate Travelers’ objections and legal arguments and add arguments specific to their insurance company. The specific relief requested by each Umbrella/Excess Insurer will be addressed herein.

In response, Wolverine argues that Travelers and Joining Defendants have not shown good cause for a protective order in that they have not articulated any particularized injury or prejudice. Wolverine also contends that in its Amended Supplemental 30(b)(6) Notice of Deposition to Travelers, Century, and Chubb Defendants, Wolverine narrowed the years of policies at issue. See ECF No. 1628-5, PageID.129329, Ex E. Wolverine states that the deposition notices identify 14 general topics of examination and identifies within those topics specific areas of inquiry. Wolverine contends Defendants’ broad assertions of privilege over their entire claims handling business is fictional and contrary to established case law. Wolverine further argues that Defendants cannot shield their business activity of evaluating and investigating claims from discovery, particularly because those activities are specifically at issue as part of the claims and defenses in this case.

*2 Wolverine further alleges that Defendants are disingenuous in their assertion that Topics C.8–11 and D.12–15 request testimony on nearly 50 years of claims handling policies and procedures. Wolverine asserts it made clear to the parties at the meet and confer that Wolverine seeks testimony on these topics in accordance with what this Court has already deemed relevant. See ECF No. 1391 (ECF No. 1627, PageID.129085). Further, Wolverine says it agreed to narrow the scope of the term “Policies” in the amended notice of deposition with respect to Topics A.1–4 and G.18–20 (seeking Defendants’ interpretation of policy terms and application thereof to Wolverine's claims) and agreed that the term “Policies” shall mean the policies issued by each Defendant to Wolverine. With respect to Topic B.5–7 (seeking testimony of Defendants’ defense of custom and practice in the industry), Wolverine agreed that the term “Policies” shall mean commercial general liability policies that include long-tail environmental coverage issued between 1979 to present for Travelers and between 1976 to present for Century.

Travelers attached as an exhibit its Chart of Objections and Responses to the Notice. ECF No. 1560-2, PageID.127295-127318, Ex. B. Likewise, Wolverine attached as an exhibit its chart showing Travelers and Chubb Objections and Wolverine's responses to the objections (ECF No. 1628-10, PageID.129501-129509, Ex. J). The Joining Defendants did not summarize their objections in any way.

Century alleges that the 30(b)(6) Notice of Deposition (the “Notice”) served on Century is virtually identical to the Notice served on Travelers. Accordingly, Century's objections are very similar to Travelers. In addition, Century objects to presenting a witness on the duty to defend issue as this topic was addressed by the Court in Phase I and the topic is therefore not relevant to the matters at issue in Phase II of this litigation. Century argues that it would be a waste of both the parties’ and the Court's time and resources to allow testimony on such topics that have nothing to do with the issues remaining in Phase II.

North River's objections are similar to Travelers’ and Century's objections. Additionally, North River contends certain definitions such as “underlying insurance,” “duty to indemnity,” the definition of “North River Policy”, “Your Policy” or “the Policy” and the definition of “umbrella liability policies,” when read both on their own and in the context of individual topics, render numerous topics incomprehensible and incapable of meaningful interpretation. North River contends, for example, that the definition of “underlying insurance,” if taken literally, would include every single liability insurance policy issued by any insurance company to any policyholder from 1908-1986, a 78 year period. North River argues that it would be impossible to prepare a witness to testify in response to a topic with such a broad scope, nor would testimony concerning any insurance policy other than the single North River umbrella policy at issue in this case be relevant or proportional to the needs of the case.

North River further contends the Notice seeks testimony concerning “custom and usage” as it relates to insurance policy terms and that such testimony is within the purview of an expert. Accordingly, it is not the proper subject of a lay Rule 30(b)(6) deposition. See ECF No. 329, PageID.10959-960, PageID.11317.

North River adopts Travelers arguments concerning the notices of individual depositions to North River witnesses Garry Lane, Kylie Holladay, and Kurt Fischer. North River contends that its objections to the Notice apply with equal force to the individual depositions due to Wolverine's unwillingness to limit their scope.

North River further argues that the Notice contains numerous topics that are duplicative of Wolverine's other discovery efforts and information already provided in this action by North River, including Topics 15, 18, 21-22, 27, 32, 38, 41-43, 49-52, 54- 61, and 65-69. Thus, the Notice violates prior orders such as ECF No. 326, PageID.10957 and ECF No. 365, PageID.11316 (striking 30(b)(6) deposition topics that were “duplicative of information previously provided and will not be permitted by the Special Master”).

*3 Also, North River argues Topics 1, 5-7, 13, 16, 20, 23, 28, 33, 39, 45, and 47 in the Notice seek testimony concerning “custom and usage” which was previously stricken by the Special Master. ECF No. 329, PageID.10959-960, PageID.11317 (“[i]nterpretation of an insurance policy beyond the plain language of the policy requires a legal conclusion and/or is the subject of expert testimony”).

North River requests that the Court grant Travelers’ Motion, that certain topics be stricken or limited in scope, and the individual witnesses be likewise limited in scope.

Wolverine served two Notices of 30(b)(6) Depositions on Defendant First State. One Notice relates to the First State umbrella policies (“Umbrella Notice”) (ECF No. 1585-1, Ex. A), and consists of 78 Topics, excluding many subparts. The second Notice relates to the First State excess policies (“Excess Notice”) (ECF No. 1585-2, Ex. B) and consists of 81 Topics, plus subparts.

Again, Wolverine served an individual deposition notice for First State employee, Lynn Ward. First State argues that its objections to the topics in the Notices should apply equally with respect to any individual witness, including Lynn Ward.

First State contends that the same arguments raised in Travelers’ Brief relating to Topics C.8-11 and D.12-15 in Travelers’ Notice also apply to Topic 16 in the Umbrella Notice and Topic 14 in the Excess Notice. Topics 11-15 in the Umbrella Notice and 10-13 in the Excess Notice seek testimony regarding First State's “policies, guidelines, manuals, training and procedures,” and have no time limitation, contrary to the Special Master's Order limiting the relevant time periods for this topic to one year before and one year after the end of First State's policy periods, and 2014 to the present date. ECF. No. 1502, PageID.126819.

First State objects to Wolverine's Topics regarding the “custom and usage” of insurance policy terms or the “insurance industry custom and practice” regarding various topics (Umbrella Notice Topics 3, 7-10, 17, 20, 23, 27, 31, 34, 37, 40, 45, 49, 51 and Excess Notice Topics 3, 7-9, 15, 21, 26, 29, 33, 36, 39, 42, 48, 50, 55). First State contends that industry custom and practice is the province of expert testimony, seeks a legal conclusion, and is not an appropriate inquiry for a lay witness in a Rule 30(b)(6) deposition. ECF No. 329, PageID.10959-960, PageID.11317.

First State further objects to certain definitions such as “Your Policies,” the definitions of “First State Umbrella Policies,” “First State Excess Policies,” “Your Policies,” or “the Policies” and argues the definitions are overbroad with no temporal limitations as the topics request information for policies issued during the years 1908 through 1986. First State contends that Wolverine should be limited to seeking testimony only regarding the policies at issue in this action.

First State also contends the Notices contain Topics that are duplicative of information and documents already provided by First State in discovery in this action, including Umbrella Topics 31-33, 36, 39, 44, 48, 55, 59, 60, 62, 70, 74 and Excess Topics 20, 33-35, 38, 41, 47, 54, 62, 63, 65, 73, 77. See ECF No. 326, PageID.10957; ECF No. 365, PageID.11316 (striking 30(b)(6) deposition topics that were “duplicative of information previously provided and will not be permitted by the Special Master”). However, no specific discovery is referenced that the Notice duplicates and a 30(b)(6) witness can still be questioned on written discovery. See Marker v. Union Fidelity Life Ins. Co., 125 F.R.D. 121, 126 (1989).

*4 First State also argues that umbrella Topics 12, 54, 57, 58, 61, 64, and 70 relate to both the duty to defend and duty to indemnify and the Court should enter an order limiting the scope of these topics to only the duty to indemnify. First State requests that the Court grant Travelers’ Motion and enter a Protective Order striking certain topics and limiting others.

Defendant AIC joins Travelers Motion for Protective Order and the Joinders filed by Century, First State, and North River and largely adopts other Defendants’ objections.

Wolverine served two 30(b)(6) Deposition Notices on AIC, one relating to AIC Policies effective 1/1/80 through 1/1/85 (“Pre-85 Notice”), and one relating to the AIC Policy issued for the policy period 1/1/85-1/1/86 (“85-86 Notice”). Wolverine also served AIC with notices of individual depositions of Darrell McCarley and Joey Solomon. AIC requests that it should not be required to produce the individual witnesses for depositions until after the corporate designee testifies.

Defendant SPARTA joined Travelers’ Motion and mainly adopts Travelers’ arguments in Section III.B.4 of Travelers’ Brief. SPARTA alleges that topics are overly broad, disproportional, unduly burdensome, duplicative, and seek information as to duty to defend which was a Phase I issue and discovery is closed as to Phase I.

SPARTA also objects to the definition of “Your Policies” as being overbroad and encompassing all policies issued from 1908 through 1986. SPARTA contends that testimony concerning any insurance policy other than the AEIC umbrella policies at issue in this case is irrelevant and not proportional to the needs of this case.

Finally, SPARTA alleges that Wolverine noticed depositions of individual fact witnesses, Sumi Yang and Madeleine Bass, who have no affiliation with SPARTA. If that is the case, there should be a declaration to that effect and since there was not, no relief will be granted pertaining to this request. It should be a short deposition if this true, provided that SPARTA is able to produce the witnesses at all.

SPARTA requests that the Court grant Travelers’ Motion and also strike certain topics and limit the scope of others in the SPARTA notice.

II. Standard of Review

Fed. R. Civ. P. 26 permits a court “for good cause, [to] issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense...forbidding inquiry into certain matters or limiting the scope of disclosure or discovery to certain matters.” Fed. R. Civ. P. 26(c)(1)(D). While the moving party has the burden of establishing good cause, the question of whether to issue a protective order is “within the broad discretion of the district court in managing the case.” Lewelling v. Farmers Ins. of Columbus, Inc., 879 F.2d 212, 218 (6th Cir. 1989); See also, Nix v. Sword, 11 F. App'x 498, 500 (6th Cir. 2001); Serrano v. Cintas Corp., 699 F.3d 884, 901 (6th Cir. 2012). “Good cause exists if specific prejudice or harm will result from the absence of a protective order.” In re Ohio Execution Protocol Litig., 845 F.3d 231, 236 (6th Cir. 2016) (internal citations omitted). The party must further show that the harm outweighs the need for the requested information. Id. “The burden of establishing good cause ... rests with the movant” who must “articulate specific facts showing ‘clearly defined and serious injury’ resulting from the discovery sought.” Nix, 11 Fed.Appx. at 500 (6th Cir 2001) (quoting Avirgan v. Hull, 118 F.R.D. 252, 254 (D.D.C. 1987)). In considering whether good cause for protection exists, the Court must “balance the interests in favor of disclosure against the interests in favor of nondisclosure.” In re Nat'l Prescription Opiate Litig., 927 F.3d 919, 931 (6th Cir. 2019).

*5 A Rule 30(b)(6) notice “must describe with reasonable particularity the matters for examination, and the deponent must testify about information known or reasonably available to the organization.” Edwards v. Scripps Media, Inc., 331 F.R.D. 116, 120 (E.D. Mich. 2019). A notice of deposition made pursuant to Rule 30(b)(6) requires the corporation to produce one or more officers to testify with respect to matters set out in the deposition notice or subpoena. A party need only designate, with reasonable particularity, the topics for examination. The corporation then must not only produce such number of persons as will satisfy the request, but more importantly, prepare them so that they may give complete, knowledgeable, and binding answers on behalf of the corporation. Marker v. Union Fidelity Life Ins. Co., 125 F.R.D. 121, 126 (1989) (internal citations omitted).

Nothing in the Federal Rules of Civil Procedure gives a party the right to not respond or inadequately respond to a Rule 30(b)(6) deposition notice or subpoena request and elect to supply the answers in a written response to an interrogatory. Id. Rule 26 requires “a court to consider whether a Rule 30(b)(6) deposition would be cumulative, duplicative, unreasonably burdensome, and disproportionate to the needs of the case.” Edwards v. Scripps Media, Inc., 331 F.R.D. 116, 120 (E.D. Mich. 2019).

As noted by the Edwards court, neither Rules 26(b)(1) nor 26(b)(2) require a showing of good cause, and thus “courts have quashed or limited Rule 30(b)(6) depositions with no reference to Rule 26(c)(1)” – i.e., without any need for a showing of “good cause.” Id. at 122. There is no dispute that topics must be stated with enough specificity to allow the corporation to designate and prepare a representative to testify. Id. at 121. So, ordinarily, “prior deposition testimony from individual fact witnesses does not relieve a corporation ‘from designating a corporate spokesperson in response to a Rule 30(b)(6) notice of deposition.’ ” Majestic Bldg. Maint., Inc. v. Huntington Bancshares Inc., No. 2:15-CV-3023, 2018 WL 3358641, at *12 (S.D. Ohio July 10, 2018).

Although good cause is required to be shown for a protective order, “... Rule 26(b)(2) allows a court to limit discovery on its own motion. Rule 30(b)(6) also incorporates a “reasonable particularity” requirement without stating that an objection must show “good cause” as defined by Rule 26(c)(1).

Other rules of discovery require a court to consider whether a Rule 30(b)(6) deposition would be cumulative, duplicative, unreasonably burdensome, and disproportionate to the needs of the case. First, Federal Rule of Civil Procedure 26(b)(1) applies to Rule 30(b)(6) cases. Edwards v. Scripps Media, Inc., 331 F.R.D. 116, 121 (E.D. Mich. 2019) (internal citations omitted). Under Rule 26(b)(1), “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense,” except that the Court must consider proportionality factors, including “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.” Rule 26(b)(2)(C) also requires, in relevant part, that the Court limit discovery otherwise allowed if “(i) the discovery sought is unreasonably cumulative or duplicative or can be obtained from some other source that is more convenient, less burdensome, or less expensive” or “(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action.” This rule likewise applies to a Rule 30(b)(6) deposition notice. Edwards v. Scripps Media, Inc., 331 F.R.D. 116, 121-122 (E.D. Mich. 2019) (internal citations omitted).

III. Analysis

*6 Defendants argue that prior discovery rulings and a prior protective order are dispositive of many objections raised in Travelers’ Motion and the Joining Defendants’ Motions. These prior rulings are somewhat relevant to this Motion. In particular:

In ECF No. 326, on Wolverine's Motion for a Protective Order Regarding Defendants’ 30(b)(6) notice (ECF No. 272 and 273), topics that were “duplicative of information previously provided were stricken and will not be permitted by the Special Master.” Id., PageID.10957. Wolverine argued in its Motion for Protective Order that the six sets of discovery were unnecessarily duplicative and attached three sets of prior discovery requests to illustrate the duplicative nature of the six above sets. This Special Master agreed stating “[a]t times, the requests are essentially verbatim of each other. More to the point, however, substantially all of the information sought by Defendants has already been subject of three previous sets of discovery.” ECF No. 326.

In ECF No. 365, topics seeking legal conclusions from lay witnesses were held impermissible because “[i]nterpretation of an insurance policy beyond the plain language of the policy requires a legal conclusion and/or is the subject of expert testimony.” ECF No. 365, PageID.11317. Further in ECF No. 365 it was held that it “would be unduly burdensome to ask the deponent to testify as to each such correspondence” when the correspondence was already produced. ECF No. 365, PageID.10958.

In ECF No. 329, topics that are vague or unduly burdensome must be redrafted to identify the subject matter of the requested testimony “with reasonable particularity.” ECF No. 329, PageID.10959.

In ECF No. 1391 (Order on Remand), it was held that reserves are not relevant, unlikely to lead to discovery of admissible evidence, and therefore not discoverable. It was further held that reinsurance polices themselves are discoverable pursuant to Fed. R. Civ. P. 26(a)(1)(A)(iv), but all other documents relating to reinsurance are irrelevant and not discoverable.” Id., PageID.123837-123838. Travelers and Century were Ordered to produce all claims handling communications from January 1, 2017 through the current date. Id., PageID.123840.

Travelers and Century were also ordered to produce all claims manuals, guidelines, and policy and procedure manuals issued and effective January 1, 2014 through the current date. Id., PageID.123840 (“Travelers is ordered to produce all claims manuals, guidelines and policy and procedure manuals issued and effective between 1979-1987.”).

This Court has already held that policy interpretation is a legal conclusion for the Court and not the parties. ECF No. 326, PageID.10959-60 (“Interpretation of an insurance policy beyond the plain language of the policy requires a legal conclusion and/or is the subject of expert testimony”).

As the result of the above prior holdings, topics in any of the 30(b)(6) Notices seeking testimony about reserves or reinsurance policies are stricken. Additionally, any Topics asking for information about policies is limited to the policies at issue in this case and pertaining to the years that the policies were in effect and any Topics asking for information about claims handling communications, claims manuals, guidelines, and policy and procedure manuals is limited to the periods of time outlined in ECF No. 1391 for Travelers and Century. Testimony is limited to the years as outlined in ECF No. 1532, PageID.127047 for Defendant AIC, and ECF No. 1502, PageID.126819 for First State.

*7 Although Defendant North River was not compelled to produce discovery, North River represented in a prior pleading that North River agrees to produce “all claims manuals, guidelines, and policy and procedure manuals issued and effective January 1, 2014 through the current date,” as well as “all claims manuals, guidelines, and policy and procedure manuals issued and effective” during the period beginning one year prior to the inception of North River's policy and ending one year after the expiration of the policy, and agreed to produce documents consistent with prior orders. ECF No. 1552, PageID.127157. Therefore, the North River deposition notice is limited to testimony pertaining to those years and the policies at issue.

The relief requested by Travelers and the Joining Defendants is that certain 30(b)(6) topics be stricken or topics limited. The Special Master finds that all 30(b)(6) depositions and individual depositions should go forth subject to the topics stricken and limitations contained herein.

Travelers points to Wolverine's prior Motion for a Protective Order wherein the Special Master ruled that deposition topics seeking testimony in the form of legal conclusions or legal analysis are impermissible. Wolverine previously argued that a “legal conclusion, like the interpretation of policy terms is, at this point, a job for this Court, not the parties. Deposition topics seeking legal conclusions exceed the permissible scope of a Rule 30(b)(6) deposition.” ECF No. 273, PageID.10305. The Special Master agreed with Wolverine and held that “[i]nterpretation of an insurance policy beyond the plain language of the policy requires a legal conclusion and/or is the subject of expert testimony,” and therefore, topics seeking such information were disallowed. ECF No. 326, PageID.10959. See U.S. Fire Ins. Co. v. City of Warren, No. 2:10-CV-13128, 2012 WL 1454008, at *8 (E.D. Mich. Apr. 26, 2012).

Wolverine argues here that asking the Defendant Insurance companies questions on policy interpretation, in comparison to Wolverine's lay witnesses, should be allowed as the Insurers, unlike Wolverine, are in the business of developing, creating, drafting, marketing, selling and interpreting insurance policies. The Special Master agrees and will allow the corporate designee and individual witnesses to testify as to their interpretation of their own policy terms. These questions do not seek legal conclusions, but rather inquire as to the Defendants’ interpretations of their own policies and therefore seek relevant information. See Matthew v. Unum Life Insurance Co. of Am., 2009 WL 10710597, *6 (D. Minn. Apr. 10, 2009).

North River and First State argue that topics in the Notices seeking testimony concerning “custom and usage” or the “insurance industry custom and practice” regarding various topics was previously stricken by the Special Master. ECF No. 329, PageID.10959-60 (“[i]nterpretation of an insurance policy beyond the plain language of the policy requires a legal conclusion and/or is the subject of expert testimony”).

First State contends that industry custom and practice is the province of expert testimony, seeks a legal conclusion, and is not an appropriate inquiry for a lay witness in a Rule 30(b)(6) deposition. See ECF No. 329, PageID.10959-960, PageID.11317.

However, the Special Master concludes that the topics seeking testimony related to “custom and usage” do not call for improper expert testimony, as the Insurers have mounted a custom and practice defense in this matter and Wolverine has a right to understand the bases underlying this defense. Additionally, an expert needs a factual basis for its opinions. Accordingly, this topic will be allowed.

*8 The test for reasonable particularity is whether the request places the party upon “reasonable notice of what is called for and what is not.” Majestic Bldg. Maintenance, Inc. v. Huntington Bancshares Incorporated, 2018 WL 3358641, at *6. “An overly broad Rule 30(b)(6) notice may subject the noticed party to an impossible task.” Georgia-Pac. Consumer Prod., LP. v. NCR Corp., No. 1:11-CV-483, 2015 WL 11236844, at *1 (W.D. Mich. Feb. 23, 2015). Reasonable particularity exists where the subject matter stated in the notice is “specific and understandable.” Marker v. Union Fid. Life Ins. Co., 125 F.R.D. 121, 125–26 (M.D.N.C. 1989).

Travelers alleges that the Topics C.8-11 and D.12-15 seek testimony regarding claims in existence between 1970 and the present day. Travelers states that this is more than 50 years of claims handling on matters unrelated to Wolverine's claims and is overly broad. These requests must be related to Wolverine's underlying claims and for the policies that are at issue in this case and limited to the years outlined in the former discovery orders. ECF No. 1391, PageID.123840.

Travelers alleges that Topic N regarding Travelers’ written discovery responses and document productions is not stated with particularity and is overbroad. Although Courts have found 30(b)(6) topics regarding discovery responses to lack reasonable particularity and are overbroad, nothing in the Federal Rules of Civil Procedure gives a party the right to not respond or to inadequately respond to a Rule 30(b)(6) deposition notice or subpoena request and elect to supply the answers in a written response to an interrogatory. See Majestic Bldg., 2018 WL 3358641, at *7, citing Fish v. Air & Liquid Sys. Corp., CV GLR-16-496, 2017 WL 697663, at *20 (D. Md. Feb. 21, 2017) (deposition topics that seek “all discovery responses and answers[,]” inter alia, “do[ ] not provide reasonable guidance on what is actually being sought”); Smithkline Beecham Corp. v. Apotex Corp., 98 C 3952, 2000 WL 116082, at *9 (N.D. Ill. Jan. 24, 2000) (deposition topics seeking information regarding defendants’ discovery responses were “overbroad, unduly burdensome, and an inefficient means through which to obtain otherwise discovery information”); Georgia Pac., supra, 2015 WL 11236844 (30(b)(6) notice that sought, among other things, testimony regarding defendant's discovery responses did not meet the particularity requirement). Further, Rule 26 requires “a court to consider whether a Rule 30(b)(6) deposition would be cumulative, duplicative, unreasonably burdensome, and disproportionate to the needs of the case.” Edwards v. Scripps Media, Inc., 331 F.R.D. 116, 120 (E.D. Mich. 2019).

Balancing the support for the parties’ respective positions in this case, the Special Master finds these topics related to discovery documents are not stated with sufficient particularity, overly broad, unreasonably burdensome, and unlikely to lead to relevant or admissible evidence. As such, Travelers is not required to present a deponent under Rule 30(b)(6) in response to Topic N. However, it is noted that Travelers states in its brief that it agreed to present a corporate designee on topics N.44 and 45 (See ECF No. 1560, PageID.127218-19), so a deponent must be presented with respect to those Topics.

*9 Travelers and other Defendants allege that all of the topics potentially seek discovery of privileged or protected information and a blanket protective order is required to preclude testimony in that respect.

Wolverine argues that Defendants cannot make a showing that the attorney client or work product doctrines apply to any of the topics at issue. Wolverine claims that Defendants’ fail to make any showing that Wolverine's topics seek disclosure of legal advice as opposed to business advice and for this reason alone their Motion should fail. Burke v. Cumulus Media, Inc., 2017 WL 2628192, *1 (E.D. Mich. Mar. 16, 2017). Wolverine argues that courts have held that attorneys assisting with assessing a policyholder's request for coverage are performing a business function and cannot avail themselves of the protection associated with the attorney-client privilege or the work product doctrine. See Flagstar Bank v. Fed. Ins. Co., 2006 WL 6651780, *4 (E.D. Mich. Aug. 21, 2006); Michigan First Credit Union v. Cumis Ins. Soc., Inc., 2006 WL 1851018, *2 (E.D. Mich. 2006). Wolverine contends that its topics seek testimony on Defendants’ core business activity of investigating claims and making coverage decisions. See Young v. Chapman, 2016 WL 1717226, *6 (W.D. Ky. Apr. 28, 2016) (“Making coverage decisions is part of the ordinary business of insurance and if the ‘driving force’ behind the [communication or] preparation of these documents was to assist [the insurer] in deciding coverage, then they are not protected by the [attorney-client or] work-product doctrine”); Michigan First Credit Union, 2006 WL 1851018, *1 (insurance companies cannot use the work product doctrine “to relieve themselves of the burden of producing factual information accumulated in what appears to be routine investigations”).

The Special Master views this argument as more of an evidentiary objection and without having specific questions or documents to address, will not order a blanket protective order. This Court has already ruled that these privileges do not apply to claims handling files or to testimony concerning Defendants’ handling of Wolverine's claims and investigations, regardless of whether their claim handlers went to law school. ECF No. 1357. To the extent that other issues arise during the course of any deposition for which an Insurer seeks to assert the attorney-client privilege, or any other privilege recognized by law, the privilege may be asserted during the deposition by counsel in response to specific questions of the deponent.

Travelers argues that in Wolverine's Notices, 98 out of the 131 Topics seek testimony regarding the “Travelers Policies” or “Your Policies,” which is defined to include “any liability insurance policies...issued by Travelers during the years 1908 through 1986.” See, e.g., A.1-4, B.5-7 and G.18-20. Travelers thus argues that Wolverine is seeking a corporate designee to testify about 78 years of insurance policies issued by Travelers to anyone – including over 70 years during which Travelers is not alleged to have issued any policies to Wolverine.

The Special Master notes that Wolverine has narrowed the definition of Policies in its Notices to include just the Policies at issue in this action which should shorten the time period substantially, in particular regarding Topics A.1-4, B.5-7, C.8-11, D.12-15, G.18-20, H.21-34, and I. 35-37. ECF No. 1628-10, PageID.129501- 129507. The Special Master agrees that the topics relating to insurance policies must be limited to the policies at issue in this case and this same issue was previously addressed herein.

*10 Travelers alleges that to the extent that the information requested in Topics A.1-4, H.28-30, 32-33, L.41, M.42-43 and N.45, 47 has already been produced per the Special Master's Orders, these topics are unnecessarily duplicative, and no testimony is needed. In support Travelers cite to Edwards v. Scripps Media, Inc. 331 F.R.D. 116, 122-23 (E.D. Mich. 2019).

Wolverine cites the same case and argues that the law is clear that the prior production of documents and prior testimony do not relieve the Insurers of their obligations to present 30(b)(6) witnesses to bind the corporation. Edwards v. Scripps Media, Inc., 331 F.R.D. 116, 122-23 (E.D. Mich. 2019). Scripps states, “Courts have ordered “discovery about discovery” when the record suggests that there is reason to distrust the responding party's diligence.” See, e.g., Ruiz-Bueno v. Scott, No. 2:12-CV-0809, 2013 WL 6055402, at *3 (S.D. Ohio Nov. 15, 2013). “In general, such discovery will be allowed if a party's efforts to comply with proper discovery requests are reasonably drawn into question.” Id. at 124.

The Special Master notes that Defendant Insurers have been compelled to produce documents and also notes Wolverine has filed a Motion for an in camera review of documents withheld based on claims of privilege. ECF No. 1654. Therefore, the Special Master finds that the 30(b)(6) notices are not unduly duplicative of other discovery and that Wolverine is entitled to seek testimony from a corporate designee who can bind the corporation.

The Special Master's Order on Remand Regarding Wolverine's Motions to Compel Production of Documents (ECF No. 1391) stated “[r]eserves are not relevant to resolving any issue in this case and are unlikely to lead to the discovery of admissible evidence; therefore, they are not discoverable.” PageID.123837. The same order limited discovery of reinsurance to the production of reinsurance agreements only and stated “all other documents relating to reinsurance are irrelevant and not discoverable.” Id. Therefore, Topics asking for information about reserves or reinsurance policies are stricken from all 30(b)(6) deposition notices.

Century and the other joining Defendants argue that Wolverine should be limited to questions regarding Phase II Duty to Indemnify as the Duty to Defend was a Phase I issue and discovery has closed as to those issues. Further, Defendants argue that Wolverine could have noticed depositions during Phase I and chose not to do so. Consequently, these Topics will not be allowed, and the 30(b)(6) deposition notice will be confined to the Phase II Duty to Indemnify as to the remaining primary insurers (Travelers and Century).

Travelers and the joining Defendants request that any Orders striking or limiting the scope of Topics in the 30(b)(6) Notices also apply to the fact witness depositions. No particular reason is given other than the arguments restricting the 30(b)(6) depositions. Wolverine counters that the individual witnesses it seeks to depose are claims handlers that are responsible for performing the primary business function for these Insurers and this is motivated by bad faith and an effort to prevent such depositions by Defendants. Wolverine further argues that because these individual fact witnesses were disclosed pursuant Rule 26(a)(1)(A)(i), a party is permitted to obtain testimony based on the scope of their own personal knowledge rather than a corporation's knowledge.

*11 The Special Master agrees with Wolverine and recently denied Century's Motion for a Protective Order as to its Claims Handlers and Carol Targum (ECF Nos. 1513, 1515, and 1538). Based on those prior Orders, the Special Master will not address claims handler's depositions, herein as the prior rulings in ECF Nos. 1644 and 1653 sufficiently address individual fact witness claim handlers. The individual depositions are not limited any further than what is stated in those prior Opinions and Orders with the exception of limiting any testimony pertinent to the policies and claims at issue in this action.

IV. Recommendations

In view of the above, the Special Master makes the recommendations to the Court as follows:

Defendants Travelers, Century, North River, First State, AIC and SPARTA are required to produce individual witnesses that were noticed for depositions. The scope of questioning of those witnesses is limited to the policies at issue and underlying claims at issue in this action. AIC's request that individual witnesses not be deposed until after the corporate designee testifies should be denied as there is no authority cited, nor in the court rules, for a party to control the sequence of discovery.

Travelers has agreed to present a corporate designee on Topics C.8-11; D.12-15; H.21- 27, 31 and 34; and N.44, 46 (ECF No. 1560, PageID.127218-19). However, the questioning of the corporate designee is limited to the time periods and subject matters set forth in the Special Master's order (ECF No. 1391) and to the Travelers Policies and underlying claims at issue in this action.

Century has agreed to present a corporate designee on topics C.8-11; D.13-15; H.21-23, 24- 26, 27, 31 and 34; and N.44, 46 (ECF No. 1580, PageID.127665). The questioning of those witnesses is limited to the time periods and subject matters set forth in the Special Master's orders (ECF No. 1391) and to the Century Policies and underlying actions at issue in this action.

Topics A.1-4, and B.5-7: Travelers and Century are required to present a corporate witness on custom and practice in the insurance industry as Defendants have asserted industry custom and practice as a defense.

Topics E.16, F.17, J.38 and K.39-40: Travelers and Century are not required to present a corporate witness on Topics pertaining to reserves and reinsurance and these topics are stricken from the notices.

Topic G.18: Travelers and Century are required to present a corporate witness as to subparts a-e and o-q. Travelers and Century are not required to present a corporate witness as to subparts f-n.

Topics G.19, H.28, H29, I.36-37, L.41, M.43 and N.47: Travelers and Century are required to present a corporate witness on these Topics.

Topic G.20: Travelers and Century are required to present a corporate witness with testimony limited to the policies at issue in this action.

Topics H.30 and H.32-34: Travelers and Century are required to present a corporate witness subject to attorney client privilege and or work product protection objections.

Topic I.35: Travelers and Century are not required to present a corporate witness because these topics relate to duty to defend.

Topic M.42: Travelers and Century are not required to present a corporate witness because this Topic is not stated with reasonable particularity and is somewhat duplicative of other Topics.

Topic N.45: Travelers and Century are not required to present a corporate witness as this Topic is not stated with sufficient particularity, unduly burdensome, and calls for testimony likely to invade attorney client privileged areas and or work product testimony (Discovery documents).

*12 Topic D.12: Century is required to present a corporate designee with questioning limited to the Century policies at issue in this action and the time periods set forth in prior Orders. ECF No. 1391.

Topic A.1: North River is required to present a corporate designee as to subparts d, f, l, r and w; the remaining subparts are stricken as being overly broad and unduly burdensome.

Topics A.2-3, A.6, F.14, H.58, and L.66: North River is not required to present a corporate designee on these topics as they are overly broad and unduly burdensome.

Topics A.4, A.5, B.7, F.13, F.15-49, G.54-55, H.59-61, L.65, L.68-69 and N.70-73: North River is required to present a corporate designee on these Topics. However, questioning shall be limited in scope to the time periods and subject matters set forth in the Special Master's Orders (ECF Nos. 1391 and 1552) and to the North River policy and underlying claims at issue in this action.

Topics B.8-11: North River is required to present a corporate designee. However, testimony is limited in scope to time periods and subject matter previously ordered as set forth in the Special Master's Orders (ECF Nos. 1391 and 1552) and to the North River policy and underlying claims at issue in this action.

Topics E.12, G.53, I.62-64: North River is not required to present a corporate designee on these Topics as it relates to reserves or reinsurance which was previously prohibited.

Topic G.51-52: North River is required to present a corporate designee. However, testimony is limited in scope to time periods and subject matter previously ordered as set forth in the Special Master's Orders (ECF Nos. 326, 1391, and 1552) and to the North River policy and underlying claims at issue in this action.

Topic L.67: North River is not required to present a corporate designee on this Topic as it calls for testimony likely to invade the attorney client privilege.

First State is not required to present a corporate designee on Topics seeking testimony pertaining to reserves, reinsurance, or First State's evaluation of claims including Topics F.16, G.18, G.21, H.58 and J.67-69.

In reviewing First State's Objections and Responses to the Umbrella Policy 30(b)(6) deposition notice, it is apparent that First State has designated Kate Wendt as its corporate designee on the following Topics: A.2, D.11-13, E.15, G.52, G.52, H.54, H.56-57, H.61, I.63-66, M.71, N.75 and N.77. Any testimony is limited to non-attorney client information. The scope of the corporate designee testimony is limited to the time periods and subject matters set forth in the Special Masters Orders (ECF Nos. 1391 and 1552) and to the First State Policies and underlying claims at issue in this action for all topics that First State is required to present a corporate designee.

Topic A.1, B.4: First State is not required to present a corporate designee on this Topic as it is duplicative of a stipulation between the parties.

Topic B.3: First State is required to present a corporate designee on subparts d, e, g, i, j, o, p, q, r, s, t and x.

Topic B.4-5: First State is not required to present a corporate designee on this Topic as it over broad and unduly burdensome.

*13 Topic B.6: First State is required to present a corporate designee on this Topic.

Topics C.7, E.14, G17-19, H.55: First State is required to present a corporate designee on these Topics.

Topics C.8, 9, 10, D.12, G.20, 22-33, 35-36, 38-39, G.41, 43-50, H.54, 57, 59, 61, I.64-65: First State is required to present a corporate designee on these Topics.

Topics G.34, 37, 40, 51 and 53: First State is not required to present a corporate designee on these Topics as they are overly broad and unduly burdensome.

Topics L.70, 72-74: First State is not required to present a corporate designee on these Topics as they appear to seek information protected by the attorney client privilege and or are unduly burdensome.

Topics N.75-78: First State is required to present a corporate designee on these Topics limited to testimony that does not invade the attorney client privilege.

In reviewing First State's Objections and Responses to the Excess Policy 30(b)(6) deposition notice, it is apparent that First State has designated Kate Wendt as its corporate designee on the following Topics: A.2, D.10-12, E.13, G.56, 58- 60, 64, H.66, 67- 69, M74, N.78 and 80. Any testimony is limited to non-attorney client information and limited to duty to indemnify issues. The scope of the corporate designee testimony is limited to the time periods and subject matters set forth in the Special Masters Orders (ECF Nos. 1391 and 1552) and to the First State Policies and underlying claims at issue in this action for all Topics that First State is required to present a corporate designee on.

First State is not required to present a corporate designee on Topics seeking testimony pertaining to reserves and reinsurance and these Topics are stricken: F.14, J.70, 71, and 72.

Topic A.1: First State is not required to present a corporate designee on this Topic as it is duplicative of a stipulation between the parties.

Topic B.3 and B.6: First State is required to present a corporate designee on these Topics.

Topic B.4 and B.5: First State is not required to present a corporate designee on these Topics as they are overly broad and unduly burdensome.

Topic C.7, 8 and 9: First State is required to present a corporate designee on these Topics.

Topic G.15, 16, 19 and 20: First State is required to present a corporate designee on these Topics.

Topic G.17 and 18: First State is not required to present a corporate designee on these Topics as they are overly broad and unduly burdensome.

Topic G.21-26: First State is required to present a corporate designee on these Topics.

Topic G. 27: First State is not required to present a corporate designee on this Topic as it is overly broad and unduly burdensome.

Topic G.28-54: First State is required to present a corporate designee on these Topics.

Topic G.55 and 57: First State is not required to present a corporate designee on these Topics as they are overly broad and unduly burdensome.

Topic H. 61-63, 65: First State is not required to present a corporate designee on these Topics as they are either overly broad and unduly burdensome, duplicative of other discovery, or likely to invade the attorney client privilege.

*14 Topic L.73: First State is required to present a corporate designee on this Topic.

Topic M.75-77: First State is not required to present a corporate designee on these Topics as they are overly broad and unduly burdensome.

Topic N.79 and 81: First State is not required to present a corporate designee on these Topics as the information called for is likely to invade the attorney client privilege.

In reviewing AIC's Objections and Responses to the 30(b)(6) deposition notices, it is apparent that AIC has agreed to present a corporate designee on the following Topics in the Pre-1985 Notice: A.2, D.10-11, G.16-17, H.60-63, 66, I.68-71, and N.80-82. AIC has also agreed to present a corporate designee on the following Topics in the 1985-1986 Policy Notice: A.2, D.10-11, G.16-17, H.54-56, I.62-65, and N.74-76.

The scope of the corporate designee testimony is limited to the AIC policies and underlying claims at issue in this action, time periods and subject matters set forth in the Special Masters Order (ECF Nos. 1391 and 1532).

AIC is not required to present a corporate designee on Topics seeking testimony pertaining to reserves, reinsurance or AIC's evaluation of claims in both the Pre-1985 Notice and the 1985-1986 Notice. Consequently, these Topics are stricken from the Pre-1985 Notice Topics: F.14, J.72-74. These Topics are stricken from the 1985-1986 Notice Topics: F.14, and J.66-68.

Topic A.1: AIC is not required to present a corporate designee on this Topic as it is duplicative of the parties’ stipulation.

Topic A.2, B.3, 6, C.7-9: AIC is required to present a corporate designee on these Topics.

Topics B.4-5: AIC is not required to present a corporate designee on these Topics.

Topics D.12, E.13, and G.18, 22-26, 28, 30-33, 35, 38, 41, 45-54, 56-57: AIC is not required to present a corporate designee on these Topics.

Topics G.15 and 19, 20-21, 27, 29, 34, 36-37, 39-40, 42-43, 48-49, 55, 58-59: AIC is required to present a corporate designee on these Topics.

Topics H.63-65, 67: AIC is not required to present a corporate designee on these Topics.

Topics K.75, M.76-77, 79, and N.83: AIC is not required to present a corporate designee on these Topics.

Topic A.1: AIC is not required to present a corporate designee on this Topic as it is duplicative of the parties’ stipulation.

Topics A.2, B.3, 6, C.7-9: AIC is required to present a corporate designee on these Topics.

Topics B.4-5, E.13, G.18-19, G.22-26: AIC is not required to present a corporate designee on these Topics.

Topics D.12, G.15, 20-21 AIC is required to present a corporate designee on these Topics.

Topics G.27, 29, 34-37, 39, 40-42, 43-46, 48-50, and 52-53: AIC is required to present a corporate designee on these Topics.

Topics G.28, 30-33, 38, 47, 51: AIC is not required to present a corporate designee on these Topics.

Topics H.57-60, L.69, M.70-71, 73 and N.77: AIC is not required to present a corporate designee on these Topics.

Topics H.61, M.72: AIC is required to present a corporate designee on these Topics.

*15 Defendant SPARTA is not required to present a corporate designee on Topics seeking testimony pertaining to reserves, reinsurance, or SPARTA's evaluation of claims including Topics E.17 and I.82-84.

In reviewing SPARTA's Objections and Responses to the 30(b)(6) deposition notice, it is apparent that SPARTA has agreed to designate a corporate witness on the following Topics: C.12-14, D.15-16, F.21-22, 24-25, G.68, 70, H.77-81, L.90, and 92. Any testimony is limited to non-attorney client information. The scope of the corporate designee testimony is limited to the time periods and subject matters set forth in the Special Masters Orders (ECF Nos. 1391 and 1552) and to the First State Policies and underlying claims at issue in this action for all topics that First State is required to present a corporate designee on.

Topic A.1: SPARTA is required to present a corporate designee on this Topic.

Topics A.2-4: SPARTA is not required to present a corporate designee on these Topics as they are overly broad and unduly burdensome.

Topics B.5-10: SPARTA is required to present a corporate designee on this Topic.

Topic C.11: SPARTA is required to present a corporate designee on this Topic.

Topics F.18-20, 23, 26-37: SPARTA is required to present a corporate designee on these Topics.

Topics F.38 and F.66: SPARTA is not required to present a corporate designee on these Topics as they are overly broad and unduly burdensome.

Topics F.39-65 and 67: SPARTA is required to present a corporate designee on these Topics.

Topic G.69: SPARTA is not required to present a corporate designee on this Topic as it is overly broad and unduly burdensome.

Topics G.71, 74 and 76: SPARTA is required to present a corporate designee on these Topics.

Topics G.72-73 and 75: SPARTA is not required to present a corporate designee on these Topics as they are overly broad and unduly burdensome.

Topic J.85: SPARTA is not required to present a corporate designee on this Topic as it is overly broad and unduly burdensome and not likely to lead to admissible evidence.

Topics K.86-87 and 89: SPARTA is not required to present a corporate designee on these Topics as they are unduly burdensome, likely to invade the attorney client privilege, and not likely to lead to admissible evidence.

Topic K. 88: SPARTA is required to present a corporate designee on this Topic.

Topic L.91: SPARTA is not required to present a corporate designee on this Topic as it is overly broad and unduly burdensome.

V. Conclusions

In view of the foregoing, The Special Master recommends that the Travelers Indemnity Company's Motion for Protective Order Regarding Wolverine's Supplemental Notice of 30(b)(6) Deposition and Individual Depositions (ECF No. 1557 and 1560) be Granted in Part and Denied in Part.