*1 This matter is before the Court on Plaintiff Julie Murphy's Motion to Quash Progressive American Insurance Company's Subpoenas and for a Protective Order, doc. 20. Plaintiff moves to quash Progressive's subpoenas to Coker Law, Kulik Law Firm, P.A., and non-party attorneys Fraz Ahmed, Esq. and Robert Kulik, Esq. (subject attorneys). Attorneys Ahmed and Kulik filed notices adopting the motion. Docs. 21, 22. Progressive opposes the motion, doc. 23. The parties were given opportunities to file a reply, doc. 27, and sur-reply, doc. 28. On July 25, 2023, the Court held a hearing on the matter. Doc. 29. After reviewing the relevant filings, cited authority, the benefit of oral argument, I find the motion, doc. 20, should be granted and the subpoenas quashed. Progressive may, however, serve more narrowly tailored subpoenas in accord with this order and as articulated at the motion hearing.

Plaintiff brought this third-party bad faith action against Progressive for failure to settle her claim in an automobile negligence action that was litigated in state court. Doc. 4. Plaintiff alleges that on September 27, 2016, she was injured in a car accident with a vehicle negligently operated by Cindy Swinson; Swinson was insured by Progressive. Doc. 4 ¶¶ 1, 6, 8. See also id. at ¶ 6 (Swinson's policy provided for bodily injury limits of $100,000 per person and $300,000 per occurrence).

Plaintiff eventually filed a tort action against Progressive and Swinson in in the Fourth Judicial Circuit in and for Duval County, Florida, for damages arising from the crash. Id. at ¶ 13.[1] Plaintiff pleads that she provided numerous offers to settle her claim in exchange for the policy limits, but Progressive refused to settle. Id. at ¶¶ 10, 11, 14. After the trial, in which Progressive defended Swinson, the jury returned a verdict resulting in a judgment of about $500,000 against Swinson. Id. at ¶¶ 13, 17. Plaintiff alleges that Progressive breached its fiduciary duty to Swinson by failing to properly investigate and resolve her claims for the policy limits. See id. at ¶ 7 (“Under the terms of the Policy and the obligations placed on it by Florida law, Progressive was required to use the Policy Limits to settle Ms. Murphy's claim against Swinson.”).

After plaintiff instituted her bad faith action in this Court, Progressive served four subpoenas on the subject attorneys, who represented plaintiff in the underlying litigation. Doc. 20 at 1. The subpoenas seek from each subject attorney:

The subpoenas also contain the following caveat:

Doc. 20-3 at 5, 9, 13, 17.

Plaintiff argues that these subpoenas are overly broad because most of the underlying litigation file is irrelevant to the bad faith action before the Court. Docs. 20, 29. She also asserts that the subpoenas are unduly burdensome because they request information implicating large amounts of material that is subject to attorney-client and work-product privileges, requiring non-party attorneys to comb through about 7,000 to 10,000 documents, inclusive of plaintiff's medical file, to create a privilege log. Id. Plaintiff also alleges that the requests are disproportionate to the needs of the case because the subpoenas lack tailoring, i.e. the requests do not limit the category of documents requested to those topics that are relevant in a failure to settle case. Doc. 20.

Progressive counters that, in the context of this case, the subpoenas on their face are not overbroad and plaintiff has not met her burden to show they are improper. Doc. 23. Further, Progressive argues it “is entitled to relevant, non-privileged portions of the others file in order to prove their claims and defenses in a bad faith action ... to hold otherwise would be one sided and inequitable.” Id. at 9-10.

*3 “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case[;]” with a court considering these factors in making its determination: “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 of expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1).

Further, “[a] party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.” Fed. R. Civ. P. 45(d)(1). A court must quash or modify a subpoena that “requires the disclosure of privileged or other protected matter,” absent an applicable waiver or exception, or “subjects a person to undue burden.” Fed. R. Civ. P. 45(d)(3)(A)(iii), (iv).[2]

The Middle District of Florida Civil Discovery Handbook also cautions against overly broad discovery requests. See, e.g., Section III(A)(1) (explaining document requests “for ‘each and every document supporting your claim’ or a request for ‘the documents you believe support Count I’ is objectionably broad in most cases.”). Finally, it is plaintiff's burden to demonstrate that compliance with the subpoena poses an undue burden; while Progressive has the burden of establishing the subpoena request is relevant. Coleman v. Lennar Corp., No. 18-mc-20182-Williams/Torres, 2018 WL 3672251, at *3 (S.D. Fla. June 18, 2018) (citing Fadalla v. Life Auto Prods., Inc., 258 F.R.D. 501, 504 (M.D. Fla. 2007)).

Upon review, and after the benefit of oral argument, I find the subpoenas should be quashed because they are overly broad, unduly burdensome, and seek information largely irrelevant to this bad faith action. “To prevail on a bad faith claim under Florida law, an insured generally must prove that the insurer failed to attempt ‘in good faith to settle claims when, under all circumstances, it could and should have done so, had it acted fairly and honestly toward its insured with due regard for his or her interests.” McMullen v. Geico, No. 14-cv-62467, 2015 WL 2226537, at *3 (S.D. Fla. May 13, 2015) (quoting Fla. Stat. § 624.155(1)(B)(1)). The question of whether the insurer acted in bad faith is determined by a totality of the circumstances, id. at *7 (citing Berges v. Infinity Ins. Co., 896 So.2d 665, 680 (Fla. 2004)), with the focus on “the actions of the insurer in fulfilling its obligation to the insured.” Geico Gen. Ins. Co. v. McDonald, 315 F. App'x 181, 184 (11th Cir. 2008) (citing Berges, 896 So. 2d at 667-80). In comparison, “matters known only to other parties—e.g., a party's motive in making a settlement offer—are not relevant to whether an insurer has acted in bad faith.” Abruscato v. Geico Gen. Ins. Co., 3:13-cv-962-J-99MMH-JBT, doc. 38 at 7 (citing Lee v. Progressive Express Ins. Co., 909 So. 2d 475, 477 (Fla. Dist. Ct. App. 2005)).

Mindful of these standards, Progressive's subpoenas are improper under governing law. For example, the subpoenas request the “entire file both pre and post-suit filing” in the underlying litigation, including all pleadings, motions, and “all other written or electronic documents of whatsoever kind or nature which are in your possession or are contained within this file.” Doc. 20-3 at 9. This request essentially seeks each and every document of subject attorneys relating to the underlying litigation—which is presumptively overly broad and not in the spirit of the Federal Rule of Civil Procedure 26, nor the Civil Discovery Handbook. See McMullen, 2015 WL 2226537, at *8 (finding subpoenas on the non-party attorneys litigation files “incredibly overbroad and unduly burdensome as written” because “[i]nstead of narrowly tailoring the subpoenas to specific issues in this case, Geico seeks all of the documents in the lawyers’ files related to the accident, claim, and resulting lawsuit.”); Cadle v. Geico Gen. Ins. Co., 6:13-cv-1591-Orl-31GJK, 2014 WL 12621189, at *3 (M.D. Fla. May 28, 2014) (quashing a subpoena requesting all documents regarding the underlying lawsuit because defendant “made no effort to tailor the [s]ubpoena to the issues in the case.”). Moreover, the subpoenas request subject attorneys, “entire file relating in any manner to your representation,” doc. 20-3 at 5; the Court is hard pressed to imagine a more broadly worded request.[3]

*4 The subpoenas are also unduly burdensome, particularly in view of Rule 45’s requirement that the issuing party avoid imposing undue burden on third parties. Fed. R. Civ. P. 45(d)(1). Progressive asserts the subpoenas are not overly broad and makes the sweeping argument that it is entitled to the subject attorneys’ entire claim files. Docs. 23, 29. In Allstate Indemnity Company v. Ruiz, 899 So.2d 1121, 1128 (Fla. 2005), the Florida Supreme Court held that, for insureds, “ ‘virtually the only source of direct evidence with regard to the essential issue of the insurance company's handling of the insured's claim’ is the insurer's underlying claim file materials.” McMullen, 2015 WL 2226537, at *3 (quoting Ruiz, 899 So.2d at 1128). Thus, “an insurer accused of bad faith may not use the work product doctrine to shield its claim file materials from discovery.” Id. (citing Ruiz, 899 So.2d at 1129-30). Relying on the concept of equity as articulated in Tolz v. Geico General Insurance Company, No. 08-80663-civ, 2010 WL 384745, at *5 (S.D. Fla. Jan 27, 2010), Progressive urges a reciprocal view of that law to require an insured to turn over its entire file to the insurer. Doc. 23 at 9-10.

Tolz is not binding authority and its proposition that Ruiz applies reciprocally to both parties has been rejected by multiple courts across the Eleventh Circuit. Doc. 27 at 2 (citing cases); see also Beaubrun v. Geico Gen. Ins. Co. No., 1:16-cv-242205-MCG, 2017 WL 1738117, at *3-*4 (S.D. Fla. May 4, 2017) (finding an insurer's request for any and all documents relating to settlement negotiations was overbroad). Additionally, the Court finds plaintiff's reliance on Ruiz misplaced. In Ruiz, the Florida Supreme Court emphasized that an insurer's file was the only source of direct evidence for an insured suing for bad faith—not the other way around. 899 So.2d at 1128. Here, Progressive's claim and litigation files, as the insurer, are already in its possession and contain much of the relevant information it seeks.[4] Moreover, Progressive asks plaintiff to engage in a comprehensive review of every document produced during the litigation of this matter, create a privilege log, and, then turn over information that is duplicitous or available from other sources (like pleadings), without articulating how this expense is justified and proportional to its needs.[5]

The Court does not suggest, however, that Progressive cannot subpoena the files of subject attorneys at all, but concludes that Progressive has not made a proper showing in line with the case law outlined above as to how the subpoenas are legally sufficient. See McMullen, 2015 WL 2226537 at *7-8 (“[C]ourts generally find that the information contained within the claimant's lawyer's underlying litigation file is relevant and discoverable upon a proper showing.”); Cardenas v. Geico Cas. Co., 760 F. Supp. 2d 1305, 1309 (M.D. Fla. 2011) (“[A]lthough a bad faith claim derives from and emphasizes the duty of the insurer to the insured, the conduct of a claimant and the claimant's attorney is relevant to determining the realistic possibility of settlement.”).

At the hearing, Progressive indicated that it had not attempted to narrow its request because it was entitled to all the information in the subpoenas as served. Doc. 29. Although the Court does not here definitively set forth the bounds of an appropriate subpoena in this case, some of the information Progressive seeks is relevant to whether it could or should have settled the underlying claim. The burden is on Progressive, however, to appropriately tailor the requests in line with the governing discovery principles outlined above. See Abruscato, 3:13-cv-962-J-99MMH-JBT, doc. 38 at 7 (additional citations omitted) (analyzing a similar subpoena and explaining that “although it is conceivable that some items in the subject attorneys’ files are relevant to this suit in some way, the entire files are not.”). Therefore, the Court finds that Progressive's subpoenas should be quashed because they are overbroad, responding to them would be unduly burdensome, and many of the areas of inquiry are not relevant and proportional to the claims before the Court.

*5 It is ordered: