ANOTHER request for review of a Walker Order – Bossier v State Farm

Bossier v State Farm is a case I picked up on one of my docket sweeps at the end of May; so, it’s new to SLABBED; however,  much about the case will be familiar:

  • Judy Guice representing Bossier with John Banahan for State Farm;
  • a capacity for electronic production of documents requested in discovery (technology  described in the scheme;
  • Judge Walker’s orders protecting State Farm; and,
  • plaintiff’s counsel filing for review of a Walker order.

Bossier v State Farm provides an opportunity to examine the limiting impact of Judge Walker’s orders on plaintiffs’ cases.  Other than this brief introduction, a reminder to first read the related post for background, and a closing statement, there are no comments in this post, nor are any needed. The documents speak.  Listen as they tell their story.

On or about December 2, 2008, Plaintiff propounded his first set of
Interrogatories and Requests for Production of Documents to Defendant.

Plaintiff’s Supplemental Memorandum

On March 20, 2009, Plaintiff filed a Motion to Compel and challenged State Farm’s objections/responses to fourteen requests for production and eight interrogatories.

State Farm agreed to produce some of the items contained in the requests, particularly upon entry of a protective order to maintain confidentiality of sensitive information… A consent protective order was entered in the case on April 7, 2009, and State Farm has subsequently served second and third supplemental disclosures  and supplemental responses to Plaintiff’s requests for production and interrogatories .

Following these supplemental disclosures and responses, Plaintiff filed a supplemental memorandum in support of his motion to compel to address only the matters remaining at issue. Defendant responded to the supplemental memorandum on May 18, 2009  and Plaintiff filed his reply on May 27, 2009.

The motion is now ripe for ruling.

Judge Walker’s Order

Ripe or not, background is needed first, and for that we return to the May 8 Plaintiff’s Supplement Memorandum in Support of Motion to Compel and examine Request #3, State Farm’s Response, and Plaintiff’s Argument for the matters at issue

Request for Production #3

Produce any and all emails and documents identified through utilization of each of the following search terms, by running a search through each of State Farm’s electronic databases (including those utilized to communicate with engineers or third party contractors, and those used to communicate internally and externally with claims personnel and/or management):

(1) claim number(s) for Mr. Bossier’s State Farm homeowners’ claim;

(2) name “Bossier”;

(3) policy number(s) for Mr. Bossier’s State Farm homeowners policy(s);

(4) any other identifier used to identify Mr. Bossier, his policy(s) or his claim(s);

(5) claim number(s) for the State Farm homeowners’ claim(s) of each of the State Farm insureds located within ½ mile of the Bossier home located at 1987 Bayside Drive, Biloxi;

(6) last name of each of the State Farm insureds located within ½ mile of the Bossier home;

(7) policy number(s) for the State Farm homeowners policy(s) of each of the State Farm insureds located within ½ mile of the Bossier home;

(8) any other identifier used to identify each of the State Farm insureds located within ½ mile of the Bossier home, their policy(s) or their claim(s);

State Farm Response : Bossier Request #3

  • Defendant objects to this request because:
  • it seeks information that is not relevant to any issue in this suit and that is not reasonably calculated to lead to discovery of admissible evidence;
  • it is overly broad in subject matter, scope, time, geographic area, and because it seeks information that has no bearing on Plaintiff’s individual property damage claim made the basis of this suit;
  • it seeks information regarding claim files of insureds who are not parties to this lawsuit and, therefore, has the potential of invading the privacy rights of those insureds;
  • it seeks information that is confidential, proprietary, trade secret, or protected by the Mississippi Trade Secret Act, and these privileges are asserted; and
  • complete search and response would be unduly burdensome and expensive;
    • Defendant objects to this request to the extent it seeks documents protected by the attorney/client or work product privileges, which are asserted.
    • Defendant objects to this request to the extent it seeks information that is protected by the E-Government Act, 44 U.S.C. §§ 3500 et seq.

    Subject to and without waiving the foregoing, see the non-privileged portion of the claim file for the claim made the basis of this suit and related e-mails which pertain to the Plaintiff’s claim. (Exhibits )

    Argrument:  Bossier Request #3

    Bossier Property: Biloxi
    Bossier Property: Biloxi

    State Farm’s objections to this request are not sustainable. First, this Request is not overly broad in its subject matter, scope, nor unduly burdensome…[and]..simply seeks documents in any manner related to Plaintiff’s claims…not all such discoverable documents have been produced. Clearly, such documents are discoverable in the context of this bad faith litigation. State Farm should either withdraw its objections and/or produce any and all documents responsive to this Request.

    In addition, although State Farm does not assert privilege, Plaintiff notes it has listed several emails on a privilege log. If those emails involve how or why the decision was made to tender additional benefits or in what amount, they are not privileged. State Farm should produce these emails or submit them to the Court in camera.

    Moreover, this Honorable Court has previously ruled that neighboring property claims documents are discoverable. While State Farm has produced some claim file documents for some neighbors, it has limited the production to those properties with 0.10 mile of Plaintiff’s home as opposed to ½ mile as requested and as ordered by this Court in other Katrina litigation. There is no reason for such limitation.

    In Gunn v. Lexington, this Honorable Court issued an order requiring the insurer to produce documents for claims within ½ mile of Plaintiff’s property…

    In addition, the neighboring documents produced are overly redacted and under-inclusive. For example, nearby claims files reflect witnesses were identified who saw homes “exploding” and “blowing up.” State Farm has redacted the names of those witnesses. Since those individuals have discoverable knowledge, their names should be disclosed…

    Judge Walker’s Order Re: Request #3

    Request No. 3 seeks production of emails and documents identified by running database searches (1) using Plaintiff’s claim numbers, name, or other identifiers, and (2) using the claim numbers, names, policy numbers and other identifiers of all State Farm insureds located within one-half mile of Plaintiff’s home.

    State Farm responds that it has produced claims files for some 23 properties of its insureds located within a 1/10 mile radius of Plaintiff’s property. This Court has not adopted a per se ½ mile radius as a presumptively reasonable area within which an insurer must produce claims information as to its other insureds. To the extent that State Farm has not produced the claims information for the 23 properties it claims to have produced, it shall do so within five days of the date of this order.

    Without some basis for finding insufficient the claims information produced for the 23 other insureds’ properties, the Court will not require further production in this regard.

    With respect to challenged redactions in the files, the Court finds, consistent with the ruling in Marion v. State Farm, 1:06:cv969-LTS-RHW, Doc. that Plaintiff is entitled to information as to the identity of purported eyewitnesses interviewed as part of the investigation into Plaintiff’s claim, or information upon which State Farm relied in adjusting Plaintiff’s claim, but he is not entitled to discover eyewitness accounts obtained by State Farm which were not part of the investigation or adjustment of Plaintiff’s claim.

    Plaintiff’s Application for Review of, and Objection to, June 5, 2009, Order of United States Magistrate Judge Re: Request #3

    On multiple occasions, the Magistrate Judge has ordered production of specific information from claims files for other insureds located within ½ mile of the claim being litigated. For example, in Gunn v. Lexington,  this Honorable Court issued an order requiring the insurer to produce documents for claims within ½ mile of Plaintiff’s property…Similarly, in Muller v. State Farm Fire & Cas. Co., the Magistrate Judge ordered State Farm to produce…The same order should issue here.

    For reasons that have not been explained, and despite having produced neighboring claims documents for properties within ½ mile in every other case in which counsel for Plaintiff has been involved, State Farm in the case sub- judice, limited its production to 1/10 of a mile. In other words, State Farm produced only certain documents from properties located within 528 feet of Plaintiff’s property.

    Moreover, State Farm did not produce all the materials that the Magistrate Judge found were required in Gunn and in Muller, despite State Farm’s representation in response to Request for Production No. 7 (see infra at 13) that the Muller order would be followed. Inexplicably, the Magistrate Judge did not require the same documents to be produced by State Farm in the case sub judice, nor did he require State Farm to abide by its representation.

    Neighboring claim file information is particularly necessary in this case. In the very limited geographic area hand-picked by State Farm, other claims files document that State Farm was told of witnesses who saw homes “being blown apart” within that immediate vicinity. Exhibit “A”. With no protective order permitting same, State Farm unilaterally redacted the names of those witnesses.

    The Magistrate Judge’s ruling that Plaintiff “is not entitled to discover eyewitness accounts obtained by State Farm which were not part of the investigation or adjustment of Plaintiff’s claim” is violative of the broad discovery permitted by the Federal Rules of Civil Procedure.

    Parties are required to identify individuals with knowledge of discoverable matter. See Rule 26(b)(1), Fed. R. Civ. P. State Farm is in possession of  information relating to the identification of individuals who saw homes in Plaintiff’s neighborhood (indeed perhaps even Plaintiff’s own home) “being blown apart”. Those homes were located within 500 feet of Plaintiff’s home. Plaintiff is entitled to this information regarding witnesses as well. As the U.S. Supreme Court observed in Hickman, supra: Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession. Id., 67S.Ct. at 388.

    The Magistrate Judge’s order should be reversed. State Farm’s objections to Request No. 3 should be overruled and State Farm should be ordered to produce the same information required in Gunn and Muller for ½ mile geographic area, including but not limited to identification of witnesses.

    If you listened as the documents spoke, you heard  Judge Walker’s pattern – overlook the defendant’s delaying tatics, chip away until you gut the plaintiffs case, force settlement…repeat with next case.

    Why? That we explore in another post.

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