expedite is a plaintiff’s turtle and insurer’s hare

turtlehare no linesThere is a time disparity is the Court’s treatment of plaintiffs and defendants that has resulted in a situation where expedite is a plaintiff’s turtle to the advantage of insurer defendants making expedite their hare.

Turtles are everywhere in Katrina litigation – often with the information needed to represent the plaintiff shielded in privilege logs that do not comply with applicable rules and law.  Discovery is a nightmare.  Decisions routinely are based on defendant’s claim discovery has been completed, even when plaintiff’s claim to the contrary.  The Court seeming makes no independent inquiry and issues knee-jerk orders with regularity.  Plaintiff’s counsel takes his or her life in hand when meeting the ethical responsibility to file a request for reconsideration of a Magistrate’s order – so much so that rumor has it the plaintiff’s bar has purchased purple hearts.

How evident it is to others, I don’t know.  How regularly anyone reviews the dockets is something I can’t begin to guess.  An attorney I am not; but, one need not be to know that motions related to discovery merit a timely response and it’s just not happening.

Nowhere is the disparity between the Court’s treatment of plaintiffs and defendants more evident than Bossier v State Farm and Politz v Nationwide.  In Politz there is also disparity in the Court’s treatment of Plaintiff’s counsel.  Both judges Walker and Senter, or so it appears, have been convinced by Nationwide that counsel for Mrs. Politz is responsible for delays when a simple look at the docket proves otherwise.

A plaintiff can only plod ahead, as slow and steady as a turtle, while the court allows the hare of the defendent insurer to take an extra lap and Lady Justice isn’t even in the race.

Five months after Bossier filed the March 20 motion to compel completion of discovery, the plaintiff will know why State Farm did not comply with the court’s order – but discovery will still be incomplete and the deadline for dispotive motions passed:

Bossier TimelineIt took almost two entire months for the in camera review of State Farm email messages.  The resulting order was issued the day after plaintiff’s counsel filed a motion for sanctions in the case.

TEXT ONLY ORDER granting [76] Motion to Expedite. Briefing on [75] motion for order to show cause has been expedited by text order entered this date, and the Court will rule on the motion as promptly as possible after briefing is concluded. NO FURTHER WRITTEN ORDER WILL ISSUE. Signed by Magistrate Judge Robert H. Walker on August 5, 2009.

TEXT ONLY ORDER reducing time for response and reply re [75] MOTION for Order to Show Cause For Failure to Comply With Court Order filed by Reginald Edwin Bossier. Response to the motion shall be filed by 8/13/2009; reply shall be filed by 8/17/2009. NO FURTHER WRITTEN ORDER WILL ISSUE. Signed by Magistrate Judge Robert H. Walker on August 5, 2009.

expedite is a plaintiff’s turtle and insurer’s hare

If Bossier were an isolated case of an insurer withholding documents from discovery and abusing privilege, the court’s consent by default and delay would still be tragic but, it is not – and turtles are everywhere trying to make their way though Katrina litigation.  One need look no further than Politz v Nationwide to find another tragic example.

Like counsel for Bossier, Kristopher Carter discovered the defendant insurer provided an incomplete and/or inadequate response to discovery.  Attempting to avoid reaching the end of discovery without what he felt representation of Mrs. Politz required, he filed a motion to expedite the deadline for Nationwide to provide a complete response.

Nationwide, in a predictable move, filed in opposition to his motion claiming the Company had produced what Carter claimed it had not.  Judge Walker not only denied the Politz motion, he denied Carter’s motion for reconsideration with this cheap shot written into his Order:

In the present motion Plaintiff contends that Nationwide’s discovery responses are
insufficient, and requests that the Court “immediately enter an order” requiring Nationwide to fully respond to her interrogatories and requests for production. Without explanation or citation of any authority, Plaintiff states she is “unable to file a motion to compel until the full time period in which Nationwide has to respond to the discovery has elapsed;” that she “simply can do nothing to compel further, more complete responses until this Court enters a ruling making the responses actually due.”

The Court declines to enter an order setting a due date for discovery responses which have already been served, and finds no merit in Plaintiff’s motion for reconsideration of its order mooting Plaintiff’s motion to expedite the time for such responses.

I’m not an attorney; but, I’ve read the local rules he is charged with enforcing.  Has he not or was he simply irritated that he’d have to take off his shoes and count to see the only citation needed – the number of days remaining in discovery?

Consequently, the discovery period in Politz v Nationwide ended with with the hare way ahead and justice far behind.

Carter filed two motions.  The first addressed Nationwide’s abuse of privilege:

Nationwide has failed to provide a “Privilege log” fully identifying the nature of the documents and date of each document not produced and/or produced with redaction with Defendant’s responses to Requests for Production of Documents.

Nationwide provided a Privilege Log identifying documents that Nationwide determined are relevant to the claims and defenses of the parties pursuant to Fed. R. Civ. P. 26(a)(l)(B), but on which Nationwide sought to assert protection from disclosure through the “attorney-client privilege” and/or “attorney work-product”, pursuant to Fed. R. Civ. P. 26(b)(5)(A).

The redacted/not produced documents contain the same asserted privileges of Attorney- Client and Attorney Client/Work Product. In order to prevent excessive and unnecessary language in the text of this Motion, Plaintiff responds to the claimed privileges as follows: The Privilege Log contains entries which inadequately describe the redacted documents and/or documents withheld from production without proper identification or justification. Nationwide failed to provide the date and author for the following bates numbered listed documents on Nationwide’s privilege log which documents Nationwide produced with white-out redactions: (list deleted/SLABBED).

Nationwide failed to provide the author and/or recipient of the following documents identified on Nationwide’s privilege log: (list deleted/SLABBED).

Additionally, Nationwide failed to provide a description, date, author and recipient of the attachment it identified as being attached to an email in the privilege log in PRIV-P0L0000011IV.

Upon information and belief, the redacted, withheld information represents the coverage decision and determination by the Nationwide to deny the Plaintiff’s insurance  claims. Nationwide further utilized attorneys, such as Roger Woods and Richard Dougherty, in a capacity other than as legal counsel, to make actual claims decisions for the company on claims such as Mrs. Politz’s. Nationwide denied Plaintiff’s claim by letter on January 10, 2006. A majority of the emails claimed to be privileged and not produced by Nationwide are dated prior to the denial of Plaintiff’s claim.

This withheld information contains facts that are essential to the claims and defenses of the parties in this cause. Nationwide’s Privilege Log failed to identify withheld documents in an adequate manner, contrary to the requirements of Fed. R. Civ. P. 26(b)(5)(A)1 and Local Rule 26.1(A)(1)(c). Nationwide’s claim of privilege on these documents is accordingly waived pursuant to the Local Rules.

Carter’s second motion asks the Court to compel Nationwide to properly respond to the Requests for Admission, Interrogatories and Requests for Production propounded by Plaintiff…

Defendant forwarded a copy of Nationwide’s Responses to Second Set of Interrogatories Responses to Requests for Admission and Responses to Second Set of Requests for Production to Plaintiff on or about the 6th day of July, 2009… Defendant failed to fully, properly and adequately respond to the following Interrogatories, Requests for Admission and Requests for Production propounded by Plaintiff. Plaintiff has made demand upon counsel for the Defendant to fully, properly and adequately respond to the following Interrogatories and Requests for Production, but as of the filing of this motion there has been no response. (See Exhibit “D” – copy of Good Faith letter from Carter to Locke dated July 17, 2009.)

Carter’s motion is 18-pages of specific, detailed objections to specific Nationwide responses that intentionally result in Mrs. Polizt discovery of absolutely nothing, as evidenced by this example, repeated so often that it becomes a mantra:

Nationwide objects to this Request on the basis that it exceeds the scope of permissible discovery under Rule 26(b)(1) of the Federal Rules of Civil Procedure. Nationwide also objects to this Request on the basis that it is overly broad, unduly burdensome, vague and ambiguous. Nationwide further objects to the extent this Request seeks the production of documents protected from disclosure by the attorney-client and work product privileges. Subject to and without waiving these objections, Nationwide states that nonprivileged documents in its possession regarding payments tendered to Plaintiff were previously produced as part of
Nationwide’s prediscovery disclosure and in response to Plaintiff’s prior requests for production

One of the interrogatories asked Nationwide was asked to explain why and how the Company decided to make what it called “voluntary payments” to policyholders with slab claims like Mrs. Politz and to include in the Company’s response who was involved and what role they played in the decision.

After repeating the mantra and reaffirming their opinion that the Leonard decision gave the Company a “clean bill of health” (my choice of words), Nationwide added the single since that follows to the one-full page mumbo-jumbo submitted as a response [sic]:

With regard to Ms. Politz’ claim, persons involved with the re-review of her claim include Martin Gatte, Pat Hagan, Michael Wehrli, and James Biggs.

Carter responded with more composure than I could have mustered knowing Nationwide was withholding information I’d learned elsewhere:

Nationwide’s response to this interrogatory is extremely generalized, and Nationwide should provide a more specific, complete and detailed response. Nationwide made no mention whatsoever of what roles the gentlemen it named had in the process. Nor, as Plaintiff learned from the recent deposition of Michael Wehrli, did Nationwide even name all of the persons involved in the reevaluation process.

As Plaintiff recently pointed out to the Court, Nationwide has never supplemented its disclosures in this litigation to name witnesses it is required to divulge under the Local Rules. See Federal Rule of Civil Procedure 26(a)(1) and Local Rule 26.1(5). Nationwide simply named seven individuals (and among them not even the claims adjuster for Mrs. Politz’s claim) and remained completely silent as to further witnesses throughout the remainder of this litigation.

Nationwide should be ordered to divulge the names of all such witnesses, describing their roles, and should be forced to supplement its prediscovery disclosures as required by the rules. Because of its failure to do so prior to this point, Plaintiff has been forced to sort piecemeal through numerous depositions and thousands of pages of documents to attempt to figure out who was actually involved. The information sought is undeniably relevant to the claims and defenses raised by the parties in this litigation. The requested information should be provided to Plaintiff.

Nationwide similarly evaded the one word answer required for the Admissions.  Check this one out:

Nationwide objects to these Requests for Admission to the extent they are unreasonably vague, broad, repetitious, unduly burdensome, or purport to require the disclosure of information beyond the scope of admissible discovery under the Federal Rules of Civil Procedure.

That, or should I say THAT, is Nationwide response, in part, when asked to admit or deny that a “loss” under the terms of its policy can contain covered and noncovered elements.  Carter is more specific with his objections:

Once again, it is hard to imagine how this request could be put more plainly. Plaintiff simply asks Nationwide to admit or deny that a “loss” under the terms of its policy can contain covered and noncovered elements. Nationwide simply refuses to answer the request.

To the extent Nationwide claims that “loss” is ambiguous, it should be stuck with that position at trial. Accordingly, this request should be deemed admitted, or Nationwide should be forced to respond appropriately instead of hiding behind frivolous objections. There is no question that it is within the bounds of permissible discovery.

Not only do I agree Nationwide should be stuck with that position, I suggest the stick in the Leonard decision.

expedite is a plaintiff’s turtle and insurer’s hare

Indeed, it is a privilege to be a hare; but, a hare that claims privilege must prove it in a log or be known by its full name, a jackass rabbit.

On the other hand, however, it is an honor to be a turtle, .  Without turtles there would have been no justice for those slabbed by Katrina and/or slabbed by their insurer – nor any hope of justice for the American people.

You can run from a turtle, even call it names like “trial lawyer”; but, you can’t hide from the truth or hide the truth from every plaintiffs’ counsel.

3 thoughts on “expedite is a plaintiff’s turtle and insurer’s hare”

  1. Once again Judge Walker is demonstrating to the world the myriad of ways his courtroom has become a magic jurisdiction for insurance companies that have a penchant for hosing the elderly. Both he and Judge Senter (who allows such miscarriages of justice out of his magistrate) should be hanging their heads in shame.

    sop

  2. This is why some cases settle for less than they should, at least in federal court. Even the district court judges refuse to see what the defendant insurer is doing. The whole modus operandi is to “run out the clock” on the plaintiff based on arbitrary deadlines.

    The plaintiff is limited in the discovery he or ahe can enagage in and depending on the plaintiffs’ lawyer schedule is forced to pick and choose what discovery to “go all out on.” In the first 2 years of Katrina litigation, State Farm got away with discovery abuse after discovery abuse because I was not able schedule wise to file a motion every time they witheld documents or gave less than honest discovery responses.

    However, as my docket lessened, I went all out challenging them tit for tat. While the results were overall good, I got the distinct impression some district court judges really believed we are on a “withc hunt.” One judge even told us after 5 status conferences “you guys just need to get along.” Really? It takes 2 to tango and my “partner” is playing like a quadrapalegic— no offense or insult meant to quadrapalegics. The end result is that ifyou feel the court is not and will not follow the law regarding discovery sanctions, how can you trust the court to follow the law regarding the underlying claim?

    As I stated before, federal court is typcially set up to force settlement. If a plaintiff has a bad case, he or she will usually get some money. However, if the plaintiff has a good case, he or she will have to over come numerous roadblacks and do so in a short period of time. Not to mention the numerous motions that will be filed without any indicia of merit.

    At the end of the day, federal court needs to adopt a mechanism for lawyers to report judges they believe are willfuly not following the law. Without the fear of any real oversight, you get what is occurring in the Southern District of Mississippi and to an extent, the Eastern District of Louisiana.

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