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The court began its opinion by reciting the quote that “[d]iscovery relevance is minimal relevance,” leading most readers to presume the court was going to rule in favor of Plaintiff’s motion to compel. However, after learning that Plaintiff sought “the entire claims file” of Defendant, that presumption slowly dissipates. The motion before the court involved Plaintiff’s request for an order compelling Defendant to produce documents that are responsive to certain of Plaintiff’s second, third and fourth sets of Requests for Production of Documents. The Plaintiff alleged that Defendant’s objections are premised on unsupported claims of privilege and that the documents Defendant did turn over were excessively redacted. After a back and forth regarding the concept of “privileged” the court rules that the real crux of the issue is the “point at which Defendant was reasonably anticipating litigation.” It is at this point that a privilege is created for the documents at issue based on the work product doctrine as outlined in Fed. R. Civ. P. 26(b)(3)(A) at which point a privilege for the documents at issue based on the work product doctrine. Because insurance claims are of such sensitive and proprietary nature, the court holds that the question of whether insurer documents were created in anticipation of litigation “depends on whether the party seeking protection can point to a definite shift made by the insurer from acting in its ordinary course of business to acting in anticipating of litigation.” Colloquially known as a “trigger” for document preservation, the burden is on the Defendant to establish the existence of such privilege in the face of litigation. The court ultimately held that the relevant date was December 28, 2012, when Defendant sent a letter regarding a settlement check. Thus, the court ordered that any information withheld on the basis of work product doctrine after that time must be produced. After serving its second set of discovery requests, the Plaintiff subsequently asked for the documents to be produced in native electronic format. However, the Defendant had already produced documents in paper and PDF form, which Plaintiff alleged was not the form maintained by the Defendant “or in any reasonably usable form.” Citing Fed. R. Civ. P. 34(b)(2)(D) and (E), the court noted that the rule allows, but does not require, the requesting party to specify the form in which it is requesting electronic data. The court also noted there is nothing in the rule that prohibits a party from requesting different formats from one set of discovery requests to the next. Ruling in favor of the objecting Defendant, however, the court considered the “proprietary nature of certain software used by Defendant” and “Defendant’s right to withhold privileged information” as well as the “added costs of re-producing information already submitted to Plaintiff.” Because the Defendant endured the time, effort, and expense of producing documents in PDF form as initially requested by Plaintiff, the court denied Plaintiff’s request to compel the native electronic forms of such documents. The Plaintiff’s motion to compel also sought all files containing “similar” claims. While disregarding the Plaintiff’s motivations for requesting such documents, the court opined that the effect of requiring this production would be to “subject [Defendant] to undue burden in light of topics which, at best, have limited evidentiary value in this case given the broadly worded nature of the information requested.” Adding insult to injury, the court makes it a point to criticize Plaintiff’s complaint. The cause of action was premised on a breach of the covenant of good faith and fair dealing yet Plaintiff’s motion “continually” refers to this as a claim for “bad faith.” Succinctly and sharply, the court imparts some legal education by bluntly stating that the two are not interchangeable. After making its criticism of Plaintiff’s mischaracterization, the court writes that “even if such information were to be considered relevant, the requests, as written, are facially over broad.” The court broadly cites a “lack of specificity” before denying more than 25 of Plaintiff’s discovery requests. Because Plaintiff “failed to provide a sufficient, substantive limitation,” the court ruled that these “generalized discovery requests” were “facially over broad as well as irrelevant.” Lastly, seemingly as a concession to the largely defeated Plaintiff, the court partially grants Plaintiff’s final discovery request. Plaintiff sought the “complete personnel files” for certain claims handling supervising personnel involved in the claim. As with the other requests, Defendant objected citing the “personal, confidential, private information” that these files held. Significantly, the court recited that “‘confidential’ does not equate to ‘nondiscoverable’ or privileged.” Thus, the court granted Plaintiff’s motion to compel such personnel files, although it concluded this grant by limiting it to information from the files that specifically pertains to the employees’ “background, qualifications, training and job performance” and explicitly excluded any “sensitive personal or medical information” regarding these individuals. By the end of its succinct seven-page opinion, the District Court for the District of Kansas handed down many valuable lessons for future parties engaged in discovery-based litigation. Among them: (1) The work product doctrine will not prevent production if litigation is reasonably anticipated; (2) Request documents in the form desired or risk a landslide of “unusable” documents; (3) Be careful, diligent, and precise in your word choice – both in your pleadings and your document requests; (4) Private/Confidential does not mean Privileged/Nondiscoverable. Nicole was a 2010 magna cum laude graduate of Northeastern University located in Boston, Massachusetts where she earned her B.A. in English and Political Science. She will receive her J.D. from Seton Hall University School of Law in 2015. After graduation, Nicole will serve as a clerk to a trial judge of the Superior court of New Jersey in the Morris-Sussex Vicinage. Want to read more articles like this? Sign up for our post notification newsletter, here.
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