United States District Court, N.D. Alabama, Southern Division
WILLIAM M. ACKER, Jr., District Judge.
Under the Federal Rules of Civil Procedure, parties have a general duty to disclose and to cooperate during discovery. See Fed. R. Civ. Proc. 26. "In general, it is hoped that reasonable lawyers can cooperate to manage discovery without the need for judicial intervention." Fed. R. Civ. Proc. 26, Advisory Committee Notes. In the above entitled case, instead of cooperating as envisioned by the rule makers, the parties, particularly defendant Provident Life and Accident Insurance Company ("Provident"), have excessively filed layer upon layer of intertwined discovery motions and objections to discovery requests.
"Federal Rule of Civil Procedure 26 authorizes a court to limit discovery where such discovery is cumulative or duplicative, the party seeking discovery has had ample opportunity to obtain the information, and the discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties' resources, and the importance of the issues at stake in the litigation." Panola Land Buyers Ass'n v. Shuman, 762 F.2d 1550, 1558-59 (11th Cir. 1985). A "party resisting discovery must show specifically how... each interrogatory is not relevant or how each question is overly broad, burdensome or oppressive." Id. at 1559 (citation omitted). In this case that burden is on Provident. The scope of discovery is largely within the discretion of the trial court because "[d]iscovery should be tailored to the issues involved in the particular case." Washington v. Brown & Williamson Tobacco Corp., 959 F.2d 1566, 1570 (11th Cir. 1992). Exercising this discretion, the court now undertakes to resolve the parties' multi-faceted discovery dispute.
Shortly after this court's January 21, 2015 memorandum opinion, order, and addendum (Doc. 38, 39, and 40), which this court believed would smooth out the discovery flaps,  plaintiff Lawrence Rosen ("Rosen") filed a renewed motion to compel production of documents (Doc. 44) and a renewed motion to compel deposition testimony (Doc. 45). Provident replied to both motions on March 9, 2015 (Doc. 47 and 48), whereupon Rosen filed responses on March 19, 2015 (Doc. 50 and 51). Provident then filed a separate motion to strike Rosen's replies, objecting to and moving to exclude allegedly inadmissible documents and references. (Doc. 52).
On April 20, 2015, Provident moved for a protective order (Doc. 55), to which Rosen replied on April 22, 2015 (Doc. 56). On April 27, 2015, Provident filed a motion to compel production of documents. (Doc. 57). Rosen replied on April 29, 2015 (Doc. 58), and Provident responded June 11, 2015 (Doc. 60). Finally, on May 28, 2015, Rosen filed a motion to compel, supplementing his previously filed renewed motion to compel. (Doc 59). Provident replied on June 24, 2015. (Doc. 61).
Having been monumentally briefed, the motions are now under submission. For the reasons expressed below, the court will deny Provident's motion to strike (Doc. 52), motion for a protective order (Doc. 55), and motion to compel (Doc. 57), and will grant Rosen's renewed motion to compel and supplement to his renewed motion to compel (Doc. 44 and Doc. 59) and renewed motion to compel deposition testimony (Doc. 45).
I. Provident's motion to strike
"The United States Supreme Court has recognized that the discovery rules are to be accorded a broad and liberal treatment, and discovery should be allowed if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." Dunbar v. United States, 502 F.2d 506, 509 10 (5th Cir. 1974) (citing Hickman v. Taylor, 329 U.S. 495, 507-508 (1947)).
Here, Provident's motion to strike, labeled as an objection and motion to exclude, seeks to exclude certain documents and references contained in Rosen's various motions also currently under submission, on the basis that the information is inadmissible hearsay and not relevant. (Doc. 52 at 1). However, Provident deliberately overlooks the purpose of these certain documents and references and incorrectly points to admissibility at trial as the basis for their exclusion. (Doc. 52). Rosen does not offer these documents and references from other factual findings in other cases or court proceedings for any dispositive value in this case. Rather, Rosen clearly offers these documents and references to "highlight the fact that the documents  requested exist and  are easily accessible by Provident." (Doc. 50 at 4). Even without these certain documents and references, Rosen's requests are far from being "simply a fishing expedition' whose burdens or expenses "outweigh [their] likely benefit." Shannon v. Albertelli Firm, P.C., 2015 WL 2114055, at *4 (11th Cir. May 7, 2015). Rather, these documents actually reduce the discovery burden on Provident by providing additional clarity as to the information Rosen seeks to discover. Id. Therefore, Provident's objection and motion to exclude inadmissible documents and references will be denied.
Provident's motion approaches the prohibited line under the federal rules between a legal contention warranted by reason and existing law and sanctionable frivolousness. Fed. R. Civ. Proc. 11. A motion to strike "is a drastic remedy to be resorted to only when required for the purposes of justice... [and] should be granted only when the pleading to be stricken has no possible relation to the controversy." Augustus v. Bd. of Pub. Instruction of Escambia Cnty., Fla., 306 F.2d 862, 868 (5th Cir. 1962); see Bonner v. Prichard, 661 F.2d 1206, 1209 (5th Cir. 1981). "A court may take judicial notice of its own records and the records of inferior courts." United States v. Rey, 811 F.2d 1453, 1457 n.5 (11th Cir. 1987); see Fed.R.Evid. 201. Under the disfavored posture of a motion to strike, Provident seeks to strike Rosen's reference to the judicial records in other district court cases, in stark contrast to the established notions of judicial notice. (Doc. 52). Being a legal contention within the boundaries of Rule 11 is even more problematic for Provident inasmuch as Rosen merely offers these documents in his discovery motions to prove the documents exist and not the truth of the documents. See Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1277 (11th Cir. 1999) (distinguishing between judicial notice of public records offered only for the purpose of determining what statements the documents contain, not to prove the truth of the documents).
II. Provident's motion for a protective order
"The Federal Rules of Civil Procedure strongly favor full discovery whenever possible." Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985). Therefore, "a protective order shall issue only upon a showing of "good cause" [so that] [t]he burden is upon the movant to show the necessity of its issuance, which contemplates a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements." United States v. Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir. 1978) (emphasis added); see Bonner, 661 F.2d at 1209.
Provident's proposed protective order does not identify particular or specific documents. Instead it merely identifies categories that it thinks should remain confidential and remarkably allows the parties in good faith to designate confidential "any other document, information, or testimony." (Doc. 55 at 13). While Provident's motion does speak about specific documents it likely would categorize as "confidential, " such items as "Performance Based Incentive (PBI) FAQ's, Long Term Incentive (LTI) FAQ's, Compensation Program Summary, Benefits Center Recognition Awards Brochure, and Spotlight Program description" (Doc. 55 at 3), these documents are not identified in the protective order nor is their relationship to one of the stated general categories identified or explained (Doc. 55 at 12-18). While an "umbrella" protective order may be appropriate in certain "complicated cases where document-by-document review of discovery materials would be unfeasible, " Provident does not demonstrate or even try to explain why this case warrants such an approach. In re Alexander Grant & Co. Litig., 820 F.2d 352, 356 (11th Cir. 1987).
At best, Provident's reasons for the general protective order are hypothetical and conclusory. For example, Provident cites the trade secret language of Rule 26(c)(1)(G) as its basis for a general protective order and argues it will restrict disclosure of documents pertaining to compensation, bonus, and performance criteria similar to how other courts that have restricted discovery on those grounds. (Doc. 55 at 4-7). Yet, the trade secret provision of Rule 26 is merely one discretionary factor for a protective order under Rule 26, and a court is under no obligation to protect trade secrets in every case. See Fed. R. Civ. Proc. 26 ("[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following... a trade secret or confidential research, development, or commercial information not be revealed") (emphasis added). Provident fails to demonstrate how such information is proprietary to Provident or how its disclosure injures Provident beyond its alleged violations of law.
Provident argues that its protective order is warranted because discovery may reveal Provident's internal operations and procedures and that allowing disclosure as "broader during discovery than the question of relevance and materiality is at trial" (Doc. 55 at 7-8), would destroy the concept of protection. However, Provident overlooks that such information is the very object of Rosen's RICO claims and ripe for discovery. "Conclusory allegations of competitive harm from disclosure are not enough, especially when the redacted information is central to the resolution of the case." Dish Network L.L.C. v. TV Net Solutions, LLC, 2014 WL 4954683, at *2 (M.D. Fla. Oct. 2, 2014); see Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1994) ("[b]road allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not support a good cause showing"). Unlike the claims in the cases cited by Provident, this case not only involves claims against Provident for denial of insurance benefits to Rosen, but also involves claims against Provident under RICO, alleging Provident schemed to deny payouts to Rosen and numerous other policyholders via mail fraud, interference with commerce, and racketeering. (Doc. 19 at 24-30, 40-43 and Doc. 38).
Finally, Provident asserts that a protective order is called for to protect private and confidential information of Provident's insureds and claimants. (Doc. 55 at 8). Yet, Provident fails to show why protections under the Federal Rules of Civil Procedure and this court's local rules are insufficient for such personal information. See Fed. R. Civ. Proc. 5.2 and N.D. Ala. LR 5.1. Also, Provident does not specifically identify such information nor show that disclosure of such information "is likely to result in a clearly defined and very serious injury to the designating party." Lockheed Martin Corp. v. Boeing Co., 2005 WL 5278461, at *2 (M.D. Fla. Jan. 26, 2005).
Therefore, because Provident fails to demonstrate good cause for its general protective order, its motion for a protective order will be denied.
V. Provident's motion to compel production of documents
"The party resisting discovery has a heavy burden of showing why the requested discovery should not be permitted... [with] [t]he onus  on the party resisting discovery to demonstrate specifically how the objected-to information is unnecessary, unreasonable or otherwise unduly burdensome.'" Henderson v. Holiday CVS, L.L.C., 269 F.R.D. 682, 686 (S.D. Fla. 2010) (quoting Dunkin' Donuts, Inc. v. Mary's Donuts, Inc., 2001 WL 34079319 (S.D. Fla. 2001)).
a. Request 5
Provident's motion to compel production of documents in request 5 is not ripe for review. Rosen asserts he has already provided to Provident electronic Portable Document Format ("PDF") copies of CPT code reports from 2004 to 2007. (Doc. 60 at 2). While Provident's original request did not ask for the CPT reports from January 1, 2005 to the present in electronic format, Provident's motion to compel now demands Rosen produce such codes in Excel format. (Doc. 57 at 5). In Rosen's reply, he offers to produce Excel format CPT code reports from April 2007 to November 2014 "if Provident agrees to pay the cost associated with producing those files." (Doc. 60 at 3). In Provident's response, it indicates it has agreed "to pay the reported additional, reasonable costs of a second production of the electronic CPT codes." (Doc. 61 at 3). Given this apparent miraculous bit of cooperation between the parties, the court need not compel production of Excel format CPT code reports from April 2007 to November 2014, and Provident's motion to compel is no longer ripe for review.
Insofar as any dispute may continue to exist between the parties as to Rosen producing in Excel format CPT codes prior to April 2007, Provident's motion to compel will be denied because Rosen has produced such codes in electronic PDF format and further production in another electronic Excel format is unnecessarily duplicative, and the burden or expense of the proposed discovery outweighs its likely benefit. Fed. R. Civ. Proc. 26(b)(d)(C). The federal rules specifically provide that "[i]f a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms [and] [a] party need not produce the same electronically stored information in more than one form." Fed. R. Civ. Proc. 34(b)(2)(E)(ii)-(iii) (emphasis added). Additionally, Provident mentions in a footnote it seeks to compel production of electronic CPT codes from November 2014 up through the present. (Doc. 61 at 3). However, nowhere does Provident demonstrate it has requested such supplementary documents from Rosen or that Rosen has refused to produce such supplementary documents.
Therefore, apart from the parts of the motion no longer ripe for review given this recent burst of apparent cooperation by the parties, for any dispute that continues to remain as to request 5, the motion will be denied.
b. Request 24
The materials Provident seeks under request 24 fall within the protection of the work product doctrine and therefore are not discoverable, being outside the boundaries of Rule 26. "Not even the most liberal of discovery theories can justify unwarranted inquiries into the files and the mental impressions of an attorney." Hickman, 329 U.S. at 510. "[T]he general policy against invading the privacy of an attorney's course of preparation is so well recognized and so essential to an orderly working of our system of legal procedure that a burden rests on the one who would invade that privacy to establish adequate reasons to justify production through a subpoena or court order." Id. at 512. Here, Provident makes no attempt to establish any particular reason why Rosen should be compelled to produce these materials. See Fed. R. Civ. Proc. 26(3)(A). Rather, Provident argues that since the documents are those "received from third parties, " they are outside the scope of the work product doctrine. (Doc. 61 at 5); cf. Hunter's Ridge Golf Co. v. Georgia-Pac. Corp., 233 F.R.D. 678, 681 (M.D. Fla. 2006) ("the work product doctrine does not shield from discovery documents created by third-parties"). However, even for documents created by third-parties, the work product doctrine protects such materials where there is a showing of "a real, rather than speculative, concern that the thought processes of counsel in relation to pending or anticipated litigation would be exposed." Hunter's Ridge Golf ...