Stratford Ins. Co v. Shorewood Forest Utils.
| Docket Number | 2:20-CV-372-PPS-JEM |
| Decision Date | 01 May 2023 |
| Parties | STRATFORD INSURANCE CO., Plaintiff, v. SHOREWOOD FOREST UTILITIES, INC., et al., Defendants, CARLOTTA HOLMES and GREG SCHAFER, Counterclaim Plaintiffs, v. STRATFORD INSURANCE CO., Counterclaim Defendant. |
| Court | U.S. District Court — Northern District of Indiana |
This matter is before the Court on Counterclaim Plaintiffs' Second Motion to Compel Discovery from Stratford Insurance Company and for Order Determining the Common Interest Privilege was Waived [DE 86], filed November 2, 2022, and Shorewood Forest Utilities, Inc.'s Motion to Compel Discovery from Stratford Insurance Company as to the Common Interest Privilege Having Been Waived [DE 91], filed November 15, 2022.
In 2017, Stratford Insurance Company issued an insurance policy to Shorewood Forest Utilities (SFU). The board of SFU (“Former Board”) investigated the possibility of expanding its subdivision to add homes with Rex Properties. SFU and Rex Properties formed an agreement to expand the sewer system to support the new development. Community members who were opposed to the development including named plaintiffs Greg Schafer and Carlotta Holmes (“S&H”), filed a class action suit in state court. After the suit was filed, a number of those class action members, including Schafer and Holmes, were elected to the SFU board in an election (the “New Board”). The New Board voted to rescind the sewer agreement. Eventually, a consent judgment was entered between the class action plaintiffs and SFU, one of the defendants in the case, but not with the Former Board defendants. The consent judgment included a covenant promising that the class action plaintiffs would only seek enforcement of payment of the judgment against Stratford as SFU's insurer and not against any other parties. The class action is still proceeding against the Former Board in state court. A number of other lawsuits were also filed in state court, some of which were removed to federal court.
In the instant Complaint, filed October 15, 2020, Stratford claims it did not agree to the consent judgment in the state court class action suit filed by S&H on behalf of SFU and seeks a declaration that it has no obligation regarding the consent judgment. After a motion to dismiss was granted in part on September 27, 2021, the declaratory judgment claims regarding the extent of Stratford's insurance obligations remain, as do counterclaims against Stratford for bad faith, breach of contract, and abuse of process, arising out of the consent judgment and other state court suits.
On September 2, 2022, the Court denied S&H's previous motion to compel, finding that it was premature and warning the parties of the need to work together to resolve their discovery disputes without involving the Court. S&H filed the instant motion to compel two months later. Stratford filed a response on November 16, 2022, along with an affidavit addressing the Rule 37 certification requirements. S&H filed a reply, erroneously docketed by them as a response, on November 23, 2022. SFU filed its motion to compel on November 15, 2022. Stratford filed a response on December 7, 2022, and SFU filed a reply on December 13, 2022. Two motions to quash non-party depositions of attorneys noticed by S&H, another motion to compel filed by S&H, and a motion to strike filed by S&H (addressed in separate orders) were also filed and briefed between November 2, 2022, and February 3, 2023, totaling hundreds of pages of briefs and exhibits. Only a month after the last motion was fully briefed, S&H filed a motion to expedite ruling on the pending motions.
Pursuant to Federal Rule of Civil Procedure 26, “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,” and “[i]nformation within this scope of discovery need not be admissible in evidence to be discoverable.” Fed.R.Civ.P. 26(b)(1). Likewise, “[t]he scope of material obtainable by a Rule 45 subpoena is as broad as permitted under the discovery rules.” Graham v. Casey's Gen. Stores, 206 F.R.D. 251, 253 (S.D. Ind. 2002); see also Teton Homes Europe v. Forks RV, No. 1:10-CV-33, 2010 WL 3715566, *2 (N.D. Ind. Sept. 14, 2010). Relevancy is “construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)).
A party may seek an order to compel discovery when an opposing party fails to respond to discovery requests or provides evasive or incomplete responses, see Fed.R.Civ.P. 37(a), and Rule 45(c)(3)(A) allows a court to quash a subpoena based on a timely motion where the subpoena requires the disclosure of privileged or other protected matter or subjects a person to undue burden. See Fed.R.Civ.P. 45(c)(3)(A)(iii), (iv). A party objecting to the discovery request bears the burden of showing why the request is improper. See McGrath v. Everest Nat'l Ins. Co., 625 F.Supp.2d 660, 670 (N.D. Ind. 2008). The Court has broad discretion when determining matters related to discovery. Thermal Design, Inc. v. Am. Soc'y of Heating, Refrigerating & AirConditioning Eng'rs, Inc., 755 F.3d 832, 837 (7th Cir. 2014); Rennie v. Dalton, 3 F.3d 1100, 1110 (7th Cir. 1993).
Federal Rule of Civil Procedure 37 provides that a motion Fed.R.Civ.P. 37(a)(1). Northern District of Indiana Local Rule 37-1 provides, “A party filing any discovery motion must file a separate certification that the party has conferred in good faith or attempted to confer with other affected parties in an effort to resolve the matter raised in the motion without court action.” N.D. Ind. L.R. 37-1. The Court may deny a motion to compel if it is not accompanied by a proper certification. Id.
As an initial matter, the Court notes that S&H again complain that they served the discovery requests in 2020, arguing that Stratford is delinquent in its responses. However, as the Court explained in its Order ruling on S&H's last motion to compel, see [DE 84], discovery did not begin until January 20, 2022, and then was stayed from February 3 through March 25, 2022. Stratford was under no obligation to respond to discovery requests before discovery began or while discovery was stayed. Despite this previous reminder, the Rule 37 certificate included in the motion to compel includes alleged attempts to resolve disputes dating back to 2020, before discovery began. [DE 87-5]. The Local Rules require the certificate to address conferences about the matter raised in the motion, not to describe all the parties' disagreements so the Court has to wade through pages of irrelevant details to determine whether the parties ever discussed the instant dispute. Looking only at the interactions since the last motion to compel was resolved, there are references to several emails sent by counsel for S&H and descriptions of errors S&H found in the privilege log produced as a result of the last motion to compel, but it is not apparent to the Court whether the parties had any meet and confer conferences as legitimate attempts to resolve the dispute raised in the instant motion, rather than just assertions of their positions.
The Court will not deny the motion because of the Rule 37 certification but reminds counsel for S&H of the need to comply with the applicable local and federal rules and to avoid clouding its briefing with details that are irrelevant and/or obfuscate the purpose of the documents.
In its motion, SFU is seeking to compel more complete responses to its requests for admissions and interrogatories. It lists out a number of requests for admission, Stratford's responses, and its specific arguments as to why it disagrees with the requests for admission. It asks the Court to find that there is no privilege applicable to the information being sought by SFU and to compel Stratford to respond more completely to the requests for admission. SFU does not include a separate Rule 37 certification. Within the text of its motion, it argues that it has had “informal good faith discussions” with counsel for Stratford, and “refers the Court to Counterclaim Plaintiffs' Second Local Rule 37-1 Certification demonstrating the plethora of attempts to resolve discovery disputes.” SFU Br. p. 4 [DE 91]. Stratford argues that SFU did not raise the alleged inadequacies with counsel for Stratford or engage in actual meet and confer efforts. The Court's concerns with the adequacy of S&H's Rule 37 certification are described above, and it is not at all apparent to the Court that SFU attempted to resolve its specific concerns with the requests for admission directly with Stratford before filing the instant motion. In short, the motion does not comply with Local Rule 37-1 or Federal Rule of Civil Procedure 37 and is therefore denied. To avoid receiving the identical motion with a more complete certificate, however, the Court notes that some of SFU's arguments about privilege are addressed below.
SFU includes a number of requests for admission propounded to Stratford, and two of the cited responses claim privileges. In particular, SFU asks Stratford to admit it paid attorney fees in one of the state court cases. In response, Stratford states that, ...
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