Case 3:10-cv TJC-JBT Document 12 Filed 10/28/10 Page 1 of 25

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1 Case 3:10-cv TJC-JBT Document 12 Filed 10/28/10 Page 1 of 25 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION HERBERT WILLIAMS and FLORIDA HYDRO, INC., vs. Plaintiffs, ILLINOIS UNION INSURANCE COMPANY, Defendant / PLAINTIFFS MOTION TO COMPEL (1) PRODUCTION OF DOCUMENTS RESPONSIVE TO THEIR FIRST REQUEST FOR PRODUCTION AND (2) BETTER ANSWERS TO THEIR FIRST SET OF INTERROGATORIES Plaintiffs, Herbert Williams and Florida Hydro, Inc., by and through undersigned counsel, and pursuant to Federal Rule of Civil Procedure 37 and Middle District of Florida Local Rule 3.04(a), move this Court for the entry of an Order compelling Defendant, Illinois Union Insurance Company ( Illinois Union ), to produce documents responsive to their First Request for Production and to provide better answers to their First Set of Interrogatories, as follows: 1 I. INTRODUCTION AND BACKGROUND This is an action for damages for breach of contract arising out of the Defendant s wrongful failure to defend and indemnify the Plaintiffs for loss arising from a third-party claim, covered under Illinois Union liability policy number BMI (the Policy ). The 1 Undersigned counsel certifies that Plaintiffs have attempted, without success, to resolve this discovery dispute with opposing counsel pursuant to Middle District of Florida Local Rule 3.01(g). See Letter from R. H. Lumpkin to R. S. Newman, of 9/30/10; from R. H. Lumpkin to R. S. Newman, of 10/6/10; from R. H. Lumpkin to R. S. Newman, of 10/11/10; and from R. H. Lumpkin to R. S. Newman, of 10/14/10 (attached as Composite Exhibit A).

2 Case 3:10-cv TJC-JBT Document 12 Filed 10/28/10 Page 2 of 25 Plaintiffs filed suit against Illinois Union on June 17, 2010 [D.E. 1], and Illinois Union filed its answer and affirmative defenses on July 28, 2010 [D.E. 8]. On August 5, 2010, the Plaintiffs propounded their First Request for Production and First Set of Interrogatories on Illinois Union (attached as Composite Exhibit B). The Defendant requested and received a fifteen-day extension to respond. On September 20, 2010, Illinois Union served its response (without an accompanying privilege log) and answers, both containing numerous objections, and produced less than fifty pages of documents that the Plaintiffs already had. (The Defendant s response and answers are attached as Composite Exhibit C). In an effort to resolve the matters raised by Illinois Union s objections without court intervention, the Plaintiffs sent a detailed letter to the carrier on September 30, 2010, outlining the deficiencies in the Defendant s discovery responses. Illinois Union, however, has refused to withdraw its unsubstantiated objections, file an amended response and answers, produce documents responsive to the Plaintiffs requests, and/or serve a privilege log. The Plaintiffs respectfully request that this Court enter an Order (a) overruling Illinois Union s objections to the Plaintiffs First Request for Production and First Set of Interrogatories; (b) compelling Illinois Union to immediately produce all documents responsive to Request Nos. 2-6 and 8-12; and (c) compelling Illinois Union to immediately provide better answers to Interrogatory Nos. 2-3 and 5-8. II. ARGUMENT Pursuant to Middle District of Florida Local Rule 3.04(a), the Plaintiffs requests and interrogatories, and Illinois Union s responses and answers are set forth verbatim below, followed by the reasons production and better answers must be compelled. We first address the carrier s failure to produce a privilege log, as it alone justifies the relief requested by this motion _1 Page 2 of 25

3 Case 3:10-cv TJC-JBT Document 12 Filed 10/28/10 Page 3 of 25 A. Illinois Union Waived Any Privilege Objections It May Have Had By Electing Not To Provide A Privilege Log Florida federal courts recognize that where a general objection of privilege is made without attaching a proper privilege log, the objection of privilege may be deemed waived. Consumer Elec. Ass n v. Compras and Buys Magazine, Inc., No CIV, 2008 WL , at *3 (S.D. Fla. Sept. 18, 2008); see Horowitch v. Diamond Aircraft Indus., Inc., No. 6:06-CV-1703-Orl-19JGG, 2007 WL , at *2-4 (M.D. Fla. Apr. 23, 2007). The party resisting discovery bears the burden of demonstrating the applicability of the privilege or immunity and is required to produce a log or index of the withheld information detailing the authors and their capacities, the recipients (including copy recipients) and their capacities, the subject matter of the document, the purpose for its production, and a detailed, specific explanation of why the document is privileged or immune from discovery. Universal City Dev. Partners, Ltd. v. Ride & Show Eng g, Inc. 230 F.R.D. 688, 695 (M.D. Fla. 2005). Without a privilege log, there is simply no information available to a requesting party (or a court) to determine the nature of the allegedly protected documents being withheld. Federal courts have long recognized that a failure to substantiate privilege/immunity objections can (and should) result in a waiver of such objections. See, e.g., Pitts v. Francis, No. 5:07cv169/RS/EMT, 2008 WL , at *4-5 (N.D. Fla. May 28, 2008) (holding that a party waived its privilege objections by failing to produce a privilege log); Capital Corp. Mergers & Acquisitions, Inc. v. Arias Co., Ltd., No. 6:04-CV-158-ORL-28JGG, 2006 WL , at *3 (M.D. Fla. May 4, 2006) (a privilege log is due at the time of the written discovery response to avoid waiver of the privilege); Eureka Fin. Corp. v. Hartford Acc. and Indem. Co., 136 F.R.D. 179, 184 (E.D. Cal. 1991) (holding that when the responding party states a general objection to an entire discovery document on the basis of privilege, or generally asserts a privilege objection 95488_1 Page 3 of 25

4 Case 3:10-cv TJC-JBT Document 12 Filed 10/28/10 Page 4 of 25 within an individual discovery response, the resulting blanket objection is decidedly improper and can result in waiver of the claimed privileges); Peat, Marwick, Mitchell & Co. v. West, 748 F.2d 540, (10th Cir. 1984) (holding that a blanket, non-specific attorney-client privilege or work product objection was insufficient and effected a waiver of the privilege). Illinois Union s Response to the Plaintiffs First Request for Production was not accompanied by a privilege log, and the carrier has yet to provide one more than five weeks later. Illinois Union has accordingly waived its right to assert privileges and should be compelled to produce all withheld discovery. We now turn to the specific requests and interrogatories at issue. B. Illinois Union s Responses/Objections To Request Nos. 2-6 And 8-12 Are Legally Improper Request No. 2: Your entire claim and/or investigative file(s) pertaining to the Claims, whether local, field, regional or home office, including files held by any entity affiliated, contractually or otherwise, with You. This Request includes but is not limited to the claim file jacket(s), notes, daily diaries, statistical and coding information, letters, reports, photographs with original negatives, invoices and billing, records of phone calls, s, or other Documents. Response to Request No. 2: Objection. Plaintiff s request is irrelevant, immaterial, overbroad, premature, violative of attorney-client and/or work product privileges. Plaintiff is not entitled to request such materials until the merits of claim for benefits (i.e. Plaintiff s breach of contract claim) have been fully and finally adjudicated. See, for example, Allstate Insurance Company v. Shupack, 335 So. 2d 620 (Fla. 3d DCA 1976). See also, Allstate Indemnity Company v. Ruiz, 899 So. 2d 1121 (Fla. 2005); XL Specialty Insurance Company v. Aircraft Holdings, LLC, 929 So. 2d 578 (Fla. 1st DCA 2006); and Old Republic National Title Insurance Company v. Homeamerican Credit, Inc., 844 So. 2d 818 (Fla. 5th DCA 2003). Reason(s) To Compel Production Illinois Union s boilerplate objections are ineffective and should thus be overruled. A party has the burden of proving the basis for its objections and cannot shirk its discovery obligations through conclusory, boilerplate statements. See, e.g., AIG Centennial Ins. Co. v _1 Page 4 of 25

5 Case 3:10-cv TJC-JBT Document 12 Filed 10/28/10 Page 5 of 25 O Neill, No. 09-cv WJZ, at 22 (S.D. Fla. Oct. 18, 2010) (discovery order) (refusing to consider overbreadth and burdensomeness objections where the insurer provided no support for those assertions) (attached as Exhibit D); Oliver v. City of Orlando, No. 6:06-cv-1671-Orl- 31DAB, 2007 WL , at *2 (M.D. Fla. Oct. 31, 2007) (an objection that a request is unduly burdensome, irrelevant, overbroad, or oppressive must be specifically described); Cutrale Citrus Juices USA, Inc. v. Zurich Am. Ins. Group, No. 5:03-cv-420-Oc-10GRJ, 2005 WL , at *1 (M.D. Fla. June 8, 2005) (finding that a generalized and inadequate objection, by itself, falls far short of satisfying Defendants burden of proof ); Viking Yacht Co. v. Affiliated FM Ins. Co., CIV-Marra/Johnson, at 3-5 (S.D. Fla. Feb. 7, 2008) (discovery order) ( to even merit consideration, an objection must show specifically how a discovery request is overly broad, burdensome or oppressive, by submitting evidence or offering evidence which reveals the nature of the burden ) (attached as Exhibit E). This District routinely holds that an insured is entitled to a carrier s claim file in a coverage action. See, e.g., St. Joe Co. v. Liberty Mut. Ins. Co., No. 3:05-cv-1266-J-25MCR, 2006 WL , at *2-3 (M.D. Fla. Nov. 22, 2006); Auto Owners Ins. Co. v. Totaltape, Inc., 135 F.R.D. 199, (M.D. Fla. 1990); Cutrale Citrus Juices USA, Inc. v. Zurich Am. Ins. Group, No. 5:03-cv-420-Oc-10GRJ, 2004 WL , at *2 (M.D. Fla. Sept. 10, 2004). The state court citations provided by Illinois Union are of no consequence here: Florida state court cases regarding the discoverability of claims files are not binding on federal courts. St. Joe Co., 2006 WL , at *3 (emphasis added). While several Florida courts have held that claims files are off limits until coverage has been proven, federal courts regularly permit discovery of an insurer s claims file. Id. (emphasis added). Information in the claims file could reasonably lead to other matters that could bear on, 95488_1 Page 5 of 25

6 Case 3:10-cv TJC-JBT Document 12 Filed 10/28/10 Page 6 of 25 any issue that is or may be in the case, and, thus, is relevant. Id.; see also Auto-Owners Ins. Co. v. Southeast Floating Docks, Inc., 231 F.R.D. 426, 430 (M.D. Fla. 2005) (relevance is construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that bears on, any issue that is or may be in the case ). The party resisting discovery bears the burden to show that the requested information is not relevant. See Gober v. City of Leesburg, 197 F.R.D. 519, 521 (M.D. Fla. 2000) (holding that the party trying to avoid discovery must demonstrate to the court that the requested... information either do[es] not come within the broad scope of relevance defined pursuant to Fed. R. Civ. P. 26(b)(1) or else [is] of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure ). The discovery provisions of the Federal Rules of Civil Procedure require the disclosure of all relevant information so that the parties may fully develop and crystallize concise factual issues for trial and so that the ultimate resolution of disputed issues in any civil action may be based on a full and accurate understanding of the true facts. U.S. v. Lowe, No. 3:08-cv-475-J-16MCR, 2008 WL , at *1 (M.D. Fla. Oct. 3, 2008); see also Lerer v. Ferno-Wash., Inc., No. 06-CV-81031, 2007 WL , at *3 (S.D. Fla. Nov. 2, 2007) (citing Burns v. Thiokol Chem. Corp., 483 F.2d 300, 304 (5th Cir. 1973)). 2 Relevance for purposes of discovery is much broader than relevance for trial purposes.... Discovery should ordinarily be allowed... unless it is clear that the information sought has no possible bearing on the subject matter of the action. Dunkin Donuts Inc. v. Mary s Donuts, Inc., No Civ-Gold, 2001 WL , at *2 (S.D. Fla. Nov. 1, 2001) (emphasis added). Put succinctly, the Federal Rules permit fishing for evidence as they should. Jeld- Wen, Inc. v. Nebula Glasslam Int l, Inc., 248 F.R.D. 632, 639 (S.D. Fla. 2008) (emphasis added) 2 Decisions rendered in the Fifth Circuit prior to close of business on September 30, 1981, are binding precedent. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) _1 Page 6 of 25

7 Case 3:10-cv TJC-JBT Document 12 Filed 10/28/10 Page 7 of 25 (quoting Fed. R. Civ. P. advisory committee s notes); O Neill, No. 09-cv WJZ, at 6 (same). Thus, any documents within an insurer s claims file that are not protected either by the attorney-client privilege or the work product doctrine unless waived, as is the case here are discoverable. See St. Joe Co., 2006 WL , at *3. Illinois Union objects that this request seeks documents that are attorney-client privileged and/or work product protected. The carrier, however, has failed to provide the Plaintiffs with a privilege log that would allow for an evaluation of those assertions. See supra pages 3-4. Further, there is no blanket protection of the claims file, as either attorney-client or work product protected. See St. Joe Co., 2006 WL , at *3; see also 1550 Brickell Assoc. v. QBE Ins. Corp., No CIV, 2008 WL , at *1 (S.D. Fla. July 8, 2008) (the claims file is not afforded a blanket privilege). Instead, it is treated like any other collection of documents, which may contain both discoverable and undiscoverable components Brickell, 2008 WL , at *1. Without a privilege log there is simply no information available to the Plaintiffs (or to this court) to determine the nature of the allegedly protected documents being withheld. The burden of establishing attorney-client privilege rests on the party asserting the privilege. See Tyne v. Time Warner Entm t Co., L.P., 212 F.R.D. 596, 598 (M.D. Fla. 2002). When that party is a corporation, its claims of privilege are subject to a heightened level of scrutiny to minimize the threat of corporations cloaking information with the attorney-client privilege in order to avoid discovery. S. Bell Tel. & Tel. Co. v. Deason, 632 So. 2d 1377, 1383 (Fla. 1994) (emphasis added). In Deason, the Supreme Court of Florida held that for a communication to fall within the attorney-client privilege, it must satisfy five requirements: (1) the communications would not have been made but for the contemplation of legal services; (2) the employee making the communication did so at the direction of his or her corporate 95488_1 Page 7 of 25

8 Case 3:10-cv TJC-JBT Document 12 Filed 10/28/10 Page 8 of 25 supervisor; (3) the superior made the request of the employee as part of the corporation s effort to secure legal advice or services; (4) the content of the communication relates to the legal services being rendered, and the subject matter of the communication is within the scope of the employee s duties; and (5) the communication is not disseminated beyond those persons who because of the corporate structure, need to know its contents. Id.; see also St. Joe Co., 2006 WL , at *4. Illinois Union has failed to sustain its burden. Florida law holds that the attorney-client privilege does not extend to communications with attorneys performing claims-handling or investigatory functions. This is because in the insurance context, no privilege attaches when an attorney performs investigative work in the capacity of an insurance claims adjuster, rather than a lawyer.... Cutrale Citrus Juices, 2004 WL , at *3; see also Deason, 632 So. 2d at ; St. Joe Co., 2006 WL , at *5 ( When an attorney is not acting in the capacity of a legal advisor for instance, when an attorney is providing purely business advice then the communications are not protected. ); 1550 Brickell, 597 F. Supp. at 1337 (citing Bankers Ins. Co. v. Fla. Dep t of Ins. & Treasurer, 755 So. 2d 729 (Fla. 1st DCA 2000)) (attorney client privilege did not apply to communications between an insurer and an attorney retained to assist [the insurer] in developing the investigation, securing Examinations Under Oath and... propounding documents requests and things of that nature... because these were activities of someone whom would be hired even if litigation were not remotely contemplated ); St. Joe Co. v. Liberty Mut. Ins. Co., No. 3:05-CV J-25MCR, 2007 WL , at *3 (M.D. Fla. Jan. 16, 2007); W. Nat l Bank of Denver v. Employers Ins. of Wassau, 109 F.R.D. 55, 57 (D. Colo. 1985) (holding the portions of the file of a law firm retained by an insurer reflecting the factual investigation of a claim by the attorneys are not work product); Chicago Meat Processors, Inc. v. Mid-Century Ins. Co., No. 95 C 4277, 95488_1 Page 8 of 25

9 Case 3:10-cv TJC-JBT Document 12 Filed 10/28/10 Page 9 of WL , at *3 (N.D. Ill. Apr. 10, 1996) ( [i]n the insurance context, to the extent that an attorney acts as a claims adjuster, claims process supervisor, or claims investigation monitor, and not as a legal advisor, the attorney-client privilege does not apply ). Just because a communication is between an attorney and a client does not mean the privilege automatically arises; the relevant question is whether an attorney was retained to render legal services. St. Joe, 2006 WL , at *5; see also Bankers Ins. Co. v. Fla. Dep t of Ins., 755 So. 2d 729 (Fla. 1st DCA 2000) (holding no privilege exists where the attorney is a conduit for the insurer). The work product doctrine only shields discovery of documents or information prepared in anticipation of litigation or for trial. FED. R. CIV. P. 26(b)(3). A party must anticipate litigation at the time the documents were drafted for [work product] protections to apply. Materials or documents drafted in the ordinary course of business are not protected. Milinazzo v. State Farm Ins. Co., 247 F.R.D. 691, 698 (S.D. Fla. 2007); see also CSK Transp., Inc. v. Admiral Ins. Co., No CIV-J-10, 1995 WL , at *2 (M.D. Fla. July 20, 1995). Therefore, a court needs to determine when the document was created, and why it was created. Milinazzo, 247 F.R.D. at 698. The fact that litigation did in fact occur, that a party has consulted or retained an attorney, that a party has undertaken an investigation, or engaged in negotiations over the claim is insufficient to establish a reasonable anticipation of litigation.... Harper v. Auto-Owners Ins. Co., 138 F.R.D. 655, 660 (S.D. Ind. 1991). As the party asserting the protection, Illinois Union has the burden of proving the applicability of the work product doctrine. See Grand Jury Proceedings v. U.S., 156 F.3d 1038 (10th Cir. 1998). To overcome the Harper presumptions, Illinois Union must demonstrate, by specific evidentiary proof of objective facts: (1) that it reasonably anticipated litigation when each document was generated or received; (2) that the document was prepared and used solely to prepare for that litigation; and 95488_1 Page 9 of 25

10 Case 3:10-cv TJC-JBT Document 12 Filed 10/28/10 Page 10 of 25 (3) that the document was not created to arrive at or buttress a tentative claims decision. See Harper, 138 F.R.D. at 664. Illinois Union has failed to sustain its burden as to this protection as well. Florida federal courts have determined that in the insurance context, documents constituting any part of a factual inquiry into or evaluation of a claim, undertaken in order to arrive at a claim decision, are produced in the ordinary course of an insurer's business and, therefore, are not work product. Cutrale Citrus Juices, 2004 WL , at *2 (citing Harper, 138 F.R.D. at 662); see also St. Joe Co., 2006 WL , at *7. Florida federal courts also hold that there is a rebuttable presumption that documents prepared before a final decision on an insured s claim are prepared in the ordinary course of business and are not work product. See O Neill, No. 09-cv WJZ, at 18-19; Royal Bahamian Ass n, Inc. v. QBE Ins. Corp., No CIV-MORENO/GOODMAN, 2010 WL , at *1 (S.D. Fla. Sept. 3, 2010); Essex Builders Group, Inc. v. Amerisure Ins. Co., No. 6:04-CV-1838-Orl-22JGG, 2006 WL , at *2 (M.D. Fla. June 20, 2006); Cutrale Citrus Juices, 2004 WL , at *2; 1550 Brickell, 597 F. Supp. 2d at 1336; U.S. Fid. & Guar. Co. v. Liberty Surplus Ins. Corp., 630 F. Supp. 2d 1332, (M.D. Fla. 2007); Milinazzo, 247 F.R.D. at 701. Documents created up until the date the Plaintiffs filed suit June 17, 2010 are accordingly not work product protected, as the carrier had not yet made its final decision on the Plaintiffs claims. In fact, the insurer continues to evaluate entitlement to defense costs. See, e.g., from N. Ron to J. Middleton of 8/20/09; Letter from J. Adler to R. Hugh Lumpkin of 4/28/10; Letter from J. Adler to R. Hugh Lumpkin of 6/24/10; Letter from J. Adler to J. Middleton of 9/1/09 (attached as Composite Exhibit F). Also, the insurer s official statement letter regarding coverage for the settlement, dated September 1, 2009, cannot be construed as a 95488_1 Page 10 of 25

11 Case 3:10-cv TJC-JBT Document 12 Filed 10/28/10 Page 11 of 25 final decision on the Plaintiffs claims for two reasons: First, the letter contains language that suggests that it was not meant to operate as a final denial of the claim for the settlement amount. Second, the insurer was still investigating and evaluating the Plaintiffs claim for defense costs at that point. The carrier even stated in its September 1, 2009, letter that [a]fter you have reviewed the letter, if there is additional information that you would like me to consider, please forward same to me. Letter from J. Adler to J. Middleton of 9/1/09 (Composite Exhibit F). The Plaintiffs did exactly that and responded, providing additional information and explaining, among other things, why the settlement is covered under the Policy. Further, the fact that the Plaintiffs disagreed with Illinois Union s preliminary coverage positions does not, without more, create a reasonable anticipation of litigation. See Harper, 138 F.R.D. at ( Because litigation can be anticipated, in a general sense, at the time almost any incident occurs..., courts interpreting Rule 26(b)(3) require a more substantial and specific threat of litigation before a party s anticipation will be considered reasonable and justifiable motivating force. ). As is often the case, various discussions and negotiations between an insurer and its insureds take place before it becomes apparent that litigation is necessary to resolve a coverage dispute. Regarding the second reason, see, e.g., from N. Ron to J. Middleton of 8/20/09 ( [P]lease submit copies of all invoices incurred since [July 2, 2009]. Based upon... my review of the bills, we can further discuss an allocation for defense fees incurred since claim submission. ); Letter from J. Adler to R. Hugh Lumpkin of 4/28/10 ( [P]lease provide us with copies of defense fees and costs invoices related to this matter ); Letter from J. Adler to R. Hugh Lumpkin of 6/24/10 ( [I]n order to properly consider reimbursement for defense costs, please provide information explaining the services that were provided by each of the two law firms 95488_1 Page 11 of 25

12 Case 3:10-cv TJC-JBT Document 12 Filed 10/28/10 Page 12 of 25 defending this matter and why it was necessary to have two law firms. How did their roles differ? Please explain what services were provided in the defense of Herbert Williams. Again, please provide this information as soon as possible so that the carrier can make an appropriate determination for purposes of allocating defense costs. ) (Composite Exhibit F). Thus, because the Defendant continues to actively evaluate the Plaintiffs claims, Illinois Union is only entitled to work product protection for documents created after June 17, See Royal Bahamian, 2010 WL , at *2-3. Request No. 3: All Documents Relating to the Claims and/or to the Policy and/or to the Plaintiffs in the possession, custody and/or control of You or Insurer Counsel. Response to Request No. 3: Objection. Plaintiff s request is neither clear, concise nor reasonably particularized. Plaintiff s request is overly broad. See, Section III.A.1., Middle District Discovery (2001) at 10. Additionally, Plaintiff s request is vague, irrelevant, immaterial, premature, violative of attorney-client and/or work product privilege. Plaintiff seeks the same materials included within those requested in Request 2 above. And, for the same reasons, is not entitled to same. Without waiving such objections, Defendant attaches as Composite Exhibit B (IU through IU ) correspondence in its possession regarding unprivileged or unprotected communications by and between the insured, its agent and counsel and the carrier. Reason(s) To Compel Production The Plaintiffs request is clear, concise, and reasonably particularized, as it seeks a certain, limited category of documents: documents that are related to the Claims, the Policy, and/or to the Plaintiffs, which are all terms defined in the Plaintiffs First Request for Production. Moreover, the Defendant s response is wholly improper: [I]t is common practice for a party to assert boilerplate objections and then state that... the party will respond to the discovery request, subject to or without waiving the objection. Such an objection and answer preserves nothing and wastes the time and resources of the parties and the court. Further, this 95488_1 Page 12 of 25

13 Case 3:10-cv TJC-JBT Document 12 Filed 10/28/10 Page 13 of 25 practice leaves the requesting party uncertain as to whether the opposing party has fully answered its request. Martin v. Zale Del., Inc., No. 8:08-CV-47-T-27EAJ, 2008 WL , at *2 (M.D. Fla. Dec. 15, 2008) (emphasis added). With respect to the remainder of Illinois Union s response, see Reason(s) To Compel Production of Request No. 2. Request No. 4: All notes, logs, minutes, memoranda, s, or other Documents reflecting any decisions, meetings, discussions or deliberations by or on behalf of You concerning the Claims and/or the Policy and/or to the Plaintiffs. Response to Request No. 4: Other than documents produced in response to Request 3 above, Defendant adopts and incorporates by reference the same objections as set forth in its responses to Request for Production 2 and 3. Reason(s) To Compel Production See Reason(s) To Compel Production of Request Nos. 2 and 3. Request No. 5: All Documents Relating to Communications by and between You and the Plaintiffs Relating to the Policy and/or to the Claims. Response to Request No. 5: Other than documents produced in response to Request 3 above, Defendant adopts and incorporates by reference the same objections as set forth in is responses to Request for Production 2 and 3. Reason(s) To Compel Production See Reason(s) To Compel Production of Request Nos. 2 and 3. Request No. 6: All Documents Relating to Communications by and between You and any other Person or entity, including, but not limited to, Plaintiffs Defense Counsel, regarding the Plaintiffs and/or the Policy and/or the Claims. Response to Request No. 6: Defendant adopts and incorporates by reference its response to Request 3 above. More particularly, Defendant objects to the production of documents relating to any other person or entity because the only such documents in Defendant s possession involve communications with counsel and/or documents that were created in connection with communications with counsel and, therefore, those documents are protected by the attorney-client and/or work product privileges. Reason(s) To Compel Production 95488_1 Page 13 of 25

14 Case 3:10-cv TJC-JBT Document 12 Filed 10/28/10 Page 14 of 25 See Reason(s) To Compel Production of Request Nos. 2 and 3. Request No. 8: All Documents in Your possession, custody, or control that You relied on in denying coverage in whole or in part for the Claims. Response to Request No. 8: Production 1, above. See, Defendant s response to Request for Reason(s) To Compel Production Illinois Union refers only to the Policy in its Response to Request No. 1. The Plaintiffs asked in their September 30, 2010, letter to Illinois Union that the insurer confirm that it did not consider any Document, other than the Policy, in making its determination(s) as to the Claims. The carrier indicated in an from R. S. Newman to R. H. Lumpkin, of 10/14/10 that its Response to Request No. 8 requires clarification. The Plaintiffs request that the carrier accordingly file an amended response to Request No. 8. Request No. 9: All communications between You and the Florida Department of Insurance, or any Florida government agency or official, at any time between 1980 and 2006 Relating to the adoption, interpretation, approval for use, or application of the Employment Exclusion. Response to Request No. 9: Objection. Overbroad, harassing, irrelevant, immaterial, not appropriately limited in time or scope inasmuch as Plaintiff s request spans 26 years and the policy form and endorsements at issue in this proceeding were not printed for circulation and use until June and July, Reason(s) To Compel Production Based on Illinois Union s response that the policy form and endorsements at issue in this proceeding were not printed for circulation and use until June and July, 2005, the Plaintiffs agreed in their September 30, 2010, letter to limit Request No. 9 to the time period of 2005 to the present, and requested that the carrier confirm that that alteration fully addresses the insurer s overbroad, harassing, immaterial and not appropriately limited in time or scope objections. Illinois Union did not respond. Illinois Union s relevancy objection to this request is improper _1 Page 14 of 25 See Reason(s) To

15 Case 3:10-cv TJC-JBT Document 12 Filed 10/28/10 Page 15 of 25 Compel Production of Request No. 2. Courts routinely require insurers to produce this type of documentation. See, e.g., Nat l Union Fire Ins. Co. of Pittsburgh, Pa. v. F. Vicino Drywall II, Inc., et al., No CIV-GOLD/MCALILEY (S.D. Fla. Oct. 22, 2010) (discovery order) (compelling production of communications with state departments of insurance, insurance regulators, and insurance trade organizations) (attached as Exhibit G); Mach. Movers, Riggers & Mach. Erectors Local 136 Defined Contribution Pension Plan v. Fid. & Deposit Co. of Mary, No. 06 C 2439, 2007 WL , at *2-3 (N.D. Ill. Oct. 19, 2007) (communications with insurance industry associations). The information the Plaintiffs have requested plainly would help in resolving the disputed issues in this case, because it bears on how Illinois Union has interpreted the exclusion at issue in its past dealings with regulators and insurance industry associations. Such information includes Illinois Union s relevant correspondence with state regulators and insurance industry associations showing how it marketed policies containing the exclusion and information about how Illinois Union has handled other claims raising similar coverage issues. These materials could be important to evaluating the merits of Illinois Union s position in this case. Request No. 10: All Communications between You and any insurance trade association, including, but not limited to, the National Bureau of Casualty Underwriters, Mutual Insurance Rating Bureau, American Mutual Insurance Alliance, Insurance Services Office, Inc., American Insurance Association, the Insurance Information Institute, the Insurance Rating Board, the Insurance Rating Bureau, and any of their predecessors, between 1980 and 2006 Relating in whole or in part to the Employment Exclusion. Response to Request No. 10: Defendant adopts and incorporates by reference its objections to Request for Production 9, above. Reason(s) To Compel Production See Reason(s) To Compel Production of Request No _1 Page 15 of 25

16 Case 3:10-cv TJC-JBT Document 12 Filed 10/28/10 Page 16 of 25 Request No. 11: All underwriting manuals or guidelines Relating in whole or in part to the Employment Exclusion in use between 2006 and the present, including any modifications thereto. Response to Request No. 11: Objection. Defendant s manuals, guidelines and other similar materials, if any, are not subject to discovery in a proceeding of this nature until the merits of Plaintiff s claim for benefits have been fully and finally determined. See, Allstate Indemnity Company v. Ruiz, 899 So. 2d 1121 (Fla. 2005) and Old Republic National Title Insurance Company v. Homeamerican Credit Inc., 844 So. 2d 818 (Fla 5th DCA 2003). Reason(s) To Compel Production Based on the Defendant s Responses to Request Nos. 9 and 10 that the policy form and endorsements at issue in this proceeding were not printed for circulation and use until June and July, 2005, the Plaintiffs modified this request to the time period of 2005 to the present in their September 30, 2010, letter to Illinois Union. Request No. 11 seeks common interpretive materials, which are routinely ordered produced in coverage cases involving policy interpretation. See F. Vicino Drywall, No CIV-GOLD/MCALILEY (compelling production of underwriting manuals and guidelines, and other interpretive materials, including home or regional office directives and bulletins); O Neill, No. 09-cv WJZ, at 15, (granting motion to compel production of underwriting and other interpretive materials); Del Monte Fresh Produce v. Ace Am. Ins. Co., No CIV-Huck/Turnoff, at 4-5 (S.D. Fla. Sept. 3, 2002) (discovery order) (same) (attached as Exhibit H); Milinazzo, 24 F.R.D. at 703 (recognizing that where policy terms are potentially ambiguous, underwriting related documents could be used to resolve that ambiguity ); Viking Yacht, No CIV-MARRA/JOHNSON, at 4; Totaltape, 135 F.R.D. at 203 (insurer s claims manual and policy interpretation guidelines are relevant to insured s breach of contract claim; granting motion to compel production of insurer s claim manuals and guidelines); Allstate Ins. Co. v. Levesque, No. 8:08-CV-2253-T-33EAJ, 2010 WL , at * _1 Page 16 of 25

17 Case 3:10-cv TJC-JBT Document 12 Filed 10/28/10 Page 17 of 25 2 (M.D. Fla. Jan. 26, 2010) (claims handling materials relating to plaintiff s claim discoverable in breach of contract suit). Such materials would illuminate the meaning and possible ambiguity of the exclusion at issue, the Employment Exclusion, and may confirm the interpretation advanced by the Plaintiffs or at least that their interpretation is reasonable. Under Florida law, any such ambiguity in an insurance policy must be construed in favor of coverage. Documentary evidence showing Illinois Union s own impression of how its Policy must be interpreted and applied would also provide insight for the Court s determination as to whether Illinois Union breached its Policy here. Because the exclusion at issue is potentially susceptible to different interpretations, the Plaintiffs are entitled to explore whether the Defendant internally agrees with their interpretation. See Del Monte, No CIV-Huck/Turnoff, at 4-5; Viking Yacht, No CIV- MARRA/JOHNSON, at 4 ( drafting history and extrinsic evidence of interpretative materials is discoverable at this early stage of litigation when questions concerning ambiguity have not been resolved ). Illinois Union s internal construction of the exclusion upon which it is relying to deny coverage and the terms of the Policy that may have been negotiated or modified are thus relevant and discoverable in this case. Federal courts in jurisdictions following Florida s interpretive principles also routinely order production of documents bearing on the interpretation of insurance policy language. See, e.g., Chubb Custom Ins. Co, No. 2:07-CV-1285, 2009 WL , at *8-9 (S.D. Ohio Jan. 30, 2009) (underwriting materials relevant and discoverable); Taco, Inc. v. Fed. Ins. Co., No S, 2007 WL , at *3 (D.R.I. Nov. 30, 2007) (finding insurer s internal underwriting and claims manuals were relevant and discoverable since such materials were germane to the 95488_1 Page 17 of 25

18 Case 3:10-cv TJC-JBT Document 12 Filed 10/28/10 Page 18 of 25 interpretation of the policies and exclusions at issue); ALP Corp. v. Aetna Cas. & Sur. Co, 91 F.R.D. 10, (D. Md. 1980) (compelling production of defendant s claims manuals, interpretive and investigative materials concerning defendant s interpretation of inventory exclusion in plaintiff s policy and rejecting trade secret objection); Young v. Liberty Mut. Ins. Co., No. 3:96-CV-1189 (EBB), 1999 WL , at *5 (D. Conn. Feb. 16, 1999) ( To facilitate a full understanding of the meaning of an insurance policy s terms, many courts have allowed discovery of the drafting history and interpretations of standard form CGL policy language, reinsurance information, and other insured s claims. ); Arkwright Mut. Ins. Co. v. Nat l Union Fire Ins. Co., No. 90 CIV. 7811, 1993 WL , at *1-2 (S.D.N.Y. Oct. 26, 1993) (drafting history documents are discoverable); Champion Int l Corp. v. Liberty Mut. Ins. Co., 129 F.R.D. 63, 67 (S.D.N.Y. 1989) (finding that liability insurers drafting history documents, claims manuals, and instructions to sales personnel on how to market and sell policies were discoverable as clearly germane to interpretation of policy at issue). As in Viking Yachts and Del Monte, federal courts recognize that interpretive materials are discoverable in insurance coverage disputes prior to any finding of ambiguity by the court and regardless of whether either party specifically claimed the policy language to be ambiguous. See Young, 1999 WL , at *5 ( even if the Court were to ultimately conclude that the CGL policies at issue were unambiguous, this should not prevent the plaintiffs from discovering evidence which may present an ambiguity in the CGL policies at issue ); Arkwright, 1993 WL , at *1-2 (holding that, even where neither party had claimed the policy to be ambiguous, the parties contrasting interpretations of key provisions was sufficient to make drafting history of policy relevant and discoverable); Nestle Food Corps. v. Aetna Cas. & Sur. Co., 135 F.R.D. 101, (D. N.J. 1990) (holding drafting history and interpretations of policy language 95488_1 Page 18 of 25

19 Case 3:10-cv TJC-JBT Document 12 Filed 10/28/10 Page 19 of 25 relevant and discoverable though there had not yet been a finding of ambiguity). Request No. 12: All home or regional office bulletins or directives Relating to the use, interpretation, pricing for and/or interpretation of the Employment Exclusion. Response to Request No. 12: Objection. Defendant s bulletins, directives or other similar materials, if any, are not subject to discovery in a proceeding of this nature until the merits of Plaintiff s claim for benefits have been fully and finally determined. See, Allstate Indemnity Company v. Ruiz, 899 So. 2d 1121 (Fla. 2005) and Old Republic National Title Insurance Company v. Homeamerican Credit Inc., 844 So. 2d 818 (Fla 5th DCA 2003). Reason(s) To Compel Production See Reason(s) To Compel Production of Request No. 11. C. Illinois Union s Answers/Objections To Interrogatory Nos. 2-3 And 5-8 Are Legally Improper Interrogatory No. 2: Identify every one of Your employees or Agents, former or current, who participated in the offer, negotiation, sale, assembly, underwriting, drafting or preparation of the Policy, and with respect to each such Person, describe the nature of his or her involvement, the Date(s) of that involvement, position held at the time of his or her involvement and presently, his or her full name, the name of the Person s present employer, and his or her current business address. If the Person is no longer employed by You, and You do not know the Person s current whereabouts, please provide the Person s last known address, telephone number, and date of birth. Answer to Interrogatory No. 2: Illinois Union objects to the instant interrogatory on the grounds that it is irrelevant, immaterial, unduly burdensome, requires undue time, labor and expense for compliance and is beyond the scope of the issues framed by the Plaintiff s Complaint, to wit: whether the Defendant breached a duty to defend and indemnify under the policy issued to the Plaintiff. (See Paragraph 31 of Plaintiff s Complaint). Plaintiff s Complaint raises no issue regarding the offer, negotiation, sale, assembly, underwriting, drafting or preparation of the policy. Accordingly, Defendant should not be required to respond and/or Plaintiff s Interrogatory should be limited in scope to address the issues actually raised in the Complaint. Reason(s) To Compel Better Answer The discovery sought by this interrogatory is not irrelevant or immaterial, and addresses matters that bear on the issues in this case whether the carrier breached its duty to defend and 95488_1 Page 19 of 25

20 Case 3:10-cv TJC-JBT Document 12 Filed 10/28/10 Page 20 of 25 indemnify the Plaintiffs. Interrogatory No. 2 seeks identification of persons whom the Plaintiffs can depose to clarify the type of coverage they purchased from Illinois Union and to provide additional insight into the interpretation of the Policy s provisions and exclusions. These individuals might also shed light on Illinois Union s solicitation of the Plaintiffs to purchase the Policy and will inform as to what factors were considered by Illinois Union in setting the Policy s premium. This interrogatory is not unduly burdensome; it is narrowly tailored and does not impose an excessive burden. As the party resisting discovery, Illinois Union is required to establish how the request imposes an undue burden. See Gober, 197 F.R.D. at 521. It has failed to do so. In Baine v. General Motors Corp., 141 F.R.D. 328 (M.D. Ala. 1991) the court explained the contours of this objection: The law applicable to an objection to production on grounds of burdensomeness [sic] and expense is fairly clear. The mere fact that producing documents would be burdensome and expensive and would interfere with the party s normal operations is not inherently a reason to refuse an otherwise legitimate discovery request. Id. at 330 (emphasis added). Simply put, Illinois Union has improperly objected merely because locating responsive persons might involve some effort and expense on its part. See Checkers Drive-In Rests., Inc. v. Titan Holdings, LLC, No. 6:06-cv-300-Orl-28KRS, 2007 WL , at *1 (M.D. Fla. June 28, 2007) (dismissing unduly burdensome objection in absence of supporting evidence); St. Paul Reinsurance Co. v. Comm. Fin. Corp., 198 F.R.D. 508, (N.D. Iowa 2000) (holding that the mere statement by a party that the interrogatory or request for production was overly broad, burdensome, oppressive and irrelevant is not adequate to voice a successful objection, and that evidence or affidavits are required to support such objections); see also Kooima v. Zacklift Intern., Inc., 209 F.R.D. 444, 447 (D. S.D. 2002) ( boilerplate objections are unacceptable ) _1 Page 20 of 25

21 Case 3:10-cv TJC-JBT Document 12 Filed 10/28/10 Page 21 of 25 This information is readily available within Illinois Union s record keeping system and can be produced without the extraordinary effort implied by the carrier. Illinois Union, after all, chose the methods by which it creates, stores, and maintains claim documents and information and cannot now be heard to complain of the expense associated with producing them. In its Rule 26 Disclosures, Illinois Union identified Daniel O Connor and Veronica DeVoe as witnesses likely to possess knowledge relative to the application, brokering, placement, procurement and submissions related to the Policy. The Plaintiffs requested in their September 30, 2010, letter that the Defendant confirm that no other of Illinois Union s Employees or Agents (as those terms are defined in the Plaintiffs First Set of Interrogatories), former or current, participated in the offer, negotiation, sale, assembly, or preparation of the Policy. Illinois Union has not responded. Interrogatory No. 3: Identify every one of Your employees or Agents, former or current, who was or is involved, directly or indirectly, in the investigation, handling, review, adjustment and/or analysis of the Claims, and with respect to each such Person, please identify that person, describe the nature of his or her involvement, the Date(s) of that involvement, and position held at the time of his or her involvement and presently. If the Person is no longer employed by You, and You do not know the Person s current whereabouts, please provide the Person s last known address, telephone number, and date of birth. Answer to Interrogatory No. 3: George T. Glavas, Esq., Natalia Ron, Esq. As described in Defendant s Rule 26 Initial Disclosure, Mr. Glavas responded on behalf of the insurer to the initial notice received on or about 3/8/07. Ms. Ron responded on behalf of the carrier following the notification received from Attorney James Middleton on 7/2/09. Reason(s) To Compel Better Answer The Plaintiffs requested in their September 30, 2010, letter that the Defendant confirm that no other of Illinois Union s supervisors, directors, managers, or administrators, former or current, were involved in the investigation, handling, review, adjustment and/or analysis of the Claims, as those terms are defined in the Plaintiffs First Set of Interrogatories. Illinois Union 95488_1 Page 21 of 25

22 Case 3:10-cv TJC-JBT Document 12 Filed 10/28/10 Page 22 of 25 has not responded. Interrogatory No. 5: Please quote verbatim any provision of the Policy upon which you rely to limit or exclude coverage in this matter. With respect to each such provisions, identify who drafted that provision, and state the date when it was first used by You. Answer to Interrogatory No. 5: Please refer to the at issue policy, Endorsement #2, Paragraphs 2a and 3. See, also, Section C Exclusions, Paragraphs f.i. and f.ii. Illinois Unions is unable to identify the person or persons who drafted the provisions referenced above and, likewise, is unable to provide the date these provisions were first used in an Illinois Union policy. Illinois Union can state, however, that the policy form and the endorsement were not available for inclusion in insurance policies, in general, until June and July, 2005, respectively. Reason(s) To Compel Better Answer Illinois Union states that it is unable to identify the person or persons who drafted the provisions referenced above and, likewise, is unable to provide the date these provisions were first used in an Illinois Union policy. Illinois Union, however, has a duty in this District to ensure that a reasonably inquiry has been made, including a review of documents likely to have information necessary to respond to interrogatories. Middle District Discovery (2001) at 16. The Plaintiffs requested in their September 30, 2010, letter that the Defendant identify and describe the efforts employed by Illinois Union to comply with this requirement. Illinois Union has not responded. Interrogatory No. 6: Identify every one of Your employees or Agents, former or current, who has been deposed or who has otherwise testified in the past five (5) years concerning the construction, interpretation, meaning or application of any Policy provisions that You intend to rely on to limit or avoid coverage in this litigation or that You intend to rely on in support of any of Your affirmative defenses. Answer to Interrogatory No. 6: Illinois Union is not aware of the identities of former or current agents who may have testified in the past five (5) years regarding the subject mater described in this Interrogatory. Illinois Union does not maintain records that would permit it to identify such employees or agents as described in the Interrogatory. Despite the foregoing, as the construction, interpretation, meaning and application of the policy terms at issue herein are 95488_1 Page 22 of 25

23 Case 3:10-cv TJC-JBT Document 12 Filed 10/28/10 Page 23 of 25 questions of law for the Court and, therefore, the testimony of such individuals regarding their understanding of the construction, interpretation, meaning or application of the policy terms is irrelevant and immaterial to this proceeding. Reason(s) To Compel Better Answer See Reason(s) to Compel Better Answers to Interrogatory Nos. 2 and 5; Reason(s) to Compel Production of Request Nos. 11 and 12. Interrogatory No. 7: Identify any appraiser, adjuster, accountant, consultant, or other professional retained, contacted, or used by You in connection with the Claims, and include the name of any entity that employed that Person at the relevant time. Also state whether that Person provided You with any reports, draft reports, photographs, diagrams, sketches, estimates, videotapes, renderings, measurements or other information, Documents or calculations. If so, describe the nature of the information provided and provide the Dates on which these Documents were provided to You. Answer to Interrogatory No. 7: Claims professionals used by Illinois Union in connection with the notice and the claim were George T. Glavas, Esq. and Natalia Ron, Esq. Reason(s) To Compel Better Answer Illinois Union has only partially responded to this interrogatory. The Plaintiffs requested in their September 30, 2010, letter that the carrier identify whether George T. Glavas, Esq. and/or Natalia Ron, Esq. provided Illinois Union with any reports, draft reports, photographs, diagrams, sketches, estimates, videotapes, renderings, measurements or other information, Documents or calculations (as those terms are defined in the Plaintiffs First Set of Interrogatories). And if so, to describe the nature of the information provided and the Dates on which those Documents were provided. Illinois Union has chosen not to respond. Interrogatory No. 8: Identify every third party with whom You communicated regarding the Plaintiffs and/or the Policy and/or the Claims, and describe the subject and substance of those Communications. Answer to Interrogatory No. 8: Prior to the denial of coverage for the claim, Illinois Union had received and transmitted communications with the Plaintiff/insured, Herbert Williams, his insurance agent and attorneys for the 95488_1 Page 23 of 25