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Kelly v. Provident Life and Accident Insurance Co.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


May 1, 2008

RICHARD HOWARD KELLY, AN INDIVIDUAL, PLAINTIFF,
v.
PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY, ETC., ET DEFENDANTS.

The opinion of the court was delivered by: Jan M. Adler U.S. Magistrate Judge

ORDER (1) REGARDING SCOPE OF DISCOVERY AND (2) RESETTING RULE 26 COMPLIANCE AND NOTICE OF TELEPHONIC CASE MANAGEMENT CONFERENCE

On May 1, 2008 at 9:30 a.m., the Court convened a telephonic Case Management Conference in the above entitled action.

On April 24, 2008, the parties lodged a Proposed Joint Discovery Plan with the undersigned's chambers in which the parties proposed that the Court bifurcate discovery with an initial phase limited to Plaintiff's rescission claim. After carefully considering the arguments set forth in the Proposed Joint Discovery Plan, as well as the arguments made at the conclusion of the Early Neutral Evaluation Conference on March 19, 2008, the Court concludes that it would be unworkable to allow a first phase of discovery on the rescission claim only. Given that the parties' views of the discovery that is relevant to the rescission claim are widely divergent, the Court believes that interminable disputes requiring Court intervention would arise as to the scope of a first phase of discovery limited to rescission. Inevitably, if discovery were limited to the rescission claim and the Court restricted Plaintiff from obtaining discovery he believes is relevant to that claim (including discovery that would otherwise be relevant to Plaintiff's other two claims for breach of insurance contracts and breach of the implied covenant of good faith and fair dealing), Plaintiff would contend, on a future motion for summary judgment on the rescission claim filed by Defendant, that he does not have all facts essential to justify his opposition to the motion for summary judgment and would accordingly file a Fed. R. Civ. P. 56(f) affidavit. Furthermore, if discovery were bifurcated and Defendant's eventual motion for summary judgment on the rescission claim were not granted, and discovery then proceeded as to Plaintiff's other two claims, it would be necessary for numerous witnesses to reappear for their depositions. For these reasons, the Court finds that the proposal to limit a first phase of discovery to the rescission claim is unworkable and not conducive to judicial economy.

The parties agree that discovery should be deferred regarding Plaintiff's post-settlement medical condition and disability status, Defendant's post-settlement conduct, Plaintiff's alleged damage claims, and Defendant's potential claim for restitution. Joint Disc. Plan at 1-2. The Court finds that these areas are properly deferred for a later stage of discovery.

Accordingly, the Court will not issue a schedule with a first phase of discovery limited to the rescission claim. Rather, the Court will issue a schedule which will permit discovery as to all three claims set forth in Plaintiff's Complaint, with discovery to be deferred on the issues as to which the parties have agreed discovery should take place at a later date.

The Court therefore reissues the following orders pursuant to Rule 26 of the Federal Rules of Civil Procedure in order to permit the parties to proceed in accordance with the above:

1. The Rule 26(f) conference shall be completed by May 8, ;

2. All parties shall fully comply with the Initial Disclosure requirements of Rule 26(a)(1) by June 13, 2008;

3. A proposed joint discovery plan shall be lodged with Magistrate Judge Adler's chambers on or before June 13, 2008 (the parties should consult Rule 26(f) for the substance of the discovery plan);*fn1 and,

4. Pursuant to Rule 16(b) of the Federal Rules of Civil Procedure, a telephonic Case Management Conference shall be held June 20, 2008 at 9:00 a.m. before Magistrate Judge Adler. All counsel and unrepresented parties shall appear telephonically at this conference. The Court will initiate the conference call.

Failure of any counsel or party to comply with this Order will result in the imposition of sanctions.

IT IS SO ORDERED.


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