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San Diego Unified Port District v. National Union Fire Insurance Company of Pittsburg

United States District Court, S.D. California

September 5, 2017




         Before this Court is the parties' Joint Motion for Determination of Discovery Dispute filed on August 9, 2017. (ECF No. 52). The Joint Motion presents Defendant's challenges to Plaintiff's responses to at least 100 requests for production (“RFPs”). In this case, Plaintiff seeks declaratory relief and damages for bad faith against Defendant. (ECF No. 14). In essence, the case presents a dispute in which Plaintiff challenges Defendant's determination that two insurance policies are exhausted and that an umbrella policy does not cover certain continuing obligations from a total of four exhausted policies. The manner in which Defendant determined to allocate payments such that two of the policies are exhausted is in issue as well as the extent to which the umbrella policy steps into the shoes of the underlying policies. It is against this backdrop that the discovery dispute must be decided.


         Rule 26(b)(1), Fed. R. Civ. P., provides that parties may obtain discovery of “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case . . . .” Fed.R.Civ.P. 26(b)(1) (emphasis added). The Rule also provides that “[i]nformation within the scope of discovery need not be admissible in evidence to be discoverable.” Id.

         Counsel for Defendant, the venerable Lewis Brisbois Bisgaard & Smith, LLP appears unaware that the Federal of Rules of Civil Procedure, including Rule 26(b)(1), were amended effective December 1, 2015. With more than 1100 lawyers in 41 offices in the United States, the firm should have received news of the amendments by now. But, at the bottom of page 2 in Defendant's Introductory Statement of the Joint Motion, and carrying over to page 3 Defendant misstates the Rule by referring to an earlier version stating:

Under the FRCP, the parties may obtain discovery regarding any matter that is (1) “not privileged” and (2) “relevant to the subject matter involved in the pending action.” FRCP 26(b)(1). Furthermore, “[t]he information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Id.

(ECF No. 52 at 2-3).

         Defendant also relies upon Oppenheimer Fund, Inc. v. Sanders, 427 U.S. 340, 351 (1978), in which the Supreme Court determined that discovery could be obtained of information “bear[ing] on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case.” In light of the fact that Rule 26(b)(1) now limits discovery to information relevant to “claims and defenses and proportional to the needs of the case, ” the Oppenheimer Fund definition, like the version of Rule 26(b)(1) that preceded the 2015 amendments, is now relegated to historical significance only. Ironically, Defendant chastises Plaintiff for “completely disregard[ing] this basic discovery policy.” (Id. at 3). The instant discovery requests having been served in July 2017, the Court will apply the current version of the Federal Rules to this dispute.

         A party may request the production of any document within the scope of Rule 26(b). Fed.R.Civ.P. 34(a). “For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reasons.” Rule 34(b)(2)(B). If the responding party chooses to produce responsive information, rather than allow for inspection, the production must be completed no later than the time specified in the request or another reasonable time specified in the response. Id. An objection must state whether any responsive materials are being withheld on the basis of that objection. Rule 34(b)(2)(C). An objection to part of a request must specify the part and permit inspection or production of the rest. Id. The responding party is responsible for all items in “the responding party's possession, custody, or control.” Rule 34(a)(1). Actual possession, custody or control is not required. Rather, “[a] party may be ordered to produce a document in the possession of a non-party entity if that party has a legal right to obtain the document or has control over the entity who is in possession of the document.” Soto v. City of Concord, 162 F.R.D. 603, 620 (N.D. Cal. 1995).


         A. Requests for Production

         For purposes of deciding this dispute, the Court finds that grouping related RFPs is appropriate.

         1. RFPs 23-29

         These RFPs request the production from Plaintiff of all documents identifying any claim (RFP 23), suit (RFP 24), register of claims or suits brought (RFP 25), settlement agreements for claims (RFP 26), settlement agreements for suits (RFP 27), settlement payments for claims (RFP 28) and settlement payments for suits (RFP 29) alleging bodily injury or property damage made against [Plaintiff] at any time during the period from May 1, 1982 to the present which alleged one or more occurrences during the time from May 1, 1982 to May 1, 1986.

         To each RFP, Plaintiff objected for relevance. Plaintiff also proffers the unfortunately usual litany of boilerplate objections which the Court dutifully will ignore. The Court finds that the disputed RFPs call only for the production of irrelevant documents as Defendant has not demonstrated any relation to any claim or defense. This may be a consequence of Defendant's misplaced reliance on the prior version of Rule 26(b)(1). Information bearing on whether or not Defendant properly allocated payments it made under the ...

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