United States District Court, N.D. California
ALBERT D. SEENO CONSTRUCTION COMPANY, et al., Plaintiffs,
ASPEN INSURANCE UK LIMITED, Defendant.
ORDER RE: DISCOVERY RE: DKT. NO. 96
ILLSTON UNITED STATES DISTRICT JUDGE
October 22, 2019, the parties filed a joint letter seeking
assistance with a dispute regarding two Rule 30(b)(6)
depositions scheduled for October 22, 2019 - October 24, 2019
in London. The dispute concerns six topics that plaintiffs
have identified as subjects for the
depositions. The six topics in dispute all relate to
Colonial Life discovery. The topics are:
z. Handling of the claims whose documents were produced
pursuant to the Court's order concerning Colonial
bb. Whether Aspen has, as to any insured who is a corporation
other than plaintiffs, taken the position that expenses
incurred by an insured before the insured gave Aspen notice
of the claim do not count against the retention.
ee. Whether, when Aspen defends insureds who are corporations
against lawsuits venued in courts located in California, the
defense counsel it retains make efforts to enforce indemnity
agreements in favor of the insured.
ff. Handling of claims made by insureds who are corporations
on policies containing the endorsements attached as exhibits
A or B to the deposition notice.
jj. Aspen's position, as to any other policyholder who is
a corporation, on whether defense costs incurred before
tender erode or apply to self-insured retentions.
kk. Any positions Aspen has taken, as to any other
policyholder who is a corporation and is a real estate
developer, regarding whether an “occurrence, ”
defined as “an accident, including continuous or
repeated exposure to substantially the same general harmful
conditions, ” is anything other than the
developer's construction project.
Dkt. No. 96.
objects that these topics are duplicative of issues already
ruled upon by the Court, and that this discovery is overly
broad, burdensome, non-proportional, untimely because the
close of fact discovery is October 25, 2019, and not
appropriate to ask a corporate witness to address during a
deposition. Plaintiffs assert that the Court's prior
order permitting plaintiffs to conduct some Colonial
Life discovery regarding other policyholders does not
preclude plaintiffs from seeking additional discovery, and
that this discovery is relevant to plaintiffs' bad faith
orders filed on November 29, 2018 and January 17, 2019, the
Court permitted plaintiffs to seek information regarding
other insureds who had/have consecutive policies governed by
California law, during the time period at issue in this case
(2005-2015), and in the same line or type of insurance as
plaintiffs' policies. See Dkt. Nos. 62 & 66.
The Court also directed that this information be produced
pursuant to the protective order and “Attorneys'
Eyes Only.” Aspen states that it “spent
substantial time and resources reviewing files for
potentially responsive materials, with the result that it
identified two non-party insureds, one of which had five
claims against it and the other none, for a total of 20
documents.” Dkt. No. 96 at 3. Aspen asserts that
“[n]one of the documents - which Aspen has produced -
have any bearing on this litigation.” Id.
contends that the six deposition topics at issue are
duplicative of the earlier discovery, and that the burden and
expense of this proposed discovery outweighs any likely
benefit. Aspen states that “the policies and claim
files are not coded or filed in a manner that would enable
Aspen to search for the requested categories of information
without expending many more hours of review.”
Id. at 4.
Court concludes that with the exception of topic z, which
relates to the materials already produced by Aspen, the
discovery sought by plaintiffs is not proportional to the
needs of the case and is overly burdensome. See Fed.
R. Civ. P. 26(b)(1). While the Court agrees with plaintiffs
that the prior discovery orders did not preclude plaintiffs
from seeking additional Colonial Life discovery,
plaintiffs have not demonstrated that topics bb, ee, ff, jj,
and kk are likely to lead to relevant information given that
the prior discovery only revealed two other insureds with
similar policies. The Court does find it appropriate for
Aspen to produce a corporate designee who can testify about
Aspen's handling of the claims against the non-party
insured who Aspen disclosed in response to the earlier
discovery orders. That deposition testimony can also be
designated pursuant to the protective order. If Aspen's
corporate designee is not able to provide this testimony
during the depositions scheduled this week, the parties shall
meet and confer regarding scheduling this deposition. The
Court encourages the parties to explore whether a video
deposition is possible.