Niagara Distributors, Inc., Plaintiff, v. Northern Insurance Company of New York, Defendant Case No. 10-61113-Civ-DIMITROULEAS/SNOW Signed May 25, 2011 Filed May 26, 2011 Counsel David John Pettinato, Merlin Law Group PA, Tampa, FL, for Plaintiff. Michael Damian Ruel, Galloway, Johnson, Tompkins, Burr & Smith, Tampa, FL, J. Michael Grimley, Jr., Galloway Johnson Tompkins Burr & Smith, Gulf Breeze, FL, for Defendant. Snow, Lurana S., United States Magistrate Judge ORDER *1 THIS CAUSE is before the Court on the Plaintiff's Motion to Compel Defendant to Provide Better Answers to Plaintiff's First Set of Interrogatories Served September 24, 2010 (Docket Entry 49), which was referred to United States Magistrate Judge Lurana S. Snow. After the interrogatories were served, the Court dismissed the claim for punitive damages set forth in the Amended Complaint. (DE 27) On January 7, 2011, the Court dismissed the claim for punitive damages in the Second Amended Complaint. On January 14, 2011, the plaintiff filed the Third Amended Complaint, alleging two incidents of wrongful denial of coverage in violation of the Unfair Trade Practices Act, pursuant to Fla. Stat. § 624.155 and § 626.9541. The Third Amended Complaint did not include a claim for punitive damages. Fla. Stat. § 624.155(1) provides that any person may bring a civil action against an insurer when that person is damaged (b) by the commission of any of the following acts by the insurer: 1. Not attempting in good faith to settle claims when, under all the circumstances, it could and should have done so, had it acted fairly and honestly toward its insured and with due regard for her or his interest. ... Notwithstanding the provisions of the above to the contrary, a person pursuing a remedy under this section need not prove that such act was committed or performed with such frequency as to indicate a general business practice. Fla Stat. § 624.155(5) provides No punitive damages shall be awarded under this section unless the acts giving rise to the violation occur with such frequency as to indicate a general business practice and these acts are (a) willful, wanton, and malicious; (b) In reckless disregard for the rights of any insured,; or (c) In reckless disregard for the rights of a beneficiary under a life insurance contract. Accordingly, the Third Amended Complaint is governed by Fla. Stat. § 624.155(1), rather than by § 624.155(5). On January 21, 2011, the defendant served its responses to the interrogatories. Thereafter the parties conferred about the responses. The instant motion as filed on March 11, 2011. The plaintiff sought better responses to interrogatories 2A, 2B, 4-7, 8A, 9, 10-10A, 11-12, 15-17, 19-21 and 25. Based on the parties' discussions, the defendant subsequently served amended answers to interrogatories 5, 6, 12, 20, 21 and 25 on March 16, 2011. (DE 55, p. 3) The defendant also provided the entire underlying claim file, except for documents identified in the defendant's Motion for Limited Protective Order. The defendant states that the remaining interrogatories are still at issue: 2A, 2B, 4,[1] 7, 8A, 9, 10, 10A, 11, 11A, 15, 16, 17 and 19. (Id.) The plaintiff's reply in support of the motion to compel states that the Amended Answers to Interrogatories No. 7 and 8A “now appear adequate.” (DE 64, p. 4) *2 Interrogatory No. 2A asks If any person identified in the answer to the preceding interrogatory [seeking the identities of individuals who worked on the plaintiff's file, excluding clerical] has been promoted, demoted, or transferred during the time relevant herein, describe in detail the change in employment status of each such individual, including the circumstances of the person's employment before and after the change in status. The defendant responded Objection to Part 2A, this interrogatory is irrelevant to any issue, claim or defense in this suit for bad faith and unfair claims settlement practices pertaining to the payment and handling of the underlying insurance claim, and therefore is not reasonably calculated to lead to the discovery of admissible evidence Subject to and without waiving these objections, no person was promoted or transferred as a result of his or her handling of plaintiff's underlying claim. The plaintiff's motion contends that the skills and knowledge of the defendant's employees regarding claim adjustment during the relevant time period is relevant to the handling of the plaintiff's claim. The defendant's response to the motion asserts that if an employee who handled the plaintiff's claim was subsequently terminated for work done on another claim, the fact has no bearing on the plaintiff's bad faith claim in the handling of its claim. The plaintiff's reply contends that the defendant has cited no legal authority in support of its response to this interrogatory. The moving party bears the burden of showing that the materials and information sought are relevant to the action or will lead to the discovery of admissible evidence. Once the moving party establishes that the request is within the scope or permissible discovery, the burden shifts to the party resisting discovery to show why the discover is irrelevant, overly broad, or unduly burdensome of oppressive, and thus should not be permitted. Abraham v. Alpha Chi Omega, 271 F.R.D. 556, 559 (N.D. Texas 2010)(internal citations omitted). “The party opposing a motion to compel has the burden of showing it objections are valid by providing specific explanations or factual support as to how each discovery request is improper.” Sampson v. Schneck, 2010 WL 2737050 (D. Neb. July 9, 2010), citing St. Paul Reinsurance Co. Ltd. v. Commercial Fin. Corp., 198 F.R.D. 508, 511-12 (N.D. Iowa 2000). Regarding the issue of legal citation, the Court notes that neither the plaintiff nor the defendant provided any legal citation related to this interrogatory. The defendant has provided the explanation required by Sampson. Accordingly, the Court will not grant the motion to compel based solely on the defendant's lack of legal citation in its response. Regarding the merits of the motion to compel, the Court finds that Fla. Stat. § 624.155(1)(a) provides that a person making a claim based on bad faith claims adjustment need not prove that the insurer's acts were “committed or performed with such frequency as to indicate a general business practice.” Only if the plaintiff seeks punitive damages must the plaintiff demonstrate that “the acts giving rise to the violation occur with such frequency as to indicate a general business practice.” Thus relevant discovery is limited to the adjusting of the plaintiff's claim. The defendant provided that information. Accordingly, the Court will deny the motion to compel a better response to Interrogatory 2A. *3 Interrogatory 2B asks “If any person identified in the answer to the preceding interrogatory is no longer employed with NORTHERN, please state te date of separation, and the last known residence address and telephone number or place of current employment of each such past employee.” The defendant answered Objection to Part 2B, the date of separation of any former employee is irrelevant to any issue, claim or defense in this suit for bad faith and unfair claims settlement practices pertaining to the payment and handling of the underlying insurance claim, and therefore is not reasonably calculated to lead to the discovery of admissible evidence Subject to and without waiving these objections, the last known address for all persons identified in NORTHERN'S Rule 26(a)(1) Initial disclosure and Interrogatory No. 2 have been provided. The plaintiff and defendant both adopt their arguments from Interrogatory No. 2A. For the reasons set forth above, the Court finds that the defendant has provided the relevant information for those persons who worked on the plaintiff's claim. The Court will deny the motion to compel a better response to Interrogatory 2B. Interrogatory No. 9 asks Identify the names of individuals in NORTHERN, including title, function and address, who are responsible for determining, promulgation, and overseeing company policies and standard procedures for the administration, investigation, evaluation, determination, and payment of NORTHEN first party property and/or hurricane insurance claim in the State of Florida from 2004 through 2007. The defendant responded: General Objections 1-18 are incorporated by reference. This Interrogatory is overbroad, vague, ambiguous, and assumes facts not in evidence as it seeks “all person who have personal knowledge; of “First party property claims in the State of Florida from 2004 through 2007” and seeks the disclosure of proprietary information which is not reasonably calculated to lead to the discovery of admissible evidence. Defendant further objects to the extent NIAGARA seeks identification of employees not involved in the underlying claim and information not related to the claim brought by it involving damage sustained at 3701 N. 29th Avenue, Hollywood, Florida, on the grounds that the information requested is not reasonably calculated to lead to the discovery of admissible evidence, and is premature as there has been no showing that NIAGARA'S claims handled in bad faith. In addition, the requisite predicate for such a claim has not been established in that no evidence of a general business pattern and practice has been shown. The plaintiff's motion contends that the whole purpose of a bad faith lawsuit is to determine whether the defendant's claim handling guidelines have been promulgated and/or created in a manner to short change its insureds from receiving all rightly owed insurance benefits. The plaintiff also cites Allstate Indemnity Co. v. Ruiz, 899 So.2d 1121 (Fla. 2005), which discusses the permissible extent of discovery from an insurer. The defendant's response to the motion asserts that the its claims and general business practices are only relevant to a punitive damages claims properly pled under Fla. Stat. § 624.155(5), which is not an issue in this case. The plaintiff's reply contends that knowing the individuals involved in the training and development for the defendant is important to be able to have an authoritative source who can explain how the terms, meaning, requirements came into effect, why they are implemented for use by the defendant, whether they are merely a compilation of general industry standards and practices, and the reason for having them as the training guidelines. *4 The Court finds that Ruiz discusses whether the work product privilege shields discovery of the insured's claim file. The Court determined that the claim file, through date of the resolution of the claim, was not privileged. However, “materials prepared after the resolution of the underlying disputed matter and initiation of the bad faith action may be subject to production upon a showing of good cause or pursuant to an order of the court following an in-camera inspection.” Id. at 1130.[2] The decision does not discuss discovery of the insurer's general business practices, or the promulgation, training and implementation of those business practices, and provides no basis to compel discovery into those areas. The Court notes that the Third Amended Complaint alleges violation of both Fla. Stat. § 624.155 and Fla. Stat. § 626.9541(1)(i)(3), which defines unfair acts or practices by insurers to include “Committing or performing with such frequency as to indicate a general business practice any of the following: (a) Failing to adopt and implement standards for the proper investigation of claims.” The Florida Supreme Court, considering the relationship between § 624.155 and § 626.9541(1)(i), held that a claim made pursuant to Fla. Stat. § 626.9541(1)(i) does not require the plaintiff to prove the defendant's general business practices. The Court found that Fla. Stat. § 624.155(1), which specifically incorporates claims based on violation of Fla. Stat. § 626.9541(1)(i), limits the litigation of such a claim when it does not include a claim for punitive damages. Dadeland Depot, Inc. v. St. Paul Fire and Marine Ins. Co., 945 So.2d 1216, 1231-1233 (Fla. 2006). Since the plaintiff does not seek punitive damages, it is not required to prove the defendant's general business practices, including the promulgation of standards for claims investigation and processing. Nor has the plaintiff shown good cause for expanding the discovery beyond the allegations of the complaint. Fed.R.Civ.P. 26(b)(1). The Court will deny the motion to compel a better response to Interrogatory No. 9. Interrogatory No. 10 asks State with specificity every document containing statements of protocol, company guidelines, administrative bulletins, manual or handbook, inter-company memoranda or other document(s) of any kind, promulgated by NORTHERN and disseminated or distributed to its employees, relating to the standard, recommended, or expected procedure for the administration, investigation, evaluation, determination, and payment of first party property and/or hurricane claims in the State of Florida from 2004 through 2007. State the name(s), address(es), and telephone number(s) of all persons who have personal knowledge of any of these facts, and identify all documents that support or explain any of these facts. *5 The defendant responded to the interrogatory with the same answer it provided for Interrogatory No. 9. Additionally it referred to its Response No. 1 to the plaintiff's First Request for Production. The motion to compel argues that the defendant, without explanation, refused to identify all persons with knowledge of these facts. The defendant's response to the motion asserts that the request to identify every employee who was involved in the procedures for claims adjustment in Florida for the period from 2004-2007 is not relevant since the plaintiff is not seeking punitive damages. The defendant agrees to provide the Best Practices Manuals applicable to the plaintiff's underlying claim, subject to a confidentiality agreement or protective order. The plaintiff's reply asserts that the information clearly is relevant. The lack of a privilege log for the Best Practices Manual waives the right to asserts the privilege. The Court has addressed the issue of confidentiality for the Best Practices Manual in a separate Order, and found that the defendant is not asserting a privilege with regard to the material. For the reasons set forth for Interrogatory No. 9, the Court will deny the motion to compel a better response to Interrogatory No. 10. Interrogatory No. 10A asks If the answer to the preceding Interrogatory is yes there are document(s), state: -the complete title of such manual; -the year of publication; -the author or the department or individual responsible for its contents; and -an appropriate custodian within the company who would have a current edition available for inspection. State the name(s), address(es), and telephone number(s) of all persons who have personal knowledge of any of these facts, and identify all documents that support or explain any of these facts. The defendant provided the same answer as its answer to Interrogatory No. 10. The parties' briefing of motion to compel adopts the arguments for Interrogatory No. 9. For the reasons set forth for Interrogatory No. 9, the Court will deny the motion to compel a better response to Interrogatory No. 10A. Interrogatory No. 11 asks Identify the individuals in NORTHERN, including title, address and function, who are responsible for devising, implementing, and overseeing the training of adjusters, claims representative, claims supervisors, or any other individual involved in first party property and/or hurricane claims-handling process within NORTHERN in the State of Florida from 2004-2007, and, who is the person(s) that trained the adjuster(s) who is responsible for NIAGARA'S claim adjustment. State the name(s), address(es), and telephone number(s) of all persons who have personal knowledge of any of these facts, and identify all documents that support or explain any of these facts. The defendant's response to this interrogatory is the same as its response to Interrogatory No. 10. The motion to compel adopts the plaintiff's argument for Interrogatories No. 9 and 10. The defendant's response to the motion asserts that the interrogatory is over broad in scope and not relevant since the training of the defendant's personnel has nothing to do with the claim of bad faith. Any training is provided through informal group meetings, use of the best Practices manual and the experience the claims personnel already Have in Catastrophe and Large Loss claim units. The defendant will produce its Best Practices Manuals upon entry of a protective order assuring the confidentiality of the materials. *6 The plaintiff's reply contends that it has alleged that inadequate training was a potential cause, inter alia, of the bad faith. The reply asserts that the information is relevant because the complaint alleges that the defendant violated Fla Stat. § 624.155(1)(b)(1) and (3) by failing to properly train, supervise or otherwise manage adjusters, representatives, and investigators properly and failed to adopt and implement standards for the proper investigation of insurance claims of like kind or similar to that of the plaintiff's claim. The Court adopts its analysis for Interrogatory No. 9, that Fla. Stat. § 624.155(1) does not require the plaintiff to prove the defendant's general business practices when the plaintiff does not seek punitive damages. Accordingly the court will not compel a response to Interrogatory No. 11. Interrogatory No. 11A asks Describe comprehensively and in detail all training materials of any kind used by NORTHERN in training adjusters, claims representatives, claims supervisors, or any other individual involved with first party property and/or hurricane claims-handling process within NORTHERN in the State of Florida from 2004 through 2007. State the name(s), address(es), and telephone number(s) of all persons who have personal knowledge of any of these facts, and identify all documents that support or explain any of these facts. The defendant's response refers to its response to Interrogatory No. 10. The parties briefed the motion to compel in the same manner as Interrogatory No. 11 For the reasons the Court discussed for Interrogatory No. 11, the Court will deny the motion to compel a response to Interrogatory No. 11A. Interrogatories No. 15, 16 and 17 relate to the hardware and software (e.g., computers, servers, backup equipment and operating systems) used by Northern in evaluating the plaintiff's claim. The parties briefed these three as a group. Interrogatory No. 15 asks As to the storage of NORTHERN data generated by the users [defined as anyone who had any role, excluding clerical, in working on or adjusting the insurance claim(s) of NIAGARA] of your computers (such as word-processing files, PDF files, and e-mail, etc.). Please state whether the data is backed up on tape or other media. If so: -How many such media currently exist with backup data on them? -What is the maximum storage size in megabytes for each such media? -What is the brand name for each such media? -what was the last time each such media was backed up with data? -What was the computer or other hardware (e.g., individual workstation, server) for each such backup? -with respect to the immediately foregoing question, state the physical location and current user of each computer or other hardware listed. State the name(s), address(es), and telephone number(s) of all persons who have personal knowledge of any of these facts, and identify all documents that support or explain any of these facts. The defendant responded General Objections 1-18 are incorporated by reference. Furthermore whether there are backup of files maintained by NORTHERN is irrelevant to any issue, claim or defense in this bad faith and unfair claim settlement practices suit, and therefore is not reasonably calculated to lead to the discovery of admissible evidence. Interrogatory No. 16 asks List with specificity all computer equipment provided by NORTHERN or used by employees/representatives [identified as anyone who had any role, excluding clerical, in working on or adjusting the insurance claim(s) of NIAGARA] involved in the plaintiff's insurance claim to perform work for NORTHERN, including but not limited to laptops, PDA, voice mail, cellular telephone, hardware and/or peripherals attached to a computer such as computer cases, [desktop, tower, portable/batteries, all-in-one], monitors, modes (internal and external), printers, keyboards, printers, scanners, mice (cord and cordless), pointing devices (joystick, touchpad, trackball) and speakers. Include description of equipment, serial number, and all users for the period October 2005 (date of loss) to January 2007, and dates used and all locations where the equipment is located for the same time period. State the name(s), address(es), and telephone number(s) of all persons who have personal knowledge of any of these facts, and identify all documents that support or explain any of these facts. *7 The defendant responded General Objections 1-18 are incorporated herein. Further, to list every computer, PDS, cellular telephone, and myriad peripherals attache to every compute, along with the serial number is overbroad in scope and unduly burdensome in that the expense to NORTHERN to identify and catalog the requested information vastly outweighs any potential benefit to NIAGARA in discovering this information. Further, NORTHERN'S complete policy and claim file materials contain all document pertinent to this litigation, and the only purpose this Interrogatory serves is to annoy and harass NORTHERN and improperly obtain persona and confidential information. Interrogatory No. 17 asks List with specificity all operating systems (including but not limited to UNIX, Windows, DOS, Linux and PDA operating systems) installed on all computer used by NORTHERN, the specific equipment the OS was installed on and th period during which it was installed on the specific equipment. State the name(s), address(es), and telephone number(s) of all persons who have personal knowledge of any of these facts, and identify all documents that support or explain any of these facts. The defendant responded General Objections 1-18 are incorporated by reference. Further, the type of operating systems installed on all computers used by NORTHERN irrelevant to any issue, claim or defense in his bad faith and unfair claim settlement practices suit, and therefore is not reasonably calculated to lead to the discovery of admissible evidence. The plaintiff's motion refers to its argument for Interrogatories 9 and 10. The defendant's response to the motion asserts that, except for those documents identified as proprietary and confidential, all documents pertaining to the underlying claim have been produced. The defendant contends that any information stored electronically would merely duplicate the documentation already provided. Calixto v. Watson Bowman Acme Corp., 2009 WL 3823390 at *20-21 (S.D. Fla. 2009)(in the absence of any allegation that the defendant had purged responsive electronically stored records, production of relevant electronic data which duplicates documents already produced is merely cumulative and duplicative and will not be compelled). The plaintiff's reply asserts that it needs this information to provide to its computer forensic experts so that they can determine the likelihood of retrieval and the cost of actually retrieving relevant electronic documents. The Court finds that the broad scope of this request would require the defendant to expend enormous resources solely to allow the plaintiff to determine whether to pursue electronic discovery. The defendant states that it has provided copies of all documents which are electronically stored. The plaintiff has made no allegation or argument that the defendant purged the records prior to document production. Calixto. Accordingly, the Court will not compel responses to interrogatories 15, 16 and 17. Interrogatory No. 19 asks List with specificity all telephone equipment provided by NORTHERN or used by employees/representatives involved in the Plaintiff's insurance claim to perform work for NORTHERN, including but not limited to desktop telephones, cell phones, pagers, PDA and laptop modems, calling cards, telephone software and contact management software. Include a description of equipment and software, serial number, all users for the period of October 2005 (date of loss) to January 2007, inclusive and dates used, and all location where the equipments was located from the time period inclusive. State the name(s), address(es), and telephone number(s) of all persons who have personal knowledge of any of these facts, and identify all documents that support or explain any of these facts. *8 The defendant responded: General Objections 1-18 are incorporated by reference. Further, the identification of every piece of telephonic equipment used by NORTHERN employees or representatives in handling NIAGARA'S underlying claim, including serial numbers, is irrelevant to any issue, claim or defense in his bad faith and unfair claim settlement practices suit, and therefore is not reasonably calculated to lead to the discovery of admissible evidence. The plaintiff's motion to compel refers to its argument for Interrogatories 9 and 10. The defendant's response to the motion states that identifying this equipment does not prove or disprove that the defendant handled the underlying claim in bad faith. Cataloging this information only serves to harass the defendant. The plaintiff's reply asserts that insurance adjusting involves multiple forms of communication, inspecting the property with electrical devices such as digital cameras, video phones, electronic measurement devices, video cameras, etc. The plaintiff argues that the defendant does not say that collecting this information is burdensome, only that it is not relevant. Moreover the response does not include any legal citation. The Court finds that the defendant is not required to provide legal citation in response to a motion to compel, merely a factual explanation of why a response should not be compelled. Sampson, 2010 WL 2737050. The defendant has provided an explanation, including the assertion that the interrogatory constitutes harassment. The Court agrees that requiring the defendant to attempt to locate telephone equipment and calling cards used five years ago by any employee who worked on the plaintiff's claim, complete with serial numbers, including a list of all the other persons who used the equipment during the time period, is overly burdensome. The plaintiff's reply does not discuss the relevance of the items sought, but instead discusses the relevance of items not sought by the interrogatory, such as electronic measuring equipment, digital cameras and video cameras. The Court will not compel a response to Interrogatory No. 19. With the Court being advised, it is Hereby ORDERED AND ADJUDGED that the motion to compel better responses to interrogatories is DENIED as to 2A, 2B, 9, 10, 10A, 11, 11A, 15, 16, 17 and 19. DONE AND ORDERED at Fort Lauderdale, Florida, this 25th day of May, 2011. Footnotes [1] The defendant lists Interrogatory No. 4 as still at issue, but does not address it in the response. The plaintiff also does not address it in the reply. Accordingly, the court deems Interrogatory No. 4 to be no longer at issue. [2] The motion to compel includes the general argument that the defendant has never identified the date at which it anticipated litigation. The plaintiff suggests that the date should be April 20, 2010, approximately two months before the complaint was filed. Citing Ruiz, the plaintiff asserts that all documents created prior to April 20, 2010, should be produced in response to the interrogatories. However, the Ruiz court held that any document “prepared after the resolution of the underlying disputed matter” may be subject to the work product privilege, which may be overcome by a showing of good cause. The date of the final settlement check was December 2, 2009. (DE 37-2) Accordingly, in response to the instant interrogatories, the defendant is only required to produce documents through December 2, 2009. These interrogatories do not seek information from the period after the claim was settled and the defendant has not asserted the work product privilege in responding to the interrogatories.