Wynmoor Community Council, Inc., et al., Plaintiffs, v. QBE Insurance Corporation, Defendant CASE NO. 10-62411-CIV-DIMITROULEAS/Snow Signed June 05, 2012 Filed June 06, 2012 Counsel Christopher N. Mammel, Coleman J. Braun, Michael L. Childress, Childress Duffy, Ltd., Chicago, IL, Erwin Alexander Acle, Childress Duffy, Ltd., Miami, FL, Mark D. Bogen, Bogen Law Group, P.A., Boca Raton, FL, for Plaintiffs. Damian Dwight Daley, Wicker Smith O'Hara McCoy & Ford PA, Maria Josefa Beguiristain, Raoul G. Cantero, III, White & Case LLP, Miami, FL, Jordan Scott Cohen, Wicker Smith Tutan O'Hara McCoy Graham & Ford, Fort Lauderdale, FL, William S. Berk, Evelyn Maureen Merchant, John Robert Anderson, Patrick Edward Betar, Berk Merchant & Sims PLC, William Frederick Fink, Wicker Smith O'Hara McCoy et al., William Xanttopoulos, Coral Gables, FL, Ronaflor E. Smith, C. Deborah Bain PA, North Palm Beach, FL, Catherine Deborah Bain, Jupiter, FL, for Defendant. Snow, Lurana S., United States Magistrate Judge ORDER *1 THIS CAUSE is before the Court on the Plaintiffs' Second Motion to Compel Production of Documents and Answers to Interrogatories (DE 123), which was referred to United States Magistrate Judge Lurana S. Snow. I. RELEVANT PROCEDURAL HISTORY The Plaintiffs, Wynmoor Community Council, Inc. et al., (Wynmoor), filed a Complaint alleging breach of an insurance contract against Defendant, QBE Insurance Corporation (QBE), in Broward County, Florida on October 22, 2010. (DE 1-4) On December 10, 2010, the matter was removed to this Court. (DE 1) The Plaintiffs' Corrected Fourth Amended Complaint claims that they are entitled to payment for losses sustained as a result of damage caused by Hurricane Wilma on October 24, 2005. (DE 67) QBE filed its Answer and Affirmative Defenses to the Fourth Amended Complaint on February 1, 2012. (DE 72) On March 7, 2012, Wynmoor served QBE with its third set of interrogatories and requests for production of documents. On April 20, 2012, QBE served objections to the third set of interrogatories and objections and responses to the third requests for production. QBE also provided unverified answers to the interrogatories on the same date. On April 26, 2012, QBE provided verified answers to the interrogatories. Wynmoor's discovery requests are limited to information concerning insurance claims filed by Wynmoor in connection with prior or subsequent insurance policies with QBE. Wynmoor is seeking further information in response to Interrogatories numbered 2 and 3. It also asks the Court to overrule QBE's objections to Document Requests numbered 1-5. In addition, on April 19, 2012, Wynmoor served a subpoena duces tecum on Florida Intracoastal Underwriters, Ltd. (FIU), and Andrew Bertucci, FIU's managing general agent. QBE served its objections and response to the subpoena duces tecum on April 31, 2012, followed by an amended objection and response on May 1, 2012. The subpoena sought documents related to insurance claims identified by QBE involving a policy release in exchange for loss payment during the adjustment process and prior to any litigation. Although QBE asserts various privileges, it has not provided a privilege log. Instead it asks to be excused from any obligation to do so owing to the “sweepingly broad and unduly burdensome nature of the request [and] its patent lack of relevance.” (DE 123-7, p. 4) Alternatively, it asks for an extension of time to provide a privilege log. Id. Wynmoor contends that responsive materials may be of use in its response to QBE's pending motion for summary judgment which the Plaintiffs' assert is due on or before June 5, 2012.[1] QBE's summary judgment motion cites the executed release as a bar to the Plaintiffs' breach of contract claim in this lawsuit. (DE 103) Accordingly, the undersigned ordered expedited briefing. (DE 124) II. ANALYSIS *2 Fed.R.Civ.P. 33 and 34 permit a party to serve interrogatories and requests to produce documents respectively within the scope of Fed.R.Civ.P. 26(b). A party seeking discovery may move for an order compelling discovery responses. Fed.R.Civ.P. 37(a). Motions to compel are committed to the sound discretion of the court. Commercial Union Ins. Co. v. Westrope, 730 F.2d 729, 731 (11th Cir. 1984). “The party resisting production of information bears the burden of establishing lack of relevancy or undue burden in supplying the requested information.” Gober v. City of Leesburg, 197 F.R.D. 591, 521 (M.D. Fla. 2000) (citations omitted). The Federal Rules of Civil Procedure set forth the scope and limits of discovery. Under Rule 26(b), “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense...[that] is relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence..., [however] the court must limit the frequency or extent of discovery otherwise allowed by these rules...if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues....” Fed.R.Civ.P. 26(b). The Advisory Committee notes to Rule 26 are instructive. They make clear that a broad search for facts, and indeed “fishing” for evidence is permitted. Adv. Com. Notes, 1946 Amendment, Rule 26, Fed.R.Civ.P. “Of course, matters entirely without bearing either as direct evidence or as leads to evidence are not within the scope of inquiry, but to the extent that the examination develops useful information, it functions successfully as an instrument of discovery, even if it produces no testimony directly admissible.” Id. (citations omitted). The Interrogatories and Request for Production Wynmoor seeks more complete answers to Interrogatories numbered 2 and 3 which seek information regarding any other claims filed by any of the Plaintiffs with QBE from January 1992 through the present. The requests for production seek all documents in connection with QBE's response to the interrogatories. The interrogatories and the requests for production and QBE's responses read as follows: Interrogatory No. 2: Apart from the insurance claim filed by Wynmoor Community Council, Inc., as a result of the October 24, 2005 wind event, identify any and all other claims filed by any of the Plaintiffs with QBE from January 1992 through the present, and in reference to each state the following: a. The named insured on whose behalf the claim was made; b. The date of the loss; c. The date that QBE was made aware of the loss; d. The date that the claim was filed; e. The cause of the loss; f. The claimed damage amounts; g. The amounts of any insurance proceeds paid by QBE as a result of the claim; and h. Whether or not QBE required the signing of a release prior to the settlement of the claim. *3 QBE's Objection: Defendant objects, in part, to Interrogatory no. 2 requesting that Defendant “identify any and all other claims filed by any of the Plaintiffs with QBE from January 1992 through the present, and in reference to each state the following: ... c. The date that QBE was made aware of the loss; d. The date that the claim was filed; ... f. The claimed damage amounts; ... h. Whether or not QBE required the signing of a release prior to the settlement of the claim” as overly broad, unduly burdensome, harassing, irrelevant and not reasonably calculated to lead to discovery of relevant admissible evidence. Defendant does not object to preparing a list of other claims made by Wynmoor Village to QBE, and does not object to providing the date of loss, the date QBE was notified of the loss, the cause of loss, and the amount paid for the claim. However, information regarding all other unrelated claims made by Wynmoor Village to QBE including, but not limited to, claims involving lightning, fire, water/mold, tree root damage and vandalism, has no relevance to any of the material issues in this case. The request is also overly broad as Plaintiffs have not limited the request to a relevant time. Further, the request for detailed information relating to each of these claims is unduly burdensome as information for each of these claims pertaining to “[t]he date that QBE was made aware of the loss” and “[t]he claimed damage amounts” is not readily accessible by Defendant and compliance would require that Defendant and its attorneys retrieve old files from off-site storage and search all of these files. Moreover, Defendant does not maintain a list of claims in which a release was obtained. QBE's Answer:[2] Please refer to Defendant's Objections to Plaintiffs' Third Set of Interrogatories. Without waiving said objections, in response to Plaintiffs' request, the following list of all other claims filed by Wynmoor Village with QBE: Claim No. 3P14760 Date of Loss: 7/2/2003 Date of Notice: 8/12/2003\ Date Claim was filed: Undetermined Cause of Loss: Lightning – Alarm – Cayman Payment by QBE: $236.70 Release: Undetermined Claim No. 6P20671 Date of Loss: 8/11/2006 Date of Notice: 10/6/1006 Date Claim was filed: Undetermined Cause of Loss: Lightning – Alarm System Claimed Damage Amount: Undetermined Payment by QBE: $0 Adjusters: Bertucci/Burton Interrogatory No. 3: Relative to any insurance claims identified in Interrogatory No. 2, identify each person who, on behalf of Defendant, was in any way involved in processing, reviewing or making decisions regarding the claim, including the handling, analysis, investigation, valuation and adjustment of the claim, or in any way worked on the claim. QBE's Objection: Defendant objects, in part, to Interrogatory no. 3 asking Defendant “[r]elative to any insurance claims identified in Interrogatory No. 2, identify each person who, on behalf of Defendant, was in any way involved in processing, reviewing or making decisions regarding the claim, including the handling, analysis, investigation, valuation and adjustment of the claim, or in any way worked on the claim” as overly broad, unduly burdensome, irrelevant and not reasonably calculated to lead to discovery of relevant admissible evidence. Defendant does not maintain a list for every case identifying all persons involved with the investigation, handling, valuation or adjustment of the claim. Information regarding other unrelated claims made by any of the Plaintiffs has no relevance to any of the material issues in this case. The request is also overly broad as Plaintiffs have not limited the request to any relevant time frame. The request is unduly burdensome as identification of information for “each person, who on behalf of Defendant, was in any way involved in ... the claim” is not readily accessible by Defendant and compliance would require that Defendant and attorneys retrieve these files from off-site storage and search all of these files. Without waiving said objection, QBE has complied with this request by identifying adjusters involved with most of the claims based upon accessible information. *4 QBE's Answer: Please refer to Defendant's Objections to Plaintiffs' Third Set of Interrogatories. Please refer to Defendant's Answer to Interrogatory No. 2 above. Request No. 1: Any and all documents described, identified, referred, and/or responsive to Defendant's Answers to Plaintiffs' Third Set of Interrogatories; or which were read, reviewed, relied upon, or otherwise utilized in any manner in preparing Defendant's Answers to said Interrogatories. QBE's Response: Defendant objects to item number 1 requesting “[a]ny and all documents described, identified, referred, and/or responsive to Defendant's Answers to Plaintiffs' Third Set of Interrogatories; or which were read, reviewed, relied upon, or otherwise utilized in any manner in preparing Defendant's Answers to said Interrogatories” as overly broad, irrelevant and violative of the work product and attorney-client privileges. By its overbreadth, the request could encompass notes, reports and correspondence between the attorneys and client or between adjusters and others in Defendant's claim file, which would be protected by the attorney-client and work product privileges. Please refer to Defendant's prior objections relating to its claim files as Defendant has consistently and uniformly maintained its position that Plaintiffs' requests for its claim files seek irrelevant and privileged materials. However, without waiving said objections, Defendant did not review any claim file materials in preparing its Answers to Interrogatories. Defendant's Answers to Interrogatories were based upon review of a list of claims made by Wynmoor Village against QBE, which has been incorporated into Defendant's Answer to Interrogatory No. 2 of Plaintiffs' Third Set of Interrogatories. The list of claims is irrelevant and privileged, and is duplicative of the information listed in the Answers to Interrogatories. Defendant has complied with this request by producing the information requested in Interrogatory No. 2. Request No. 2: Regarding any claim identified in Defendant's Answer to Interrogatory No. 2 of Plaintiffs' Third Set of Interrogatories, the complete paper and electronic claim file, cover to cover, from Defendant's Home office regarding the claim, including, but not limited to: a. All written or computerized records of payments, communications, whether written, computerized, or oral, to or from any employee or representative of Defendant and Plaintiff or any third party; b. All written or computerized records of any investigation conducted in connection with the claim; c. Reports, estimates, findings, and other documents reflecting the findings or results of any investigation into the cause or value of Plaintiff's loss that is the subject of the claim; d. Internal reports, inter-office memoranda, handwritten memos, notes, slip, etc.; e. Activity logs; f. The file folders in which the preceding documents are kept; and g. Instructions on investigation, coverage questions, evaluation, appraisal, settlement, or other claims handling activities. *5 QBE's Response: Defendant objects to item number 2 requesting “regarding any claim identified in Defendant's Answer to Interrogatory No. 2 of Plaintiffs' Third Set of Interrogatories, the complete paper and electronic claim file, cover to cover, from Defendant's Home office regarding the claim” as vague and unclear, overly broad, unduly burdensome, harassing, irrelevant, not reasonably calculated to lead to discovery of relevant admissible evidence, and potentially encompassing documents protected by the work-product and attorney-client privileges. The request is vague and unclear as the reference to a “Home office” would not apply to any of Plaintiffs' claims, which have been handled by Defendant's managing general agent in Florida. Assuming that the request was intended to seek the claim file of the adjusters in Florida, the request is overly broad as Plaintiffs have not limited their request to items within the claim file which would be relevant to any material issues in this case. In addition, the contents of an insurer's claim file are irrelevant and are privileged and entitled to protection under Florida law in the first party context. Please refer to Defendant's prior objections relating to its claim files as Defendant has consistently and uniformly maintained its position that Plaintiffs' requests for its claim files seek irrelevant and privileged materials. Further, the request is unduly burdensome as the requested information for each of these claims is not readily accessible by Defendant and compliance would require that Defendant and its attorneys retrieve the files from off-site storage and search all of these files. Due to the sweepingly broad nature of the request and its patent lack of relevance, Defendant requests that it be excused from any obligation to provide a privilege log. See In re Circle K Corp., 199 B.R. 92 (S.D. N.Y. 1996). In the alternative, the Defendant requests an extension of time to file a privilege log if and when one should be required by the Court. Request No. 3: Regarding any claim identified in Defendant's Answer to Interrogatory No. 2 of Plaintiffs' Third Set of Interrogatories, the complete paper and electronic claim file, cover to cover, from Defendant's Regional office regarding the claim, including, but not limited to: a. All written or computerized records of payments, communications, whether written, computerized, or oral, to or from any employee or representative of Defendant and Plaintiff or any third party; b. All written or computerized records of any investigation conducted in connection with the claim; c. Reports, estimates, findings, and other documents reflecting the findings or results of any investigation into the cause or value of Plaintiff's loss that is the subject of the claim; d. Internal reports, inter-office memoranda, handwritten memos, notes, slip, etc.; e. Activity logs; f. The file folders in which the preceding documents are kept; and g. Instructions on investigation, coverage questions, evaluation, appraisal, settlement, or other claims handling activities. *6 QBE's Response: In response to item number 3 requesting “regarding any claim identified in Defendant's Answer to Interrogatory No. 2 of Plaintiff's Third Set of Interrogatories, the complete paper and electronic claim file, cover to cover, from Defendant's Regional office regarding the claim,” please refer to Defendant's objection and response to item number 2 above. Request No. 4: Regarding any claim identified in Defendant's Answer to Interrogatory No. 2 of Plaintiffs' Third Set of Interrogatories, the complete paper and electronic claim file, cover to cover, from Defendant's Local office (including “field” file) regarding the claim, including, but not limited to: a. All written or computerized records of payments, communications, whether written, computerized, or oral, to or from any employee or representative of Defendant and Plaintiff or any third party; b. All written or computerized records of any investigation conducted in connection with the claim; c. Reports, estimates, findings, and other documents reflecting the findings or results of any investigation into the cause or value of Plaintiff's loss that is the subject of the claim; d. Internal reports, inter-office memoranda, handwritten memos, notes, slip, etc.; e. Activity logs; f. The file folders in which the preceding documents are kept; and g. Instructions on investigation, coverage questions, evaluation, appraisal, settlement, or other claims handling activities. QBE's Response: In response to item number 3 requesting “regarding any claim identified in Defendant's Answer to Interrogatory No. 2 of Plaintiff's Third Set of Interrogatories, the complete paper and electronic claim file, cover to cover, from Defendant's Local office (including “field” file) regarding the claim,” please refer to Defendant's objection and response to item number 2 above. Request No. 5: Regarding any claim identified in Defendant's Answer to Interrogatory No. 2 of Plaintiffs' Third Set of Interrogatories, all reports, correspondence, loss and damage estimates, and advisory documents to or from any person or organization who conducted an investigation into the damage, and/or the scope of the loss and damages suffered as a result of said loss, and/or the cost to repair or replace the loss damage suffered as a result of said loss including, but not limited to, all activity logs, documents reflecting billing and payments, tax ID number printouts, and contracts or retention agreements. QBE's Response Defendant objects to item number 5 requesting “regarding any claim identified in Defendant's Answer to Interrogatory No. 2 of Plaintiffs' Third Set of Interrogatories, all reports, correspondence, loss and damage estimates, and advisory documents to or from any person or organization who conducted an investigation into the damage, and/or the scope of the loss and damages suffered as a result of said loss, and/or the cost to repair or replace the loss damage suffered as a result of said loss including, but not limited to, all activity logs, documents reflecting billing and payments, tax ID number printouts, and contracts or retention agreements” as vague and unclear, overly broad, unduly burdensome, harassing, and violative of the work product and attorney-client privileges. Defendant does not have possession of any contracts or retention agreements with independent adjusters or consultants who investigated the damages from any of Plaintiffs' prior unrelated claims. The request is vague as Defendant does not comprehend the meaning of “advisory documents.” By its overbreadth, the request encompasses noes, reports and correspondence between the attorneys and client or between adjusters and others in Defendant's claim files, which would be protected by the attorney-client and work product privileges. Please refer to Defendant's objections to item number 2 above. Defendant has consistently and uniformly maintained its position that Plaintiffs' requests for its claim files seek irrelevant and privileged materials. Further, the request is unduly burdensome as the requested information for each of these claims is not readily accessible by Defendant and compliance would require that Defendant and its attorneys retrieve all such files from off-site storage and search all such files. Due to the sweepingly broad nature of the request and its patent lack of relevance, Defendant requests that it be excused from any obligation to provide a privilege log. See In re Circle K Corp., 199 B.R. 92 (S.D. N.Y. 1996). In the alternative, the Defendant requests an extension of time to file a privilege log if and when one should be required by the Court. *7 QBE contends that it has provided all of the information sought by the interrogatories which could be obtained without physically retrieving and reviewing each of 48[3] files from off-site storage which it asserts would be an extensive burden.[4] It provided information for claims between July of 2003 and October of 2006, which were the only claims during the four year period between May of 2003 and February of 2007 that QBE insured the Wynmoor property. Therefore, QBE asserts it has provided nearly all of the information requested in Interrogatories 2 and 3. Although QBE objects to producing each of the 48 claim files cover to cover, it has instead offered to produce nearly all the documents contained in 8 files[5] or, in the alternative, documentation from all 48 claim files that describe or depict the pre-hurricane condition of the Wynmoor property, subject to the Plaintiffs' agreement to pay the costs incurred to retrieve and deliver the files from off-site storage. Wynmoor argues that in addition to evidence concerning its maintenance of and the pre-hurricane condition of the property, it is also seeking evidence concerning QBE's practices for obtaining releases. Wynmoor agrees to QBE's offer to produce only the files concerning property damage claims at Wynmoor's expense. However, it disagrees that the documents should be limited to those that evidence the prior condition of the property. Wynmoor also disputes QBE's representation that it insured the Wynmoor property for a four year period. In fact, Wynmoor asserts that QBE has already produced policy related documents on the Wynmoor property dating back to January of 1991 (DE 120-15)[6], and Florida Intracoastal Underwriters' risk experience summary shows claims from as early as 1990.[7] As an initial matter, the Court must address QBE's assertion of undue burden in retrieving and compiling privilege logs for the 48 claim files. In offering to produce documents evidencing the prior condition of the Wynmoor property, QBE concedes that at least those documents are relevant in this case. Presumably, it would have to retrieve the files and review them in order to produce those limited documents. QBE does not explain why it could not prepare privilege logs at the same time. In general, a party seeking to avoid discovery based upon undue burden must substantiate the position with detailed affidavits and cannot rely on conclusory assertions about the difficulty of complying. FTC v. Nationwide Connections, Inc., 2007 U.S. Dist. Lexis 62891. QBE has not supported its undue burden position with anything other than its conclusory assertions. Wynmoor has agreed to incur the expense of retrieving the files. Under the circumstances, QBE will not be unduly burdened by retrieving and reviewing the files. *8 QBE cites this Court's order on an earlier motion to compel (DE 99) in support of its offer to produce only those documents evidencing the pre-hurricane condition or prior maintenance of the Wynmoor property. Specifically, QBE argues that because this Court did not order it to produce its entire underwriting file to Wynmoor, finding that only documents concerning the prior condition of the property were relevant, the Court should make the same finding here. However, QBE is referring to the ruling concerning its underwriting file. Wynmoor is now seeking claim file documents in connection with the 48 property losses identified by QBE as prior Wynmoor claims. An insurer's claim file documents are not afforded blanket protection in the federal courts. Documents in an insurers claim file produced before a final decision on an insured's claim are presumed to be prepared in the ordinary course of business and are not generally entitled to work product immunity from disclosure. Harper v. Auto-Owner's Ins. Co., 138 F.R.D. 655 (S.D. Ind. 1991). The presumption is rebuttable; an insurer must demonstrate evidentiary proof that a reasonable anticipation of litigation existed when the document was produced, and that the document was prepared solely to prepare for litigation in order to rely on work product privilege to withhold it. Id. A number of courts in this district have followed the analysis utilized in Harper. See e.g., Milinazzo v. State Farm Ins. Co., 247 F.R.D. 691 (S.D. Fla. 2007); 1550 Brickell Associates v. QBE Insurance Co., 597 F. Supp.2d 1334 (S.D. Fla. 2009). In addition to evidence concerning the prior condition of the property, Wynmoor is also seeking evidence concerning when and under what circumstances QBE has demanded a policy release in connection with the adjustment of a claim. QBE's pending motion for summary judgment argues that the release executed in this case bars Wynmoor's breach of contract claim. Wynmoor contends the release was not supported by consideration because QBE was already obligated to pay for the covered loss without a release. Wynmoor is seeking through discovery evidence which it hopes will be of use in responding to QBE's motion. Of the 49 prior claims listed by QBE in its response to Interrogatory 2, QBE answered that it was undetermined whether a release was required prior to the settlement of the claim 42 times (28 of which involved claims where the adjustment of the loss resulted in payment to the insureds.) The Court assumes QBE could not answer this question definitively without retrieving the files. Since Wynmoor has agreed to incur the cost associated with retrieving the prior claim files, and in light of the fact that the discovery process should encourage a broad search for facts, the Court will order QBE to produce documents from the claim files to the Plaintiffs which describe or depict the pre-existing condition of the Wynmoor property, or prior maintenance of the property, as well as any documents referencing a policy release relative to each of the claims. If QBE intends to assert any privileges with respect to the documents it shall provide a privilege log. QBE shall also amend its response to Interrogatory 2 to indicate wherever possible whether a release was required prior to the settlement of the claim. The subpoena duces tecum The rider to Wynmoor's subpoena to FIU provides: Rider: 1. For each of the listed insureds “whose claims were settled pre-suit and who signed a Policyholder's release” (Compiled List attached hereto as Exhibit A), please provide the following: a. Your entire claims file for the loss relative to each insured's claim listed in which a “Policyholder's Release” was signed, including but not limited to the policy, all documents and/or electronic data regarding or related to the claim and loss, correspondence, notes, e-mails, memoranda, reports, logs, diaries, bills, applications, or any other tangible or electronically stored document in your possession related to these subject matters; b. Damage investigation summaries or reports relating to, or regarding each respective insured's loss and claim; c. Copies of any and all estimates of damages to each respective insured's property arising from its respective loss and claim; d. All appraisals of loss or value prepared by, for, or on behalf of QBE regarding each insured's respective loss and claim; *9 e. Any and all documents supporting QBE's position taken with respect to each insured's respective loss and claim; f. Any electronic, digital or paper file entry, memo to file, note or other writing related to, referring to or embodying any communication regarding any “Policyholders Release” to be executed by each respective insured, including, but not limited to all communications regarding the terms of the “Policyholders Release” sent by QBE to each respective insured, and all drafts of the said “Policyholders Release[s];” g. The names, address, and present employer of any person that worked on each respective insured's loss and claim for FIU and/or QBE; and h. A copy of any pleading filed in any litigation filed by any insured listed on Ex. A after the date of the release entered into between the parties (alternatively, produce documents identifying the parties, court, and counsel of record in any such civil litgation). QBE's Objections 4. Defendant objects to paragraph no. 1 of the “Rider” as overly broad, not reasonably calculated to lead to relevant admissible evidence, irrelevant, unduly burdensome, and violative of the work product and attorney-client privileges. Further, Defendant's objections to Plaintiffs' prior efforts to compel this information were sustained in the Magistrate's Order on Plaintiff's Motion to Compel Response to Request for Production [D.E. #99]. Defendant reiterates and incorporates its prior objections to Plaintiffs' request for information and documentation relating to the use of releases for settlement of hurricane claims, as if fully set forth herein. Please refer to Defendant's Objections to Plaintiffs' Second Set of Interrogatories, and to Defendant's Response in Opposition to Plaintiffs' Motion to Compel. [D.E. 82]. 5. Plaintiffs previously requested that QBE produce information regarding prior claims involving releases, and the Court rejected Plaintiffs' request. The Magistrate's Order [D.E. 99] stated” “As Wynmoor has not provided any authority supporting its request, the Court will accept QBE's compromise.” Accordingly, the Magistrate required QBE to “compile a list of claims involving executed releases by making inquiries to all of its attorneys, adjusters and field adjusters and then provide the list to Wynmoor” Defendant has complied in full with the Magistrate's Order [D.E. 99] by producing a list of claims involving pre-suit settlements and the use of releases based upon inquiries to its attorneys and adjusters. This matter has previously been ruled upon by the Court, and the Court concluded that QBE is not required to review its prior claim files to locate specific information regarding the use of releases. 6. Plaintiffs' request is overly broad because Plaintiffs have made no effort to narrowly tailor the request to any information or documentation that would be relevant to any material issue in this case. Instead, Plaintiffs have broadly requested that QBE obtain the claims files for over 30 closed files from off-site storage and produce the entire claims file for each claim, without any limitation, and without regard to any applicable privileges. *10 7. Moreover, Plaintiffs have provided insufficient time for QBE to accomplish this burdensome task. Although the claims files being sought are the claims files of a party to this litigation. Defendant QBE INSURANCE CORPORATION. Plaintiffs are attempting to obtain these claim files through a third-party Subpoena giving only ten (10) days for compliance. Defendant is entitled to thirty (30) days to comply under the applicable rules as it is a party to this litigation. 8. Additionally, based upon the fact that the attorneys representing Wynmoor are the only attorneys who have pursued breach of contract lawsuits against QBE after their clients executed releases, including the fact that the law firm recently filed two additional lawsuits in 2012 challenging the use of Releases by QBE, it is apparent that Plaintffs' counsel is using the discovery process in this case for an improper purpose, i.e. to identify additional potential clients to be solicited for litigation. 9. Due to the sweepingly broad unduly burdensome nature of the request, its patent lack of relevance, and because the Court previously ruled on this issue, QBE should be excused from any obligation to provide a privilege log. See In re Circle K Corp. (S.D. N.Y. 1996). In the alternative, due to the undue burden associated with providing a privilege log for over 30 files in off-site storage, QBE requests an enlargement of time to serve a privilege log should one be required by the Court. QBE asserts that the subpoena served on “Florida Intracoastal Underwriters, Ltd., Andrew Bertucci, Senior Claims Manager/Managing General Agent” is improper. The subpoena would require FIU/Bertucci, QBE's Managing General Agent in Florida, to produce the subpoenaed documents at the offices of Plaintiffs' counsel in Chicago ten days from the date of service. QBE argues that Bertucci is its managing agent and employee and therefore a party in this case. QBE cites the case of Contardo v. Merrill Lynch, Pierce, Fenner and Smith, which holds that “[d]iscovery of documents from a party is not accomplished pursuant to Rule 45(b), F.R.Civ.P.” 119 F.R.D. 622, 624 (D. Mass. 1988). Rather, any document request directed to a party must comply with Rule 34, F.R.Civ.P. which gives a party thirty days to serve a response or object to the request. Id. Wynmoor does not respond to QBE's argument that the subpoena duces tecum is improper in its reply brief. The Court notes however, that the authorities are conflicting. A number of districts have held that although Rule 34 applies only to parties, a Rule 45 subpoena may be properly served on both party and non-party witnesses. Badman v. Stark, 139 F.R.D. 601 (M.D. Pa. 1991) (citing Continental Coatings Corp. v. Metco, Inc., 50 F.R.D. 382, 384 (N.D. Ill. 1970)); Mortgage Info. Servs. v. Kitchens, 210 F.R.D. 562, 564-65 (W.D. N.C. 2002); United Steel Workers of America, AFL-CIO/CLC v. Government of the Virgin Islands, 2008 WL 5101681 (D. Virgin Islands 2008). The Court in United Steel Workers noted that the leading treatises are split on the issue as well, but was persuaded by the reasoning in Mortgage Info. Services which based its decision on a careful review of the text of Rule 45 itself. 2008 WL 5101681 at *2. (Rule 45 uses the term “person” to refer to those subject to service, and “person who is not a party” to refer to those who may be eligible to serve a Rule 45 subpoena. Therefore, the drafters of the rule most likely intended “person” to refer to both parties and non-parties.) *11 The Court finds that the subpoena duces tecum is not invalid simply because it was served on QBE's managing agent who is the custodian of the files. Although QBE argues that the time it was given to respond to the subpoena was insufficient, it did not file a motion for protective order. Instead QBE served objections on the grounds of relevance and overbreadth. Although QBE concedes that the circumstances surrounding the settlement of Wynmoor's Hurricane Wilma claim and the compromises supporting QBE's request for a release in this case are relevant, it asserts that each of the entire claim files connected to 34 unrelated claims are not relevant to this case. QBE argues that even if the scope of the subpoena was limited to only documents within the claim files related to the circumstances surrounding the releases obtained in the 34 other cases, the consideration paid to other insureds has no bearing on whether the release signed by Wynmoor in this case was supported by consideration. The Court agrees that the subpoena is over broad in that it seeks the entire contents of each of 34 claims files in cases unrelated to this one. However, to the extent that the files contain documents evidencing the circumstances under which the policy releases were negotiated in those cases, Wynmoor is entitled to discover them so that it may have the information it needs to respond to QBE's motion for summary judgment. With the Court being advised, it is hereby ORDERED AND ADJUDGED that the Plaintiff's Second Motion to Compel Production of Documents and Answers to Interrogatories (DE 123) is GRANTED in part as follows: 1. On or before noon on June 11, 2012, QBE shall produce the documents from the claim files identified in Interrogatory Number 2 which describe or depict the pre-existing condition of the Wynmoor property, or prior maintenance of the property, as well as any documents referencing a policy release relative to each of these claims. QBE shall further amend its response to Interrogatory Number 2 to indicate whether or not it has determined that a policy release was executed in each case based upon a review of the documents contained in the claim files. 2. On or before noon on June 11, 2012 QBE shall produce any documents in the 34 claim files referenced in the subpoena duces tecum which relate to the policy releases negotiated in those cases. 3. If QBE intends to assert any privileges with respect to the documents, it shall provide a privilege log to Wynmoor on or before noon on Friday, June 8, 2012. DONE AND ORDERED at Fort Lauderdale, Florida, this 5th day of June, 2012. Footnotes [1] The Plaintiffs' response to the Defendant's motion for summary judgment is actually due on or before June 13, 2012 pursuant to Judge Dimitrouleas' Order granting an extension of time to respond. (DE 112) The Plaintiffs' reply brief acknowledges this deadline. (DE 130) [2] The answer to Interrogatory No. 2 is 13 pages long. An excerpt of the information provided by QBE is reproduced which is representative of the remaining entries. [3] One of the 49 files listed in response to Interrogatory Number 2 was the Hurricane Wilma claim which is the subject of this litigation. [4] In addition to the cost associated with retrieving the files ($4.00 for each folder and $26.00 for each trip to retrieve and deliver the files), QBE estimates that its counsel would be required to spend an average of one to three hours per file reviewing and preparing privilege logs. (DE 126, p.5) [5] These files are listed in a letter from QBE's counsel to Wynmoor's counsel. They each concern claims involving wind, mold, water damage or cracking walls and all occurred between August of 2004 and September of 2005. (DE 126-1) [6] This is a Florida Intracoastal Underwriters Loss Control Survey which Wynmoor attached as Exhibit O to its Statement of Facts in Support of its Response in Opposition to QBE's Motion for Sanction of Dismissal or Negative Inference Based upon Destruction and Spoliation of Evidence. (DE 120) Wynmoor cites this as evidence that QBE was issuing insurance policies on the Wynmoor property at that time. [7] The Risk Experience Summary lists claims from as early as October of 1990. However, it is unclear whether QBE was the insurer prior to May of 2003. (DE 130-1) Prior to May of 2003, the issuer of the policies is identified as “INS.”