LIBERTY INTERNATIONAL UNDERWRITERS CANADA, Plaintiff, v. SCOTTSDALE INSURANCE COMPANY, et al., Defendants Civil No. 12-4934 (NLH/JS) United States District Court, D. New Jersey Filed February 21, 2017 Schneider, Joel, United States Magistrate Judge ORDER *1 This matter is before the Court on plaintiff's “Motion to Compel Discovery” [Doc. No. 150]. The Court received defendants’ response [Doc. No. 156] and plaintiff's reply [Doc. No. 165], and held oral argument on February 15, 2017. For the reasons to be discussed, plaintiff's motion is GRANTED in part and DENIED in part. Background The parties are familiar with the background of the case so a detailed summary will not be provided. Plaintiff filed its complaint on August 6, 2012 against Scottsdale and Infinity seeking reimbursement ($1.8 million) for money it paid to settle the Borgata fire litigation. On June 28, 2013, the Honorable Noel L. Hillman denied Infinity's Motion for Judgment on the pleadings [Doc. Nos. 46, 47]. While the motion was outstanding the Court held the Rule 16 scheduling conference on October 10, 2012. The Scheduling Order set a fact discovery deadline of August 13, 2013. [Doc. No. 21]. Thereafter, the parties engaged in substantial discovery which resulted in numerous discovery disputes. On December 10, 2014 [Doc. No. 115], the Court Ordered plaintiff to produce its allegedly privileged documents. Plaintiff appealed the decision [Doc. No. 121]. On October 1, 2015 [Doc. No. 128], Judge Hillman denied plaintiff's appeals [Doc. Nos. 121, 123] but on December 29, 2015 [Doc. No. 137, 138] he reconsidered his decision and remanded the waiver issue to this Court to decide. On December 8, 2016 [Doc. No. 142], the Court ruled that plaintiff did not waive its privilege and the subject documents did not have to be produced. On January 25, 2017 [Doc. No. 159] the Court denied defendants’ Motion for Reconsideration of its December 8, 2016 Order. Defendants recently appealed this Order. [Doc. No. 17]. A final Scheduling Order has since been entered setting a fact discovery deadline of March 15, 2017. [Doc. No. 160]. Plaintiff's present motion to compel addresses discovery plaintiff only recently served. Plaintiff seeks Fed. R. Civ. P. 30(b)(6) deposition testimony from Scottsdale on the following topics. One, despite deposing Scottsdale's Rule 30(b)(6) witness on two occasions comprising 20 hours of testimony, plaintiff wants another opportunity to depose the witness about documents defendants produced after Scottsdale's depositions were taken. Plaintiff argues it is requesting “a targeted deposition of Scottsdale for the limited purpose of obtaining information relating to the documents in the newer production[.]” Br. at 5. Scottsdale objects to another deposition and argues it would be cumulative of testimony already taken. Scottsdale also argues the new documents do not add any material new information to the case that plaintiff did not already know when it previously deposed Scottsdale. In addition, Scottsdale objects to deposition subjects 2 and 3 that ask it to testify about future produced documents and its search for documents and ESI in the case. Two, plaintiff wants Infinity to answer interrogatory 21 and request for production 18 asking about Infinity's related corporate entities and structure. Infinity objects on the ground the discovery is irrelevant. Three, plaintiff wants Infinity to answer interrogatory 24 asking about insurance it had with carriers other than Scottsdale since 2003. In addition, in document request 12 plaintiff asks for a copy of Scottsdale's claims manual. Infinity objects on the ground the discovery is irrelevant. *2 For the record, the Court notes that the Rule 16 conference was held on October 10, 2012. Thus, the parties have already had more than 4 years to complete discovery.[1] Discussion As the parties know, “matters of docket control and the conduct of discovery are committed to the sound discretion of the Court.” In re Fine Paper Antitrust Litig., 685 F.2d 810, 817 (3d Cir. 1982). The Court's discretion is broad. Arnold Pontiac-GMG, Inc. v. General Motors Corp., 786 F. 2d 564, 568 (3d Cir. 1994). The Court will apply its broad discretion to only permit relevant, timely and proportional discovery. The Court will deny discovery that is irrelevant or cumulative, or where the burden or expense of the discovery substantially outweighs its likely benefit. 1. Rule 30(b)(6) Deposition a. Late Produced Documents The relevant scope of discovery is framed by Fed. R. Civ. P. 26(b). Parties may obtain relevant discovery proportional to the needs of the case. To make this determination the Court considers the importance of the issues at stake, the amount in controversy, the parties’ access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues and, if the burden and expense of the discovery outweighs its likely benefit. Id. Applying its broad discretion and the relevant proportionality factors set forth in Rule 26(b), the Court safely concludes that merely because a document was not produced when a witness was deposed does not necessarily mean that the non-producing party must be given another opportunity to question the witness. There is no need to question a witness about a document that is cumulative and does not add material relevant information to the case. This is especially true in an instance like this case where extensive discovery has already been taken and the parties have had over four years to take discovery. Further, a good deal of the newly produced documents concern the cause and origin of the Borgata fire, Br. at 7, a subject that is not the focus of the present dispute. Plaintiff's original motion merely cited to two late-produced documents that were allegedly important. Thereafter, the Court directed plaintiff to identify every document it wants to address at Scottsdale's deposition. See Jan. 30, 2017 Letter Order [Doc. No. 161]. The Court has carefully reviewed plaintiff's reply brief prepared at the Court's request. [Doc. No. 165]. Having reviewed plaintiff's submission and the documents it wants to question Scottsdale about, the Court concludes that plaintiff will be granted some but not all of what it wants. The new documents produced by Scottsdale are Bates Stamped DEF 5028-5489. Plaintiff will not be granted leave to depose Scottsdale about all 461 documents. The only documents plaintiff has shown good cause to question Scottsdale about are those specifically identified in plaintiff's reply brief. The Court determines that an additional two (2) hours is sufficient to cover what plaintiff needs.[2] See Fed. R. Civ. P. 26(c)(1)(A), (D) (providing the Court may enter a protective order forbidding discovery, forbidding inquiry into certain areas, or limiting the scope of discovery). The re-deposition of Scottsdale as to these limited documents is fair and reasonable. Plaintiff has shown good cause why these few documents are important and not necessarily cumulative of what has already been produced. Plaintiff should not be prejudiced because defendants produced relevant documents late. The Court's Order will provide that if the parties do not agree on the location of an in-person deposition, the deposition shall be held via video conference. Only the exhibits listed in this Order may be used at Scottsdale's deposition. b. Future Document Productions *3 Plaintiff's request to depose Scottsdale about future produced documents is denied. The only documents that may be used are those specifically identified in this Order. 2. Search for Documents and ESI Plaintiff proposes to depose Scottsdale about its document and ESI review and production. Plaintiff's request to depose Scottsdale on this topic is denied. One, plaintiff has already had a sufficient opportunity to depose Scottsdale about this issue. If genuinely needed, plaintiff should have taken this discovery long ago. Two, there is no reason to believe Scottsdale does not understand its obligation to supplement its document productions pursuant to Rule 26(e). This is evidenced by Scottsdale's production of documents DEF 5028-5489. Scottsdale will not be penalized for doing what it was supposed to do. Three, there is no good reason to believe Scottsdale has not satisfied its obligations pursuant to the Federal Rules of Civil Procedure and Rules of Professional Conduct. Given the burden and expense of a document deposition at this stage of the case, the Court finds the burden and expense is disproportional to the benefit to be derived from this deposition topic. 3. Interrogatory 21 and Request for Production 18 to Infinity This discovery asks for information about Infinity's corporate entities and structure, and corporate formalities that were followed. These discovery requests are denied. Since this discovery seeks information regarding a “piercing the veil” or “alter ego” theory of liability that is not part of the case, the request is irrelevant. In order to pursue an alter-ego theory of liability plaintiff must “affirmatively plead both the factors for alter-ego liability and the factual underpinnings supporting those factors with respect to each individual defendant.” Richmond v. Lumisol Elec. Ltd., C.A. No. 13-1944 (MLC), 2014 WL 1405159, at *4 (D.N.J. April 10, 2014). Plaintiff has not pleaded an alter-ego theory of liability in its complaint and the theory has not been raised during the long history of the case. Thus, plaintiff's new alter-ego claim is not part of the claims in the case and can be ignored for discovery purposes. Graco, Inc. v. PMC Global, Inc., C.A. No. 08-1304 (FLW), 2009 WL 904010, at *13 (D.N.J. March 31, 2009); see also Fed. R. Civ. P. 26(b) (requiring discovery be relevant to a party's claim or defense). Even though the scope of discovery pursuant to Rule 26 is broad, it is not unlimited and may be circumscribed. Bayer AG v. Betachem, Inc., 173 F.3d 188, 189 (3d Cir. 1999); Kopacz v. Delaware River & Bay Auth., 225 F.R.D. 494, 497 (D.N.J. 2004). As noted in Claude P. Bamberger Intern., Inc. v. Rohm & Haas Co., C.A. No. 96-1041 (WGB), 1998 WL 684263, at *2 (D.N.J. April 1, 1998) (citations and internal quotation marks omitted), “while the standard of relevancy is a liberal one, it is not so liberal as to allow a party to roam in shadow zones of relevancy and to explore matter which does not appear germane merely on the theory that it might become so.” Discovery should not serve as a fishing expedition during which a party searches for evidence to support facts not yet pleaded. Smith v. Lyons, Doughty & Velduius, P.C., C.A. No. 07-5139 (JHR), 2008 WL 2885887, at *5 (D.N.J. July 23, 2008). Plaintiff admits it seeks the requested discovery “to determine whether there is a basis to pierce the corporate veil[.]” Reply Br. at 12. This is not permitted. Thus, plaintiff's request for alter-ego discovery is denied. *4 To be clear, it is true the Court permitted plaintiff to obtain discovery regarding other potential relevant contracts Infinity's related corporate entities may have entered into prior to the Borgata fire. This discovery was specifically directed to Infinity's knowledge. However, the Court never authorized open-ended discovery regarding Infinity's corporate structure and formalities. In addition, plaintiff's request for the requested information is late. The case is more than four years old. If the requested information was truly relevant and important plaintiff could have and should have asked for it long ago. The trial of the case will not be delayed any further. 4. Infinity Insurance (Interrogatory 24 to Infinity) and Claims Manual (Document Request 12 to Scottsdale) Plaintiff's request for other Infinity entities’ insurance information (Interrogatory 24) with insurers other than Scottsdale is irrelevant and is denied. The material issues in the case only involve the relevant Scottsdale and LIU policies. Plaintiff's attempt to interject other insurance policies into the case is irrelevant and a needless distraction. To the extent there is any relevance to insurance policies of different Infinity entities, which is denied, the relevance of the policies is minimal, and the burden and expense of the discovery is disproportional to its likely benefit. Plaintiff's request for Scottsdale's claims manual is also denied. The manual is irrelevant to the material issues in the case and the burden and expense of the discovery is disproportional to its likely benefit. Further, the request for the manual is late. Plaintiff has had more than an ample opportunity to question Scottsdale about its claims manual and claims handling policies. It is too late to open up this discovery door when the end of fact discovery is finally in sight. Moreover, plaintiff does not need the claims manual because it already has Scottsdale's entire non-privileged claims file. The focus of the case has always been on the language of the parties’ insurance policies and the Tractel/Borgata settlement documents. The focus of the case is not about how Scottsdale managed the Borgota fire claim. Conclusion For the foregoing reasons, plaintiff's Motion to Compel is GRANTED in part and DENIED in part. ORDER Accordingly, it is hereby ORDERED this 21st day of February, 2017, that all discovery requested by plaintiff in its motion is DENIED except that plaintiff may take a two hour Fed. R. Civ. P. 30(b)(6) deposition of Scottsdale only as to documents DEF 5032, 5046-5053, 5061-5063, 5067-5070, 5072-5076, 5099-5100 and 5248-5249. No other subjects may be covered at the deposition. The deposition shall be completed in accordance with the applicable scheduling deadlines. If the parties do not agree on the location of an in-person deposition, the deposition shall be held via video conference; and it is further ORDERED the Court finds DEF 5059-5060 and 5071 were inadvertently produced and shall be returned to plaintiff by defendants or destroyed. Footnotes [1] The Court is aware some delays in the case were caused by the parties’ various appeals and motion practice. However, that does not excuse the parties from conducting basic discovery that could have and should have been taken years ago. [2] The Court finds that a short deposition is manifestly more efficient then requiring Scottsdale to answer interrogatories which invariably lead to discovery disputes. Further, the Court assumes plaintiff will use its limited time to only focus on important new issues. The Court assumes plaintiff does not want to waste its time on cumulative issues that have already been covered in detail.