JESSICA HARRINGTON PLAINTIFF v. PRIMERICA LIFE INSURANCE COMPANY DEFENDANTS CASE NO: 1:19-CV-00309-HSO-JCG United States District Court, S.D. Mississippi, Southern Division Filed May 28, 2021 Counsel Christopher C. Van Cleave, Van Cleave Law, PA, Biloxi, MS, Cory Nathan Ferraez, Ferraez & Associates, PLLC, Hattiesburg, MS, for Plaintiff. Brian B. Hannula, Amanda (Mandie) B. Robinson, Forman Watkins & Krutz, LLP, Jackson, MS, for Defendants. Gargiulo, John C., United States Magistrate Judge ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR PROTECTIVE ORDER *1 BEFORE THE COURT is a Motion for Entry of a Protective Order Regarding Plaintiff's Re-notice of 30(b)(6) Deposition of Primerica Life Insurance Company [46], filed by Defendant Primerica Life Insurance Company (PLIC). Plaintiff Jessica Harrington filed a Response [52-1] and PLIC a Reply [53]. Having considered the submissions of the parties, the record, and applicable law, the Court finds that PLIC's Motion for Protective Order should be granted in part and denied in part. BACKGROUND This is a life insurance dispute. Plaintiff filed her Complaint in the Circuit Court of Hancock County, Mississippi against PLIC and Jennifer Wheat, a former sales agent who assisted in taking and submitting applications for insurance to PLIC. Wheat was dismissed as a Defendant after she filed a petition for relief under Chapter 7 of the U.S. Bankruptcy Code. Plaintiff alleges that Wheat breached the duty of care for insurance agents and made negligent and fraudulent misrepresentations. Compl. [1-1] at 16-18. Plaintiff alleges that PLIC is liable for the acts and omissions of Wheat under the doctrine of apparent authority. Id. at 21. Plaintiff asserts negligence and gross negligence by PLIC in training and supervising Wheat. Id. at 22. Plaintiff's allegations against PLIC include bad faith breach of contract, inadequate investigation, and post-claim underwriting. Id. at 23-29. DISCUSSION Federal Rule of Civil Procedure 26(b)(1) provides: Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. Fed. R. Civ. P. 26(b)(1). Federal Rule of Civil Procedure 30(b)(6) governs the way organizations are deposed and provides that a party seeking to depose an organization “must describe with reasonable particularity the matters for examination.” Fed. R. Civ. P. 30(b)(6). “The named organization must then designate one or more officers, directors or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify.” Id. “The persons designated must testify about information known or reasonably available to the organization.” Id. “[T]he deponent must make a conscientious good-faith endeavor to designate the persons having knowledge of the matters sought by the party noticing the deposition and to prepare those persons in order that they can answer fully, completely, unevasively, the questions posed as to the relevant subject matters.” Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 433 (5th Cir. 2006) (citations and internal quotation marks omitted). “The duty to present and prepare a Rule 30(b)(6) designee goes beyond matters personally known to that designee or to matters in which that designee was personally involved. The deponent must prepare the designee to the extent matters are reasonably available, whether from documents, past employees, or other sources.” Id. The Court makes the following findings with respect to the disputed topic areas: Topics 1, 7, 14 *2 Topic 1 requires PLIC to look at the facts in the Complaint as drafted by Plaintiff and admit or deny their truth. Such alleged facts are: (1) PLIC “uses a pyramid-like scheme to grown its sale force” and trains its agents to “gain the trust of people in their own communities, targeting primarily their family, friends, and personal acquaintances”; (2) in 2017, Primerica's life insurance face amount surpassed $95 BILLION, insuring approximately 5 million people and ranking Primerica as on the top term life insurance issues in North America; and (3) PLIC offers incentives to its agents and keeps an agent “scorecord.” ....” [52-1] at 2. Topic 7 seeks information regarding PLIC's methods of recruiting agents to sell insurance products for the period of 2016 and 2017, and information regarding how agents, including Wheat, were compensated, including compensation, perks, and bonuses, for the period of 2017. Id. at 4. Topic 14 seeks information regarding training available or administered to Wheat and Jayme Moody regarding solicitating, selling, taking applications, underwriting, and investigating, processing, reviewing, and denying claims. PLIC requests “a protective order preventing Plaintiff from inquiring into PLIC's business model, commissions, recruitment, compensation structure, or any monetary or other incentives offered to either employees or independent sales agents.” [47] at 5. PLIC claims that Wheat's recruitment, compensation, and compensation structure are irrelevant. Id. at 6. Plaintiff posits that the Topics are relevant to apparent authority, motivation through incentives to make representations on behalf of Primerica about conditions of coverage, and PLIC's negligent supervision and training. [52-1] at 3, 6. The 30(b)(6) deposition is limited to questions concerning the type of application and type of policy at issue, the underwriting procedures pertinent to Plaintiff's application, and the claims review process applicable to Plaintiff's claim. PLIC shall be prepared to testify regarding Wheat's compensation, commissions, compensation structure, perks, “scorecard,” and the incentives paid to her or for which she was eligible. PLIC shall be prepared to testify regarding Wheat's recruitment and training as an agent, and the training available to her, as well as be prepared to testify regarding the training available and administered to Jayme Moody; these Topics are limited to recruiting and training for the type of policy at issue. PLIC's 30(b)(6) deponent is required to have knowledge of the claims manuals, policies, and procedures applicable to the type of application and policy here. Plaintiff is not prohibited from asking about the number of independent agents added in 2016, 2017, and 2018 – but this query is limited to independent agents selling the type of policy at issue. Plaintiff is not prohibited from exploring how PLIC generally recruits independent agents to sell the type of policy at issue, nor prohibited from exploring what, if any, methods PLIC used to incentivize sales of the type of policy at issue for the years 2016, 2017, and 2018. Plaintiff is not prohibited from asking PLIC the number of individuals it insures, but this query is limited to the type of policy at issue and the years 2016, 2017, and 2018. It is not apparent, and Plaintiff has not explained, why PLIC's life insurance face amount, PLIC's 2017 Annual Report, and its alleged ranking as “on the top of” term life insurance in North America is relevant at this juncture. These topics might be relevant to net worth, but punitive damages discovery is premature. If the Court determines that Plaintiff's claim for punitive damages should be submitted to the jury, PLIC will then be required to produce financial statements and information regarding corporate net worth. Burrell v. Allstate Prop. & Cas. Ins. Co., No. 3:13-CV-493-CWR-FKB, 2015 WL 12979205, at *1 (S.D. Miss. Nov. 19, 2015). PLIC is not required to prepare its 30(b)(6) deponent to discuss Primerica's life insurance face amount, PLIC's 2017 Annual Report, and PLIC's ranking as “on the top of” term life insurance in North America. Topic 2, 8 *3 Topic 2 seeks the bases for the assertions and denials in PLIC's Answer. Topic 8 seeks PLIC's opinions on the “effect” of the terms in its application and policies.” [46] at 3. PLIC objects to these Topics as encompassing legal conclusions and mental impressions of defense counsel. PLIC contends that its 30(b)(6) deponent does not have to speak to the entity's opinions, as opposed to factual information. [47] at 7. In response, Plaintiff contends that if her counsel “asks Primerica's designee the basis of its denial of Plaintiff's claim and/or its affirmative defenses in response to Plaintiff's Complaint, and Primerica answers it relied on counsel for that decision/assertion, the attorney client privilege is waived as to all communications pertaining to that subject matter.” [52-1] at 3. In rebuttal, PLIC asserts that “asking a company's witness to identify the facts the company's counsel utilized in deciding the defenses to assert in an Answer is a back-door method to obtain the mental impressions of counsel ....” [53] at 4. PLIC submits that Plaintiff “may inquire into PLIC's ‘defenses’ to the insurance claim, not its counsel's ‘defenses’ to the lawsuit.” [47] at 6. Plaintiff is entitled to discover the facts related to the reasons why her claim was denied and to inquire as to facts supporting particular defenses. Lizana v. State Farm Fire & Cas. Co., No. CIV.A.108CV501LTSMTP, 2010 WL 445658, at *3 (S.D. Miss. Feb. 1, 2010). A 30(b)(6) representative “testifies ‘vicariously,’ for the corporation, as to its knowledge and perceptions.” Brazos River Auth., 469 F.3d at 434. A 30(b)(6) representative “has the authority to speak on behalf of the corporation .... This extends not only to facts, but also to subjective beliefs and opinions.” Id. at 433. “[W]here a witness ‘acts as the agent for the corporation, he should be able to present [the corporation's] subjective beliefs ... as long as those beliefs are based on the collective knowledge of [the corporation's] personnel”. Whitehouse Hotel Ltd. P'ship v. Comm'r, 615 F.3d 321, 342 (5th Cir. 2010) (citing Brazos River Auth., 469 F.3d at 434). A 30(b)(6) deponent does not have to repeat either the legal opinions of counsel or any privileged communications with counsel and does not have to testify to information protected by the work product doctrine. But, depending on how the questions are phrased to the witness, deposition questions may tend to elicit the impressions of counsel or attorney-client privileged information. The mere fact that attorneys were involved in the preparation of the 30(b)(6) witness does not foreclose all questions. The deponent may not be instructed to not answer a question within a designated topic simply because the [entity] representative learned the information from an attorney who gathered the information in anticipation of litigation or for trial. The attorney's investigation and the manner in which he or she gathered and organized and analyzed the information and presented it to the corporate representative may itself be protected work product, but the underlying factual information itself remains discoverable through the corporate representative's testimony. Dennis v. United States, No. 3:16-CV-3148-G-BN, 2017 WL 4778708, at *9 (N.D. Tex. Oct. 23, 2017). PLIC has not demonstrated that this entire Topic seeks information that is privileged or work product. PLIC cannot prohibit the entire Topic by arguing in advance that each and every question would trigger the disclosure of attorney-client and work product information. That being said, PLIC's answer and affirmative defenses were drafted by lawyers, and asking a 30(b)(6) witness, usually a nonlawyer, to answer these type of questions makes it extremely difficult to distinguish between facts (not protected) and the issue of why those facts have legal consequences, which usually has a work-product dimension. PLIC's counsel may protect against the disclosure of work product or privileged information by interposing appropriate objections on a question-by-question basis. PLIC asserts that it “did not rely on the advice of counsel in deciding to deny Plaintiff's claim and has not asserted such a defense.” [53] at 3. Topic 8, 27, 29, 30 *4 Topics 27, 29, and 30 seek to discuss all actions from September 2017 to present, taken “to ascertain and apply the law of the State of Mississippi,” PLIC's “duties and obligations to its insureds and policy beneficiaries,” and PLIC's “understanding of its duties and obligations.” PLIC objects to these Topics as seeking legal conclusions and work product, and overbroad because it requests information from 2017 forward. [47] at 9. PLIC is in the business of insurance and capable of discussing its efforts for ensuring compliance with the law. It cannot be assumed that all efforts PLIC has taken to comply with the law are shielded from discovery by attorney-client privilege and work product. While counsel's own investigation into the facts of this case may be protected, the undersigned declines to preemptively find that no questions regarding this Topic are allowed. PLIC's counsel may protect against the disclosure of work product or privileged information by interposing appropriate objections on a question-by-question basis. Questions regarding these Topics are limited to 2016, 2017, and 2018. Topics 10, 25 Topic 10 seeks the identity of every individual involved in the application, underwriting, claims processing, or any other aspect of Plaintiff's file. Topic 25 seeks a description of all efforts made in the investigation of Plaintiff's claim, identifying every individual “involved in any matter whatsoever with investigating, adjusting, processing, reviewing, and/or denying” Plaintiff's claim. [46] at 4. PLIC has produced the entire claims file and argues Plaintiff “has had ample opportunity to determine who she may want to question PLIC about. The 30(b)(6) Notice was her opportunity to do so.” [53] at 5. PLIC seeks a protective order limiting Plaintiff “from discussing the identify of personnel involved in mere clerical work or documents generated unrelated to the claim decision due to the burden to prepare a witness being not proportional to the needs of the case.” Id. Because the claims file consists of PLIC's own documents, PLIC should be familiar with the documents and able to find a representative competent to testify about their contents. The undersigned declines to preemptively find that no questions regarding clerical employees are allowed or that no questions about documents unrelated to the claims decision are allowed. Topic 31 Topic 31 seeks to discuss PLIC's “best practices” or “best claim practices” from September 1, 2017 to the present. PLIC's 30(b)(6) deponent is required to have knowledge of the claims manuals, policies and procedures applicable to the type of application and policy here, and limited to the time Plaintiff's claim was made and pending. The undersigned does not preemptively find that Plaintiff cannot explore the standards PLIC's claim handlers follow when adjusting claims like Plaintiff's and is not persuaded that this Topic should be stricken because PLIC claims not to understand what is requested. Topic 32 Topic 32 seeks information related to all PLIC's data or document retention policies. “PLIC merely seeks to limit the topic to those retention policies that are applicable to the issues presented in this case – Plaintiff's application, the underwriting thereof, or the review of her claim.” [53] at 7. PLIC's request that Topic 32 be so limited is granted. Request for Emergency Relief The parties requested expedited consideration of this Motion. Discovery has been open since May 2020. Waiting until the end of a nearly thirteen-month discovery period to proceed with an important deposition that raises nuanced privilege and work product concerns is a self-made problem that does not entitle the parties' 30(b)(6) dispute to precedence over discovery motions in other cases that were filed well in advance of the discovery deadline. While this Motion has been given precedence, that action was taken for the purpose of advancing this aged and unnecessarily contentious case to a resolution. The parties' counsel should not expect preferential treatment in the future for self-made problems. No further extensions of the case management deadlines will be granted. Trial remains scheduled for February 2022. *5 IT IS, THEREFORE, ORDERED that PLIC's Motion for Entry of a Protective Order Regarding Plaintiff's Re-notice of 30(b)(6) Deposition of Primerica Life Insurance Company [46] is GRANTED IN PART AND DENIED IN PART as stated herein. SO ORDERED, this the 28th day of May, 2021.