DIANE T. ROGERS, Plaintiff, v. MINNESOTA LIFE INSURANCE COMPANY, FINANCIAL SERVICES ASSOCIATION and REGIONS BANK, Defendants Case No: 5:21-cv-164-CEM-PRL United States District Court, M.D. Florida Filed July 01, 2022 Counsel Alexander Irimia Loy, Brenton Neil Ver Ploeg, Ver Ploeg & Marino, PA, Miami, FL, for Plaintiff. Wendy L. Furman, Danielle E. Shure, McDowell Hetherington LLP, Boca Raton, FL, for Defendants. Lammens, Philip R., United States Magistrate Judge ORDER *1 Pending before the Court are two interrelated discovery motions pertaining to the appropriate scope of discovery in this case. Both relate to Plaintiff's second attempt to compel better responses to certain discovery requests following the denial of a similar motion to compel earlier in this case. (Docs. 44 & 58). Plaintiff (who contends that her new requests are now more narrowly tailored) renewed her discovery requests, was met with objections, and now brings a second motion to compel. (Doc. 58). Also pending is Defendants’ related motion to preclude Plaintiff from relying on the testimony of Stephen D. Prater (Doc. 65), whose affidavit Plaintiff has submitted in support of her motion to compel. The arguments raised by the parties have been the subject of voluminous briefs and extensive arguments. Although the parties’ discovery disputes pertain to complex issues, their arguments can be readily simplified when viewed through the lens of Rule 26(b)(1) of the Federal Rules of Civil Procedure and the principle of proportionality. For the reasons explained below, the undersigned finds that, at least at this stage of the litigation and considering the claims raised in the amended complaint, the discovery sought by Plaintiff's motion to compel is out of proportion to the needs of the case at this time. As explained in Defendants’ briefs, much of the information sought by Plaintiff either does not exist, is not in the custody or control of Defendants, or would be extremely burdensome and expensive to produce as an answer to an interrogatory or in the form requested and would be of limited relevance. The Court's ruling is without prejudice to any party's right to make more tailored discovery requests, if appropriate, to the extent that the discovery process yields information that allows the parties to better identify documents or information that is both relevant and proportional to the needs of the case. The Court's ruling is also without prejudice to the right of the parties to inquire into the same topics during depositions, including depositions pursuant to Federal Rule of Civil Procedure 30(b)(6). I. Background By way of background, the Court reiterates the summary of the case from its prior Order (Doc. 44), which remains relevant despite the filing of the amended complaint. In 2018, Plaintiff Diane Rogers's husband, Robert Rogers, died after collapsing and falling from his vehicle in a parking lot and suffering blunt force trauma to his head. (Doc. 1, p. 9). The toxicology report indicated Difluoroethane present in Mr. Rogers's system. (Doc. 1, p. 9). As alleged in the complaint, “Difluoroethane is a gaseous compound used as a refrigerant as well as a propellant in aerosol sprays and gas duster products of the sort used to clean computer keyboards. If inhaled, it can lead to lack of consciousness or even cardiac rhythm disturbances that may result in death. It is not a drug.” (Doc. 1, p. 9). Rogers filed a claim for the loss under an accidental death and dismemberment insurance policy that, as she alleges, was a joint enterprise on behalf of Defendants and offered to checking account customers such as herself at Regions Bank. The original policy (issued to Rogers in 2010) was insured by Hartford Life and Accident Insurance Company and serviced by Affinion as plan administrator, with quarterly premiums drawn from Rogers's bank account. (Doc. 1, p. 6). Between the time of the issuance of the policy and the death of Rogers's husband, various modifications were made to the policy, including a transfer to Minnesota Life Insurance Company as insurer and (as Rogers alleges) a reduction in the coverage. Meanwhile, the premiums drawn from Rogers's bank account remained the same, and Rogers alleges she was not made aware of a reduction in the coverage.[1] *2 Rogers's claim was denied under an expanded exclusion regarding “[t]he use of alcohol, drugs, medications, poisons, gases, fumes or other substances taken, absorbed, inhaled, ingested or injected, unless taken upon the advice of a licensed physician in the verifiable prescribed manner and dosage.” (Doc. 1, p. 8). Plaintiff claims that the expanded exclusion was not a part of the policy issued to her, and that the coverage was materially altered and the insurer changed without her knowledge as part of a scheme organized by Defendants. In the amended complaint (Doc. 47), Plaintiff brings the following claims: Count I – breach of fiduciary duty against Financial Services Association (“FSA”); Count II – breach of fiduciary duty against Minnesota Life/Estoppel and Waiver; Count III – fraudulent misrepresentation against Minnesota Life; Count IV – breach of duty against Regions Bank; Count V – violation of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”) against all Defendants; Count VI – civil conspiracy against all defendants; Count VII – declaratory relief. Previously, Plaintiff sought to compel various broad categories of discovery that she contended were facially relevant to her claims for violation of FDUTPA and Civil Conspiracy. (Doc. 41). The Court, however, denied the motion to compel due to Plaintiff's inability to demonstrate that the discovery sought was proportional to the needs of the case. (Doc. 44). Now, contending that she has better tailored her requests, Plaintiff brings a renewed motion to compel seeking better responses to various interrogatives and requests to produce. (Doc. 58). Defendants have responded (Doc. 66), and Plaintiff has filed a reply.[2] Meanwhile, Defendant filed a related motion to preclude Plaintiff from relying on the testimony of Stephen Prater, and Plaintiff has responded (Docs. 65 & 70). Mr. Prater is an expert retained by Plaintiff who has provided an affidavit upon which Plaintiff relies in support of the motion to compel. II. Legal Standards Motions to compel discovery under Rule 37(a) of the Federal Rules of Civil Procedure are committed to the sound discretion of the trial court. See Commercial Union Ins. Co. v. Westrope, 730 F.2d 729, 731 (11th Cir. 1984). “The overall purpose of discovery under the Federal Rules is to require the disclosure of all relevant information so that the ultimate resolution of disputed issues in any civil action may be based on a full and accurate understanding of the true facts, and therefore embody a fair and just result.” Oliver v. City of Orlando, No. 6:06-cv-1671, 2007 WL 3232227, at *2 (M.D. Fla. Oct. 31, 2007). The moving party “bears the initial burden of proving that the information sought is relevant.” Douglas v. Kohl's Dep't Stores, Inc., No. 6:15-cv-1185, 2016 WL 1637277, at *2 (M.D. Fla. Apr. 25, 2016) (quoting Moore v. Lender Processing Servs. Inc., No. 3:12-cv-205, 2013 WL 2447948, at *2 (M.D. Fla. June 5, 2013)). Relevancy is based on the “tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action.” Garcia v. Padilla, No. 2:15-cv-735, 2016 WL 881143, at *2 (M.D. Fla. March 8, 2016) (quoting Fed. R. Evid. 401). Proportionality requires counsel and the Court to consider whether relevant information is discoverable in view of the needs of the case. In making this determination, the Court is guided by the non-exclusive list of factors in Rule 26(b)(1). Graham & Co., LLC v. Liberty Mut. Fire Ins. Co., No. 2:14-cv-2148, 2016 WL 1319697, at *3 (N.D. Ala. April 5, 2016). “Any application of the proportionality factors must start with the actual claims and defenses in the case, and a consideration of how and to what degree the requested discovery bears on those claims and defenses.” Id. (quoting Witt v. GC Servs. Ltd. P'ship, 307 F.R.D. 554, 569 (D. Colo. 2014)). *3 To frame the discovery on this issue, it is essential to determine what the purpose of the discovery is. As the commentary to Rule 26 explains: “A party claiming that a request is important to resolve the issues should be able to explain the ways in which the underlying information bears on the issues as that party understands them.” Fed. R. Civ. P. 26. Then, of course, it is the “Court's responsibility, using all the information provided by the parties, ... to consider these and all the other factors in reaching a case-specific determination of the appropriate scope of discovery.” Id. III. Discussion For the second time, Plaintiff Diane Rogers moves to compel Defendants to produce better responses to her discovery requests. Plaintiff's previous motion to compel was denied due to the requests being out of proportion with the needs of the case. Plaintiff asserts that she has embraced her duty to tailor her requests, and now moves to compel several categories of documents or information. While Plaintiff's requests are indeed better tailored than her previous requests, they still contain significant flaws and, as currently framed, are still out of proportion to the needs of the case. The Court emphasizes that, under Rule 26(b)(1) the appropriate scope of discovery is limited to that which is proportional to the needs of the case. As Defendants previously noted, the benefit of the policy at issue in this case is perhaps $207,000 (the value of the policy that Defendant alleges terminated in 2014) or, as Plaintiff contends, $300,000 (the value of the original Hartford policy). (Doc. 41, p. 1, Doc. 1, pg. 6). Meanwhile, beginning with Plaintiff's motion to compel and including ancillary motions (such as to exceed page limits), the parties have filed approximately 13 pleadings on these discovery issues including several hundreds of pages of argument and exhibits. (Docs. 58-73). Pursuant to the Court's Order (Doc. 62), the parties filed a joint notice regarding their efforts to meet and confer to resolve the issues related to the motion to compel. (Doc. 64). The parties advised that certain discovery requests were no longer at issue, including the following: 1. Interrogatory #5 to Minnesota Life 2. Production request #1 to Minnesota Life 3. Production request #3 to Minnesota Life 4. Production request #2 to FSA The parties represented that all other discovery requests identified in the motion to compel remain at issue and require resolution by the Court. (Doc. 64). Therefore, the requests remaining at issue are discussed below. Plaintiff's justification for compelling this discovery is summarized in the motion. Plaintiff explains: Rogers must access basic information about Defendants’ joint enterprise before she can take meaningful depositions. At this juncture, Rogers seeks: (i) Defendants’ contracts, (ii) Defendants’ procedures for selecting new AD&D carriers, (iii) basic information about how Defendants shared profits, and (iv) information about the insurance agent Defendants utilized. The discovery requests outlined in this Motion do not seek every facet of information from Defendants’ databases, are substantially narrower than Rogers’ prior requests, and are the minimum required to make progress. Amended Complaint (Doc. 47). There are obviously written agreements that govern Defendants’ rights and obligations to one-another, including how their spoils are allocated and Defendants testified the selection of a new AD&D carrier is a complex process entailing months of negotiation and reams of paper. By Defendants’ own estimations, they are collecting almost $60,000,000 a year in premiums under a single group policy but nevertheless contend there is no discoverable information concerning their joint enterprise and claim ignorance of their profits. This Court should compel better answers to Rogers’ interrogatories and an appropriate document production. *4 (Doc. 58 at 2-3). As explained in the comments to Rule 26, the Court's responsibility is to consider all the information provided by the parties as well as all the relevant factors to reach a case-specific determination of the appropriate scope of discovery. Considering the information provided, the alleged claims, and the posture of the case at this time, the undersigned concludes that Plaintiff's requests are once again overbroad to the extent that they are disproportional to the needs of the case. Even assuming the discovery sought is relevant, Plaintiff has failed to demonstrate how the broad and voluminous discovery she seeks is proportional to the needs of the case at this time, considering the factors specified in Rule 26(b)(1), including the importance of the issues at stake in the action, the amount in controversy, and the parties’ relative access to the relevant information. Plaintiff seeks numerous categories of documents or information that she purports are relevant to her claims for her FDUTPA and civil conspiracy claims including very specific and voluminous information relating to the profit motives of Defendants. Indeed, Defendants apparently readily concede that they are collecting approximately $60 million per year under a single group policy. Meanwhile, Plaintiff suggests Defendants are feigning ignorance of their profits. That, however, is an oversimplification of Defendants’ objections, which include that the documentation required to provide an accurate response is not within their control or is not categorized in a way that would allow them to answer the particular interrogatory without creating an undue burden. And, considering the issue through the lens of proportionality, it is not clear what the reams of documents Plaintiff requests regarding specific payments and amounts related to profits would demonstrate. It is apparently undisputed that the profits ranged in the many millions of dollars. Plaintiff has not adequately demonstrated how having highly detailed and voluminous documentation of the payments constituting those profits would be sufficiently important to resolving any issue to justify the considerable burden of production at this time. The Court will now address each disputed request. 1. First Set of Interrogatories to Minnesota Life a. #2 – “Please describe the criteria considered in selecting Minnesota Life to replace Monumental Life as the group AD&D carrier for Regions Bank customers.” Minnesota Life has raised numerous objections to this interrogatory, including proportionality, that it is unduly burdensome, and relevance. The most persuasive objection raised by Minnesota Life, however, is that “it does not have knowledge of, or access to, the precise criteria considered by Franklin Madison in changing the carrier of Plaintiff's AD&D coverage from Monumental (which then became Transamerica) to Minnesota Life. Defendants note that Franklin Madison is neither a party to this case nor an alleged co-conspirator. The Court agrees that this objection is well taken, particularly in light of Defendants’ proportionality argument and considering the parties relative access to the information. b. #3 “Please state the total premiums Minnesota Life collected from underwriting group AD&D insurance to customers of Regions Bank, subscribing to a group policy administered by Franklin Madison, in 2018.” *5 Minnesota Life objects to this Interrogatory on numerous grounds and contends that it does not maintain the premium payment information to respond. Minnesota Life states that it receives a batch of premium payments from its third party administrator, Franklin Madison, and therefore it would be unduly burdensome to respond. Anticipating these and similar objections, Plaintiff presents the affidavit of Stephen Prater, an expert and consultant in the field of insurance and industry standards. (Doc. 58-1). To summarize, Prater addresses Defendants’ objections on the basis that they do not track the payment and profit information, or that such documentation is not in their custody or control. Prater states that such assertions are inconsistent with industry standards and suggests that the parties would not only be expected to account for their income but would need to track it to comply with any relevant profit-sharing agreements. While Prater's statements are logical, they are somewhat beside the critical point in the current discovery dispute. Even assuming documentation exists within the control of the Defendants that is responsive to this and similar requests, and that a robust and exhaustive search of Defendants’ records could locate it, that does not mean that all of those requested documents would be within the appropriate scope of discovery at this time. As Defendant points out, Minnesota Life and Franklin Madison's status as for profit corporations is not in dispute. Defendant contends that “Plaintiff has failed to explain how the dollar amount of premiums [Minnesota Life] received in 2018 has any bearing on the specific elements of her claim, and how that information would be independently important.” (Doc. 66 at 12). “All for-profit corporations ... have a motive to decrease costs and increase profits.” In re Managed Care Litig., 430 F. Supp. 2d 1336, 1354–55 (S.D. Fla. 2006), aff'd sub nom. Shane v. Humana, Inc., 228 F. App'x 927 (11th Cir. 2007). As explained above, Plaintiff has failed to demonstrate how the discovery requested would resolve an issue or be sufficiently important to render the broad scope of such discovery and burdensome efforts to obtain it proportional to the needs of the case. To be sure, this is a rather fine point on the issue of proportionality. It is undisputed that Minnesota Life profited from its agreements and, to some degree, the extent to which it profited is also relevant. But, at this phase of the case and on the record now before the Court, the burden necessary under the circumstances here to obtain a precise answer to Plaintiff's interrogatory is out of proportion to the relevance. More proportional would be, for example, an estimate or figure that may be obtained through further discovery or during depositions, perhaps of a witness knowledgeable about the various sources of Minnesota Life's profits. For these reasons, Prater's affidavit, as well as Defendant's motion (Doc. 65) to preclude his testimony is largely moot. Regardless of whether the requested documentation exists or should exist according to industry standards, at this stage of litigation requiring broad discovery on the topic or requiring Defendants to comb through their records to arrive at a specific number to provide in response to Plaintiff's interrogatory would be out of proportion to the needs of the case. c. #4 -- “Please state the total payments Minnesota Life made to Franklin Madison in connection with Franklin Madison's role as the administrator of group AD&D insurance offered to Regions Bank customers in 2018.” *6 Minnesota Life objects to this Interrogatory on the grounds of relevance, confidentiality, that it is unduly burdensome and not proportional to the needs of the case, and that it is overbroad. Minnesota Life contends it “does not have a reasonable way of discerning which payments were for Franklin Madison's role as third party administrator for the AD&D policy offered to customers of Regions Bank,” versus those related to other financial institutions. Meanwhile, Plaintiff suggests the objections are disingenuous and insists that the information must exist. Again, regardless of whether the information exists, the Court finds that requiring production of the information or requiring Defendants to comb through their records to arrive at a specific number in response to Plaintiff's interrogatory would be out of proportion to the needs of the case. Other than her conclusory statements regarding profit motive, Plaintiff has failed to explain with any particularity how this information would further bear on her claim. Plaintiff's motion to compel is due to be denied as to this request. The parties should note, however, that this ruling pertains to this specific request and is without prejudice to Plaintiff's right to inquire about payment and/or profit information as appropriate during depositions, or to conduct more appropriately tailored discovery. 2. First Set of Interrogatories to Regions Bank a. #1 -- Please state the payments received by Regions Bank in connection with the arrangement for Franklin Madison, FSA, Hartford Life, Monumental Life, and/or Minnesota Life to market and administer group AD&D insurance underwriter to Regions Bank customers each year between 2010 and 2018. Regions Bank objects to this request and contends it simply does not have custody or control of the documents it would need to prepare a response. Regions Bank explains that it may have some responsive documents but locating them would require a cumbersome manual search that would be out of proportion to the needs of the case. The Court agrees, and the motion to compel will be denied as to this request for the reasons explained above regarding payment and profit motive information. 3. Second Requests for Production to Minnesota Life a. #2 – “The ‘proposal’ sent to Franklin Madison in or around 2017.” Minnesota Life objects to this request on the basis of vagueness, confidentiality, that it seeks proprietary trade secret information, and undue burden. Minnesota Life argues: This was a large scale process involving a number of requests which took place over six to twelve months and involved at least twenty people from Minnesota Life alone spanning multiple departments. There would likely be tens of thousands of documents, records, and e-mails regarding the proposal process, which are not maintained in a single department, location or file where they can be easily found, reviewed or accessed, let alone duplicated for reproduction given attachments, hyperlinks, multiple data formats, etc. All data and documents found would need to be manually reviewed, potentially formatted for production, redacted as to customers’ information and privileged information and produced. Resolving this discovery dispute is a closer call. As to the “proposal” documents, as the parties refer to them, Plaintiff has a considerably stronger argument that such documents are relevant her claims. And, Plaintiff clarifies that she seeks just “the proposals” (presumably documents that reflect proposals), as opposed to documents about proposals. And such documents (if they exist) are arguably important to resolve many of the issues that are at the heart of Plaintiff's case, such as whether the parties conspired to intentionally deceive customers including Plaintiff. Further, Plaintiff accurately notes that the confidentially concerns are addressed by the parties’ confidentiality agreement. *7 That said, Plaintiff's request remains vague, overbroad, and apparently based on inferences or speculation about what may be contained in the sought documentation. As Defendant argues, it is unclear precisely what is sought by this request because Plaintiff has not defined the term “proposal.” Minnesota Life contends that it is clear, specifically, what is being sought because Plaintiff did not define “proposal” with any particularity. See Castro v. Princeton House Charter Sch., Inc., No. 6:10-cv-276-Orl-22GJK, 2010 WL 11626724, at *4 (M.D. Fla. Sept. 17, 2010) (denying a motion to compel a response to an interrogatory as vague due to the movant's failure to define key terms). It appears a more narrowly focused request would be more appropriate. For example, Plaintiff may be able to craft a more appropriate request upon information gained through the deposition of a records custodian or a Rule 30(b)(6) witness. Such efforts could allow Plaintiff to more narrowly tailor the request in a manner that would address the proportionality issue. 4. Second Requests for Production to Regions Bank a. #2 – “Final versions of all agreements, memoranda, terms sheets, or similar Documents that establish Franklin Madison's role as the administrator of the group AD&D insurance offered to Regions Bank's customers. The temporal scope of this Request potentially spans from 2010 through 2018, however this Request does not seek all Documents related to Franklin Madison's role as the administrator – only “final” Documents that establish its rights or obligations as the administrator.” Regions Bank objects to this request on the basis that, to the extent such documents exist, they are no longer in the custody or control of Regions Bank due to corporate organizational changes. Regions Bank also objects on the basis of overbreadth, relevance, undue burden and proportionality. While the Court acknowledges that this request relates to a category of documents that could theoretically be within an appropriate scope of discovery, Plaintiff's request is still overbroad and not tailored sufficiently to be proportional to the needs of the case. As to this request, Plaintiff's motion to compel will be denied, however, the parties are strongly encouraged to work together in good faith to appropriately narrow this request and then to identify and produce documents that are reasonably responsive. b. # 3 -- Documents sufficient to show the total receipts and gross annual profits Regions Bank derived (or expected to derive) from the arrangement for Franklin Madison and/or Hartford Life to market and administer AD&D coverage to Regions Bank's customers in 2010, 2011, 2012, 2013, and 2014. This Request does not seek all potentially relevant documents, only those sufficient to show actual or expected total receipts and gross annual profits. c. #4 -- Documents sufficient to show the total receipts and gross annual profits Regions Bank derived (or expected to derive) from the arrangement for Franklin Madison and/or Monumental Life to market and administer AD&D coverage to Regions Bank's customers in 2014, 2015, 2016, 2017, and 2018. This Request does not seek all potentially relevant documents, only those sufficient to show actual or expected total receipts and gross annual profits. d. #5 --: Documents sufficient to show the total receipts and gross annual profits Regions Bank derived (or expected to derive) from the arrangement for Franklin Madison and/or Minnesota Life to market and administer AD&D coverage to Regions Bank's customers in 2018. This Request does not seek all potentially relevant documents, only those sufficient to show actual or expected total receipts and gross annual profits. *8 Defendants object to these requests on the basis of vagueness, that the documents are not necessarily in their control or possession, and that locating any documents that exist would be unduly burdensome and not in proportion to the needs of the case. For the same reasons explained above as to the other requests directed at profit motive type documentation, the Court agrees that the requests and their scope are currently not proportional to the needs of the case. Plaintiff's motion to compel will be denied as to this these three requests. IV. Conclusion As to the determination regarding the appropriate scope of discovery and proportionality, the Court is mindful of the current stage of the litigation, as well as the pending motion to dismiss (Doc. 53) aimed at dismissing every claim in the amended complaint. The Court is also mindful that the issues of relevance and proportionality necessarily shift as discovery unfolds. At this time, however, Plaintiff has failed to satisfy her burden of demonstrating proportionality as to the disputed requests. Meanwhile, other means of discovery is open to Plaintiff, including depositions pursuant to Federal Rule of Civil Procedure 30(b)(6). Indeed, Defendants represent that they proposed scheduling 30(b)(6) depositions “as a more appropriate vehicle to understand the type of information Defendants have access to and the nature of the relationship among Defendants to enable more productive discovery of relevant documents and information,” and also “indicated willingness to make their corporate representatives available for second depositions so that the initial depositions could be conducted without prejudice to Plaintiff's ability to conduct depositions if additional documents were needed prior to resuming depositions.” (Doc. 66 at 5-6). And it is certainly worth noting that, while the Court has currently deemed Plaintiff's requests to be disproportional to the needs of the case and based on the information currently before the Court, that analysis could easily change as discovery unfolds and becomes more focused. Going forward, the parties are once again reminded that both the parties themselves and the interests of justice are best served by counsel making every effort to meaningfully confer in good faith to resolve any disputes regarding discovery. Indeed, it is the parties’ obligation under Local Rule 3.01(g), and the Court expects the parties to fulfil both the letter and the spirit of the rule. When disputes arise regarding discovery requests, particularly when those requests are voluminous, a good faith conference will typically require the parties to confer either in person or via telephone and meaningfully discuss each and every individual request that remains in dispute. For the reasons stated above, Plaintiff's motion to compel (Doc. 58) is DENIED. Defendants’ motion to preclude the testimony of Stephen Prater (Doc. 65) is DENIED as moot for the reasons explained in this Order. DONE and ORDERED in Ocala, Florida on July 1, 2022. Footnotes [1] Defendants contend that [2] Upon good cause shown, Plaintiff's reply brief was subsequently sealed pursuant to the agreement of the parties and the Court's Order. (Doc. 74).