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Von Schwab v. Aaa Fire & Casualty Insurance Co.

United States District Court, D. Colorado

April 21, 2015



NINA Y. WANG, Magistrate Judge.

This matter comes before the court on Defendant AAA Fire & Casualty Insurance Company (also "Defendant" or "AAA") Motion for Protective Order as to Request for Expert Reports From Unrelated Cases [#74], filed March 12, 2015 ("Motion for Protective Order"), Pursuant to the Order of Reference dated January 27, 2014 [#4] and the Memorandum dated March 13, 2015 [#75], the Motion for Protective Order is before this Magistrate Judge. Also before the court is Plaintiffs Carol Von Schwab and Ronald Von Schwab's (also "Plaintiffs" or the "Von Schwabs") Motion to Supplement Expert Opinion [#76], filed March 18, 2015 ("Motion to Supplement"). Pursuant to the Memorandum dated March 19, 2015 [#77], the Motion to Supplement is also presently before this court. The court has reviewed the pending Motion for Protective Order, Plaintiffs' Response, Defendant's Reply, and any exhibits thereto. The court has also reviewed the Motion to Supplement, Defendant's Response, and any exhibits thereto.

The court is satisfied that the Motion for Protective Order and the Motion to Supplement can be resolved on the record before it absent any further briefing from either party and without the need for oral argument from counsel, and for the reasons discussed below, the court GRANTS the Motion for Protective Order and GRANTS the Motion to Supplement.


Because of the relevance to the discovery disputes at issue, the court will discuss Plaintiffs' allegations as set forth in their Complaint filed on January 22, 2014 [#1]. The Von Schwabs are policyholders of residential insurance coverage from the Defendant AAA (hereinafter, the alleged coverage is also referred to as "the policy"). [ Id., at 5]. On or about June 6, 2012, Plaintiffs' residence was damaged by a storm that included a "catastrophic hail event" that damaged the roof's shingles and, apparently, other structures of the residence including the windows. [ Id., ¶¶ 7, 15, 20]. Rather than providing prompt, accurate assessment of Plaintiffs' damages and providing coverage as required, Defendant instead persistently underestimated the extent of loss, cited inapplicable exclusions, and delayed in making payments due under the policy. [ Id., ¶¶ 8-29]. In so doing, Plaintiffs assert that Defendant not only breached the terms of the relevant policy, but did so in bad faith, and unreasonably delayed making required payments. [ Id., First, Second, and Third Claim for Relief].

According to Plaintiffs' Motion to Supplement, on January 30, 2015, the day before opening expert disclosures pursuant to Fed. Rule Civ. P. 26(a)(2) and prior Order of this Court came due, "AAA represented it would be paying the roofing claim brought by Mr. and Mrs. Von Schwab." [#76, at 1]. However, as of mid-March 2015, no such payment had been made; accordingly, Plaintiffs now move for leave for their "bad faith" expert Dave Waskel to supplement his opinion to extend to what Plaintiffs contend is a further instance of unreasonable delay, and part of a larger "pattern of delay" showing bad faith on the part of Defendant. [#76 & #76-1].

As set forth in Defendant's Motion for Protective Order, on February 19, 2015, Plaintiffs' counsel served a copy of a subpoena on Defendant's own "bad faith" expert John Craver. [#74, at 10]. Plaintiffs assert that Mr. Craver is biased because he consistently opines in favor of insurance companies in actions alleging bad faith on the part of same. [#79]. The underlying subpoena at issue seeks the "last 10 reports [Mr. Craver] has issued in connection with [Mr. Craver] acting as an expert witness in matters involving allegations of unreasonable delay by an insurer." [#74-1].

Below, the court addresses the merits first of Defendant's Motion for Protective Order, and then turns to the merits of Plaintiffs' Motion to Supplement.


I. Motion for Protective Order

A. Standard of Review

Rule 26(b)(1) limits the scope of discovery to any nonprivileged matter that is relevant to any party's claim or defense. Fed.R.Civ.P. 26(b)(1). This principle of broad discovery is intended to allow the parties to learn as much as they can about each other's claims and defenses in advance of trial. See Herbert v. Lando, 441 U.S. 153, 177, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979) ("The Court has more than once declared that the deposition-discovery rules are to be accorded a broad and liberal treatment to effect their purpose of adequately informing the litigants in civil trials."). Upon a showing of "good cause" by the proponent of discovery, an even broader standard of "any matter relevant to the subject matter involved in the action" may be applied. In re Cooper Tire & Rubber Co., 568 F.3d 1180, 1188 (10th Cir. 2009). However, when the relevance of a discovery request or device is not apparent on the face of the request or device itself, the proponent of discovery bears the burden of making an initial, rebuttable showing of relevance. Thompson v. Jiffy Lube Int'l, Inc., No. 05-1203-WEB, 2007 WL 608343, at *8 n. 20 (D. Kan. Feb. 22, 2007).

Nevertheless, the proper scope of discovery is always bounded by the principles of proportionality. Fed.R.Civ.P. 26(b)(2)(C); see also Qwest Commc'ns Int'l v. Worldquest Networks, Inc., 213 F.R.D. 418, 419 (D. Colo. 2003). Indeed, Rule 26(b)(2)(C) allows a court to limit discovery on motion or on its own if it determines that: (1) the discovery sought is unreasonably cumulative or duplicative, or may be obtained from some other source that is more convenient, less burdensome, or less expensive; (2) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (3) 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(a)(2)(C). Discovery targeted at matters not relevant to the case imposes a per ...

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