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Cushenberry v. Owners Insurance Co.

United States District Court, D. Colorado

June 5, 2017

OWNERS INSURANCE COMPANY, an Ohio stock company, a subsidiary of AUTO-OWNERS INSURANCE CO., a Michigan corporation, Defendant.


          Michael E. Hegarty, United States Magistrate Judge

         Defendant believes that, during the course of this litigation, the Plaintiff has failed to initially disclose and produce in response to discovery requests “key documents on which she has relied” and now moves for an order imposing sanctions against the Plaintiff pursuant to Fed.R.Civ.P. 37. The Court finds that, while the Plaintiff failed to produce requested documents in a timely manner to the Defendant, the Defendant has not demonstrated prejudice as a result of Plaintiff's failure. Thus, the Court will deny the Defendant's motion.

         In this case, Plaintiff sues Defendant for breach of insurance contract and other related claims following a May 6, 2012 automobile accident.

         On March 23, 2017, defense counsel notified the Court during a discovery conference that Plaintiff had failed to include in her initial disclosures copies of any policy provisions or correspondence between her and Defendant, some on which she relied during depositions. See Tr. 85-96, ECF No. 93. Defendant cited as an example that the second page of a letter drafted by Plaintiff's counsel to the insurance adjustor before litigation commenced was never sent to the adjustor, but was eventually received by Defendant on April 14, 2016 when the parties were preparing the Scheduling Order for this case. Tr. 91-93. Plaintiff did not agree that this error was “prima facie evidence” of a deficiency in her production, and asked for the Court's guidance as to what needed to be produced. Tr. 93-94. The Court ordered:

THE COURT: Okay. So first of all, you've got to make sure you've answered all discovery requests. And if you have said you're producing documents, that, in fact, you have produced all documents. But this would reasonably be a document that should be disclosed in a Rule 26 disclosure because it is something that you will rely on. And we have an affirmative obligation to produce documents we're going to rely on because you would use this to establish notice to the insurance company that they should have been considering all these points you were making in adjusting the claim. And so unless -- MR. ELDRIDGE: Sure. That makes sense.
THE COURT: -- unless she's asked for correspondence, you don't have to produce correspondence. But you do have to produce documents that would fall within your obligation of Rule 26. Sound right?
MS. LUSH: That's fair, Your Honor.
THE COURT: Okay. Of course you can ask for correspondence if you haven't yet.
MS. LUSH: I believe it's been requested.
THE COURT: Okay. If it has been requested, then it falls within a request. And to have not produced that document, if she's asked for correspondence that you've had with her client, then it would be a failure.

Tr. 95-96.

         In its motion, filed thirty-five days after the March 23, 2017 discovery conference, Defendant contends the Plaintiff not only produced no documents in response to its November 2016 discovery request for correspondence, but also produced nothing in response to the Court's order. Plaintiff counters that the faxed letter identified by defense counsel at the March 23, 2017 conference and in its motion was actually faxed and emailed to the adjustor, and the adjustor responded to the full letter by email. Plaintiff also contends that the other documents identified as not properly produced were or should have been part of the insurance claims file. Finally, Plaintiff asserts that, in its order, the Court identified no deadline by which the documents were to be produced and, upon conferral with the Defendant about its motion, the Plaintiff attempted to assure Defendant that the documents were forthcoming and, in fact, the documents were delivered May 1, 2017. Defendant replies standing on its contention that it did not receive the complete letter at the time it was faxed; the documents Plaintiff finally produced on May 1 should have been disclosed initially or produced in response to discovery requests; and, Plaintiff made no argument that its delay in production was substantially justified or harmless.

         Defendant appears to seek relief pursuant to Fed.R.Civ.P. 37(c) for failure to provide information as required by Rule 26(a)[1] and/or pursuant to Fed.R.Civ.P. 37(d)(1)(A) for failure to serve answers, objections, or a written response to a request under Rule 34. Mot. 5-6; Reply 3-4. As such, the Court understands that Defendant is arguing Plaintiff failed to disclose written correspondence between her and Defendant under Rule 26(a)(1) an 26(e), and she failed to respond altogether to Defendant's Rule 34 request for production of written correspondence.

         A. Rule ...

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