Presenting a live 90-minute webinar with interactive Q&A Discovery Requests in Insurance Litigation: Interrogatories, Production of Documents, Admissions of Fact, and More Propounding or Responding to Discovery Requests After Amendments to Rules 26(b) and 34(b) WEDNESDAY, APRIL 5, 2017 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Sarah R. Anchors, Partner, Quarles & Brady , Phoenix Tomas M. Thompson, Partner, Vocke Law Group , Chicago The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Discovery Requests in Insurance Litigation: Interrogatories, Production of Documents, Admissions of Fact, and More Sarah Anchors practices general commercial litigation, with a focus on lender liability, consumer protection statutes, and insurance policyholder representation. She assists insurance policyholders in obtaining coverage for claims and works on bad-faith claims. Recently, she has presented on the emerging field of insurance coverage for data breaches and cybersecurity risks. Additionally, she has experience representing lenders and businesses in eminent domain actions. sarah.anchors@quarles.com 5
Discovery Requests in Insurance Litigation: Interrogatories, Production of Documents, Admissions of Fact, and More Tom Thompson is a partner at Vocke Law Group LLP, a Chicago boutique launched in October of 2016. With significant experience presenting cases to juries, judges, arbitrators and regulators, Mr. Thompson frequently represents insurers and reinsurers in complex coverage matters, class actions, regulatory investigations, and reinsurance arbitrations. He also regularly advises insurance and reinsurance clients on information governance, data privacy and electronic discovery issues. Mr. Thompson is a member of the Seventh Circuit Electronic Discovery Pilot Program Committee and served as the co-chair of the Technology Subcommittee. tthompson@vockelawgroup.com 6
Discovery Requests in Insurance Litigation: Interrogatories, Production of Documents, Admissions of Fact, and More Propounding or Responding to Discovery Requests After Amendments to Rules 26(b) and 34(b) Overview I. Brief overview of 2015 amendments II. Considerations for drafting discovery requests III. Strategies for responding/objecting to discovery requests 7
I. Brief overview of 2015 amendments Proportionality Rule 1: [These rules] should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding. Rule 26(b)(1): 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. 8
I. Brief overview of 2015 amendments • Rule 1: “[These rules] should be construed, and administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” • Amended to emphasize that “ the parties share the responsibility to employ the rules” for a just, speedy and inexpensive determination. “Effective advocacy is consistent with – and indeed depends upon – cooperative and proportional use of procedure.” Rule 1 Advisory Committee Notes, 2015 Am. • Rule 1 “has been expanded by a mere eight words, but those are words that judges and practitioners must take to heart. . . . The underscored words make express the obligation of judges and lawyers to work cooperatively in controlling the expense and time demands of litigation — an obligation given effect in the amendments that follow.” Chief Justice John G. Roberts’ 2015 Year -end Report on the Federal Judiciary, at pp. 5-6. 9
Case discussion of amended Rule 1 • Steuben Foods, Inc. v. Oystar Gp. , 10-CV-00780-EAW-JJM, 2015 WL 9275748, at *1 (W.D.N.Y. Dec. 21, 2015) (reminding parties of Rule 1 and the expectation that they will coordinate efforts in scheduling depositions and avoiding repetitive and cumulative questioning of witnesses) • Southport Bank v. Miles , 10-CV-8321, 2016 WL 7366885, at *3 (N.D. Ill. Dec. 19, 2016) (“Southport's overbroad discovery requests to FNBO are not in keeping with the letter or spirit of Rule 1 let alone the other Federal Rules and cases cited herein.”) • Harbord v. Home Depo U.S.A. Inc. , 3:16-CV-2179-SI, 2017 WL 1102685, at *3 (D. Or. Mar. 24, 2017) (“Defendant's approach to discovery in this case is inconsistent with Rule 1. Plaintiff's motion for protective order (ECF 14) is granted. After Defendant has reviewed Plaintiff's initial disclosures, Defendant and Plaintiff shall, in good faith, meet in person and confer about discovery as required under Rule 26(f) of the Federal Rules of Civil Procedure, which the parties have not yet done. Only then may Defendant propound a more reasonable set of requests for production, if needed, consistent with both the letter and spirit of the federal rules.”) 10
I. Brief overview of 2015 amendments Proportionality Before 2015 Amendments Rule 26(b)(1): Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense — including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C). Rule 26(b)(2)(C): On motion or on its own, the court must limit the frequency or extent of discovery … if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) 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. 11
I. Brief overview of 2015 amendments Proportionality Today (after 2015 Amendments) Rule 26(b)(1) : 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. 12
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