ORDER ON DEFENDANT'S MOTION TO COMPEL
Mark
L.Carman United States Magistrate Judge.
This
matter comes before this Court upon Defendant's
Motion to Compel [Doc. 121]. Plaintiff Homeland
Insurance Company of New York ("Homeland") brought
the underlying case seeking a declaratory judgment as to its
obligations under the insurance policy it issued to Defendant
Powell Valley Healthcare ("Powell")[1] [Doc. 1 p. 2].
During the period in which Homeland insured Powell, Powell
was sued multiple times for negligent care provided by its
Dr. Jeffrey Hansen ("Dr. Hansen"). Id. In
January 2016, the case was bifurcated, with the first phase
addressing the insurance coverage's scope and the second
phase, if necessary, addressing bad faith [Doc. 57]. The
facts of this case are complex and extensive and will not be
set out herein. For purposes of this motion it is only
significant that a dispute exists as to the applicability of
the Homeland policy to certain malpractice claims related to
Dr. Hansen which arose during the period of coverage for the
Homeland policy.
Powell
now moves to compel all underwriting files related to
Homeland's Powell policy and the identity of those who
drafted and underwrote it [Doc. 122]. In addition, Powell
seeks the production of a privilege log identifying what
specific underwriting documents Homeland is withholding.
Id. The disputed requests are contained in
Interrogatories 4 and 11, and Requests for Production 3, 9,
14, 16, and 22 [Doc. 123-1]. Homeland has refused to produce
these documents and information, arguing Powell's
requests are irrelevant to the first phase claims and that
some of Powell's requests are not properly before the
Court [Doc. 123].
A.
Standard of Review
The Federal Rules of Civil Procedure allow parties to
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
Fed.R.Civ.P. 26(b)(1).
Whether
to permit discovery is "entrusted to the sound
discretion of the trial courts." Punt v. Kelly
Servs., 862 F.3d 1040, 1047 (10th Cir. 2017) (internal
quotation marks omitted). If a discovery request appears
facially relevant, the burden is on the "resisting party
to establish the request is not relevant by showing the
request (1) does not come within the scope of relevance as
defined under Fed.R.Civ.P. 26(b)(1), or (2) is of such
marginal relevance that the potential harm occasioned by
discovery would outweigh the ordinary presumption in favor of
broad discovery." Sinclair Wyoming Ref. Co. v.
A&B Builders, Ltd., 2017 WL 10309306, at *5 (D. Wyo.
Oct. 31, 2017) (internal quotation marks omitted). Because
this Court has diversity jurisdiction, Wyoming law applies to
the underlying substantive issues. Sanchez v. Home Depot,
Inc., 2014 WL 2986672, at *2(D. Wyo. July 2, 2014).
B. Meet
& Confer Requirements
Homeland
claims Powell never conferred with them on their objections
regarding Requests for Production ("RFPs") 14, 16
and 22 [Doc. 123 pp. 2-3]. According to Homeland, those RFPs
were contained in Powell's second set of requests and
were not discussed before filing this motion. Id.
Powell has not challenged Homeland's characterization
that the parties never conferred on Powell's objections
to RFPs 14, 16, and 22.
This
Court "will not entertain any motions relating to
discovery disputes unless counsel for the moving party has
first conferred." U.S.D.C.L.R. 37.1(b). Thus, the issue
is not yet properly before this Court, and the Court will
only consider Interrogatories 4 and 11, and Requests for
Production 3 and 9. Should a dispute remain as to RFPs 14, 16
and 22, the parties are welcome to raise the issue at a
telephonic status conference to the degree the objections are
not resolved by this order.
C.
Discovery
In
determining the appropriate scope of discovery under the
current Rule 26(b)(1) the court must determine: (1) is the
information privileged; (2) is it relevant to a claim or
defense; and (3) is it proportional to the needs of the case.
Gordon v. T.G.R. Logistics, Inc., 321 F.R.D. 401,
402 (D. Wyo. 2017). Powell seeks the underwriting files
related to Homeland's Powell policy and the identify of
those who drafted and underwrote it [Doc. 122]. This
information, which would elucidate the process by which
Homeland prepared its Powell policy, is characterized by
Powell as "critical to the coverage determinations and
policy provisions at issue." Id. at 8. Homeland
further claims these requests "may also be relevant to
equitable considerations, such as estoppel" and
"may support reformation of the policy to reflect the
parties' intent pre-inception.,, Id.
Finally, Powell believes that identifying the employees
directly involved in formulating the Homeland policy, and
identifying their notes and communications "may assist
in determining whether there is an ambiguity... may also
contain information regarding the interpretation and
constructions of the policy... may bear on ambiguity of the
policy, the parties* intent for coverage, and may support
equitable relief." Id. at 8-10.
Powell
cites numerous cases in which courts ordered the production
of underwriting files in similar circumstances [Doc. 122 pp.
9-10]. However, every case cited relies on a previous version
of Rule 26 that allowed for an arguably broader definition of
relevancy - that requested discovery was "reasonably
calculated to lead to the discovery of admissible
evidence." In 2015, Rule 26.1 was amended, dropping the
"reasonably calculated" language in favor of
"relevant to any party's claim or defense and
proportional to the needs of the case." Fed.R.Civ.P. 26,
Adv. Comm. Notes, 2015 ...