Iovino v. AM Tr. Fin. Servs.

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CARMEN IOVINO, Plaintiff, v. AM TRUST FINANCIAL SERVICES, INC., et al., Defendants.

No. 2:22-cv-01974-APG-NJK

United States District Court, D. Nevada

November 6, 2024

ORDER [DOCKET NO. 159]

NANCY J. KOPPE UNITED STATES MAGISTRATE JUDGE

Pending before the Court is Plaintiff's motion to compel discovery. Docket No. 159. Defendants filed a response. Docket No. 166. Plaintiff filed a reply. Docket No. 169. The motion is properly resolved without a hearing. See Local Rule 78-1.

I. BACKGROUND

Plaintiff was injured in a car crash while driving a company truck for his employer. Docket No. 105 at 1. The driver who caused the crash is unknown, so Plaintiff sought benefits under his employer's insurance policy with Defendant Security National Insurance Company (“SNIC”) for underinsured/uninsured motorist (“UM”) coverage. Id. Plaintiff alleged that he sustained injuries well above the policy's $1 million limit but was paid less than half of the benefits that he claims are due. Id. Plaintiff sues SNIC; its parent company Defendant AmTrust Financial Services, Inc. (“AFSI”); and its claim processor, Defendant AmTrust North America (“ANA”).

On August 1, 2024, Plaintiff deposed Emily Jessie as Defendant ANA's 30(b)(6) designee. Docket No. 159-3. On August 20 2024, Plaintiff deposed Jessie as Defendant AFSI's (30)(b)(6) designee. Docket No. 159-7. Now, Plaintiff challenges the sufficiency of certain parts of the depositions and seeks to compel documents that were allegedly revealed at the depositions, as well as certain other discovery. Docket No. 159. Specifically, Plaintiff seeks to compel the following: (1) Defendants' post-litigation bad faith claims file; (2) Defendants' marketing or advertising materials from January 2015 through December 2016; (3) Defendant ANA's first party claims file for employer UM polices from 2011 to the present; (4) a deposition of Defendant ANA's 30(b)(6) designee regarding its post-litigation handling and evaluation of Plaintiff's UM claim; (5) a deposition of Defendant ANA's 30(b)(6) designee regarding its marketing and/or advertising materials in use from January 2015 through December 2016; and (6) a deposition of Defendant AFSI's 30(b)(6) designee regarding Defendants' relationships. Docket No. 159 at 2.

II. MEET AND CONFER

“Discovery is supposed to proceed with minimal involvement of the Court.” F.D.I.C. v. Butcher, 116 F.R.D. 196, 203 (E. D. Tenn. 1986). Counsel should strive to be cooperative, practical, and sensible, and should seek judicial intervention “only in extraordinary situations that implicate truly significant interests.” In re Convergent Techs. Securities Litig., 108 F.R.D. 328, 331 (N. D. Cal. 1985). The Federal Rules of Civil Procedure require that the party bringing a motion to compel must “include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” Fed.R.Civ.P. 37(a)(1). The Local Rules further expound on this requirement, providing that discovery motions will not be considered “unless the movant (1) has made a good-faith effort to meet and confer ... before filing the motion, and (2) includes a declaration setting forth the details and results of the meet-and-confer conference about each disputed discovery request.” Local Rule 26-6(c). This prefiling conference requirement is not simply a formal prerequisite to seeking judicial intervention but requires a fulsome discussion of the issues in dispute. Nevada Power v. Monsanto, 151 F.R.D. 118, 120 (D. Nev. 1993). Courts may look beyond the movant's certification to determine whether a sufficient meet-and-confer actually took place. See, e.g., Cardoza v. Bloomin' Brands, Inc., 141 F.Supp.3d 1137, 1145 (D. Nev. 2015).

These meet-and-confer requirements are very important, and the Court takes them very seriously. At the same time, litigants should not expect courts to look favorably on attempts to use the prefiling conference requirements as procedural weapons through which to avoid complying with their discovery obligations. See, e.g., Aevoe Corp. v. AE Tech Co., Case No. 2:12-cv-00053-GMN-NJK, 2013 WL 4714273, at *2 (Aug. 30, 2013). Gamesmanship by an opposing party that thwarts the meet-and-confer process is not grounds to deny a discovery motion. See, e.g., Nevada Power, 151 F.R.D. at 120 (judicial consideration of a dispute is proper when “one party has acted in bad faith, either by refusing to engage in negotiations altogether or by refusing to provide specific support for its claims”). The text of Rule 37 reinforces this proposition, requiring only that the movant “attempted” to engage in a rule-complaint conference. Fed.R.Civ.P. 37(a)(1); see also Local Rule 26-7(c) (requiring a “good-faith effort”). In addition, the Court retains the discretion to waive the meet-and-confer requirements with respect to any particular motion based on the circumstances of that case. See Rogers v. Giurbino, 288 F.R.D. 469, 477-78 (S.D. Cal. 2012); see also Mielke v. Standard Metals Processing, Inc., Case No. 2:14-cv-01763-JCM-NJK, 2015 WL 2152664, at *1 (D. Nev. May 7, 2015) (collecting cases).

Here, Plaintiff's counsel submits that he conducted a meet-and-confer with Defendants' counsel on September 23, 2024, for over 45 minutes regarding the requested discovery. Docket No. 159 at 2. A 45-minute conversation held the day before the filing of the instant motion does not appear to be a fulsome discussion, especially as the motion has six discovery disputes. Further, the Court warned the parties that prior to filing another discovery motion, there needed to be a robust meet-and-confer. Docket No. 155. However, it appears that Defendants' counsel did not engage in meaningful discussion about certain disputes as he believed they were not contemplated in the Court's minute order, see Docket No. 159 at 3-6, 10. At the very least, Plaintiff attempted to engage in a proper meet-and-confer on the issues now in dispute and there appears to be no point in requiring further conferral efforts given the length of discovery and procedural posture of the case. The Court will, therefore, not deny the motion for lack of a sufficient meet-and-confer.

III. SCOPE AND TIMELINESS OF THE INSTANT MOTION

Defendants oppose the instant motion on substantive and procedural grounds, including that the motion is untimely. Docket No. 166. On September 17, 2024, the Court denied without prejudice Plaintiff's motion to compel Rule 30(b)(6) depositions, Docket No. 112, Defendants' countermotion for protective order, Docket No. 117, and Defendants' motion for protective order, Docket No. 140, as the subject depositions had occurred and, therefore, the issues raised were either moot or had changed from what was presented in the briefing. Docket No. 155. The Court further stated that “to the extent the parties continue to seek any relief, they must engage in a robust meet and confer, and any renewed motions must be filed by September 24, 2024.” Id. As discovery closed on August 27, 2024, Defendant submits that the Court's order authorizing the renewed filing of motions is limited to motions that request the same or similar relief as the previously denied motions. Docket No. 166 at 4 (emphasis in original). As such, Defendants submit that Requests 1, 2, 3, and 6 in Plaintiff's motion to compel are untimely and “must be denied as they request relief that was not included or a part of Plaintiff's June 20, 2024 motion to compel.” Id.

District court oversight is encouraged to avoid “protracted discovery, the bane of modern litigation.” Rossetto v. Pabst Brewing Co., 217 F.3d 539, 542 (7th Cir. 2000) (summarily affirming district court's finding that discovery motion was untimely). A party may not unduly delay in moving to compel discovery. E.g., Gault v. Nabisco Biscuit Co., 184 F.R.D. 620, 622 (D. Nev. 1999). “Untimeliness is sufficient ground, standing alone, to deny a discovery motion.” KST Data, Inc. v. DXC Tech. Co., 344 F.Supp.3d 1132, 1136 n.1 (C.D. Cal. 2018) (quoting Williams v. Las Vegas Metro. Police Dept., Case No. 2:13-cv-01340-GMN-NJK, 2015 WL 3489553, at *1 (D. Nev. June 3, 2015)).

The Court's order was not intended to restrict the range of discovery motions that could be filed, as it contained no limiting or prohibitive language. It has long been clear in this District that, absent unusual circumstances, the outer limit for filing a motion to compel is the deadline for filing dispositive motions. See Gault, 184 F.R.D. at 622. Here, the motion was filed prior to the dispositive motion deadline; therefore, the Court will consider it on its merits.

IV. FULL TEXT REQUIREMENT

In addition to the Federal Rules of Civil Procedure, discovery motions are governed by Local Rule 26-6(b), which requires “all motions to compel discovery .. .must set forth in full the text of the discovery originally sought and any response to it.” Without the complete text of the requests and responses, if any, “[t]he Court cannot determine that particular responses ... are improper.” Allstate Ins. Co. v. Balle, 2013 WL 5323968, at *4 (D. Nev. Sept. 20, 2013); Agarwal v. Oregon Mut. Ins. Co., 2013 WL 211093, at *3 (D. Nev. Jan. 18, 2013) (denying motion to compel, in part, for failure to comply with [the local rule] because “judges are not like pigs, hunting for truffles buried in briefs”). “Practically speaking, the failure to comply with [the local rule] improperly shifts the burden to the Court to sift through and root for issues that should be clear on the face of a discovery motion.” Taylor v. Aria Resort & Casino, LLC, 2013 WL 2355462, at *4 (D. Nev. May 29, 2013).

Here as an example, Plaintiff fails to provide the text for his first...