Opinion
No. CV-08-01060-PHX-FJM.
September 24, 2009
ORDER
The court has before it plaintiff's motion to compel production of documents and computer data (doc. 102), defendants' response (doc. 106), and plaintiff's reply (doc. 113).
Plaintiff moves to compel the production of: (1) documents and electronic data concerning defendants' former employees collected in 2003; (2) documents produced in connection with an action brought by a former employee in Tennessee; (3) backup electronic data preserved in 2003; (4) documents related to defendants' policy changes; (5) claims operation information; and (6) emails related to plaintiff. Defendants contend that the requests are overly broad and unduly burdensome, and that they cover information which eluded plaintiff's counsel years ago when defendants' practices were different.
Plaintiff is advised that the last day of discovery is not the time to resolve a five-month-old dispute which came to an impasse a month before. Nevertheless, "Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense." Fed.R.Civ.P. 26(b)(1). Discovery includes requests to produce "any designated documents or electronically stored information." Fed.R.Civ.P. 34(a)(1)(A). Evidence of past practices is relevant in a bad-faith insurance action claiming punitive damages. See Hawkins v. Allstate Ins. Co., 152 Ariz. 490, 498, 733 P.2d 1073, 1081 (1987). Defendants' argument concerning changed practices in recent years goes to the weight of the evidence and not its relevancy. However, defendants' objection to the breadth of the requests is well taken. Plaintiff directs us to an opinion involving a request for six specific days of email. Motion to Compel, Ex. B. Plaintiff offers no such limitation here. Given his acknowledgment that defendants' alleged scheme "has been widely exposed," we find that plaintiff has not shown good cause under Rule 26(b)(2)(B), Fed. Civ. P., with respect to electronic data. Id. at 1. Therefore, we deny plaintiff's delayed motion to compel electronic data.
Plaintiff's motion specifically identifies Ralph Mohney as an alleged architect of a scheme and Harold Chandler as someone who made a public denial. It also indicates an interest in defendants' policy changes since a settlement in 2004. We will narrow the scope of plaintiff's requests accordingly.
IT IS THEREFORE ORDERED GRANTING plaintiff's motion to compel production (doc. 102), limited to the following:
(1) any physical documents found in the preserved boxes from Ralph Mohney's office related to claim procedures, including internal memoranda and printed emails;
(2) any physical documents found in the preserved boxes from Harold Chandler's office related to a video denial of claims improprieties;
(3) any physical documents created since January 1, 2004 that are responsive to Plaintiff's Requests 14, 15, and 16;
(4) any additional documents responsive to Plaintiff's Request 17; and
(5) an appropriate privilege log.
IT IS FURTHER ORDERED DENYING plaintiff's motion to compel production (doc. 102), in all other respects.