Gamble v. State Farm Mutual Automobile Insurance Company, No. 3:2019cv05956 - Document 50 (W.D. Wash. 2020)
Court Description: ORDER denying 38 Motion for Protective Order. The issue of fees and costs shall be noted for consideration on 9/18/2020. Signed by Judge Robert J. Bryan. (JL)
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Gamble v. State Farm Mutual Automobile Insurance Company Doc. 50 Case 3:19-cv-05956-RJB Document 50 Filed 08/20/20 Page 1 of 7 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 10 11 12 13 14 CASE NO. 3:19-cv-05956-RJB VERONICA GAMBLE, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, ORDER DENYING DEFENDANT’S MOTION FOR PROTECTIVE ORDER Defendant. 15 16 THIS MATTER comes before the Court on Defendant’s Motion for Protective Order. 17 Dkt. 38. The Court has considered the pleadings filed regarding the motion and the remaining 18 file herein. For the reasons set forth below, Defendant’s Motion for Protective Order should be 19 denied, and Plaintiff’s request for reasonable expenses related to responding to the instant motion 20 should be granted. 21 22 23 I. FACTUAL BACKGROUND This case is a first-party insurance dispute with extracontractual claims including, inter alia, bad faith handling of Plaintiff’s claim and violation of the Washington Insurance Fair 24 ORDER DENYING DEFENDANT’S MOTION FOR PROTECTIVE ORDER - 1 Dockets.Justia.com Case 3:19-cv-05956-RJB Document 50 Filed 08/20/20 Page 2 of 7 1 Conduct Act (“IFCA”). Dkt. 1-1. Plaintiff was injured in an automobile accident on July 8, 2017, 2 when she was rear-ended while stopped at a red light. Dkt. 1-1, at 5. Immediately following the 3 accident, Plaintiff was primarily treated for injuries to her wrist; she did not report a head injury. 4 Dkt. 24, at 3. However, Plaintiff alleges that, in the days and weeks following the accident, she 5 developed severe headaches and vision loss. Dkt. 24, at 3. Plaintiff discovered that she had a 6 pituitary cyst, which Plaintiff’s treating physician, Dr. Tran, believes may have started bleeding 7 because of the accident and required surgery. Dkt. 24, at 3. Plaintiff had her first surgery on 8 August 10, 2017, to remove part of the cyst. Dkt. 24, at 3. Plaintiff developed diabetes insipidus, 9 an alleged risk of pituitary surgery, and has required follow-up surgeries. Dkt. 24, at 3. 10 Plaintiff obtained policy limits of $25,000 from the at-fault driver who rear-ended her. 11 Dkt. 1-1, at 6. Plaintiff asserts that, based on an inadequate investigation, Defendant did not pay 12 on her underinsured motorist (“UIM”) claim and took the position that Plaintiff was fully 13 compensated by the at-fault driver’s payment of $25,000. Dkt. 24, at 4. 14 In June 2020, Plaintiff’s counsel requested the deposition of Defendant’s employee, 15 Jennifer L. Carson (“Ms. Carson”), apparently a “nurse reviewer” (Dkt. 38, at 5) who works in 16 Defendant’s Medical Resources Department. Dkt. 38. Following the request, Defendant’s 17 counsel conferred with Ms. Carson by email regarding her availability for a deposition. Dkt. 38, 18 at 2. Defendant’s counsel received an email back from Ms. Carson’s supervisor, Team Manager 19 Dale Borneman (“Mr. Borneman”). Dkt. 38, at 2. Mr. Borneman wrote that Ms. Carson’s 20 involvement in Plaintiff’s UIM claim was limited to a claim log entered on March 19, 2018, 21 responding to a question about diabetes insipidus with respect to Plaintiff’s claim. Dkt. 38, at 2. 22 Additionally, Mr. Borneman indicated that it would be “an undue burden for the group of 23 24 ORDER DENYING DEFENDANT’S MOTION FOR PROTECTIVE ORDER - 2 Case 3:19-cv-05956-RJB Document 50 Filed 08/20/20 Page 3 of 7 1 Medical Resources Department employees he supervises to lose Ms. Carson while she prepared 2 for and gave a deposition in this matter.” Dkt. 38, at 2. 3 Counsel for the parties met and conferred on July 31, 2020, to discuss whether Plaintiff 4 would withdraw the request to depose Ms. Carson. Dkt. 38, at 3. Plaintiff’s counsel declined to 5 withdraw the deposition request. Dkt. 38, at 3. Defendant filed the instant motion that same day, 6 arguing that the deposition of Ms. Carson would be unduly burdensome, irrelevant, and 7 duplicative of evidence already produced or obtained in other depositions. Dkt. 38, at 3. 8 Plaintiff filed a response in opposition to the instant motion. Dkt. 43. Plaintiff contends 9 that Ms. Carson is an important witness and that her involvement in the UIM claim was critically 10 important because it was relied upon by Defendant in refusing to pay benefits on the UIM claim. 11 Dkt. 43. Additionally, Plaintiff argues that the instant motion contains no facts specifying or 12 detailing any alleged burden in producing Ms. Carson for deposition. Dkt. 43, at 7. Plaintiff 13 argues that Defendant’s instant motion is unjustified and requests attorney fees and costs for 14 responding. Dkt. 43, at 2. 15 16 17 Defendant filed a reply in support of the instant motion. Dkt. 45. II. DISCUSSION Fed. R. Civ. P. 26(c) provides as follows: 18 (c) PROTECTIVE ORDERS. 19 (1) In General. A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending—or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including 20 21 22 23 24 ORDER DENYING DEFENDANT’S MOTION FOR PROTECTIVE ORDER - 3 Case 3:19-cv-05956-RJB Document 50 Filed 08/20/20 Page 4 of 7 1 one or more of the following: 2 (A) forbidding the disclosure or discovery; 3 (B) specifying terms, including time and place, for the disclosure or discovery; 4 5 6 (C) prescribing a discovery method other than the one selected by the party seeking discovery; (D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters; 7 8 9 (E) designating the persons who may be present while the discovery is conducted; (F) requiring that a deposition be sealed and opened only on court order; 10 11 (G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and 12 13 (H) requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs. 14 15 (2) Ordering Discovery. If a motion for a protective order is wholly or partly denied, the court may, on just terms, order that any party or person provide or permit discovery. 16 17 18 19 20 21 22 23 (3) Awarding Expenses. Rule 37(a)(5) applies to the award of expenses. Fed. R. Civ. P. 37(a)(5)(B) provides as follows: (B) If the Motion Is Denied. If the motion is denied, the court may issue any protective order authorized under Rule 26(c) and must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney’s fees. But the court must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust. 24 ORDER DENYING DEFENDANT’S MOTION FOR PROTECTIVE ORDER - 4 Case 3:19-cv-05956-RJB Document 50 Filed 08/20/20 Page 5 of 7 1 Courts are given broad discretion to control discovery under Fed. R. Civ. P. 37, including 2 particularly wide latitude to issue sanctions. Ollier v. Sweetwater Union High Sch. Dist., 768 3 F.3d 843, 859 (9th Cir. 2014). 4 Defendant’s Motion for Protective Order is without merit; Defendant has not shown that 5 the requested deposition of Ms. Carson is unduly burdensome, irrelevant, or duplicative. The 6 declaration of Mr. Borneman flatly concludes that the requested deposition would be unduly 7 burdensome—but it provides no meaningful details explaining how or why. See Dkt. 39, at 2 (“It 8 would be an undue burden to require that Ms. Carson prepare for and attend a deposition in this 9 matter as her entire involvement in this claim is reflected in the claim log notes she wrote in 10 March 2018.”). Defendant simply does not explain how Ms. Carson’s allegedly limited role in 11 the UIM claim converts a requested deposition into an undue burden. 12 The testimony of Ms. Carson is clearly relevant to Plaintiff’s claims in this action. 13 Defendant’s claim handler, Cody Potthast, contacted Ms. Carson to “get a better insight on the 14 diabetes insipidus and how that might relate to trauma[.]” Dkt. 40, at 5. According to Cody 15 Potthast, Ms. Carson opined that diabetes insipidus is “typically not associated with trauma,” 16 which may have been at least part of the basis for Defendant’s decision as to Plaintiff’s UIM 17 claim. Dkt. 40, at 7. Plaintiff has “asked to take [Ms. Carson’s] deposition to learn more about 18 her qualifications, opinions, and [the] basis of those opinions.” Dkt. 43, at 3. 19 Defendant has not shown that the deposition of Ms. Carson would be duplicative. 20 Defendant argues that the evidence that may be obtained from Ms. Carson would be duplicative 21 because Plaintiff has already deposed Defendant’s claims handler, Cody Potthast. Dkt. 38, at 4, 22 et seq. However, the Court agrees with Plaintiff that she should not have to rely on the deposition 23 of Cody Potthast to “answer questions about Carson’s qualifications, … the research she 24 ORDER DENYING DEFENDANT’S MOTION FOR PROTECTIVE ORDER - 5 Case 3:19-cv-05956-RJB Document 50 Filed 08/20/20 Page 6 of 7 1 conducted, the source of the information she found, or the basis for the opinions she provided to 2 Potthast regarding Gamble’s injuries.” Dkt. 43, at 8. 3 Therefore, Defendant’s Motion for Protective Order should be denied. It does not appear 4 that Defendant’s Motion for Protective Order was substantially justified or that other 5 circumstances would make an award of expenses unjust. Pursuant to Fed. R. Civ. P. 37(a)(5)(B), 6 Defendant should pay Plaintiff’s reasonable expenses incurred in opposing the instant motion, 7 including attorney’s fees. 8 9 Plaintiff’s response brief and attached materials do not provide information as to the costs incurred responding to the instant motion. Plaintiff should be granted leave to file an affidavit 10 detailing Plaintiff’s reasonable costs incurred in responding to the instant motion, including 11 attorney’s fees, due on or before September 4, 2020. Defendant should be granted leave to file a 12 response, due by September 11, 2020. Plaintiff should be granted leave to file a reply, due by 13 September 18, 2020. The issue of fees and costs should be noted for consideration on September 14 18, 2020. III. 15 16 ORDER THEREFORE, IT IS HEREBY ORDERED THAT: 17 • Defendant’s Motion for Protective Order (Dkt. 38) is DENIED; 18 • Plaintiff’s request for reasonable costs incurred responding to Defendant’s Motion 19 20 for Protective Order, including attorney’s fees, is GRANTED; and • Plaintiff is granted leave to file an affidavit detailing Plaintiff’s reasonable costs 21 incurred in responding to Defendant’s Motion for Protective Order, including 22 attorney’s fees, due on or before September 4, 2020. Defendant is granted leave 23 to file a response, due by September 11, 2020. Plaintiff is granted leave to file a 24 ORDER DENYING DEFENDANT’S MOTION FOR PROTECTIVE ORDER - 6 Case 3:19-cv-05956-RJB Document 50 Filed 08/20/20 Page 7 of 7 1 reply, due by September 18, 2020. The issue of fees and costs shall be noted for 2 consideration on September 18, 2020. 3 4 5 6 7 8 The Clerk is directed to send uncertified copies of this Order to all counsel of record and to any party appearing pro se at said party’s last known address. Dated this 20th day of August, 2020. A ROBERT J. BRYAN United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER DENYING DEFENDANT’S MOTION FOR PROTECTIVE ORDER - 7
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