Great West Casualty Company v. Anderson et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
GREAT WEST CASUALTY
COMPANY, a Nebraska corporation,
Plaintiffs,
vs. 	Case No. 1:23-CV-00076-SWS
CLAIRE ANDERSON, Individually;
SUE LEFFLER, Individually;
ROBERT MATHERN, Individually;
ELIZABETH BERTHOD 1 ,
Individually,
JEFF JEVNE, Individually,
Defendants.
ORDER ON MOTION FOR PROTECTIVE ORDER
Before the Court is Plaintiff’s Motion and Memorandum for Protective Order.
ECF Nos. 45, 46. Defendants submitted oppositions [ECF Nos. 47, 48], and Plaintiff
Great West replied [ECF Nos. 49, 50]. Having considered the parties’ arguments and
record herein, and being otherwise fully advised, the Court determines the request
for a protective order should be granted in part and denied in part. The information
1 In the Answer filed by Defendants Anderson, Leffler, Mathern and Berthod, it noted in 6. that
the correct spelling of Berthod is without a “u,” i.e. Berthoud.
11:55 pm, 3/2/24
FILED
Margaret Botkins
Clerk of Court
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Defendants intend to garner from Plaintiff in the 30(b)(6) Deposition Notice are
analyzed below.
B ACKGROUND
Defendant Jevne filed a negligence lawsuit against BT, Inc. (BTI), Anderson,
Leffler, Mathern and Berthod (and others) in the State of Wyoming, Sweetwater
County District Court. The complaint against BTI was dismissed by the state court.
Anderson, Leffler, Mathern and Berthod are still named defendants in the underlying
state case and are currently utilizing BTI’s insurance policy from Plaintiff to pay for
counsel. Defendants Anderson, Leffler, Mathern and Berthod were employees, and
managers or officers at BTI, when Defendant Jevne was injured while unloading a
haul of molten sulfur in a BTI truck.
Plaintiff initiated the instant case by filing a Complaint for Declaratory
Judgement requesting clarification from the Court regarding the defense and
indemnity coverage for Defendants Anderson, Leffler, Mathern and Berthod. ECF
No. 1. Plaintiff wants to know what is required under the contracted policies of
insurance issued to BTI and what it must provide to the Defendants relating to
Jevne’s underlying state court action. Plaintiff seeks determination of whether it has
a continuing obligation to defend and potentially indemnify the individual employee
Defendants against Jevne’s complaint for damages. More specifically, whether there
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is an obligation under the terms of the policies of insurance issued to BTI, taking
into consideration the facts and pleadings of Jevne’s state case.
Plaintiff alleges that certain exclusions contained within the insurance policies
issued to BTI, exclude coverage to Anderson, Leffler, Mathern and Berthod; and
that Plaintiff is not required to continue defending them and/or indemnify them for
damages awarded against them. ECF No. 1 at 12-13. Plaintiff further alleges that
any award to Jevne in the underlying state court case, if damages are awarded, are
not covered by the policy BTI possessed at the time of Jevne’s injury. Id. at 14-15.
Jevne previously filed a motion to dismiss for failure to add a necessary party,
i.e., BTI. ECF No. 18. In an Order by the Honorable Scott Skavdahl, issued on July
18, 2023, the court determined that BTI is not indispensable, and the court did not
find any “practical impairment to BT[I]’s interest in its insurance coverage” when
or if a declaratory judgment is issued. ECF No. 23 at 4. Subsequently, BTI filed a
now withdrawn motion to intervene in the case focusing on Plaintiff’s argument that
exclusions may apply to any coverage for BTI even if its managers/officers are
contractually indemnified by BTI’s Bylaws. ECF No. 51.
In early November 2023, Jevne requested a stay in the current case until his
underlying state case was determined, but such request was denied by the court. ECF
Nos. 40, 41, 44. Jevne alleges he has been improperly included in this case and it is
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unfairly prejudicial to continue the federal indemnity case without fully developed
facts from the underlying state case. ECF No. 40.
MOTION P RESENTED
In the present Motion, Plaintiff is requesting an Order of Protection from
Defendants Anderson, Leffler, Mathern, and Berthod’s Rule 30(b)(6) Deposition
Notice dated November 6, 2023. See ECF No. 46-1. Plaintiff argues the Defendants
are not named in the policies BTI had with Plaintiff, therefore the questions in the
Deposition Notice are overbroad, onerous, privileged, and named Defendants do not
have standing to ask such questions. ECF No. 46 at 3.
Defendants oppose the Motion and reiterate their position as reasonable
considering the Complaint [ECF No. 1] and Answers [ECF Nos. 16, 17, 26], case
law in Wyoming, the wording Plaintiff uses for its Stop-Gap policy, and promotional
language to advertise the Stop-Gap liability coverage. ECF No. 47. Furthermore,
Defendant Jevne argues that Plaintiff “takes a painfully limited view of the necessary
scope of the facts relevant to this case, excluding numerous relevant and valid facts
and representations made to BTI and its managers and supervisors, other company
documents mandating coverage, and the reasonable expectations of its insureds.”
ECF No. 48 at 2. Finally, Defendants argue that Plaintiff is improperly narrowing
the 	issues 	within 	the 	discovery 	process 	to 	limit 	the 	amount 	of 	information
Defendants will have to properly defend against the Declaratory Judgement action,
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and furthermore, it is the Plaintiff’s burden to prove good cause exists for the
protective order.
Plaintiff’s replies to the two responses in opposition points to the defense
counsel for Anderson, Leffler, Mathern, and Berthod, and defense counsel for Jevne,
failing to meet the burden of explaining why the information requested in the
Deposition Notice is relevant or falls within the discovery scope set out in Rule 26(b)
of the Federal Rules of Civil Procedure. Further, Plaintiff argues the historical
recitation of legal theories defense counsel relies on in the response fails to provide
the Court or parties any clear consensus regarding the Defendants’ use of the
information requested in the Rule 30(b)(6) Deposition Notice. Plaintiff’s reply to
Jevne’s response also notes the overly burdensome ordeal it would be for Plaintiff
to answer all the questions that are within the Rule 30(b)(6) Deposition Notice and
that Jevne’s response is not necessary or applicable since the Motion deals with the
other Defendants’ Deposition.
ISSUE P RESENTED
The issue is whether the 30(b)(6) Deposition Notice and topics within are
“relevant to the issues in this matter, overbroad, [should be] limited by time, are
onerous, seek information that is protected from disclosure by the attorney-client
privilege, seek information that is otherwise confidential, seek information that the
employee Defendants do not have standing to obtain in discovery in this case, and
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seek information not proportional to the issues in this case.” ECF No. 46 at 3; see
also Fed. R. Civ. P. Rule 26.
R ULING OF THE C OURT
Trial courts have broad discretion in discovery decisions. Doe v. Bd. of
Trustees of Teton Cnty. Sch. Dist. No.1, No. 20-CV-110-S, 2021 WL 7209990 (D.
Wyo. Sept. 2, 2021) (citing Shaklee Corp. v. Gunnell, 748 F.2d 548, 550 (10th Cir.
1984)). “The federal discovery rules reflect the courts' and Congress' recognition
that ‘mutual knowledge of all the relevant facts gathered by both parties is essential
to proper litigation.’” Simon v. Taylor, 2014 U.S. Dist. LEXIS 164774, at *24-25
(D.N.M. Nov. 18, 2014)), aff'd, 794 F. App'x 703 (10th Cir. 2019) (quoting Hickman
v. Taylor, 329 U.S. 495, 507 (1947)).
Since this Court is exercising jurisdiction based upon the diversity of the
parties, Wyoming law applies to the underlying substantive issues and federal law
applies to the determination of what qualifies as discoverable. Butt v. Bank of Am.,
N.A., 477 F.3d 1171, 1179 (10th Cir. 2007). It is the federal court’s objective to obtain
the same result that would be reached in state court when applying the State’s
substantive law. Pena v. Greffet, 110 F.Supp.3d 1103, 1132 (D.N.M. 2015) (the
court should first look to the words of the state supreme court); Anderson v. Living
Tr. v. WPX Energy Prod., LLC, 27 F.Supp.3d 1188, 1243 & n.30 (D.N.M. 2014) (the
court may also rely on Tenth Circuit court opinions interpreting the state law).
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The issues in this Declaratory Judgment action boil down to contract
interpretation: whether Defendants Anderson, Leffler, Mathern and Berthod are
entitled to legal representation and indemnification by Plaintiff Great West in the
underlying state case—when the underlying state case’s cause of action is personal
injury, and the employer is the holder of the insurance policies at issue. In their
affirmative defenses, the BTI employees have alleged that the insurance contract is
ambiguous and should be interpreted in favor of coverage. ECF No. 16 at 2-5.
Plaintiff’s reply claims that they have “not denied liability coverage to anyone.” ECF
No. 49 at 3. However, Plaintiff’s Complaint in this matter asks the court to do just
that, to grant Plaintiff’s relief which includes the court’s declaration that defense and
liability coverage to the employee defendants is excluded under multiple conditions
of its policies with BTI. ECF No. 1.
Under the Federal Rules of Civil Procedure, the scope of discovery includes:
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 	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). 	Discoverable 	information 	must 	be 	relevant 	and
proportional, but it is not required to be admissible as evidence in the case. Biles v.
Schneider, 	No. 2:19-CV-00048-NDF, 2020 U.S. Dist. 	LEXIS 257372, 	at *5
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(D. Wyo. May 28, 2020); In re Cooper Tire & Rubber Co., 568 F.3d 1180, 1188-
1189 (10th Cir. 2009) (discoverable material includes both information relevant to a
claim or defense, and information relevant to the subject matter of the action); see
also Hutchinson v. Pfeil, No. 98-5043, 1999 U.S. App. LEXIS 29523 (10th Cir. Nov.
9, 1999). “Relevant evidence is defined as ‘evidence having any tendency to make
the existence of any fact that is of consequence to the determination of the action
more or less probable than it would be without the evidence.’” Devon Energy Prod.
Co., Ltd. P'ship v. Justice Oil & Gas, No. 19-CV-267-S, 2020 U.S. Dist. LEXIS
257191 at *4 (D. Wyo. Nov. 16, 2020) (quoting Brandt v. Von Honnecke, 2018 U.S.
Dist. LEXIS 14406, 2018 WL 510277, at * 3 (D. Colo. Jan. 23, 2018); and citing
Fed. R. Evid. 401).
Under Wyoming law, “established rules of contract interpretation apply to
insurance policies.” Doctors’ Co. v. 	Insurance Corp. of America, 864 P.2d 1018,
1023 (Wyo. 1993). And when interpreting an insurance policy itself, the court:
must adhere to the following tenets of insurance agreement
construction established by the Wyoming Supreme Court: 	(1)
words must be given their common and ordinary meaning, and
courts may not torture policy language to create an ambiguity;
(2) the parties’ intention, ascertained from the policy language
when viewed in the light of what the parties must reasonably
have intended, receives primary consideration; (3) the policy
must not be construed so strictly as to contradict the policy’s
general object; (4) courts may not rewrite lawful policy terms;
(5) absent ambiguity, courts must enforce the policy according
to its terms and not engage in construction; (6) if the policy is
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ambiguous, courts must construe the contract liberally in favor
of the insured and strictly against the insurer.
Mena v. Safeco Ins. Co., 412 F.3d 1159, 1163 (10th Cir. 2005) (citing Aaron v. State
Farm Mut. Auto. Ins. Co., 2001 WY 112, 34 P.3d 929, 933 (Wyo. 2001)); reiterated
in Shaffer v. Winhealth Partners, 261 P.3d 708, 711 (Wyo. 2011). Whether or not a
contract is ambiguous is a question of law for the court to decide. Bergatino v. State
Farm Mut. Auto. Ins. Co., 500 P.3d 249, 253 (Wyo. 2021).
In a case similar to this one, the court addressed the appropriate scope of
discovery in a contract matter prior to the district court’s determination on the
question of contract ambiguity. See Homeland Ins. Co. v. Goldstein, No. 1:15-cv-
00031-ABJ, 2019 U.S. Dist. LEXIS 59461, 2019 WL 1506008 (D. Wyo. Apr. 4,
2019). In Homeland, the plaintiff insurance company in a declaratory judgment
action 	sought 	a 	protective 	order 	regarding 	the 	defendant’s 	request 	for 	the
underwriting files of the company. The court, applying Wyoming law, found that
extrinsic evidence may be used when interpreting a contract, even if the contract is
not ambiguous. Homeland, 2019 U.S. Dist. LEXIS 59461, at *10-11, 2019 WL
1506008, at *4 (D. Wyo. Apr. 5, 2019). Extrinsic evidence can include evidence
regarding “custom and usage in a particular place or trade at the time of execution
of the contract, in order to arrive at the plain meaning of the agreement, with the goal
of more closely effectuating the parties’ true intent.” Id. (citing Mullinix LLC v. HKB
Royalty Trust, 126 P.3d 909, 921 (Wyo. 2006)). The court found that discovery into
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the formation of the policy was appropriate so that a party may present to the court
what, if any, extrinsic evidence should be considered by the court to make a
determination on ambiguity. Id. at 5.
Furthermore, if a party wishes to compel discovery, that party bears the burden
of proving relevancy of the information requested. Polk v. Swift, 339 F.R.D. 189,
194 (D. Wyo. 2021). Yet, the initial burden shifts to the party opposing discovery if
the requested information is facially relevant, the party claims relevance is marginal
to the potential harm, or the party claims privilege. See Devon Energy Prod. Co.,
No. 19-CV-267-S, 2020 U.S. Dist. LEXIS 257191, at *4 (D. Wyo. Nov. 16, 2020)
(citing Fed. R. Civ. P. 26 (advisory committee notes to the 2015 amendments); and
Nat'l R.R. Passenger Corp. et al v. Cimarron Crossing Feeders, et al, 16-cv-1094-
JTM-TJJ, 2017 U.S. Dist. LEXIS 173452, at *7, 2017 WL 4770702, at *4 (D. Kan.
Oct. 19, 2017)); Polk v. Swift, 339 F.R.D. 189, 194 (D. Wyo. 2021); Biles v.
Schneider, No. 2:19-CV-00048-NDF, 2020 U.S. Dist. LEXIS 257372, at *6 (D.
Wyo. May 28, 2020) (“the burden shifts to the party resisting discovery to prove that
the discovery is either (1) not relevant or (2) has such marginal relevance that its
potential harm outweighs the presumption favoring broad discovery”); Roe v. FCA
US LLC, No. CIV-19-167-SLP, 2020 U.S. Dist. LEXIS 259111, at *3 (W.D. Okla.
Jan. 14, 2020) (if requested discovery appears relevant, the burden shifts to the party
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objecting to production and must show the request is outside Rule 26(b)(1) or is so
marginal in value versus harm in disclosure.).
Whereas, under Rule 26(c) of the Federal Rules of Civil Procedure,
A party . . . may move for a protective order . . . [and t]he
court may, for good cause, issue an order to protect a party
. . . from . . . undue burden or expense, including: 	. . .
forbidding . . . or limiting the scope [and terms] of
disclosure or discovery.
Fed. R. Civ. P. 26(c). It is the party seeking an order of protection that bears the
burden of establishing good cause for nondisclosure. Morgan v. Baker Hughes Inc.,
No. 14-CV-210-S, 2018 U.S. Dist. LEXIS 230709, at *25-26 (D. Wyo. July 6,
2018); see also In Re Cooper Tire, 568 F.3d at 1190. Furthermore, a “party seeking
to assert the attorney-client privilege or the work product doctrine as a bar to
discovery has the burden of establishing that either or both is applicable.” Peat,
Marwick, Mitchell & Co. v. West, 748 F.2d 540, 542 (10th Cir. 1984) (merely
alleging work product doctrine applies to documents or requested discovery is
insufficient).
Here, Plaintiff carries the burden of proving Defendants lack standing, the
information requested is privileged, the topics are onerous, unduly burdensome, and
irrelevant. The Court will analyze and provide the legal backdrop individually, and
then apply the legal standard to each of the individual 30(b)(6) Deposition Notice
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and Topics at issue in this Court’s analysis below. Infra. at 19; see also ECF
No. 46-1.
S TANDING
The argument that employee Defendants do not have standing to obtain the
information in the Deposition Topics because they did not pay any premiums, are
not named insureds, nor were they directly issued a policy by Plaintiff—facially
fails. ECF No. 46 at 6. Although the named insured, BTI, is not a necessary party, it
would frustrate the discovery process if the Court upheld Plaintiff’s argument—that
Defendants lack standing to obtain the information requested in the 30(b)(6)
Deposition Notice based on Defendants not directly purchasing the policy at issue.
See ECF No. 23 at 5. As the Honorable Scott Skavdahl stated in his Order dated July
18, 2023, “[t]he question presented in this declaratory judgment action is whether
[BTI]’s employees, who are not name insureds within the insurance policy, are
entitled to a defense and/or indemnification from Great West in the underlying state
court action.” ECF No. 23 at 4. It is disingenuous for Plaintiff to bring an action
against the employee Defendants and then claim they have no right to discovery in
the matter. The employee Defendants are a party to this lawsuit and thus have
standing to obtain any applicable discovery under the rules.
The Court notes the Rule 26(b) 2015 Committee Notes regarding the
relevancy standard. More specifically, the statement that:
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[t]he 2000 Note offered three examples of information
that, suitably focused, would be relevant to the parties’
claims or defenses. The examples were “other incidents of
the 	same 	type, 	or 	involving 	the 	same 	product”;
“information about organizational arrangements or filing
systems”; and “information that could be used to impeach
a likely witness.” Such discovery is not foreclosed by the
amendments. Discovery that is relevant to the parties’
claims or defenses may also support amendment of the
pleadings to add a new claim or defense that affects the
scope of discovery.
Fed. R. Civ. P. Rule 26(b) (advisory committee notes to the 2015 amendments).
Even if “the deposition notice operates as if the[ Defendants] are employers,
and they are insureds,” as Plaintiff alleges, if the questions and topics in the
Deposition Notice directly relate to the subject of this action and/or claims or
defenses, (i.e. insurance policy forms, development of the language in the forms,
internal memoranda about BTI’s insurance coverage), then the Defendants have a
vested interest in the discovery and have standing to ask the question. ECF No. 46-1.
The argument concerning the Defendants’ lack of financial investment in a policy
as an employer is counter-intuitive to the case at hand. Therefore, any argument
regarding standing based on financial investment in the insurance policy is not
considered an appropriate reason to avoid discovery. The issue of standing is
generally claimed for Topics 1, 2, 3, 5, 6, 7, 8, 9, 10, and 15. This Court finds the
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argument unconvincing and DENIES the request to limit the discovery based on
standing.
P RIVILEGED MATERIAL
Under Rule 26(b)(5),
When 	a 	party 	withholds 	information 	otherwise
discoverable by claiming that the information is privileged
or subject to protection . . . the party must: (i) expressly
make 	the 	claim; 	and 	(ii) 	describe 	the 	nature 	of 	the
documents, 	communications, 	or 	tangible 	things 	not
produced or disclosed—and do so in a manner that,
without 	revealing 	information 	itself 	privileged 	or
protected, will enable other parties to assess the claim.
Fed. R. Civ. P. Rule 26(b)(5).
When a party claims attorney client privilege,
The privilege protects “confidential communications by a
client 	to 	an 	attorney 	made 	in 	order 	to 	obtain 	legal
assistance” from the attorney in his capacity as a legal
advisor. Fisher v. United States, 425 U.S. 391, 403, 96 S.
Ct. 1569, 1577 (1976). The privilege is to be construed
narrowly. Id.; In re Sealed Case, 676 F.2d 793, 806-07
(D.C.Cir. 	1982). When 	it 	is 	raised 	as 	a 	bar 	to 	the
production of preexisting documents given by a client to
his attorney to aid in legal representation, it protects only
that material which would have been privileged in the
hands of the client. Fisher, 425 U.S. at 404, 96 S. Ct. at
1577.
In re Grand Jury Subpoena Duces Tecum Issued on June 9, 1982, to "Custodian of
Records", 697 F.2d 277, 278-79 (10th Cir. 1983).
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The topic of privilege is generally claimed for Topics 1, 2, 3, 5, 6, 7, 8, 9, 10,
and 15; and specifically claimed for Topic 4. This Court finds the argument for
privilege unsubstantiated and unconvincing. The request to not produce items
because they are “privileged” fails. The Court addresses how the parties shall
proceed with any claims of privileged material below.
P ROPORTIONALITY AND R ELEVANCY
Under 	Plaintiff’s 	argument 	that 	certain 	topic 	questions 	are 	overbroad,
burdensome, and onerous, the Court must weigh proportionality considerations,
such as a “parties’ resources, the importance of discovery in resolving the issues,
and whether the burden or expense of the proposed discovery outweighs its likely
benefit.” Fed. R. Civ. P. Rule 26(b)(1). Under the Notes from the Advisory
Committee regarding the 2015 Amendments for Rule 26(b)(1), each side shall not
carry the entire burden regarding proportionality, “[n]or is the [amendment] intended
to permit the opposing party to refuse discovery simply by making a boilerplate
objection that it is not proportional. The parties and the court have a collective
responsibility to consider the proportionality of all discovery and consider it in
resolving 	discovery 	disputes.” 	Id. 	(advisory 	committee 	notes 	to 	the 	2015
amendments); see also Shotts v. Geico Gen. Ins. Co., No. CIV-16-1266-R, 2017 U.S.
Dist. LEXIS 171515, at *2 (W.D. Okla. Oct. 17, 2017) (“Objections to discovery
requests must be stated with specificity; mere boilerplate objections or the familiar
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litany of overly broad, vague or burdensome, without more, is not sufficient.”
(Internal quotations and citations omitted)).
The lack of detail provided in the Motion regarding the burden Plaintiff will
experience to answer the 30(b)(6) Deposition Notice frustrates this balancing test.
Plaintiff argues it is Defendants’ burden to prove relevancy, but that misstates the
law. Plaintiff filed the Motion for a protective order and Plaintiff is requesting the
Court intervene in this discovery matter. As discussed supra, relevancy is based on
what “would be admissible at trial in support of a claim or defense or that which
appears reasonably calculated to lead to the discovery of evidence that would be so
admissible.” In re Cooper Tire & Rubber Co., 568 F.3d 1180, 1189 (10th Cir. 2009).
The Defendants in their responses to the Motion attempt to explain their
theory of why the information requested in the Deposition Notice are relevant. See
Peerless Indem. Ins. Co. v. Swanner, 651 Fed. Appx. 785 (10th Cir. 2016)
(unpublished); and ECF No. 47 at 2. Recognizing that this is a Declaratory Judgment
action versus a tort’s liability claim, the theories are more limited. But this Court is
not in a position to argue semantics or defense strategies on whether the legal
theories the defense proposes are viable—the Court can only determine whether
there is a likelihood the discovery sought could be useful in trial or lead to useful
information in trial. The proportionality is taken as part of the balancing test, but
again, without further information about the extent the Plaintiff would be burdened
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to fulfill the Topics within the Deposition Notice, it is hard to dictate the full scope
of balancing.
For example, in Cooper Tire & Rubber Co., “some discovery requests sought
information about different cases, claims, and tires.” In re Cooper Tire & Rubber
Co., 568 F.3d at 1184. When the defense did not see how that information was
relevant to the case, it argued it should not be required to produce such information.
The Tenth Circuit disagreed and noted the judge made a balanced determination
based on “the reasonable needs of the action” and required the defense to produce
the information to plaintiffs. Id. (“The court may permit broader discovery in a
particular case depending on the circumstances of the case, the nature of the claims
and defenses, and the scope of the discovery requested.” (internal citation and
quotation omitted)). Furthermore, limiting the scope of Defendants’ requested
information “could deprive [a party] of discovery supporting their theory,” whatever
that theory may be. Id.
Plaintiff alleges the Topics are onerous or overburdensome since there is a
lack of time limits for the Topics, the Topics are far-reaching in their request for
every policy issue with a “Stop Gap Form,” and this is a Declaratory Judgment
action.
The 	Court 	agrees 	the 	information 	would 	divulge 	personal 	information
Defendants have no right to, and the topics are very broad and generalized to the
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point that Plaintiff could potentially spend weeks or months trying to gather the
requested information. Yet, it is the responsibility of the Court to consider the
appropriate scope of discovery, but to do so, this Court needs more information
about the burden Plaintiff will experience in regard to answering Defendants’ Topics
and Plaintiff has failed to meet that burden. See Fed. R. Civ. P. 26(b) (advisory
committee notes to the 2015 amendments) (“using all the information provided by
the parties, [the court] is to consider these and all the other factors in reaching a
case-specific determination of the appropriate scope of discovery.”). Furthermore,
in the 2015 Committee Notes regarding the relevancy standard it referenced “[t]he
2000 Note offer[ing] three examples of information that, suitably focused, would be
relevant to the parties’ claims or defenses.” Supra at 13. The examples seem
instructive in this matter, i.e. “other incidents of the same type, or involving the same
product” and “information about organizational arrangements or filing systems.”
Fed. R. Civ. P. 26 (advisory committee notes to the 2015 amendments). Plaintiff
specifically references Deposition Topics 11, 13, and 14 for being overbroad,
disproportionate to the needs of the case, and speculative. The Court will review
those numbered Topics below.
S TANDING, R ELEVANCE , U NDULY B URDENSOME , P RIVILEGE
As previously stated, the Court will analyze the 30(b)(6) Deposition Notice
and Topics referenced in the Motion individually to determine discoverability. The
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Court already determined that standing regarding whether Defendants financially
contributed to the insurance policy is irrelevant. Defendants have standing to ask
questions as if they are the insured. Infra. at 12-14. Furthermore, the claim of
privilege is incomplete as currently briefed regarding Topics 1, 2, 3, 5, 6, 7, 8, 9, 10,
and 15. The specific claim for privilege in Topic 4 is analyzed below.
Each of the Topics below are analyzed for: a) if the topics are facially relevant;
and/or b) if the information is onerous or unduly burdensome. Plaintiff claims Topics
1, 2, 3, 5, 6, 7, 8, 9, 10, and 15 do not “address or seek evidence relevant to the issue
in this case.” ECF No. 46 at 7. Additionally, Plaintiff claims “Topics 11, 13 and 14
are not relevant to this action . . .[and] none of these topics address any of the issues
in this case and are completely speculative.” Id. at 9. Those Topics will be analyzed
in the context of the law and rules regarding discovery and evidence in contract
cases.
D EPOSITION N OTICE AND T OPICS
Topic 1. “The files of Great West relevant to the writing, or development and
decision to use coverage similar to that contained in the Stop Gap form used in this
case.” ECF No. 46-1 at 1.
Analysis: The Court finds that there may be some relevance as to the
information requested in Topic 1. However, the Court finds the language “coverage
similar to that contained in the Stop Gap form used in this case” to be so vague that
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it does not sufficiently convey to Plaintiff what is specifically being sought. The
Court will GRANT the motion for protective order as to Topic 1.
Topic 2. “A copy of the first Stop Gap coverage form issued by Great West
to any insured with documents showing the date the form was first used.” Id. at 2.
Analysis: The Court finds the information to be relevant to the issue of the
intention of Plaintiff Great West in its use of the Stop Gap form. As to the claim that
it is onerous and unduly burdensome, the Plaintiff has not met its burden of proof.
The Plaintiff has made nothing but summary assertions about the burden of
producing this information which is inadequate. The Court will DENY the request
for the protective order as to Topic 2.
Topic 3. “A copy of the first Stop Gap coverage form issued to BT[I] with
documents showing the date the form was first used to insure BTI and all variants of
that form used thereafter.” Id.
Analysis: The Court finds that information regarding the Stop Gap coverage
issued to BTI in this case to be relevant and potentially admissible on the issue of
the parties’ intent when entering into the contract. Again, Plaintiff’s claims of
onerous and unduly burdensome are mere assertions and Plaintiff has failed to meet
its 	burden 	to 	demonstrate 	it 	would 	be 	unduly 	burdensome 	to 	provide 	this
information. THEREFORE, the request for a protective order regarding Topic 3 is
DENIED.
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Topic 4. “The internal memoranda, committee reports and the like between
officers, 	employees and agents of Great West containing the considerations,
conclusions, and justifications for the decision that Great West Policies issued to
BT[I] provide no coverage for the Jevne claim.” Id.
Analysis: Plaintiff argues this request “would include information that is
subject to attorney client privilege related to [Plaintiff]’s reliance on advice and
information from counsel when making its decision to file the current Declaratory
Judgment Action.” ECF No. 46 at 9. Merely alleging there is a privilege, without
providing a privilege log or further clarification about what the documents are or
information is that fall under the attorney client privilege, fails to meet the standard
necessary for Plaintiff to circumvent the question.
Here, Plaintiff’s claim that the information Defendants seek “is privileged or
otherwise confidential and the employee Defendants have no right to interest in
discovering” fails. ECF No. 46 at 7. Further, the argument Plaintiff purports that the
question is not what is at issue misses the mark on what discovery encompasses.
Plaintiff shall answer Topic 4 to the best of its ability and if there are
attorney-client privileged documents or questions asked during the deposition, those
shall be logged and documented and addressed individually. If the parties cannot
agree the information falls within the privilege constraints, the Court instructs the
parties to contact chambers. An in-camera review of documents or information
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Plaintiff claims are privileged can be quickly assessed by the Court. The Court will
DENY, at this time, Plaintiff’s request for a protective order on Topic 4.
Topic 5. “Advertisements of Great West and its agents known to Great West
which contain representations and descriptions about the Stop Gap coverage form.”
ECF No. 46-1 at 2.
Analysis: The Court finds this information to be facially relevant to the issues
in this case, as this information could provide insight into the parties’ intent when
entering into the contract, what a reasonable insured would understand the coverage
to mean, and trade usage at the time. While the Plaintiff makes general claims of the
information being onerous or unduly burdensome, the Plaintiff has failed to meet its
burden. THEREFORE, the Court will DENY the Plaintiff’s request for a protective
order on Topic 5.
Topic 6. “Since the date of first use of the Stop Gap insurance form used in
this case, or any variant of it, produce documents showing the gross amount of
annual premiums received by Great West for such Stop Gap insurance from insureds
in Wyoming.” Id.
Analysis: The Court finds this information to not be relevant at this time and
therefore will GRANT the Plaintiff’s request for a protective order as to Topic 6.
Topic 7. “The date and amount of any claims payments made to a claimant
on behalf of a Great West insured in Wyoming since the date of the first issue of the
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Stop Gap insurance form on the assumption that a claim against the insured was or
might be covered by the Stop Gap form.” Id.
Analysis: The Court does not find that this information, as requested, is
relevant to the issue in this case. When looking at the intent of the parties at the time
the contract was entered into, claims paid in entirely different cases at any time
without limit is not relevant. THEREFORE, the Court will GRANT the Plaintiff’s
request for a protective order as to Topic 7.
Topic 8. “For the payments made described in Requests 6 and 7, while a claim
against the insured was in litigation, produced documents identifying the court where
filings were made, case numbers, and party names.” Id.
Analysis: Following the Court’s findings for Topics 6 and 7, the Court also
finds this information to not be relevant to this case—at this time. The Court will
GRANT the Plaintiff’s motion for protective order as to Topic 8.
Topic 9. “Any Reservations of Rights letters issued to Great West insureds in
Wyoming concerning the Stop Gap insurance form.” Id.
Analysis: The Court shares the concerns of Plaintiff in this matter—that the
sharing of insurance policies issued to other businesses, individuals or entities may
infringe upon the privacy of those entities. However, Plaintiff has not provided any
case law to this Court demonstrating that this type of discovery should not be
allowed. On the other hand, the Court does find that this information may be relevant
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to the Defendants’ position in this case. In weighing these concerns, the Court will
DENY the Plaintiff’s Motion for protective order as to Topic 9, HOWEVER, the
Court will impose some restrictions on the information to be provided and its
treatment. The Court will limit this request to Reservations of Rights letters issued
to Great West insureds in Wyoming concerning the Stop Gap insurance form only
in cases involving claims for bodily injury. In addition, the information provided is
not to be disseminated or used in filings without request for sealing by the parties.
Topic 	10. 	“Documents 	showing the 	name 	and address 	of insureds 	in
Wyoming to whom Great West has issued a Stop Gap insurance form.” Id.
Analysis: The Court finds that the information requested in this Topic is not
relevant to the issues in this case and the Defendants have not met their burden of
demonstrating relevancy. Any Stop Gap form issued to anyone ever to include their
names and addresses is not relevant. The Court will GRANT the Plaintiff’s motion
for protective order as to Topic 10.
Topic 11. “Any forms of insurance provided by Great West in any state which
would have provided coverage to the Defendants Anderson, Leffler, Mathern, and
Berhod in this case.”
Analysis: The Court finds this information to not be relevant to the issues in
this case. Whether or not Great West could issue a policy in some state somewhere
else that would provide coverage to the Defendants in the underlying claim is
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irrelevant. The Court will GRANT the Plaintiff’s motion for protective order as to
Topic 11.
Topic 13. “The ‘Employer’s Liability Coverage’ form used by Great West for
insureds in states other than Ohio, North Dakota, Washington, and Wyoming.” Id.
Analysis: The Court does not find this information to be relevant to the case.
Defendants have stated they are relying on the coverage provided under the Stop
Gap form in this case. The Defendants have not demonstrated how information
regarding liability coverage forms used in states in which the worker’s compensation
laws are entirely different is relevant to this matter. The Court will GRANT the
Plaintiff’s motion for protective order as to Topic. 13.
Topic 14. “Insurance forms of any origin known to Great West which would
provide coverage for the defendants in this case.” Id. at 3.
Analysis: Again, the Court finds this requested information to be irrelevant to
this cause of action. As worded, the request is extremely broad and appears to apply
even to insurance forms of other companies who have nothing to do with this cause
of action. The Defendant has failed to meet their burden of demonstrating the
relevancy of this information. The Court will GRANT the Plaintiff’s request for a
protective order as to Topic 14.
Topic 15. “Advertisements containing any representation by agents of Great
West of the coverage provided by the Stop Gap form.” Id.
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Analysis: 	The Court agrees that 	this Topic seems to cover the 	same
information as requested in Topic 5 and the Defendant has not clarified if this request
is asking for different information. But the Court will allow inquiry into this Topic
as relevant to this action. The Court will DENY Plaintiff’s request for a protective
order as to Topic 15.
P ROTECTIVE ORDER
When issuing a protective order or limiting the scope of discovery, Fed. R.
Civ. P. 26 allows the trial “[c]ourt broad discretion in deciding when a protective
order is appropriate and determining what degree of protection is required.” Sinclair
Wyo. Ref. Co. v. Pro-Inspect, Inc., No. 12-CV-196-J, 2014 U.S. Dist. LEXIS
199436, at *6 (D. Wyo. Jan. 27, 2014) (citing Seattle Times Co. v. Rhinehart, 467
U.S. 20, 36 (1984); Marsee v. U.S. Tobacco Co., 866 F.2d 319 (10th Cir. 1989);
(other citations omitted)). Rule 26(c)(1)(A)–(F) permits the trial court to forbid
“inquiry into certain matters, or limit[] the scope of disclosure or discovery to certain
matters,” 2 in addition to forbidding the disclosure 3 or “prescribing a discovery
method other than the one selected by the party seeking discovery” 4 .
[T]he 	party 	seeking 	the 	protective 	order 	must 	show
disclosure will result in a clearly defined and serious injury
to the party seeking protection . . . [and] a good case
determination requires the [c]ourt to balance between the
2 Fed. R. Civ. P. 26(c)(1)(D).
3 Fed. R. Civ. P. 26(c)(1)(A).
4 Fed. R. Civ. P. 26 (c)(1)(C).
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party’s need for the information and the injury that may
occur from the requested disclosure.
Sinclair, No. 12-CV-196-J, 2014 U.S. Dist. LEXIS 199436, at *6 (citing Exum v.
U.S. Olympic Comm., 209 F.R.D. 201, 206 (D. Colo. 2002).
This Court exercises its discretion to limit Defendants’ discovery into Topics
1, 6, 7, 8, 10, 11, 13, 14. This Court finds good cause to provide a protective order
regarding 	any 	personally 	identifying 	information 	that 	would 	be 	considered
confidential in Topic 9. If Plaintiffs are unable to provide answers to the Defendants’
questions without following this Court’s ORDER, then the parties shall contact
chambers.
C ONCLUSION
THEREFORE, IT IS ORDERED that the Motion for Protective Order is
GRANTED in part and DENIED in part, without prejudice. Until the parties provide
more specific briefing regarding the privileged documents or information at issue;
the Court hereby DENIES the request to deem the information non-discoverable for
Topics 2, 3, 4, 5, 9, 15.
This Court suggests the parties make an effort to collaborate on a protective
order to keep personal information about Plaintiff’s other insureds confidential. The
parties could use and disclose the information solely for litigation purposes, or
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attorneys’ eyes only. Parties could agree on a stipulated protective order restricting
use and disclosure unless a party challenges the confidentiality of a particular item.
Dated this 2nd day of March, 2024.
STEPHANIE A. HAMBRICK
United States Magistrate Judge
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