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McAnneny v. Smith & Nephew, Inc.

United States District Court, D. Maryland

March 19, 2018

EDWARD McANNENY
v.
SMITH & NEPHEW, INC.

          RULING ON PLAINTIFF'S RENEWED MOTION TO COMPEL [DOC. #71]

          HON. SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE

         Pending before the Court is a Renewed Motion to Compel filed by plaintiff Edward McAnneny (“plaintiff”) seeking additional responses to certain interrogatories and requests for production. [Doc. #71]. Defendant Smith & Nephew, Inc. (“defendant”) has filed an opposition to plaintiff's motion. [Doc. #79]. Plaintiff has filed a reply. [Doc. #82]. For the reasons set forth herein, the Court GRANTS, in part, and DENIES, in part, plaintiff's Motion to Compel [Doc. #71].

         I. Background

         On June 29, 2017, plaintiff filed three motions to compel, seeking further responses to plaintiff's first set of interrogatories, first set of requests for production, and second set of requests for production. See Doc. ##25, 26, 27. Defendant filed a combined response to the motions to compel on August 31, 2017. See Doc. #41. On September 26, 2017, plaintiff filed a reply, see Doc. #45, and three affidavits signed by plaintiff's counsel Andrew Pianka detailing plaintiff's efforts to resolve the discovery disputes, see Doc. ##42, 43, 44.

         On September 28, 2017, the Court held a telephonic status conference regarding the pending motions to compel. See Doc. #48. The parties filed a joint status report on October 10, 2017, indicating that they were working to resolve the outstanding issues. See Doc. #49. The Court held another telephonic status conference on October 12, 2017, during which it granted defendant's oral motion for an extension of time until November 9, 2017, to respond to plaintiff's discovery requests, absent objection. See Doc. #54.

         On November 15, 2017, plaintiff filed a notice indicating that the parties had resolved a number of the discovery disputes, but that there were still outstanding issues regarding six of plaintiff's interrogatories and two sections of plaintiff's second set of requests for production. See Doc. #59 at 1-2. The Court held another telephonic status conference on December 20, 2017. See Doc. #66. The parties indicated that they were still working to resolve these disputes. The Court therefore entered an order requiring plaintiff to file a new motion to compel on or before January 3, 2018, indicating which discovery issues, if any, remained unresolved. See Doc. #66. Plaintiff informed the Court that its Motion to Compel Further Responses to Plaintiff's First Request for Production had become moot, so the Court entered an Order terminating that motion. See Doc. #67.

         On January 3, 2018, plaintiff filed the renewed motion to compel currently pending before the Court. See Doc. #71. Plaintiff asks the Court to compel defendant to verify its responses to plaintiff's interrogatories; to respond to two requests for production, which were served on defendant on February 27, 2017 (“February 27, 2017, Requests for Production”); and to respond to plaintiff's Interrogatories 11(c), 11(d), 11(e), 13, and 22, [1] which were served on defendant on April 4, 2017. See Id. Although plaintiff did not attach his discovery requests to the renewed motion to compel, plaintiff attached defendant's responses to the relevant requests for production, see Doc. #27-1 at 2-10, and interrogatories, see Doc. #25-1 at 2-16, to his original motions to compel. Defendant filed a response on January 17, 2018, arguing that the issues raised by plaintiff “have either been rendered moot, or have no legal or factual basis upon which to order any further production[.]” Doc. #79 at 1. Plaintiff has filed a reply. See Doc. #82.

         For the reasons set forth herein, the Court grants, in part, and denies, in part, plaintiff's renewed motion to compel.

         II. Legal Standard

         Rule 26(b)(1) of the Federal Rules of Civil Procedure sets forth the scope and limitations of permissible discovery:

Parties may 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. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1). “The party resisting discovery bears the burden of showing why discovery should be denied.” Cole v. Towers Perrin Forster & Crosby, 256 F.R.D. 79, 80 (D. Conn. 2009). Nevertheless, the advisory committee's note to the 2015 amendment of Rule 26 explains that

[a] party claiming that a request is important to resolve the issues should be able to explain the ways in which the underlying information bears on the issues as that party understands them. The court's responsibility, using all the information provided by the parties, is to consider these and all the other factors in reaching a case-specific determination of the appropriate scope of discovery.

Fed. R. Civ. P. 26 advisory committee's note to 2015 amendment.

         “A district court has wide latitude to determine the scope of discovery[.]” In re Agent Orange Prod. Liab. Litig., 517 F.3d 76, 103 (2d Cir. 2008). “The district court enjoys broad discretion when resolving discovery disputes, which should be exercised by determining the relevance of discovery requests, assessing oppressiveness, and weighing these factors in deciding whether discovery should be compelled.” Favale v. Roman Catholic Diocese of Bridgeport, 235 F.R.D. 553, 558 (D. Conn. 2006) (internal quotation marks and citation omitted).

         III. Discussion

         A. Plaintiff's February 27, 2017, Requests for Production Section I: Coverage - Request No. 1

         Section I: Coverage

         REQUEST NO. 1:

         If, at the time of the incident alleged in the Complaint, you were covered by an insurance policy under which an insurer may be liable to satisfy part or all of a judgment or reimburse you for payments to satisfy part or all of a judgment, please produce:

a) A full copy of each policy;
b) A complete copy of all claims made on said policy stemming from any dices [sic] listed in Schedule A;
c) A copy of all communications from the insurer acknowledging the claims and any disclaimer or reservation of rights.

Doc. #27-1 at 2. Schedule A lists identifying information for five devices: “BHR Acetabular Cup with Impactor[, ]” “BHR Femoral Head[, ]” “Standard Offset[, ]” “Modular Femoral Head[, ]” and “Sleeve[.]” Id. at 9-10. Defendant initially objected to the request as seeking irrelevant information and as “not proportional to the needs of the case[.]” Doc. #27-1 at 3. Plaintiff claims that defendant has since “disclosed two dec pages[, ]” but the pages do not “name the Defendant as a named insured, ... specify whether it provides product liability coverage, [or] ... set forth the terms and conditions of the agreement.” Doc. 71 at 3.

         1. Insurance Policy

         Plaintiff contends that the Court should compel defendant to produce the entire insurance agreement because it is a mandatory disclosure under Federal Rule of Civil Procedure 26(a)(1)(A)(iv). See Doc. #71 at 3. In response, defendant indicates that it “has agreed to produce a copy of the relevant policy, rendering this portion of the request moot.” Doc. #79 at 6. Plaintiff asserts in his reply that “[t]o date, Defendant has failed or refused to produce it.” Doc. #82 at 1. Accordingly, defendant shall produce a copy of the insurance policy on or before April 2, 2018.

         2. Insurance Claims and Insurance Company's Acknowledgement of Claims

         Plaintiff asks the Court to compel production of “all claims made on the policy stemming from the devices in this action, ” asserting that such claims are relevant to “determining whether there is a defect associated with the products[.]” Doc. #71 at 3. Plaintiff also seeks to compel the production of the “insurance company's acknowledgment of the claim, and any disclaimers or reservation of rights.” Id. at 4. Plaintiff argues: “This is relevant for a number of reasons[, ]” including, “(1) does the insurer acknowledge the existence of a defect; (2) if the insurer is denying coverage or reserving its right, why?” Id. Plaintiff cites no case law in support of this request. Defendant contends that this information is not relevant or “proportional to the needs of this litigation[, ]” Doc. #79 at 7, and that information about claims by third parties “would necessarily involve private and privileged information that [is] barred from disclosure, under patient privacy laws and HIPAA.” Id. at 6. Defendant also ...


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