It is easy to get focused on the factual parts of a lawsuit. In other words, what happened, who did what, who said what, etc. As insurance lawyers, the legal aspects of the lawsuit need to be watched carefully. This is illustrated in the November 2020, opinion styled, Tim Long Plumbing, Inc. v. Kinsale Insurance Company. The opinion is from the Eastern District of Texas, Sherman Division.
This is an insurance claim denial lawsuit. Plaintiff Tim Long Plumbing had a commercial general liability policy with Kinsale. This facts of this case can be read in the opinion. The focus of this article is on the lawsuit discovery process of this case.
Under Federal Rule of Civil Procedure 26(b)(1), parties “may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense . . . .” Relevance, for the purposes of Rule 26(b)(1), is when the request is reasonably calculated to lead to the discovery of admissible evidence. It is well-established that control of discovery is committed to the sound discretion of the trial court.
Rule 37 of the Federal Rules of Civil Procedure allows a discovering party, on notice to other parties and all affected persons, to “move for an order compelling disclosure or discovery.” The moving party bears the burden of showing that the materials and information sought are relevant to the action or will lead to the discovery of admissible evidence. Once the moving party establishes that the materials requested are within the scope of permissible discovery, the burden shifts to the party resisting discovery to show why the discovery is irrelevant, overly broad, unduly burdensome or oppressive, and thus should not be permitted.
Federal Rule of Civil Procedure 34 governs requests for production of documents, electronically stored information, and tangible things. Rule 34 requires responses to “either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons.” “An objection [to the entire request] must state whether any responsive materials are being withheld on the basis of that objection.” On the other hand, “[a]n objection to part of a request must specify the part and permit inspection of the rest.”
After responding to each request with specificity, the responding attorney must sign their request, response, or objection certifying that the response is complete and correct to the best of the attorney’s knowledge and that any objection is consistent with the rules and warranted by existing law or a nonfrivolous argument for changing the law. This rule “simply requires that the attorney make a reasonable inquiry into the factual basis of his response, request, or objection.” This is pointed out in the Rule 26(g) advisory committee note.
The federal rules follow a proportionality standard for discovery. Under this requirement, the burden falls on both parties and the court to consider the proportionality of all discovery in resolving discovery disputes. This rule relies on the fact that each party has a unique understanding of the proportionality to bear on the particular issue. For example, a party requesting discovery may have little information about the burden or expense of responding. “The party claiming undue burden or expense ordinarily has far better information—perhaps the only information—with respect to that part of the determination.”
This opinion then discussed the law and how the law applied to facts of the issues in the underlying requests and the applicable requests for discovery. It is a good read to understand this aspect of a claim and any resulting lawsuit.