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National Surety Corporation v. Dustex Corporation

United States District Court, Eighth Circuit

January 6, 2014

NATIONAL SURETY CORPORATION, Plaintiff,
v.
DUSTEX CORPORATION; MIRON CONSTRUCTION CO., INC.; and BOARD OF TRUSTEES OF THE MUNICIPAL ELECTRIC UTILITY OF THE CITY OF CEDAR FALLS, IOWA, Defendants.

RULING ON MOTION TO COMPEL

JON STUART SCOLES, Magistrate Judge.

On the 23rd day of December 2013, this matter came on for hearing on the Motion to Compel Production of Documents (docket number 57) filed by the Plaintiff on November 21, 2013. Plaintiff National Surety Corporation ("National Surety") was represented by its attorneys, Heather C. Sullivan and Drew A. Cumings-Peterson. Defendant Dustex Corporation ("Dustex") was represented by its attorney, Christopher P. Jannes. Defendant Miron Construction Co., Inc. ("Miron") was represented by its attorney, Donald G. Thompson. Defendant Municipal Electric Utility of Cedar Falls ("CFU") was represented by its attorney, Jeffrey A. Stone.

I. RELEVANT FACTS AND PROCEEDINGS

In 2006, CFU entered into a contract with Miron for the installation of a turnkey baghouse at its facility in Cedar Falls. Miron then subcontracted with Dustex for part of the work, including supplying equipment and materials and providing engineering services. CFU claims that the baghouse has never worked properly.

In August 2009, Miron filed an arbitration action against CFU, claiming it was owed money for work on the project. CFU counterclaimed, alleging breach of contract. In December 2010, Dustex notified National Surety, its insurer, of the pending arbitration. Dustex was later ordered by the state court to join in the arbitration.

In March 2011, National Surety started providing Dustex with a defense in the arbitration action when it retained attorney Martin J. Kenworthy to represent Dustex's interests. The parties dispute whether National Surety adequately advised Dustex that it would be defending the claim under a reservation of rights. Kenworthy's representation continued throughout the arbitration proceeding. On November 7, 2013, the arbitration panel found in favor of CFU, and against Miron and Dustex, in the amount of $3, 419, 697.29.

Meanwhile, on January 11, 2013, National Surety sent a letter to Dustex, which it described as a "supplemental reservation of rights." After the letter was received in January 2013, attorney William Sitton became actively involved in the arbitration on behalf of Dustex. Dustex claims that Sitton's involvement was only required after it discovered, upon receipt of the January 2013 letter, that National Surety was reserving its rights regarding indemnification.

On January 14, 2013, National Surety filed the instant action seeking declaratory judgment. National Surety asks the Court to enter an order declaring that it has no duty to defend or indemnify Dustex and/or Miron regarding the claim brought by CFU. Dustex, Miron, and CFU filed answers on March 21. On April 29, the Court adopted a proposed Scheduling Order and Discovery Plan submitted by the parties. Two days later, on May 1, National Surety filed a motion for summary judgment against Miron. The next day, May 2, National Surety filed a motion for summary judgment against Dustex. However, on December 18, 2013, National Surety filed a motion to withdraw its motions for summary judgment, which was granted by the Court on December 27.

The dispute now before the Court involves discovery being conducted by National Surety. On July 30, 2013, National Surety served Dustex with a request for production of documents. While Dustex initially objected to many of the requests, the parties were able to resolve most of the disputes. According to its attorney, Dustex has produced over 20, 000 pages of documents, including copies of all of Mr. Sitton's communications with Mr. Kenworthy and Dustex's employees. The parties are unable to agree, however, regarding request number 13:

To the extent not produced in response to the above results, all bills, invoices, statements and other documents which set forth any fees or costs incurred by you for the services of William L. Sitton, Esq. that relate to or concern, the District Court Action, the Arbitration and/or any other claims or litigation in connection with the Project.

National Surety asks the Court to enter an order directing Dustex to produce copies of Mr. Sitton's billings and invoices, reflecting what work was performed for Dustex and when. In its response to the request for production of documents, Dustex objects to the request as overly broad, irrelevant, and protected by the attorney-client privilege.

II. DISCUSSION

A. Unduly Burdensome

Dustex first argues that production of Mr. Sitton's invoices would be unduly burdensome. At the instant hearing, however, Mr. Jannes admitted that he had not seen the invoices and did not know if they consisted of 20 pages or 200 pages. The Court finds it difficult to believe that accessing invoices submitted by an attorney to a client is a difficult or burdensome ...


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