United States District Court, N.D. Iowa, Western Division
LEONARD T. STRAND, Magistrate Judge.
This case is before me on two motions filed by defendant Federal Deposit Insurance Corporation, as Receiver of Vantus Bank (FDIC-R): (1) a motion (Doc. No. 72) to compel plaintiff Progressive Casualty Insurance Company (Progressive) to comply with the court's March 10, 2014, order and (2) a motion (Doc. No. 77) to compel Everest Reinsurance Company (Everest) to comply with subpoena. Both motions are resisted. I conducted a telephonic hearing on August 19, 2014. All parties were represented by counsel, as was Everest. The motions are fully submitted.
Because time is of the essence (discovery is scheduled to close on August 29, 2014), this order will depart from my usual format in that it will contain no background discussion and an abbreviated written analysis. The parties need prompt answers, not a lengthy ruling. Nonetheless, I have carefully considered the parties' respective briefs and supporting exhibits.
DISCUSSION OF SPECIFIC ISSUES
I. Scope of the March 10, 2014, Order
The parties disagree as to the scope of my order (Doc. No. 59) filed March 10, 2014, which compelled Progressive to produce certain information. The dispute is centered on the "Reinsurance Information" portion of the order. The operative language is:
Progressive will be ordered to supplement its response to document request numbers 12 and 23 to produce the following documents: (1) its communications with its reinsurers regarding the Disputed Provisions, (2) its communications with its reinsurers regarding the FDIC-R's claims against the Bank's former officers and directors, (3) its communications with its reinsurers regarding coverage under its standard policy form for claims by the FDIC acting as receiver, and (4) any reinsurance policies that are implicated by FDIC-R's lawsuit against the Bank's officers and directors. If Progressive contends that any of the documents addressed by this order are protected by a privilege, it may withhold those documents and describe them in a privilege log.
Doc. No. 59 at 14. FDIC-R contends that this obligated Progressive to produce communications with reinsurers regarding any and all policies that used the same standard form as the policy issued to Vantus. Progressive disagrees and claims that it was required only to produce communications with reinsurers relating to (a) the Vantus Policy itself and (b) to the claims asserted by FDIC-R against Vantus's former directors and officers.
Progressive is correct. The order specifically required Progressive to "supplement its response to document request numbers 12 and 23." Id. The scope of the order did not exceed the scope of those requests. In other words, I did not order Progressive to produce even more that what FDIC-R requested.
Request 12 sought "[a]ll documents relating to the purchase, placement or ceding of any reinsurance by you that relate to the Policy, including all status reports provided by you to such reinsurance companies and memoranda relating to meetings with reinsurers." Doc. No. 43-1 at 7. Request 23 sought "[a]ll documents relating to any communications with any reinsurer about the Claims." Id. FDIC-R defined "Policy" as "the Progressive Directors & Officers/Company Liability Insurance Policy for Financial Institutions, Policy No. 10032780-01, attached as Exhibit 1 to the Complaint, together with all endorsements and including the discovery period referenced in paragraph 19 of the Complaint." Doc. No. 72-4 at 2. Similarly, FDIC-R defined "Claims" as "any and all demands for insurance coverage and/or payment made by the FDIC and/or any officers or directors of Vantus Bank." Id. at 4. Thus, request number 12 was expressly limited to the Policy at issue in this case, while request number 23 was expressly limited to the claims made against Vantus's directors and officers.
In granting FDIC-R's motion to compel concerning those two requests, I did not dramatically expand their respective scopes, as FDIC-R seems to think. I simply directed Progressive to produce certain types of documents, to the extent they were otherwise responsive to the requests. FDIC-R is stuck with the scope and language of the requests it drafted. So long as Progressive produced the requested reinsurance documents with regard to the Vantus Policy, and with regard to the claims against Vantus's former officers and directors, it has complied with my order. This does not mean that all other reinsurance information is automatically beyond the scope of permissible discovery. It simply means that they are beyond the scope of FDIC-R's request numbers 12 and 23.
2. Attorney Client Privilege and the Work Product ...