It is fairly common when a case presents mixed claims for relief or causes of action, that a Court will limit discovery initially to one of the claims which the Court views as a predicate for the other claims including claims for Bad Faith. If the predicate claim survives the Defendant's Motion for Summary Judgment, then discovery will ordinarily proceed on the remaining claims which depend on the viability of the predicate claim.
Such was the case in Download Kelly v. Provident Life and Accident Insurance Co. (S.D. Cal. Case No. 04cv807, Order of USMJ 06.20.11) PUBLIC ACCESS, also published as 2011 WL 2448276 (S.D. Cal. June 20, 2011)(authorized password required to access Westlaw). Mr. Kelly presented mixed claims including for Rescission of a previous settlement agreement, and for alleged Bad Faith. The Defendant was "his own-occupation disability insurance" Company. The Federal District Judge initially limited discovery in that case to Mr. Kelly's Rescission Claim. The Rescission Claim survived the Defendant's Motion for Summary Judgment. Accordingly, Mr. Kelly proceeded to take discovery on his remaining claims including for alleged Bad Faith.
The Defendant objected that discovery had already been taken. In particular, the Defendant objected to another Rule 30(b)(6) Deposition of its corporate representative(s). The parties presented a joint motion to resolve the discovery dispute.
The Magistrate Judge ruled that the corporate representative Deposition should proceed just as the Plaintiff noticed it under Rule 30(b)(6):
Plaintiff's Rule 30(b)(6) Notice of Deposition contains 14 potential deposition topics. (Doc. No. 192.) The topics are described with reasonable particularity and are narrowly tailored to the relevant issues and time periods. The topics include requests for a witness or witnesses that can testify about: (1) “records retention policies, practices, and procedures that were in place from 1991–1999;” (2) documents concerning Provident's changes to it claims handling policies, practices, and procedures that occurred between 1991 and 1999; (3) documents concerning claim improvement initiatives between 1995 and 1999; (4) documents concerning “institutionalizing the scrub,” which were drafted between 1993 and 1999 FN1; (5) documents concerning the “lists of claimants targeted for ‘intensive efforts' for ‘successful resolution of the claim’ ”; (6) documents concerning lists of “problem claims”; (7) documents concerning “targeting of ‘subjective claims' ”; (8) documents concerning ‘targets or goals for claims termination’; (9) documents concerning ‘targets or goals for claims resolution’; (10) documents concerning financial targets for claims handling; (11) documents concerning reserve targets for claims handling; (12) documents concerning ‘net termination ratios'; (13) documents concerning policies, practices, and procedures that were in effect from 1986 through 1999 that relate to Provident informing insureds that it is reserving the right to deny coverage; and (14) documents concerning Provident's policies, practices, and procedures in effect from 1986 through 1999 that relate to informing insureds that it is reserving the right to seek reimbursement of benefits previously paid. (Doc. No. 192.)
FN1. Deposition topic nos. 5–12 contain the same limiting time period as topic no. 4: documents drafted between 1993 and 1999.
Kelly v. Provident Life & Accident Insurance Co., 2011 WL 2448276 at *1 & n.1.
Where a case presents mixed claims and the Court limits discovery initially to only one of those claims, all parties-clients of all attorneys of record in the case are best prepared for further discovery on the remaining claims when they are aware that one claim, a predicate claim in the eyes of the Court, has passed the test of viability in the judgment of the Court.
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