Though the procedural history of the All Moving Services decision1 was somewhat unusual, there are still valuable lessons to be learned. I now discuss a few such lessons.
First, until a judge weighs-in on a dispositive motion (e.g., motion to dismiss or motion for summary judgment) concerning the propriety of a policyholder pursuing a bad faith action contemporaneously with a breach of contract action because appraisal panned out favorably for the policyholder (and there is plenty of case law, especially recently, that says a policyholder-favorable appraisal ripens bad faith), bad faith discovery (e.g., general business practice or similarly-situated insured discovery) can be fair game. Take a look at the kind of discovery the Southern District of Florida Court compelled Stonington to produce to All Moving Services.
Second, although this is by no means a novel concept, it is worth reminding everybody that attorney-client privilege or work product immunity objections raised in response to discovery requests are to be backed by a log. Then, if the Judge deems it appropriate, an in camera inspection of the supposedly privileged or immune documents or information is likely to be performed. In sum, without a log explaining the basis for privilege or immunity objections, such objections are legally inapposite. Often, I see policyholder attorneys not pressing enough on the log requirement. Heed this friendly reminder.
Third, although this is also by no means a novel concept, it is worth reminding everybody that naked (or unsubstantiated) objections concerning the burden or breadth of a discovery request (e.g., “This discovery is overly broad or unduly burdensome under the circumstances of this case”) are legally inapposite. As the Southern District of Florida Court properly held in All Moving Services (and in myriad other cases, for that matter), “claims of undue burden [and / or over breadth] should be supported by a statement (generally an affidavit) with specific information demonstrating [as much].”2 Often, I see policyholder attorneys letting carriers off the hook with such boilerplate objections. I am an advocate of conferral (indeed, some rules of civil procedure require as much) – first write to opposing counsel requesting a better answer or response and citing to decisions such as the All Moving Services decision. If the carrier does not oblige, then move the court to compel better answers or responses.
Make use of the All Moving Services decision generally and in your contemporaneous breach of contract and bad faith actions, folks.
To read previous posts in my series on discovery decisions, click here.
1 All Moving Services, Inc. v. Stonington Ins. Co., No. 11-61003-CIV, 2012 WL 718786 (S.D. Fla. Mar. 5, 2012).
2 Id. at *5 (internal citation omitted).