United States District Court, W.D. New York
DECISION AND ORDER
KENNETH SCHROEDER, JR. UNITED STATES MAGISTRATE JUDGE
case was referred to the undersigned by the Hon. Richard J.
Arcara, in accordance with 28 U.S.C. § 636(b)(1)(A), for
all pretrial matters. Dkt. No. 8.
Precision Industries, Inc. (“API”) commenced this
action on December 16, 2014, seeking a declaration that the
defendant Insurers, Federal Insurance Company
(“Federal”), Fireman's Fund Insurance
(“Fireman's), and North River Insurance Company
(“North River”), must defend and indemnify API
“in connection with asbestos-related claims asserted
against API, ” and reimburse defense fees and costs and
settlement amounts. Dkt. No. 1. Among other policies, API
seeks coverage from North River under an alleged commercial
general liability policy No. ML-208455, covering the period
from December 31, 1974, through December 31, 1977, which has
annual limits of $300, 000 per occurrence and in the
aggregate (“the Policy”). Dkt. No. 1, ¶ 7.
this writing, neither API nor North River has located a copy
of the Policy. Although API has produced secondary evidence
of the Policy's existence, such as contemporaneous
certificates of insurance, correspondence, and premium audits
referencing or describing the Policy, North River refuses to
acknowledge that it issued the Policy. Dkt. No. 24-1, p. 5.
17, 2015, API served its first request for documents and
first set of interrogatories. Dkt. No. 24-1, p. 5. In its
Request, API sought, among other things, a complete copy or
any known excerpts of the Policy; “all documents
concerning the Policy;” the known terms and provisions
of the Policy, including the per occurrence and aggregate
limits, the period, and the premiums charged; the
investigation into the existence of the Policy, including the
efforts to locate it; the identities of “each and every
person who participated in or possesses knowledge of North
River's effort to identify or locate the Policy or
portions thereof;” “the types of insurance
policies for which North River used the prefix ‘ML'
during the period from December 31, 1974, through December
31, 1977;” “all liability forms and/or standard
or form policy language North River used in drafting general
liability insurance policies sold during the same period as
the policy that included an ‘ML' prefix, ”
“all documents concerning North River's document
retention and/or document destruction policy potentially
applicable to the Policy, ” and “each and every
lawsuit to which North River is or has been a party
concerning a lost insurance policy with an “ML'
prefix.” Dkt. No. 24-2, pp. 8-10.
response, North River objected to API's requests as being
“overly broad, unduly burdensome, vague and ambiguous,
” irrelevant, or “protected . . . by the work
product doctrine, the attorney-client privilege, or by any
other applicable privilege, immunity or rule.” Dkt. No.
24-2, pp. 5-6. According to North River, “it has never
been established that the alleged ‘policy' was ever
in fact issued by North River.” Dkt. No. 24-2, pp.
13-14. North River has asserted the affirmative defense that
API bears the burden to prove the terms of the missing
Policy. Dkt. No. 7, p. 8.
September 10, 2016, API served a deposition notice for a
corporate representative of North River. Dkt. No. 24-2, p.
29. North River objected to producing a witness on numerous
deposition topics including: its coverage positions; the
existence and terms of its policy; the sale of the policy;
its search for the policy, underwriting files, claims files,
and other secondary evidence; the identities of brokers
involved in issuing the policy; North River's document
retention policy; policy forms applicable to the policy; and
North River's affirmative defenses. Dkt. No. 24-2, pp.
34-41. North River did agree to produce Sean C. Magee, a
claims handler for North River, and Roger Quigley, former
underwriter for North River “and other affiliated
entities” (Dkt. No. 24-2, p. 18), and further agreed
that if Mr. Quigley could not address “all of
[API's] topics, ” API could seek “a corporate
designee.” Dkt. No. 30-1, p. 19.
discovered that Mr. Quigley testified as North River's
Corporate designee in an unrelated matter, Dexter v.
Cosan Chemical Corp., No. 91-5436(DRB), 1999 U.S. Dist.
LEXIS 23187 (D.N.J. Aug. 26, 1999), that North River used the
prefix “ML” for “multi-peril policies,
including comprehensive general liability coverage, ”
and that it used “COMPAC” policy forms for
policies with the “ML” prefix. Id. at
*5. At his deposition, Mr. Magee testified that North River
maintains two records systems, “PaperVision, ”
containing electronic forms, and “ARO, ”
containing paper forms. Dkt. No. 24-2, p. 46. Mr. Magee
further testified that the “PaperVision” system
likely contains “COMPAC” policy forms. Dkt. No.
24-2, p. 48.
September 27, 2016, Counsel for North River sent an email to
API's counsel stating:
North River does not maintain a comprehensive database of
policy forms. Some policy forms are stored in an electronic
database, known as the Papervision system. However, forms are
stored in the system when included as part of an existing
policy and not as an exhaustive form collection. North River
has conducted searches of its system in an attempt to locate
the forms potentially associated with the alleged policy
named in this litigation or with an “ML” policy
generally. Unfortunately, it is impossible to identify the
policy forms or coverages included without additional
information, including but not limited to a list enumerating
the specific forms used in the policy.
Dkt. No. 24-2, p. 52. API subsequently deposed Mr. Quigley,
who confirmed that the declarations page and the
“COMPAC” and “MLB-202" forms shown to
him at his deposition would be part of the Policy. Dkt. No.
32, p. 3.
before the Court is API's motion to compel North River
to: produce “all versions of forms applicable to
comprehensive general liability policies with an
‘ML' prefix, including the “COMPAC”
form”; identify the precise time period(s) during which
it used the “COMPAC” form for policies with an
“ML” prefix; produce Mr. Quigley's testimony
in cases identified by API and “from all other matters
related to a lost policy issued during the 1970s containing
an ‘ML' prefix or ‘COMPAC' form;”
and designate a witness on each topic identified in API's
deposition notice. Dkt. No. 24-3, pp. 1-3.
Civ. P. 26(b)(1) provides, in relevant part:
Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense
and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount
in controversy, the parties' relative access to relevant
information, the parties' resources, the importance of
the discovery in resolving the issues, and whether the burden
or expense of the proposed discovery outweighs its ...