SUSAN DAVIS v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY (2024)

Order

This cause comes before the Court for consideration without oral argument on the following motion:

MOTION: Plaintiff's Motion for Protective Order or Alternatively Motion to Quash (Doc. 19)

FILED: July 26, 2024

THEREON it is ORDERED that the motion is DENIED.

I. Background and Procedural History

Plaintiff brings a bad faith claim against Defendant related to an accident Plaintiff was involved in on May 23, 2020. Doc. 1-2. Plaintiff claims that Defendant issued an automobile policy to Stephanie Maddox [Maddox] and under the terms Defendant “was required to use the Policy's limits to settle [Plaintiff's] claim against [Maddox].” Id. Plaintiff claims that she gave Defendant opportunities to settle her claim for an amount within the insurance policy's limits, but Defendant refused to settle. Id. Plaintiff alleges that she stands in the shoes of Maddox for purposes of bad faith litigation and Defendant breached its fiduciary duty to Maddox to settle the claim “when it could and should have done so[.]” Id.

Pending before the Court is Plaintiff's “Motion for Protective Order or Alternatively Motion to Quash.” Doc. 19 (the Motion). Pursuant to a Notice of Taking Deposition Duces Tecum, Defendant initially sought from non-party Nicholas Russo, Esq. the complete file from the May 23, 2020 accident. Doc. 19-1. Plaintiff complains that this request is overly broad and unduly burdensome “requiring a non-party to perform an onerous privilege review of his litigation file, spanning three-years within a week.” Doc. 19 at 1. Plaintiff also contends that it ignores that bad faith claims focus on the actions of the insurance company in failing to settle Plaintiff's claim. Id.

Plaintiff then provides that, after conferral, Defendant narrowed the request to 13 categories “spanning the entire underlying litigation.” Id. at 2.¹ Even so, Plaintiff contends that pursuant to Rule 45(d)(3)(A)(ii), the Court must quash or modify a subpoena that fails to allow a reasonable time to comply or subjects a person to undue burden and courts have quashed requests for an attorney's litigation file. Id. Plaintiff has since filed a Notice of Supplemental Authority. Doc. 22.

II. Standard

District courts have broad discretion in handling discovery matters. See Republic of Ecuador v. Hinchee, 741 F.3d 1185, 1188 (11th Cir. 2013). “Unless otherwise limited by court order, ․ [p]arties 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[.]” Fed. R. Civ. P. 26(b)(1). Accordingly, “[t]he Federal Rules of Civil Procedure strongly favor full discovery whenever possible” Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985) (citing Fed. R. Civ. P. 26(b)(1)). Thus, the party resisting discovery “has a heavy burden of showing why the requested discovery should not be permitted.” Safranek by & through Safranek v. Wal-Mart Stores, Inc., 2010 WL 11505263, at *2 (S.D. Fla. June 1, 2010) (citations omitted).

III. Discussion

As an initial matter, to the extent Plaintiff moves to quash the subpoena pursuant to Rule 45, Plaintiff has a standing problem. A party has standing under Rule 45 if the party alleges a “ ‘personal right or privilege’ with respect to the subpoenas.” Auto-Owners Ins. Co. v. Southeast Floating Docks, Inc., 231 F.R.D. 426, 429 (M.D. Fla. 2005) (quoting Brown v. Braddick, 595 F.2d 961, 967 (5th Cir. 1979)). Further, parties do not have “standing to quash subpoenas on the grounds of oppression or undue burden placed upon the third parties where the non-parties have not objected on those grounds.” Id.

Here, Plaintiff has not asserted any personal right or privilege regarding the records Defendant seeks. Instead, Plaintiff's argument is centered around the burden the request places on a third party. As such, Plaintiff lacks standing to move to quash Attorney Russo's subpoena under Rule 45. This is especially true because there is nothing properly before the Court that demonstrates that Attorney Russo has raised his own objection on this ground.²

But even if Plaintiff has standing under Rule 45, it seems that part, if not all, of Plaintiff's burdensome argument is moot. Specifically, the basis for Plaintiff's request for relief in large part was the short time span—one week—in which Attorney Russo was expected to produce the “complete file.”³ Not only has Defendant narrowed the request to the 13 categories and no longer seeks the “complete file,” but Defendant states that it agreed to reschedule the deposition for August 29 to allow time for a ruling on the Motion. Doc. 21 at 1. Indeed, Defendant has attached another Amended Notice scheduling the videoconference deposition for August 29, 2024. Doc. 21-4. So, assuming Plaintiff has standing to move to quash the subpoena under Rule 45, Plaintiff's argument regarding the “complete file” and the quick turn-around for review is no longer relevant.

Turning to Plaintiff's primary request for a protective order, Rule 26(c) provides that upon a showing of good cause, a court “may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” But Rule 26(c)(1) is a mechanism for “a party or any person from whom discovery is sought” to seek a proactive order. Here, the discovery sought is not from Plaintiff. Regardless, to establish the need for a protective order, the moving party must “demonstrate good cause, and must make a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements supporting the need for a protective order.” Auto-Owners, 231 F.R.D. at 429-30. In addition to finding good cause, the court must also be satisfied that, on balance, the interests of the party seeking the protective order outweigh the interests of the opposing party. McCarthy v. Barnett Bank of Polk Cty., 876 F.2d 89, 91 (11th Cir. 1989).

Here, assuming Plaintiff can utilize Rule 26(c)(1), the Court finds that Plaintiff does not meet her burden. Even though Plaintiff acknowledges that Defendant narrowed the requested material and no longer seeks the “complete file,” Plaintiff still appears to base the majority of the Motion on the original request. Namely, Plaintiff spends two pages of the three-page Motion discussing the request for the “complete file” and references several cases where courts quashed such a subpoena. See Doc. 19 at 1-2. Again, that argument is moot.

That leaves Plaintiff's contention that the “amended request does not cure the overbroad nature or undue burden[.]” Id. at 3. While the Court limits briefing on discovery motions, Plaintiff's blanket assertion does not in any meaningful way demonstrate why Attorney Russo requires protection from the 13 categories of production. Plaintiff simply has not shown good cause.

Finally, to the extent that Plaintiff's relevancy argument relates to the 13 categories and not just the “complete file,” the Court still finds that she is not entitled to relief. Plaintiff does not address the information sought in each of the 13 requests but appears to more generally base the objection on the time-period and the nature of the bad faith cases. Specifically, Plaintiff contends that the 13 categories “span[ ] the entire underlying litigation” and “[t]he request ignores that the focus of this bad faith is on the actions of State Farm in undervaluing and failing to settle Davis's claim, not the claimant.” Doc. 19 at 1.

Indeed, the Florida Supreme Court has found that “the focus in a bad faith case is not on the actions of the claimant but rather on those of the insurer in fulfilling its obligations to the insured.” Berges v. Infinity Ins. Co., 896 So. 2d 665, 677 (Fla. 2004). But, in Florida, “the question of whether an insurer has acted in bad faith in handling claims against the insured is determined under the “totality of the circumstances” standard. Id. at 680. And, “[a]lthough a bad faith claim derives from and emphasizes the duty of the insurer to the insured, the conduct of a claimant and the claimant's attorney is relevant to determining the ‘realistic probability of settlement.’ ” Cardenas v. Geico Cas. Co., 760 F. Supp. 2d 1305, 1309 (M.D. Fla. Jan. 13, 2011) (citing Barry v. Geico Gen. Ins. Co., 938 So.2d 613, 618 (Fla. 4th DCA 2006)); see also, Losat v. Geico Cas. Co., 2011 WL 5834689, at *6 (M.D. Fla. Nov. 21, 2011) (“[T]he claimant's unwillingness to settle the claim is relevant to whether the insurer acted in bad faith under a totality of circumstances and is a factor that must be considered.”); Pratt v. Gov't Emps. Ins. Co., 2023 WL 2743264, at *11 (M.D. Fla. Mar. 31, 2023) (“Clearly, an insurer's failure to settle would not be the cause of a resulting excess judgment if the claimant was unwilling to settle.”) (citations omitted).

Here, Defendant argues, and the Court is persuaded, that the requests are relevant to Plaintiff and Attorney Russo's willingness to settle and to whether Defendant could or should have settled. Since Defendant more narrowly tailored the requests after initially seeking the entire file and Plaintiff does not adequately specify to the Court how the information sought in the new categories is irrelevant based on the circumstances of this case, the Court is not convinced that the requested material should be protected. Also, the record seems to belie Plaintiff's argument that the 13 categories impermissibly span the “entire underlying litigation.” While Defendant's counsel states in the request “parameters” that “[u]nless otherwise stated, all time frames in the following items are from the date of Plaintiff's motor-vehicle accident up through the date that the judgment was entered against [Maddox],” most of the requests are limited through October 22, 2021, or the last date Plaintiff contends Defendant could have settled. See Doc. 19-2 at 3-4. Without more, the Court is not convinced that the scope of Defendant's request is as broad as Plaintiff asserts.

Based on the foregoing, Plaintiff has not demonstrated good cause for a protective order and the Court is also not satisfied that Plaintiff's interest in opposing Attorney Russo's subpoena outweighs Defendant's interest in seeking the information.

III. Conclusion

Upon due consideration, it is ORDERED that:

1. Plaintiff's Motion (Doc. 19) is DENIED; and

2. The payment of reasonable expenses, including attorney fees, is not necessary as Plaintiff's position was substantially justified. See Fed.R.Civ.P. 37(a)(5)(B).

ORDERED in Orlando, Florida on August 19, 2024.

FOOTNOTES

1.   According to the correspondence attached to the Motion, Plaintiff's counsel “produced the entire file from May 23, 2020 to December 18, 2020, the date the underlying lawsuit was filed.” Doc. 19-2. Plaintiff's counsel objected, however, to producing documents post-dating the filing of that lawsuit based on relevancy and proportionality and because it was not reasonable for a non-party to respond in one week. Id. Plaintiff's counsel's statement appears to be in response to Defendant's counsel's email wherein he narrowed the requests to the 13 categories. Id.

2.   The Court notes that Attorney Russo has filed a “Notice of Adoption and Joinder to Plaintiff's Motion for Protective Order.” Doc. 20. Attorney Russo states generally that he joins in the arguments of and adopts the Motion. Doc. 20. The Court, however, does not construe this “Notice” as an appropriate objection under Auto-Owners. Attorney Russo cites to no rule or law that permits him to “join” into Plaintiff's request for this relief. If Attorney Russo seeks to either join a motion or file his own request for a protective order, he must do so in accordance with Local Rule 3.01(a). See Toney v. Advantage Chrysler-Dodge-Jeep, Inc., 2020 WL 7704936, at *1 (M.D. Fla. Dec. 14, 2020) (“[E]ven if this Court allowed parties to summarily join the motions of other parties, which it does not, any attempt by [the defendant] to join the [m]otions to [d]ismiss is improper.”).

3.   The Court is unsure how Plaintiff calculates one week because Defendant served Attorney Russo with the subpoena on July 11, 2024 for an August 1, 2024 deposition. Doc. 21-1. Defendant also served the Amended Notice on Plaintiff's counsel on July 17, 2024. Doc. 21-2. According to the Amended Notice, Attorney Russo was to bring the items to the August 1st deposition. Id. Defendant has also attached a subpoena duces tecum for Attorney Russo to appear for deposition via video conference on August 8, 2024. Doc. 21-3.

DANIEL C. IRICK UNITED STATES MAGISTRATE JUDGE