1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 ALC Power Road LLC, No. CV-23-02591-PHX-KML
10 Plaintiff, ORDER
11 v.
12 Nationwide General Insurance Company, et al., 13 Defendants. 14 15 The parties filed a joint statement of discovery disputes before this case was 16 transferred and more recently a motion to extend the case management deadlines because 17 the dispute hadn’t been resolved. (Doc. 37, 49.) Plaintiff ALC Power Road is entitled to 18 the production of some of the additional information it seeks and the case management 19 deadlines are extended. 20 The parties’ discovery disputes involve two insurance claims on the same property. 21 ALC made its first insurance claim with Defendant Nationwide General Insurance after a 22 car crashed into ALC’s property on July 9, 2021. ALC made its second insurance claim 23 after that same property was damaged in late 2021 or early 2022. The first claim was paid 24 but the second claim was not. The present suit is a first-party bad faith action based on 25 Nationwide’s failure to pay the second claim. ALC sent Nationwide requests for production 26 and is not satisfied with Nationwide’s responses. The parties’ five disputes are resolved as 27 follows: 28 1 • ALC sought production of the “entire claim file” for the first claim. 2 Nationwide must produce that file. 3 • ALC sought production of the unredacted “claim notes” for the second claim. 4 Nationwide produced a privilege log and ALC has not established any basis 5 to require Nationwide produce the documents on that privilege log. At this 6 time, Nationwide is not required to produce unredacted claim notes.1 7 • ALC sought production of “all phone calls.” (Doc. 37 at 3.) Nationwide states 8 the phone calls “were not recorded.” (Doc. 37 at 7.) Nationwide must 9 produce an affidavit stating the phone calls do not exist. 10 • ALC sought production of additional emails and communications “related to 11 the claims.” (Doc. 37 at 3.) Nationwide states it “has nothing to produce 12 beyond what has already been produced.” (Doc. 37 at 7.) If additional 13 communications exist, Nationwide must produce them but if no 14 communications exist, Nationwide must provide an affidavit stating no 15 additional communications exist. 16 • ALC sought production of the employee file of Courtney Martin. According 17 to ALC, “Martin investigated and assisted in the denial of the second claim.” 18 (Doc. 37 at 4.). Nationwide states Martin had “no role in determining 19 coverage” and had “no role” in the coverage decision. (Doc. 37 at 7.) Based 20 on its representations regarding Martin’s involvement, Nationwide is not 21 required to produce Martin’s employee file. 22 ALC filed a motion to extend case management deadlines stating that Nationwide 23 “joins” the request. However, Nationwide plans “to respond to the motion because [ALC] 24 includes a factual background, procedural history and argument section” that Nationwide 25 wishes to address. (Doc. 49.) Given the joinder in the requested extension, there is no need 26 1 ALC’s motion to extend the deadlines argues the claims adjustor recently testified “[h]e 27 relied on the advice of counsel in making the decision to deny the second claim.” (Doc. 49 at 4.) If that is accurate, Nationwide may not be able to withhold documents based on the 28 privilege. See State Farm Mut. Auto. Ins. Co. v. Lee, 13 P.3d 1169, 1177 (Ariz. 2000) (discussing when privilege is waived). 1 for Nationwide to respond because the court will not accept as accurate any representations 2 made in the motion. 3 Accordingly, 4 IT IS ORDERED Defendant Nationwide shall produce the additional information 5 discussed above within fourteen days of this order. 6 IT IS FURTHER ORDERED the Motion to Extend (Doc. 49) is GRANTED. The 7 parties shall comply with the following: 8 1. Initial Disclosures. The deadline for making the initial disclosures required by 9 Federal Rule of Civil Procedure 26(a)(1) has passed. 10 2. Deadline for Joinder, Amending Pleadings, and Filing Supplemental Pleadings. The 11 deadline for joining parties, amending pleadings, and filing supplemental pleadings has 12 passed. 13 3. Federal Rule of Evidence 502(d) Non-Waiver Order. The Court orders that a 14 communication or information covered by the attorney-client privilege or work-product 15 protection that is disclosed in connection with the litigation pending before the Court does 16 not waive the privilege or protection in this or any other federal or state proceeding. This 17 provision does not require any party agreement, and it avoids the need to litigate whether 18 an inadvertent production was reasonable. By reducing the risk of waiver, this order affords 19 parties the opportunity to reduce the cost of discovery by reducing pre-production privilege 20 review. 21 4. Discovery Limitations. Depositions shall be limited to seven hours each, as provided 22 in Rule 30(d)(1) of the Federal Rules of Civil Procedure. A party may serve on any other 23 party up to 25 interrogatories, including subparts, 25 requests for production of documents, 24 including subparts, and 25 requests for admissions, including subparts. Each interrogatory 25 or request seeking information not logically or factually subsumed within and necessarily 26 related to the primary request will count as a separate request. The limitations set forth in 27 this paragraph may be increased by mutual agreement of the parties, but such an increase 28 will not result in an extension of the discovery deadlines set forth in this order. 1 5. Fact Discovery. The deadline for completion of fact discovery, including discovery 2 by subpoena and all disclosures required under Rule 26(a)(3), shall be May 30, 2025. To 3 ensure compliance with this deadline, the following rules shall apply: 4 a. Depositions: All depositions shall be scheduled to start at least five working 5 days before the discovery deadline. A deposition started five days before the deadline may 6 continue up until the deadline, as necessary. 7 b. Written Discovery: All interrogatories, requests for production of 8 documents, and requests for admissions shall be served at least 45 days before the fact 9 discovery deadline. 10 c. The parties may mutually agree in writing, without Court approval, to extend 11 the time for providing discovery in response to requests under Rules 33, 34, and 36 of the 12 Federal Rules of Civil Procedure. Such agreed-upon extensions, however, shall not alter or 13 extend the deadlines set forth in this order. 14 d. Notwithstanding any provisions of the Federal Rules of Civil Procedure, non- 15 party witnesses shall not be permitted to attend (either physically, electronically, or 16 otherwise) the deposition of any other witness in this case without an order of this Court to 17 the contrary. 18 e. A request by counsel for extension of discovery deadlines in any case that 19 has been pending more than two years must be accompanied by a certification stating the 20 client is aware of and approves of the requested extension. The Court does not consider 21 settlement talks or the scheduling of mediations to constitute good cause for an extension. 22 6. Expert Disclosures, Expert Discovery, and Motions Challenging Expert Testimony. 23 a.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 ALC Power Road LLC, No. CV-23-02591-PHX-KML
10 Plaintiff, ORDER
11 v.
12 Nationwide General Insurance Company, et al., 13 Defendants. 14 15 The parties filed a joint statement of discovery disputes before this case was 16 transferred and more recently a motion to extend the case management deadlines because 17 the dispute hadn’t been resolved. (Doc. 37, 49.) Plaintiff ALC Power Road is entitled to 18 the production of some of the additional information it seeks and the case management 19 deadlines are extended. 20 The parties’ discovery disputes involve two insurance claims on the same property. 21 ALC made its first insurance claim with Defendant Nationwide General Insurance after a 22 car crashed into ALC’s property on July 9, 2021. ALC made its second insurance claim 23 after that same property was damaged in late 2021 or early 2022. The first claim was paid 24 but the second claim was not. The present suit is a first-party bad faith action based on 25 Nationwide’s failure to pay the second claim. ALC sent Nationwide requests for production 26 and is not satisfied with Nationwide’s responses. The parties’ five disputes are resolved as 27 follows: 28 1 • ALC sought production of the “entire claim file” for the first claim. 2 Nationwide must produce that file. 3 • ALC sought production of the unredacted “claim notes” for the second claim. 4 Nationwide produced a privilege log and ALC has not established any basis 5 to require Nationwide produce the documents on that privilege log. At this 6 time, Nationwide is not required to produce unredacted claim notes.1 7 • ALC sought production of “all phone calls.” (Doc. 37 at 3.) Nationwide states 8 the phone calls “were not recorded.” (Doc. 37 at 7.) Nationwide must 9 produce an affidavit stating the phone calls do not exist. 10 • ALC sought production of additional emails and communications “related to 11 the claims.” (Doc. 37 at 3.) Nationwide states it “has nothing to produce 12 beyond what has already been produced.” (Doc. 37 at 7.) If additional 13 communications exist, Nationwide must produce them but if no 14 communications exist, Nationwide must provide an affidavit stating no 15 additional communications exist. 16 • ALC sought production of the employee file of Courtney Martin. According 17 to ALC, “Martin investigated and assisted in the denial of the second claim.” 18 (Doc. 37 at 4.). Nationwide states Martin had “no role in determining 19 coverage” and had “no role” in the coverage decision. (Doc. 37 at 7.) Based 20 on its representations regarding Martin’s involvement, Nationwide is not 21 required to produce Martin’s employee file. 22 ALC filed a motion to extend case management deadlines stating that Nationwide 23 “joins” the request. However, Nationwide plans “to respond to the motion because [ALC] 24 includes a factual background, procedural history and argument section” that Nationwide 25 wishes to address. (Doc. 49.) Given the joinder in the requested extension, there is no need 26 1 ALC’s motion to extend the deadlines argues the claims adjustor recently testified “[h]e 27 relied on the advice of counsel in making the decision to deny the second claim.” (Doc. 49 at 4.) If that is accurate, Nationwide may not be able to withhold documents based on the 28 privilege. See State Farm Mut. Auto. Ins. Co. v. Lee, 13 P.3d 1169, 1177 (Ariz. 2000) (discussing when privilege is waived). 1 for Nationwide to respond because the court will not accept as accurate any representations 2 made in the motion. 3 Accordingly, 4 IT IS ORDERED Defendant Nationwide shall produce the additional information 5 discussed above within fourteen days of this order. 6 IT IS FURTHER ORDERED the Motion to Extend (Doc. 49) is GRANTED. The 7 parties shall comply with the following: 8 1. Initial Disclosures. The deadline for making the initial disclosures required by 9 Federal Rule of Civil Procedure 26(a)(1) has passed. 10 2. Deadline for Joinder, Amending Pleadings, and Filing Supplemental Pleadings. The 11 deadline for joining parties, amending pleadings, and filing supplemental pleadings has 12 passed. 13 3. Federal Rule of Evidence 502(d) Non-Waiver Order. The Court orders that a 14 communication or information covered by the attorney-client privilege or work-product 15 protection that is disclosed in connection with the litigation pending before the Court does 16 not waive the privilege or protection in this or any other federal or state proceeding. This 17 provision does not require any party agreement, and it avoids the need to litigate whether 18 an inadvertent production was reasonable. By reducing the risk of waiver, this order affords 19 parties the opportunity to reduce the cost of discovery by reducing pre-production privilege 20 review. 21 4. Discovery Limitations. Depositions shall be limited to seven hours each, as provided 22 in Rule 30(d)(1) of the Federal Rules of Civil Procedure. A party may serve on any other 23 party up to 25 interrogatories, including subparts, 25 requests for production of documents, 24 including subparts, and 25 requests for admissions, including subparts. Each interrogatory 25 or request seeking information not logically or factually subsumed within and necessarily 26 related to the primary request will count as a separate request. The limitations set forth in 27 this paragraph may be increased by mutual agreement of the parties, but such an increase 28 will not result in an extension of the discovery deadlines set forth in this order. 1 5. Fact Discovery. The deadline for completion of fact discovery, including discovery 2 by subpoena and all disclosures required under Rule 26(a)(3), shall be May 30, 2025. To 3 ensure compliance with this deadline, the following rules shall apply: 4 a. Depositions: All depositions shall be scheduled to start at least five working 5 days before the discovery deadline. A deposition started five days before the deadline may 6 continue up until the deadline, as necessary. 7 b. Written Discovery: All interrogatories, requests for production of 8 documents, and requests for admissions shall be served at least 45 days before the fact 9 discovery deadline. 10 c. The parties may mutually agree in writing, without Court approval, to extend 11 the time for providing discovery in response to requests under Rules 33, 34, and 36 of the 12 Federal Rules of Civil Procedure. Such agreed-upon extensions, however, shall not alter or 13 extend the deadlines set forth in this order. 14 d. Notwithstanding any provisions of the Federal Rules of Civil Procedure, non- 15 party witnesses shall not be permitted to attend (either physically, electronically, or 16 otherwise) the deposition of any other witness in this case without an order of this Court to 17 the contrary. 18 e. A request by counsel for extension of discovery deadlines in any case that 19 has been pending more than two years must be accompanied by a certification stating the 20 client is aware of and approves of the requested extension. The Court does not consider 21 settlement talks or the scheduling of mediations to constitute good cause for an extension. 22 6. Expert Disclosures, Expert Discovery, and Motions Challenging Expert Testimony. 23 a. The party with the burden of proof on an issue shall provide full and complete 24 expert disclosures, as required by Rule 26(a)(2)(A)-(C) of the Federal Rules of Civil 25 Procedure, no later than January 3, 2025. 26 b. The responding party (not having the burden of proof on the issue) shall 27 provide full and complete expert disclosures, as required by Rule 26(a)(2)(A)-(C) of the 28 Federal Rules of Civil Procedure, no later than February 7, 2025. 1 c. The party with the burden of proof on the issue shall make its rebuttal expert 2 disclosures, if any, no later than March 17, 2025. Rebuttal experts shall be limited to 3 responding to opinions stated by the opposing party’s experts. 4 d. No depositions of any expert witnesses shall occur before the aforementioned 5 disclosures concerning expert witnesses are made. 6 e. Expert depositions shall be completed no later than May 30, 2025. All expert 7 depositions shall be scheduled to commence at least five working days before this deadline. 8 f. Disclosures under Rule 26(a)(2)(A) of the Federal Rules of Civil Procedure 9 must include the identities of treating physicians and other witnesses who will provide 10 testimony under Federal Rules of Evidence 702, 703, or 705, but who are not required to 11 provide expert reports under Rule 26(a)(2)(B). Rule 26(a)(2)(C) disclosures are required 12 for such witnesses on the dates set forth above. Rule 26(a)(2)(C) disclosures must identify 13 not only the subjects on which the witness will testify, but must also provide a summary of 14 the facts and opinions to which the witness will testify. The summary, although not as 15 detailed as a Rule 26(a)(2)(B) report, must be sufficiently detailed to provide fair notice of 16 what the witness will say at trial. 17 g. As stated in the Advisory Committee Notes to Rule 26 of the Federal Rules 18 of Civil Procedure (1993 amendment), expert reports under Rule 26(a)(2)(B) must set forth 19 “the testimony the witness is expected to present during direct examination, together with 20 the reasons therefor.” Full and complete disclosures of such testimony are required on the 21 dates set forth above. Absent extraordinary circumstances, parties will not be permitted to 22 supplement expert reports after these dates. The Court notes, however, that it usually 23 permits parties to present opinions of their experts that were elicited by opposing counsel 24 during depositions of the experts. Counsel should depose experts with this fact in mind. 25 h. Each side shall be limited to one retained or specifically-employed expert 26 witness per issue. 27 i. An untimely-disclosed expert will not be permitted to testify unless the party 28 offering the witness demonstrates that (a) the necessity of the expert witness could not have 1 been reasonably anticipated at the time of the disclosure deadline, (b) the opposing counsel 2 or unrepresented parties were promptly notified upon discovery of the need for the expert 3 witness, and (c) the expert witness was promptly proffered for deposition. See Wong v. 4 Regents of Univ. of Cal., 410 F.3d 1052, 1060 (9th Cir. 2005). 5 j. Pursuant to Rule 26(e)(1), any additions or other changes to information 6 previously disclosed must be made prior to the close of discovery. This Court requires all 7 Rule 26(a)(3) pretrial disclosures to be contained in the Joint Proposed Pretrial Order. 8 Therefore, all exhibits and witnesses that may be offered at trial must be disclosed before 9 the close of discovery as established by this order. This order supersedes the “thirty-day 10 before trial” disclosure deadline contained in that Rule. Therefore (1) failure to have timely 11 supplemented a Rule 26(a) disclosure, (2) failure to have timely supplemented responses 12 to discovery requests, or (3) attempting to include any witnesses or exhibits in the Joint 13 Proposed Pretrial Order that were not previously disclosed prior to the discovery deadline 14 set forth in this order may result in the exclusion of such evidence at trial or the imposition 15 of other sanctions. 16 k. Any Rule 35 physical or mental examination must be noticed by Click or 17 tap to enter a date.. 18 l. Motions challenging the admissibility of expert testimony are disfavored 19 prior to trial preparation. Such motions will be due on the same date as the parties’ Joint 20 Proposed Pretrial Order. 21 7. Discovery Disputes. 22 a. The parties shall not file written discovery motions without leave of the 23 Court. Except during a deposition, if a discovery dispute arises and cannot be resolved 24 despite sincere efforts to resolve the matter through personal consultation (in person or by 25 telephone), the parties shall jointly file (1) a brief written summary of the dispute, not to 26 exceed two pages per party, explaining the position taken by each party, (2) a joint written 27 certification that counsel or the parties have attempted to resolve the matter through 28 personal consultation and sincere efforts as required by Local Rule 7.2(j) and have reached 1 an impasse, and (3) copies of the contested discovery requests (e.g., copies of the 2 interrogatories and responses). The discovery dispute summary shall adhere to the 3 formatting requirements of Local Rule 7.1(b)(1). Discovery dispute filings that do not 4 conform to the procedures outlined in this paragraph, including the page limitation, may 5 be summarily stricken. If the opposing party has refused to personally consult or cooperate 6 in the filing of the joint statement, the party seeking relief shall describe the efforts made 7 to obtain cooperation. Upon review of the written submission, the Court may set a 8 telephonic conference, order written briefing, or decide the dispute without conference or 9 briefing. Any briefing ordered by the Court shall also comply with Local Rule 7.2(j). 10 b. If a discovery dispute arises during a deposition and requires an immediate 11 ruling of the Court, the parties shall email Lanham_chambers@azd.uscourts.gov to request 12 a telephone conference regarding the dispute. The Court strongly disfavors such requests: 13 except in extraordinary circumstances, objections should instead be timely raised and the 14 deponent should answer subject to the objections. If the parties submit such a dispute to 15 the Court, the deposition must proceed on other topics or questions while the parties await 16 the Court’s response. 17 c. Absent extraordinary circumstances, the Court will not entertain fact 18 discovery disputes after the deadline for completion of fact discovery and will not entertain 19 expert discovery disputes after the deadline for completion of expert discovery. Delay in 20 presenting discovery disputes for resolution is not a basis for extending discovery 21 deadlines. 22 8. Dispositive Motions. 23 a. Dispositive motions shall be filed no later than June 30, 2025. 24 b. No party shall file more than one motion for summary judgment under Rule 25 56 of the Federal Rules of Civil Procedure without leave of the Court. 26 c. Local Rule of Civil Procedure 56.1 is suspended, except for subsection (d). 27 The Court will decide summary judgment motions under Federal Rule of Civil Procedure 28 56 only. In other words, the parties may not file separate statements of facts or separate 1 controverting statements of facts, and instead must include all facts in the motion, response, 2 or reply itself. All factual statements must be followed by a specific citation to the 3 supporting exhibit, including a pincite. All evidence to support a motion or response must 4 be attached to the briefs. The evidence may include only relevant excerpts rather than full 5 documents. The only evidence that may be attached to a reply is evidence intended to rebut 6 arguments raised for the first time in the non-movant’s response. Because no separate 7 controverting statement of facts will be permitted, the responding party must carefully 8 address all material facts raised in the motion. Likewise, the reply must carefully address 9 all material facts raised in the response. Any fact that is ignored may be deemed 10 uncontested. Procedurally, immediately following the motion, response, or reply should be 11 a numerical table of contents for the exhibits. The table of contents shall include only a title 12 for each exhibit, not a description. Following the table of contents should be each exhibit, 13 numbered individually. By way of example, citations to exhibits attached to the motion, 14 response, or reply would be “(Ex. 1 at 7)” or “(Ex. 5 at 3).” 15 d. A party desiring oral argument on any motion shall place the words “Oral 16 Argument Requested” immediately below the title of the motion pursuant to Local Rule 17 7.2(f). The Court may decline the request and decide the motion without holding oral 18 argument. If the request is granted, the Court will issue an order setting the argument date 19 and time. 20 9. Motions for Attorneys’ Fees. All motions for an award of attorneys’ fees shall be 21 accompanied by an electronic Microsoft Excel spreadsheet, to be emailed to the Court and 22 opposing counsel, containing an itemized statement of legal services with all information 23 required by Local Rule 54.2(e)(1). This spreadsheet shall be organized with rows and 24 columns and shall automatically total the amount of fees requested to enable the Court to 25 efficiently review and recompute, if needed, the total amount of any award after 26 disallowing any individual billing entries. This spreadsheet does not relieve the moving 27 party of its burden under Local Rule 54.2(d) to attach all necessary supporting 28 documentation to its motion. A party opposing a motion for attorneys’ fees shall email to 1 the Court and opposing counsel a copy of the moving party’s spreadsheet, adding any 2 objections to each contested billing entry (next to each row, in an additional column) to 3 enable the Court to efficiently review the objections. This spreadsheet does not relieve the 4 non-moving party of the requirements of Local Rule 54.2(f) concerning its responsive 5 memorandum. 6 10. Good Faith Settlement Talks. All parties and their counsel shall meet in person and 7 engage in good faith settlement talks no later than March 31, 2025. Upon completion of 8 such settlement talks, and in no event later than five working days after the deadline set 9 forth in the preceding sentence, the parties shall file with the Court a joint report on 10 settlement talks executed by or on behalf of all counsel. The report shall inform the Court 11 that good faith settlement talks have been held and shall report on the outcome of such 12 talks. The parties shall indicate whether assistance from the Court is needed in seeking 13 settlement of the case. The Court will set a settlement conference before a magistrate judge 14 upon request of all parties. The parties are reminded that they are encouraged to discuss 15 settlement at all times during the pendency of the litigation, but the Court will not extend 16 the case management deadlines if and when the parties elect to pursue settlement efforts, 17 including a settlement conference before a magistrate judge. The parties should plan their 18 settlement efforts accordingly. The parties shall promptly notify the Court if settlement is 19 reached. 20 12. Briefing Requirements. 21 a. All memoranda filed with the Court shall comply with Local Rule 7.1(b) 22 requiring 13-point font in text and footnotes. 23 b. Citations in support of any assertion in the text shall be included in the text, 24 not in footnotes. 25 c. To ensure timely case processing, a party moving for an extension of time, 26 enlargement of page limitations, leave to amend, or leave to file a document under seal 27 shall indicate in the motion whether the non-movant opposes the request and intends to file 28 a written response. If such a motion does not so indicate, it may be denied for failure to 1 |} comply with this order. 2|| 14. Deadline for Notice of Readiness for Trial. The plaintiff(s) shall notify the Court 3 || that the parties are ready to proceed to trial. The plaintiff(s) shall file and serve this notice 4|| within seven days after the dispositive motion deadline if no dispositive motions are 5 || pending on that date. If dispositive motions are pending, the plaintiff(s) shall file and serve 6 || such notice within seven days after the resolution of the dispositive motions. The Court 7 || will then issue an order identifying a window of time when the Court is available for trial 8 || and instructing the parties to propose dates within this window when all parties, counsel, || and witnesses are available to begin trial. The Court will then issue an order setting a firm || trial date and date for the final pretrial conference that (a) sets deadlines for briefing 11 || motions in limine and Daubert motions, (b) includes a form for the completion of the parties’ joint proposed pretrial order, and (c) otherwise instructs the parties concerning 13} their duties in preparing for the final pretrial conference. 15. Dismissal for Failure to Meet Deadlines. Failure to meet any of the deadlines in this 15 || order or in the Federal or Local Rules of Civil Procedure without substantial justification || may result in sanctions, including dismissal of the action or entry of default. 17|| 16. Requirement for Paper Courtesy Copies. A paper courtesy copy of dispositive 18 || motions (or other lengthy motions that will be opposed) and any responses or replies thereto shall be either postmarked and mailed to the judge or hand-delivered to the judge’s 20 || mailbox in the courthouse by the next business day after the electronic filing. Do not attempt to deliver documents to the judge’s chambers. Courtesy copies should be double- 22 || sided and include the ECF-generated header at the top of each page. Courtesy copies of 23 || documents too large for stapling must be submitted in three-ring binders. 24 Dated this 25th day of October, 2024. 25 *6 fy Vo MN. \ 4, □ 07 AA □□ □□ Woe Honorable Krissa M. Lanham 28 United States District Judge
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