1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BEVERLY ALLEN, Individually, and on No. 1:20-cv-00530-JLT-BAK (BAM) Behalf of the Class, 12 Plaintiff, ORDER GRANTING IN PART AND 13 DENYING IN PART PLAINTIFF’S MOTION 14 v. TO COMPEL DISCOVERY
PROTECTIVE LIFE INSURANCE 15 (Doc.75) COMPANY, a Tennessee Corporation; 16 EMPIRE GENERAL LIFE INSURANCE COMPANY, an Alabama Corporation, 17 Defendants. 18 19 20 I. INTRODUCTION 21 Currently before the Court is Plaintiff Beverly Allen’s Motion to Compel Discovery. 22 (Doc. 75.) At issue is Plaintiff’s pre-certification discovery of: (1) contact and certain policy 23 information for putative class members (Interrogatories, Set One, Nos. 17, 19, 20 and 21); (2) 24 compliance activities in response to the California Supreme Court’s decision in McHugh v. 25 Protective Life Ins. Co., 12 Cal.5th 213 (2021), (Requests for Production, Set One, Nos. 23-25) 26 and (3) insurance reserve information, including reserve amounts for certain terminated policies 27 (Requests for Production, Set One, Nos. 29-32). The parties filed a Joint Statement Re Discovery 28 Disagreement on April 25, 2022. (Doc. 76.) Plaintiff filed a notice of supplemental authorities in 1 support of the motion to compel discovery. (Doc. 81.) 2 The Court deemed the matter suitable for decision without oral argument, vacated the 3 June 24, 2022 hearing date, and the matter is deemed submitted on the papers. E.D. Cal. L.R. 4 230(g). Having considered the parties’ briefs and the record in this action, and for the reasons 5 explained below, Plaintiff’s motion to compel will be granted in part and denied in part. 6 II. RELEVANT BACKGROUND 7 Plaintiff filed this putative class action against Protective Life Insurance Company, which 8 is the successor by merger to Empire General Life Assurance Corporation. Plaintiff alleges that 9 Defendant violated California Insurance Code §§ 10113.71 and 10113.72, both of which require 10 proper notice of and grace periods for pending lapses or terminations of life insurance. 11 On October 2, 2020, the Court issued a stay of discovery pending resolution of the 12 California Supreme Court’s decision in McHugh v. Protective Life Insurance Company or the 13 Ninth Circuit Court of Appeals’ decision in Thomas v. State Farm Insurance Co. and Bentley v. 14 United of Omaha Life Insurance Co. (Doc. 39.) 15 On November 23, 2021, the Court issued a Scheduling Order and opened “all non-expert 16 discovery pertaining to the class certification motion and to the merits, to the extent it overlaps 17 with the class issues.” (Doc. 56 at 1.) The Court also set the deadline to complete all non-expert 18 discovery related to the motion for class certification as September 29, 2023, and the deadline to 19 file a motion for class certification as April 7, 2023. (Doc. 56.) 20 On November 24, 2021, Plaintiff served Defendant with Interrogatories and Requests for 21 Production of Documents (Set One). Defendant served written responses and objections on 22 January 24, 2022. Thereafter, the parties met and conferred regarding Defendant’s discovery 23 responses. Defendant agreed to supplement some responses, but not its responses to Interrogatory 24 Nos. 17, 19, 20, and 21, and Requests for Production Nos. 23-25 and 29-32. 25 On January 14, 2022, the Court lifted the stay of discovery following the California 26 Supreme Court’s decision in McHugh and the Ninth Circuit’s decision in Thomas. (Doc. 65.) 27 On February 22, 2022, Defendant filed a motion for judgment on the pleadings, seeking 28 dismissal of Plaintiff’s claims for declaratory judgment under California and federal law (Counts 1 I and II, for violation of the California Unfair Competition Law (Count IV), and for bad faith 2 (Count VI). (Doc. 68.) The motion remains pending before the district court. 3 On April 25, 2022, Plaintiff filed the instant motion to compel, and the parties filed a Joint 4 Statement Re Discovery Disagreement. (Docs. 75, 76.) 5 On April 28, 2022, the Court held a Mid-Discovery Status Conference. The Court 6 provided the parties with preliminary input on the pending discovery motion and directed the 7 parties to further meet and confer in an effort to resolve or otherwise narrow the dispute. (Doc. 8 78.) 9 On May 16, 2022, the Court held a Status Conference to address the motion to the compel 10 and the parties’ meet and confer efforts. The parties reported that they were unable to narrow the 11 issues presented in the motion to compel. (Doc. 80.) 12 On May 27, 2022, Plaintiff filed a Notice of Supplemental Authorities in support of the 13 motion to compel. (Doc. 81.) 14 III. LEGAL STANDARD 15 Broad discretion is vested in the trial court to permit or deny discovery . . . .” Hallett v. 16 Morgan, 296 F.3d 732, 751 (9th Cir. 2002). Federal Rule of Civil Procedure 26 provides that 17 parties “may obtain discovery regarding any nonprivileged matter that is relevant to any party’s 18 claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). Information 19 within the scope of discovery need not be admissible in evidence to be discoverable. Id. 20 However, the Court must limit the extent of discovery if it determines that (1) the discovery 21 sought is unreasonably cumulative, duplicative or can be obtained from other source that is more 22 convenient, less burdensome, or less expensive, (2) the party seeking discovery has had ample 23 opportunity to obtain the information by discovery, or (3) the proposed discovery is outside the 24 permissible scope. Fed. R. Civ. P. 26(b)(2)(C)(i)-(iii). 25 Pursuant to Rule 33 of the Federal Rules of Civil Procedure, any party may serve upon 26 any other party written interrogatories within the scope of Rule 26(b). Fed. R. Civ. P. 33(a)(2). 27 Each interrogatory must, to the extent it is not objected to, be answered separately and fully in 28 writing under oath. Fed. R. Civ. P. 33(b)(3). The grounds for objecting to an interrogatory must 1 be stated with specificity. Fed. R. Civ. P. 33(b)(4). 2 A party may serve on any other party a request within the scope of Rule 26(b) to produce 3 and permit the requesting party or its representative to inspect, copy, test, or sample the following 4 items in the responding party’s possession, custody or control: any designated documents, 5 electronically stored information, or tangible things. Fed. R. Civ. P. 34(a)(1). “For each item or 6 category, the response must either state that inspection and related activities will be permitted as 7 requested or state with specificity the grounds for objecting to the request, including the reasons.” 8 Id. at 34(b)(2)(B). 9 IV. DISCUSSION 10 A. Disputed Interrogatories – Nos. 17, 19-21 11 Plaintiff’s disputed interrogatories seek contact information, the policy number and type, 12 and face amount for the policies of putative class members. Defendant objects to these 13 interrogatories on identical grounds. 14 Plaintiff’s Interrogatory No. 171 Please identify, by POLICY owner name, address, phone number, email address, 15 POLICY type (i.e. group versus individual), all CLASS MEMBERS, including beneficiaries for POLICIES where the insured has died. This information should 16
17 1 The relevant definitions are:
18 “CLASS MEMBER(S)” means all owners and beneficiaries of LIFE INSURANCE POLICIES that were lapsed or terminated due to non-payment of premium without first 19 being given all of the following to both the policy owner and all individuals designated by the policy owner to receive the following notices: (1) written notice of and an actual 20 60-day grace period, (2) a 30-day notice of pending lapse and termination, and (3) an annual notice of a right to designate at least one other person to receive notice of lapse or 21 termination of a policy for nonpayment of premium. 22 “LIFE INSURANCE POLICIES” “POLICY” and “POLICIES” mean any life insurance 23 policy or policies or certificate of insurance sold, issued, delivered, reinstated, renewed, administered in/from, and/or converted in California, and which were in-force at any 24 point on or after January 1, 2013. This definition includes policies for which YOU had a California address for the policy owner, or which YOU received premiums from an 25 address in California. To avoid doubt, this definition is meant to be construed in the broadest possible sense and includes, among others, all life insurance policies and 26 certificates of insurance, both individual and group, for which YOU were responsible at any point on or after January 1, 2013, even if you are not responsible for them today, 27 and/or if you may not have originally sold, issued, or delivered them.
28 (Doc. 76 at 3.) 1 be provided in electronic format and specifically, in .CSV, .XLS, or other formal fully accessible Microsoft Excel. 2 Defendant’s Response to Interrogatory No. 17 3 Responding Party objects to this Interrogatory on the grounds that the information sought is not within the scope of Federal Rule of Civil Procedure 26(b)(1) 4 because it is not relevant to any party’s claim or defense and is not proportional to the needs of the case. Responding Party further objects to this request on the 5 ground that it seeks the identity and confidential personal information of individuals who are not parties to this lawsuit who have a reasonable expectation 6 of privacy in their personal affairs. 7 Plaintiff’s Interrogatory No. 19 For each POLICY identified in response to Interrogatory No. 17, identify any 8 POLICIES, where YOU have notice or belief that the insured is deceased, including, but not limited to, any insureds identified in the Death Master File, and 9 the date on which the insured died.
10 Defendant’s Response to Interrogatory No. 19 Responding Party incorporates by reference its response to Interrogatory No. 17, 11 above.
12 Plaintiff’s Interrogatory No. 20 For each POLICY identified in response to Interrogatory No. 19, identify and 13 provide all contact information for the name beneficiary or beneficiaries under the POLICY, whether and when the POLICY owner previously requested 14 reinstatement of the POLICY, and whether and when a claim for benefits was made or rejected. 15 Defendant’s Response to Interrogatory No. 20 16 Responding Party incorporates by reference its response to Interrogatory No. 17, above. 17 Plaintiff’s Interrogatory No. 21 18 For each POLICY identified in response to Interrogatory No. 19, identify the total face amount of the benefits for those insurance POLICIES. 19 Defendant’s Response to Interrogatory No. 21 20 Responding Party incorporates by reference its response to Interrogatory No. 17, above. 21 22 (Doc. 76 at 3-4.) 23 Plaintiff argues that Defendant should be compelled to provide relevant information 24 regarding the putative class members’ policies, including contact information and the face 25 amounts of the policies. Plaintiff asserts that “the putative class members are witnesses who can 26 confirm or deny that they received the statutorily required notices” and “can also confirm or deny, 27 if necessary, the ‘causation’ (lack thereof) arguments Defendant argues are relevant.” (Doc. 76 at 28 5.) 1 Defendant asserts that Plaintiff improperly seeks the putative class member contact 2 information to identify additional class representatives, not to confirm or deny Defendant’s 3 arguments against class certification. (Doc. 76 at 8.) Defendant primarily argues that the 4 information sought is not relevant to class certification based on Defendant’s characterization of 5 Plaintiff’s theory of her case, i.e., that Defendant failed to strictly comply with the statutes, which 6 renders the lapse and termination of each policy within her purported class definition ineffective, 7 and thus all policies remain in force and subject payment of benefit. (Id. at 11.) Defendant 8 therefore contends that under this theory, Plaintiff does not need to know, prior to class 9 certification, the identities of the policyholders who fall within her purported class definition. 10 (Id.) 11 Courts in the Ninth Circuit, including in this district, routinely order pre-certification 12 production of contact information for putative class members. See, e.g., Artis v. Deere & Co., 13 276 F.R.D. 348, 352 (N.D. Cal. 2011) (finding that plaintiff is entitled to the contact information 14 of putative class members to substantiate class allegations and to meet the certification 15 requirements under Rule 23); Razo v. AT&T Mobility Servs., LLC, No. 1:20-cv-172-NONE-HBK, 16 2021 WL 5989753, at *4 (E.D. Cal. Dec. 17, 2021) (finding discovery of the putative class 17 members’ contact information routinely allowed); Barbosa v. Delta Packing Co. of Lodi, No. 18 2:20-cv-1096-TLN-KJN, 2021 WL 5087278, at *3 (E.D. Cal. Nov. 2, 2021) (permitting pre- 19 certification discovery of potential class member information); Pitt v. Metropolitan Tower Life 20 Ins. Co., 2021 WL 2453188, at *3 (S.D. Cal. June 16, 2021) (ordering pre-certification discovery 21 of putative class members’ names and contact information). 22 As Plaintiff points out, potential class members “are witnesses who can confirm or deny 23 that they received the statutorily required notices” and “can also confirm or deny, if necessary, the 24 ‘causation’ (lack thereof) arguments Defendant argues are relevant.” (Doc. 76 at 5); see Barbosa, 25 2021 WL 5087278, at *3 (“Under Rule 23, plaintiffs’ counsel must be permitted to explore 26 whether the alleged classes are viable, and also must be able to investigate plaintiffs’ own 27 allegations through the interview of percipient witnesses.”). Further, as Plaintiff notes, the 28 Northern and the Southern Districts, in similar cases, have compelled responses to nearly 1 identical interrogatories and have required the defendant to produce information even if it would 2 require a thorough review of the insurer’s records to comply. See Pitt, 2021 WL 2453188, at *3; 3 (Doc. 86 at Ex. A [Siino v. Foresters Life Ins. and Annuity Co., No. 20-cv-02904-JST (Northern 4 District)].) Although Defendant reports that Plaintiff’s counsel ultimately did not use any of the 5 class contact information produced in discovery in those cases, that it not the standard for 6 permissible discovery under Rule 26(b). Accordingly, the Court will order Defendant to produce 7 the requested class information. However, balancing the need for information with the privacy 8 interests of putative class members, the Court finds that such production shall be made pursuant 9 to the Stipulated Protective Order (Doc. 11). See Pitt, 2021 WL 2453188, at *3 (finding privacy 10 interests of putative class members’ names and contact information adequately protected under 11 existing protective order). 12 B. Disputed Requests for Production, Set One, Nos. 23-25
13 Request for Production No. 232 All DOCUMENTS evidencing any form of COMMUNICATIONS, notices, or 14 advisement between YOU and any current or past POLICY owners, beneficiaries, agents, assignees or others with interest concerning life insurance POLICIES 15 which were terminated between January 1, 2013, and August 30, 2021, concerning the application of the STATUTES, arising from the California 16 Supreme Court decision in McHugh v. Protective Life Ins. Co., 12 Cal.5th 213 (2021). 17 Response to No. 23 18 Responding Party objects to this Request on the grounds that it seeks information irrelevant and not proportional to the needs of the case because Responding 19 Party’s compliance activities in response to the California Supreme Court’s decision in McHugh v. Protective Life Ins. Co., 12 Cal. 5th 213 (2021) has no 20 bearing on any claim or defense. Responding Party further objects to this request on the grounds that it encompasses documents protected from disclosure by the 21 22 2 The relevant definition is as follows:
23 “DOCUMENT” and “DOCUMENTS” refer to all writings including, without limitation, all media on which information is stored or recorded including, but not limited to, 24 writings, deeds, drawings, graphs, charts, maps, studies, photographs, phone records, memoranda, insurance policy, certificates of insurance, endorsements, manuals, claims 25 file entries, log books, ledgers, handwritten notes, interoffice memoranda, papers, books, accounts, letters, computerized records, electronically stored images, e-mails, electronic 26 mail entries, electronic diary entries, computer-generated or stored writings and other data compilations from which information can be obtained, translated, if necessary, by 27 the respondent through detection devices into reasonably usable form.
28 (Doc. 76 at 14.) 1 attorney-client privilege and work product doctrine in that it seeks all documents “evidencing” any communications, notices, etc. between Protective and a host of 2 third parties.
3 Request for Production No. 24 All DOCUMENTS evidencing any form of written notice utilized by YOU at any 4 time between August 30, 2021, and the present to advise any of YOUR agents, employees, contractors, subsidiaries, officers and/or directors of the holding of the 5 California Supreme Court decision in McHugh v. Protective Life Ins. Co., 12 Cal. 5th 213 (2021). 6 Response to No. 24 7 Responding Party objects to this Request on the grounds that it seeks information irrelevant and not proportional to the needs of the case because Responding 8 Party’s compliance activities in response to the California Supreme Court’s decision in McHugh v. Protective Life Ins. Co., 12 Cal. 5th 213 (2021) has no 9 bearing on any claim or defense. Responding Party further objects to the Request because it seeks information beyond the scope allowed by the Court’s Scheduling 10 Order. Responding Party also objects to this Request on the grounds that, even if the requested information was relevant and within the scope of discovery allowed 11 by the Court’s Scheduling Order, the Request encompasses documents protected from disclosure by the attorney-client privilege and work product doctrine in that 12 it seeks documents “evidencing” other documents.
13 Request for Production No. 25 All DOCUMENTS reflecting any form of written notice of any kind provided to 14 any reinsurer of any life insurance product potentially affected by the California Supreme Court decision in McHugh v. Protective Life Ins. Co., 12 Cal. 5th 213 15 (2021).
16 Response to No. 25 Responding Party objects to this Request on the grounds that it seeks information 17 that is irrelevant and not proportional to the needs of the case because Responding Party’s compliance activities in response to the California Supreme Court’s 18 decision in McHugh v. Protective Life Ins. Co., 12 Cal. 5th 213 (2021) has no bearing on any such claim or defense. Responding Party further objects to the 19 Request because it seeks information beyond the scope allowed by the Court’s Scheduling Order and beyond the scope allowed by Fed. R Civ. P. 26. 20 Responding Party also objects to this Request on the grounds that, even if the requested information was relevant and within the scope of discovery allowed by 21 the Court’s Scheduling Order, the Request encompasses documents protected from disclosure by the attorney-client privilege, work product doctrine, and the 22 common interest doctrine. 23 (Doc. 76 at 14-15.) 24 Plaintiff contends that Defendant’s post-McHugh compliance is relevant because “in 25 order for Defendant to prevail on defenses suggesting compliance with the Statutes, it would 26 have to show when it actually started applying the Statutes to policies issued prior to January 1, 27 2013.” (Id. at 15.) In short, Plaintiff argues that she is entitled to know whether Defendant has 28 corrected its treatment of the class policies and the documentary evidence showing alleged 1 compliance. (Id. at 16.) Plaintiff avers that Defendant has been unequivocal that the statutes do 2 not apply to pe-2013 policies. Additionally, Plaintiff asserts that this information “is also 3 relevant to Defendant’s potential liability whether it has made any claims or statements required 4 to be made in its reinsurance contracts of the impact of McHugh….” (Id..) 5 Defendant counters that Plaintiff is not entitled to the information because she lacks 6 Article III standing to pursue injunctive relief. In its pending motion for judgment on the 7 pleadings, Defendant reportedly asserts that Plaintiff lacks standing to seek injunctive relief 8 because she claims Defendant improperly terminated the subject policy in 2018, shortly before 9 her husband died, and there is no threat of Defendant improperly terminating her policy in the 10 future. (Id.) 11 Setting aside the issue of standing, Defendant also argues that the requested information 12 is “untethered to any claim or defense.” (Id. at 17.) Defendant faults Plaintiff for failing to 13 explain how the information—written notice of the McHugh decision to employees or 14 reinsurers—has any bearing or relationship to Defendant’s potential liability or putative class 15 members. To the extent Plaintiff suggests that she seeks the information to confirm when 16 Defendant began complying with the statutes, Defendant asserts that such requests are 17 duplicative of interrogatories to which it has already provided responses. 18 The Court finds the information requested is not proportional to the needs of this case. 19 At issue for certification is a putative class for which it is claimed that Defendant failed to 20 provide “written notice of and an actual 60-day grace period, a 30-day notice of pending lapse 21 and termination, and/or an annual notice of a right to designate at least one other person to 22 receive notice of lapse or termination of a policy for nonpayment of premium.” (Doc. 1, Compl. 23 ¶ 29.) Thus, at its most basic level, the claims and defenses in this action are related to when and 24 whether Defendant provided statutory notices.3 Defendant’s communications following the 25 McHugh decision, beyond any statutory notices, are not relevant to a claim or defense and not 26 proportional to the needs of this case at the pre-certification stage. This is particularly true for 27 3 Defendant avers that it has already responded to Plaintiff’s interrogatories seeking to confirm 28 when Defendant began complying with the statutes. (Doc. 76 at 17.) 1 communications concerning the holding in McHugh (No. 24) with employees and 2 communications to any reinsurers. 3 C. Disputed Requests for Production, Nos. 29, 30, 314
4 Request for Production No. 295 All DOCUMENTS evidencing any reserve amounts for the LIFE INSURANCE 5 POLICIES YOU terminated between January 1, 2013, and the date of the filing of this action for failure to pay premiums due and where the POLICY owner was not 6 first provided all of the following: a 60-day grace period both in effect and in the written POLICY documents, a 30-day notice to both the POLICY owner and any 7 designee, and annual notice of the right to designate a third party to receive a 30- day notice. 8 Response to No. 29 9 Responding Party objects to this Request on the grounds that it seeks information irrelevant to the claims and defenses in this case and not proportional to the needs 10 of the case in that reserve amounts have no bearing on any claim or defense. California Insurance Code Section 10111 provides that “in life . . . insurance, the 11 only measure of liability and damage is the sum or sums payable in the manner and at the times as provided in the policy to the person entitled thereto.” 12 Responding Party further objects to the Request because it seeks information beyond the scope allowed by the Court’s Scheduling Order. Responding Party 13 also objects this Request to the extent it seeks information protected from disclosure by the attorney-client privilege or the attorney work product doctrine in 14 that the Request seeks all documents “evidencing” reserve amounts.
15 Request for Production No. 306
16 4 Plaintiff does not address Request No. 32 in the Joint Statement. 17 5 The following definitions apply: 18 “LIFE INSURANCE POLICY,” “LIFE INSURANCE POLICIES,” “POLICY,” and 19 "POLICIES" mean any life insurance policy or policies or certificate of insurance sold, issued, delivered, reinstated, renewed, administered in/from, and/or converted in 20 California, and which were in force at any point on or after January 1, 2013. This definition includes POLICIES for which YOU had a California address for the 21 POLICY owner, or for which YOU received premiums from an address in California. To avoid doubt, this definition is meant to be construed in the broadest possible sense 22 and includes, among others, all life insurance and certificates of insurance, both individual and group, YOU were responsible for at any point on or after January 1, 23 2013, even if YOU are not responsible for them today, and/or if YOU may not have originally sold, issued, or delivered them. 24 (Doc. 76 at 18.) 25 6 The following definition applies: 26 “MANUALS, PROTOCOLS, AND GUIDELINES” means anything intended in whole 27 or in part to provide education or instructional information to employees that is in written form or stored electronically that provides a written or visual description or instruction of 28 YOUR policies or procedures regarding the sale, maintenance, or administration of life 1 All MANUALS, PROTOCOLS AND GUIDELINES relating to the methodology or formula used by YOU to determine the amount of reserves held by YOU for 2 LIFE INSURANCE POLICIES.
3 Response to No. 30 Responding Party objects to this Request on the grounds that it seeks information 4 irrelevant to the claims and defenses in this case and not proportional to the needs of the case in that Protective’s actuarial reserving has no bearing on whether and 5 how the Statutes apply to policies issued prior to January 1, 2013 or whether Protective breached any contract with Plaintiff or the putative class, or whether 6 Plaintiff or the putative class has suffered damages. California Insurance Code Section 10111 provides that “in life . . . insurance, the only measure of liability 7 and damage is the sum or sums payable in the manner and at the times as provided in the policy to the person entitled thereto.” Responding Party further 8 objects to this Request on the grounds that it seeks confidential and proprietary information. Responding Party also objects to this Request on the grounds that is 9 not reasonably limited in scope as it encompasses information related to policies that are not the subject of any claim or defense. Responding Party also objects this 10 Request to the extent it seeks information protected from disclosure by the attorney-client privilege or the attorney work product doctrine in that the Request 11 seeks all documents “relating” to Protective’s methodology used to determine reserves. 12 Request for Production No. 31 13 All MANUALS, PROTOCOLS AND GUIDELINES relating to the methodology or formula used by YOU to determine when reserves are released as a result of 14 the lapse or termination of LIFE INSURANCE POLICIES.
15 Response to No. 31 Responding Party objects to this Request on the grounds that it seeks information 16 irrelevant to the claims and defenses in this case and not proportional to the needs of the case in that Protective’s methodology or formula used to calculate reserves 17 has no bearing on whether and how the Statutes apply to policies issued prior to January 1, 2013 or whether Protective breached any contract with Plaintiff or the 18 putative class, or whether Plaintiff or the putative class has suffered damages. California Insurance Code Section 10111 provides that “in life . . . insurance, the 19 only measure of liability and damage is the sum or sums payable in the manner and at the times as provided in the policy to the person entitled thereto.” 20 Responding Party further objects to this Request on the grounds that it seeks confidential and proprietary information. Responding Party also objects to this 21 Request on the grounds that is not reasonably limited in scope as it encompasses information related to policies that are not the subject of any claim or defense. 22 Responding Party also objects this Request to the extent it seeks information protected from disclosure by the attorney-client privilege or the attorney work 23 product doctrine in that the Request seeks all documents “relating” to Protective’s methodology used to determine reserves. 24 (Doc. 76 at 18-20.) 25 26 insurance products. This is intended to include all materials required by the California 27 Insurance Code and Regulations.
28 (Doc. 76 at 19.) 1 Plaintiff asserts that the information sought relates to potential damages and focuses on 2 mandatory reserve amounts of policies Defendant terminated without first complying with the 3 statutory notice provisions. Plaintiff suggests that the reserve amounts may serve as a basis for 4 damages for class members still living. (Id. at 20.) 5 Defendant counters that these requests seek information that have no bearing on class 6 certification issues or Plaintiff’s individual claims. To the extent Plaintiff is asserting that reserve 7 amounts can serve as a proper basis for calculating alleged damages of class member who are still 8 living, Defendant notes that such an argument has been rejected in Siino v. Foresters Life Ins. & 9 Annuity Co., 340 F.R.D. 157 (N.D. Cal. 2022). 10 The Court finds that the insurance reserve information sought by Plaintiff at the pre- 11 certification is not proportional to the needs of the case. California law provides that “in life ... 12 insurance, the only measure of liability and damage is the sum or sums payable in the manner and 13 at the times as provided in the policy to the person entitled thereto.” Cal. Ins. Code § 10111. As 14 in Siino, Plaintiff fails to explain how using reserve values to measure damages aligns with 15 California law. 240 F.R.D. at 166 (“California law limits breach damages to the monetary 16 benefits each policy guarantees – often, that will be limited to the death benefit.”). The Court 17 does not find persuasive the case primarily relied upon by Plaintiff, Caminetti v. Pacific Mut. Life 18 Ins., 23 Cal.2d 94, 102, 142 P.2d 741 (1943). That case dealt with damages following an 19 insurance provider’s insolvency. Here, valuing damages is not dependent upon the reserves as 20 Defendant is not in insolvency. 21 V. Conclusion and Order 22 For the reasons stated, IT IS HEREBY ORDERED as follows: 23 1. Plaintiff’s motion to compel is granted in part and denied in part; 24 2. Plaintiff’s motion to compel further responses to Interrogatories Nos. 17, 19-21 is 25 GRANTED; 26 3. Within thirty (30) days, Defendant is ordered to produce the requested class 27 information in response to Interrogatories Nos. 17, 19-21, as CONFIDENTIAL 28 pursuant to the Stipulated Protective Order (Doc. 11). 1 4. Plaintiff’s motion to compel further responses to Requests for Production, Set One, 2 Nos. 23-25, is DENIED; and 3 5. Plaintiff’s motion to compel further responses to Requests for Production, Set One 4 Nos. 29-32, is DENIED. 5 IT IS SO ORDERED. 6
7 Dated: June 23, 2022 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 8
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