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4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE
9 10 ALLSTATE INDEMNITY CASE NO. C20-1508JLR COMPANY, 11 ORDER DENYING PLAINTIFF’S Plaintiff, MOTION FOR 12 v. RECONSIDERATION
13 RANDY LINDQUIST, et al., 14 Defendants. 15 I. INTRODUCTION 16 Before the court is Plaintiff Allstate Indemnity Company’s (“Allstate”) motion for 17 reconsideration of the court’s January 31, 2022 order (1/31/222 Order (Dkt. # 128)). 18 (Reconsideration Mot. (Dkt. # 129).) Having considered the motion, the relevant 19 portions of the record, and the applicable law, the court DENIES Allstate’s motion.1 The 20
21 1 Allstate does not request oral argument (Reconsideration Mot. at 1), and the court concludes that oral argument would not be helpful to its disposition of this motion, see Local 22 Rules W.D. Wash. LCR 7(b)(4). 1 court additionally corrects a clerical error in its January 31, 2022 order sua sponte 2 pursuant to Federal Rule of Civil Procedure 60(a). See infra at 7. 3 II. ANALYSIS
4 Allstate asks the court to reconsider its January 31, 2022 order compelling Allstate 5 to produce certain claim file notations to Defendant Randy Lindquist, which Allstate 6 contends erroneously concluded “that Allstate’s litigation analysis and strategy related to 7 evaluation and damages after the filing of the instant declaratory relief action[] is not 8 privileged or protected, and is in fact discoverable.” (Reconsideration Mot. at 2.)
9 Allstate additionally requests, in the alternative, that the court certify an interlocutory 10 appeal of its January 31, 2022 order so that Allstate may seek review of the court’s 11 discovery rulings before the Ninth Circuit. (Id. at 4.) The court first considers Allstate’s 12 motion for reconsideration before turning to address its request for certification of an 13 interlocutory appeal.
14 A. Allstate’s Motion for Reconsideration 15 Motions for reconsideration are disfavored, and the court will ordinarily deny such 16 motions unless the moving party shows (a) manifest error in the prior ruling, or (b) new 17 facts or legal authority which could not have been brought to the attention of the court 18 earlier and through reasonable diligence. Local Rules W.D. Wash. LCR 7(h)(1).
19 Allstate presents no new facts or legal authority in its reconsideration motion that 20 could not have been brought to the court’s attention earlier with reasonable diligence. 21 (See generally Reconsideration Mot.) Indeed, Allstate asks the court to reconsider its 22 prior ruling based on the same arguments it has advanced throughout this discovery 1 dispute including, primarily, its overarching contention “that the commencement of the 2 filing of the declaratory complaint on 10/13/20[] constitutes the privileged date, and that 3 anything created thereafter was prepared in anticipation of litigation.” (Id. at 3.) The
4 court has previously rejected that argument. (See 11/1/21 Order (Dkt. # 107) at 7-10; 5 8/16/21 Order (Dkt. # 73) at 11.) 6 Allstate’s assertion that the court’s January 31, 2022 order “is directly contrary” to 7 Schreib v. American Family Mutual Insurance Company also provides no basis for 8 reconsideration. (See Reconsideration Mot. at 2 (citing Schreib v. Am. Fam. Mut. Ins.
9 Co., 304 F.R.D. 282, 286 (W.D. Wash. 2014)).) In Schreib, the court concluded that loss 10 reserve documents created after the insurer had received an Insurance Fair Conduct Act 11 (“IFCA”) notice from the insured “reflect[ed] evaluations of the potentially impending 12 litigation,” and therefore did not need to be produced in discovery. See Schreib, 304 13 F.R.D. at 286. It did so, however, only after the insurer demonstrated that the documents
14 “included a ‘calculation of risk predicated upon the claim being placed into suit.’” 15 Schreib, 304 F.R.D. at 286 (expressly stating that the insurer’s receipt of the IFCA notice 16 “does not end the inquiry” because loss reserves are also prepared in the ordinary course 17 of business). 18 Allstate has never made a comparable attempt to, for example, distinguish
19 investigative efforts it undertook to support its litigation from those it had to take as part 20 of its coverage assessment. (See, e.g., Resp. (Dkt. # 97) at 9 (relying on broad assertions 21 that all documents created after the lawsuit was filed are not “in the same or similar 22 form” as they would be if litigation had not commenced); see also Reconsideration Mot. 1 at 4.) To the contrary, and notwithstanding Allstate’s boilerplate assertions of protection, 2 the court found after reviewing the claim file notations in camera that the 3 investigation-related entries likely would have “been created in substantially similar
4 form” in the absence of litigation and are, therefore, not protected work product. See 5 Gamble v. State Farm Mutual Auto. Ins. Co., No. C19-5956RJB, 2020 WL 4193217, at 6 *3 (W.D. Wash. July 20, 2020); (1/31/22 Order at 3). 7 If Allstate believes there are important subtleties in the claim file notations that the 8 court has failed to appreciate, it has missed its opportunity to explain their significance.
9 From its privilege log to its current motion, Allstate has consistently relied on a broad 10 claim of absolute protection based on the date it filed its complaint.2 (See 11/1/21 Order 11 at 12; see also O’Neill Decl. (Dkt. # 98) ¶ 6, Ex. D at 14 (explaining in its privilege log 12 that Allstate 000591-634 were withheld as “[c]laims materials dated post the filing of the 13 instant lawsuit”); Reconsideration Mot. at 2.) It has done so despite the court’s warning
14 that “when the documents were created is not necessarily the operative question to 15 determine whether they are protected.” (8/16/21 Order at 11.) The result is that the court 16 has been left largely to its own devices to discern the significance, or lack thereof, of each 17 claim file notation. (See 1/31/22 Order at 4 (lamenting that Allstate “declined to offer 18 any document-specific context or arguments that might have informed the court’s in
19 camera review”).) 20 //
21 2 Previously, Allstate urged the court to accept the date Mr. Lindquist retained counsel as the date its claim file notations became absolutely protected from discovery. (See 8/16/21 Order 22 at 11.) 1 Additionally, the court is unpersuaded by Allstate’s assertion that the January 31, 2 2022 order will allow Mr. Lindquist to continue supplementing his discovery requests 3 “up through trial.” (Reconsideration Mot. at 2.) The January 31, 2022 order is narrow
4 and applies solely to the disputed claim file entries submitted for the court’s in camera 5 review. (See 1/31/22 Order at 1, 6-7.) It does nothing to disturb the scheduling order in 6 this matter, which requires discovery to be completed by April 18, 2022. (See Sched. 7 Order (Dkt. # 30).) The court expects the parties to comply with that deadline, which— 8 absent good cause—will not be extended. See Local Rules W.D. Wash. 16(b). “Mere
9 failure to complete discovery within the time allowed [will] not constitute good cause for 10 an extension or continuance.” Id. 11 Accordingly, Allstate’s motion for reconsideration is DENIED. 12 B. Certification for Interlocutory Appeal 13 In the alternative, Allstate asks the court to certify an interlocutory appeal of the
14 January 31, 2022 order. (Reconsideration Mot. at 4.) Under 28 U.S.C. § 1292
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4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE
9 10 ALLSTATE INDEMNITY CASE NO. C20-1508JLR COMPANY, 11 ORDER DENYING PLAINTIFF’S Plaintiff, MOTION FOR 12 v. RECONSIDERATION
13 RANDY LINDQUIST, et al., 14 Defendants. 15 I. INTRODUCTION 16 Before the court is Plaintiff Allstate Indemnity Company’s (“Allstate”) motion for 17 reconsideration of the court’s January 31, 2022 order (1/31/222 Order (Dkt. # 128)). 18 (Reconsideration Mot. (Dkt. # 129).) Having considered the motion, the relevant 19 portions of the record, and the applicable law, the court DENIES Allstate’s motion.1 The 20
21 1 Allstate does not request oral argument (Reconsideration Mot. at 1), and the court concludes that oral argument would not be helpful to its disposition of this motion, see Local 22 Rules W.D. Wash. LCR 7(b)(4). 1 court additionally corrects a clerical error in its January 31, 2022 order sua sponte 2 pursuant to Federal Rule of Civil Procedure 60(a). See infra at 7. 3 II. ANALYSIS
4 Allstate asks the court to reconsider its January 31, 2022 order compelling Allstate 5 to produce certain claim file notations to Defendant Randy Lindquist, which Allstate 6 contends erroneously concluded “that Allstate’s litigation analysis and strategy related to 7 evaluation and damages after the filing of the instant declaratory relief action[] is not 8 privileged or protected, and is in fact discoverable.” (Reconsideration Mot. at 2.)
9 Allstate additionally requests, in the alternative, that the court certify an interlocutory 10 appeal of its January 31, 2022 order so that Allstate may seek review of the court’s 11 discovery rulings before the Ninth Circuit. (Id. at 4.) The court first considers Allstate’s 12 motion for reconsideration before turning to address its request for certification of an 13 interlocutory appeal.
14 A. Allstate’s Motion for Reconsideration 15 Motions for reconsideration are disfavored, and the court will ordinarily deny such 16 motions unless the moving party shows (a) manifest error in the prior ruling, or (b) new 17 facts or legal authority which could not have been brought to the attention of the court 18 earlier and through reasonable diligence. Local Rules W.D. Wash. LCR 7(h)(1).
19 Allstate presents no new facts or legal authority in its reconsideration motion that 20 could not have been brought to the court’s attention earlier with reasonable diligence. 21 (See generally Reconsideration Mot.) Indeed, Allstate asks the court to reconsider its 22 prior ruling based on the same arguments it has advanced throughout this discovery 1 dispute including, primarily, its overarching contention “that the commencement of the 2 filing of the declaratory complaint on 10/13/20[] constitutes the privileged date, and that 3 anything created thereafter was prepared in anticipation of litigation.” (Id. at 3.) The
4 court has previously rejected that argument. (See 11/1/21 Order (Dkt. # 107) at 7-10; 5 8/16/21 Order (Dkt. # 73) at 11.) 6 Allstate’s assertion that the court’s January 31, 2022 order “is directly contrary” to 7 Schreib v. American Family Mutual Insurance Company also provides no basis for 8 reconsideration. (See Reconsideration Mot. at 2 (citing Schreib v. Am. Fam. Mut. Ins.
9 Co., 304 F.R.D. 282, 286 (W.D. Wash. 2014)).) In Schreib, the court concluded that loss 10 reserve documents created after the insurer had received an Insurance Fair Conduct Act 11 (“IFCA”) notice from the insured “reflect[ed] evaluations of the potentially impending 12 litigation,” and therefore did not need to be produced in discovery. See Schreib, 304 13 F.R.D. at 286. It did so, however, only after the insurer demonstrated that the documents
14 “included a ‘calculation of risk predicated upon the claim being placed into suit.’” 15 Schreib, 304 F.R.D. at 286 (expressly stating that the insurer’s receipt of the IFCA notice 16 “does not end the inquiry” because loss reserves are also prepared in the ordinary course 17 of business). 18 Allstate has never made a comparable attempt to, for example, distinguish
19 investigative efforts it undertook to support its litigation from those it had to take as part 20 of its coverage assessment. (See, e.g., Resp. (Dkt. # 97) at 9 (relying on broad assertions 21 that all documents created after the lawsuit was filed are not “in the same or similar 22 form” as they would be if litigation had not commenced); see also Reconsideration Mot. 1 at 4.) To the contrary, and notwithstanding Allstate’s boilerplate assertions of protection, 2 the court found after reviewing the claim file notations in camera that the 3 investigation-related entries likely would have “been created in substantially similar
4 form” in the absence of litigation and are, therefore, not protected work product. See 5 Gamble v. State Farm Mutual Auto. Ins. Co., No. C19-5956RJB, 2020 WL 4193217, at 6 *3 (W.D. Wash. July 20, 2020); (1/31/22 Order at 3). 7 If Allstate believes there are important subtleties in the claim file notations that the 8 court has failed to appreciate, it has missed its opportunity to explain their significance.
9 From its privilege log to its current motion, Allstate has consistently relied on a broad 10 claim of absolute protection based on the date it filed its complaint.2 (See 11/1/21 Order 11 at 12; see also O’Neill Decl. (Dkt. # 98) ¶ 6, Ex. D at 14 (explaining in its privilege log 12 that Allstate 000591-634 were withheld as “[c]laims materials dated post the filing of the 13 instant lawsuit”); Reconsideration Mot. at 2.) It has done so despite the court’s warning
14 that “when the documents were created is not necessarily the operative question to 15 determine whether they are protected.” (8/16/21 Order at 11.) The result is that the court 16 has been left largely to its own devices to discern the significance, or lack thereof, of each 17 claim file notation. (See 1/31/22 Order at 4 (lamenting that Allstate “declined to offer 18 any document-specific context or arguments that might have informed the court’s in
19 camera review”).) 20 //
21 2 Previously, Allstate urged the court to accept the date Mr. Lindquist retained counsel as the date its claim file notations became absolutely protected from discovery. (See 8/16/21 Order 22 at 11.) 1 Additionally, the court is unpersuaded by Allstate’s assertion that the January 31, 2 2022 order will allow Mr. Lindquist to continue supplementing his discovery requests 3 “up through trial.” (Reconsideration Mot. at 2.) The January 31, 2022 order is narrow
4 and applies solely to the disputed claim file entries submitted for the court’s in camera 5 review. (See 1/31/22 Order at 1, 6-7.) It does nothing to disturb the scheduling order in 6 this matter, which requires discovery to be completed by April 18, 2022. (See Sched. 7 Order (Dkt. # 30).) The court expects the parties to comply with that deadline, which— 8 absent good cause—will not be extended. See Local Rules W.D. Wash. 16(b). “Mere
9 failure to complete discovery within the time allowed [will] not constitute good cause for 10 an extension or continuance.” Id. 11 Accordingly, Allstate’s motion for reconsideration is DENIED. 12 B. Certification for Interlocutory Appeal 13 In the alternative, Allstate asks the court to certify an interlocutory appeal of the
14 January 31, 2022 order. (Reconsideration Mot. at 4.) Under 28 U.S.C. § 1292(b), a 15 district court may certify for appeal “an order not otherwise appealable” in a civil action 16 where it finds “that such order involves a controlling question of law as to which there is 17 substantial ground for difference of opinion and that an immediate appeal from the order 18 may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b).
19 Interlocutory appeals are to be certified “only in exceptional situations” where 20 certification will help “avoid protracted and expensive litigation.” In re Cement Antitrust 21 Litig. (MDL No. 296), 673 F.2d 1020, 1026 (9th Cir. 1982); Trident Seafoods Corp. v. 22 // 1 Commonwealth Ins. Co., No. C10-0214RAJ, 2012 WL 13028551, at *2 (W.D. Wash. 2 Mar. 23, 2012). 3 Allstate does not identify the discrete question of law it wishes to appeal but rather
4 seeks review of the court’s application of well-established discovery standards to the 5 documents it reviewed in camera. (See Reconsideration Mot. at 4; see also id. at 1 6 (characterizing the court’s holding).) Regardless of whether the court’s January 31, 2022 7 order “could materially affect the outcome of litigation,” In re Cement Antitrust Litig., 8 673 F.2d at 1026, that order represents “an application of law to a particular set of facts”
9 and thus does not qualify for interlocutory appeal under 28 U.S.C. § 1292(b), which 10 requires “a pure question of law,” Bluetooth SIG, Inc. v. FCA US LLC, No. C18- 11 1493RAJ, 2021 WL 1922975, at *1 (W.D. Wash. May 13, 2021); Drummond Co., Inc. v. 12 Conrad & Scherer, LLP, 885 F.3d 1324, 1336 (11th Cir. 2018); Ahrenholz v. Bd. of 13 Trustees of Univ. of Ill., 219 F.3d 674, 677 (7th Cir. 2000). Moreover, certifying an
14 appeal of that issue would likely increase—not avoid—the extent and expense of this 15 litigation. See In re Cement Antitrust Litig., 673 F.2d at 1026. 16 Accordingly, Allstate’s request for certification of an interlocutory appeal under 17 28 U.S.C. § 1292(b) is DENIED. 18 III. CONCLUSION
19 For the reasons given above, the court DENIES Allstate’s motion for 20 reconsideration and DENIES its request for certification of an interlocutory appeal (Dkt. 21 # 129). 22 // 1 Additionally, the court corrects a clerical error in its January 31, 2022 order (Dkt. 2 # 128) sua sponte pursuant to Federal Rule of Civil Procedure 60(a). On page 6, line 17 3 the court indicated that Allstate should produce all entries dated 11/16/20. (1/31/22
4 Order at 6.) This was a clerical error. In keeping with the court’s reasoning in that order 5 (id. at 5), the court intended to instruct Allstate to produce the 11/16/20 entries at 4:01pm, 6 6:20pm, and 6:21pm on Allstate 000612-613. The court did not intend to instruct 7 Allstate to produce the 11/16/20 entry at 3:53pm on Allstate 000612. The court will issue 8 an amended order remedying this error.
9 Dated this 9th day of February, 2022. 10 A
11 JAMES L. ROBART 12 United States District Judge 13 14 15 16 17 18 19 20 21 22