in Re Denbury Resources, Inc. and Denbury Onshore, LLC
This text of in Re Denbury Resources, Inc. and Denbury Onshore, LLC (in Re Denbury Resources, Inc. and Denbury Onshore, LLC) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
ACCEPTED 14-15-00991-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 11/25/2015 5:20:55 PM CHRISTOPHER PRINE CLERK
FILED IN 14th COURT OF APPEALS ______________________________________________________________________________ HOUSTON, TEXAS 11/25/2015 5:20:55 PM IN THE FOURTEENTH COURT OF APPEALS CHRISTOPHER A. PRINE ______________________________________________________________________________ Clerk
In re: Denbury Resources Inc. and Denbury Onshore, LLC ______________________________________________________________________________
PETITION FOR WRIT OF MANDAMUS ______________________________________________________________________________
On Petition for a Writ of Mandamus from the 157th Judicial District Court For the County of Harris, Texas Honorable Randy Wilson, Presiding Case No. 15-CV-9546
______________________________________________________________________________
Respectfully Submitted by:
CARVER, DARDEN, KORETZKY, TESSIER, FINN, BLOSSMAN & AREAUX, LLC Philip D. Nizialek (Texas Bar No. 15045250) Sarah E. Stogner (Texas Bar No. 24091139) Jacqueline M. Brettner (pending pro hac vice) 1100 Poydras Street, Ste. 3100 New Orleans, Louisiana 70163 Telephone: (504) 585-3800 Facsimile: (504) 585-3801
Attorneys for Relators, DENBURY RESOURCE INC. AND DENBURY ONSHORE, LLC
TRIAL COURT RECORD – VOLUME 2 9/29/20154:02:38 PM Chris Daniel - District Clerk Harris County Envelope No. 7152558 By: LISA COOPER Filed: 9/29/2015 4:02:38 PM
CAUSE NO. 2015 09546 m
DENBURY RESOURCES INC. and IN THE DISTRICT COURT DENBURY ONSHORE, LLC
Plaintiffs, HARRIS COUNTY, TEXAS v.
IRONSHORE SPECIALTY INSURANCE COMPANY, ALTERRA EXCESS & 157TH JUDICIAL DISTRICT SURPLUS INSURANCE COMPANY, AXIS SURPLUS INSURANCE COMPANY, AND MARSH USA INC.
Defendants
DENBURY'S CONSOLIDATED RESPONSE TO IRONSHORE'S MOTIONS FOR PROTECTIVE ORDERS
Ironshore requests entry of protective orders. 1 If granted, Denbury will be prevented from
obtaining information relevant to its allegations and Ironshore's defenses in this case. Texas law
prohibits this? Further, Ironshore has the burden of proving its objections and asserted
privileges. Ironshore cites no law, provides no facts, and attaches only self-serving, conclusory
affidavits. 3 Its motions should be denied.
Additionally, and as fully articulated m Denbury's Motion to Compel, Ironshore's
1 Ironshore filed two separate Motions for Protective Order. One for the Ironshore corporate notice and one for the FARA corporate notice. Denbury files this combined response for purposes of judicial efficiency. FARA is the third-party claims administrator for lronshore and under lronshore's control for all purposes IDlder applicable Texas rules. 2 See Tex. R. Civ. P. 192.3(a); see also Ford Motor Co. v. Castillo, 279 S.W.3d 656, 664 (Tex. 2009) ("The phrase 'relevant to the subject matter' is to be 'liberally construed to allow the litigants to obtain the fullest knowledge of the facts and issues prior to trial."') (internal citations omitted). 3 Denbury had requested Ironshore provided it with a Rille 193.3(b) compliant privilege log for its discovery responses since, at least, August 5, 2015. Ironshore refused to do so for over 45 days. Now, in response to Denbury's motion to compel, lronshore has produced the third iteration of its privilege log, an "Amended Privilege Log," dated September 25,2015, attached hereto as Exhibit T.
1 objections and asserted privileges are unfounded. 4 This is an insurance coverage lawsuit between
Denbury and its excess insurers. The crux of this coverage dispute is whether the parties intended
to cover damages to third-party property that Denbury leases in its oil and gas operations.
Denbury's position is that it does. The Umbrella policy's blended pollution endorsement was
specifically added to provide this coverage. 5 AGUe's $25 million payment suggests Denbury's
interpretation reflects the parties' actual intent when the policies issued. Ironshore's position is
that its follow-form policy excludes this coverage. 6
Relevant to this discovery dispute, Denbury seeks a declaratory judgment that the
Ironshore Policy provides coverage. Denbury requests damages for lronshore's breach of
contract, bad faith, and unfair trade practices. Denbury also alleges that certain terms and
conditions of Denbury's policies are ambiguous and/or provide illusory coverage. Denbury's
deposition notices seek basic information relevant to these allegations. 7 While Denbury's notices
are exhaustive, 8 the number of topics is driven entirely by Ironshore's refusal to provide
4 . See Tex. R. Civ. P. 192.6(a) and 215.1; see also Pace v. Jordan, 999 S.W.2d 615,622 (Tex. App.-Houston [1st Dist.] 1999, pet. denied) (if a party moves for protective order, the party seeking the discovery should file a motion to compel). 5 See Blended Pollution Endorsement, attached as Exhibit 5 to Denbmy's Second Supp. and Am. Pet. 6 See Ironshore letter denying coverage, dated June 16,2015, attached to Denbury's Mot. to Compel, as Exhibit M. 7 See 'l1:li.87-88 (declaratory judgment of coverage), 89-94 (breach of contract), 105-113 (bad faith), Denbmy's 2nd Supp. Am. Pet., filed of record June 9, 2015. Denbmy also alleges that lronshore's marketing of the policy to oil and gas operators (and then denial because portions of the damaged property are subject to mineral leases) constitutes an unfair trade practice. Id. at CJI'lJ.98-1 04. Texas courts have allowed discovery of extrinsic materials in the interpretation of a breach of contract claim. See, e.g., Ford Motor Co. v. Castillo, 279 S.W.3d at 663 (Tex. 2009) (internal citations omitted) ("Like any other breach of contract claim, a claim for breach of settlement agreement is subject to established procedures ofpleading and proof. .. "it cannot be determined without "full resolution of the surrounding facts and circumstances."); see also id. at 664 (" ... a party is not required to demonstrate the viability of defenses before it is entitled to conduct discovery."). Here too, the allegations of Denbmy's well-pled claims are sufficient to trigger the discoverability of materials and testimony responsive to Denbury's tailored requests. 8 See Denbmy's Notice of Corporate Dep. to lronshore, attached hereto as Exhibit P; see also Denbmy's Notice of Corporate Dep. to FARA, attached hereto as Exhibit Q. Unless otherwise noted, Denbmy's reference or citation to "Exhibits A-0" herein refer to the exhibits attached to Denbmy' s Mot. to Compel, flled of record on September 22, 2015. Denbury attaches an Appendix detailing all Exhibits to its Motion to Compel and this Response for the Court's ease of reference. See attached Exhibit V.
2 meaningful responses to discovery.9
Ironshore, as the party resisting discovery, bears the burden of proving Denbury's
requests seek irrelevant information. lO Ironshore must also present facts showing a particular,
specific, and demonstrable injury.l1 Ironshore cannot simply make conc1usory allegations. 12
Some evidence must be produced in support of its requested protective order. l3 If this evidentiary
burden is not satisfied, then the trial court abuses its discretion by entering the protective order to
limit otherwise proper discovery.14 Denbury asks the Court deny Ironshore's motions.
9 See generally Denbury's Mot. to Compel; see also Tex. R. Civ. P. 193.2(e) ("an objection ...
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ACCEPTED 14-15-00991-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 11/25/2015 5:20:55 PM CHRISTOPHER PRINE CLERK
FILED IN 14th COURT OF APPEALS ______________________________________________________________________________ HOUSTON, TEXAS 11/25/2015 5:20:55 PM IN THE FOURTEENTH COURT OF APPEALS CHRISTOPHER A. PRINE ______________________________________________________________________________ Clerk
In re: Denbury Resources Inc. and Denbury Onshore, LLC ______________________________________________________________________________
PETITION FOR WRIT OF MANDAMUS ______________________________________________________________________________
On Petition for a Writ of Mandamus from the 157th Judicial District Court For the County of Harris, Texas Honorable Randy Wilson, Presiding Case No. 15-CV-9546
______________________________________________________________________________
Respectfully Submitted by:
CARVER, DARDEN, KORETZKY, TESSIER, FINN, BLOSSMAN & AREAUX, LLC Philip D. Nizialek (Texas Bar No. 15045250) Sarah E. Stogner (Texas Bar No. 24091139) Jacqueline M. Brettner (pending pro hac vice) 1100 Poydras Street, Ste. 3100 New Orleans, Louisiana 70163 Telephone: (504) 585-3800 Facsimile: (504) 585-3801
Attorneys for Relators, DENBURY RESOURCE INC. AND DENBURY ONSHORE, LLC
TRIAL COURT RECORD – VOLUME 2 9/29/20154:02:38 PM Chris Daniel - District Clerk Harris County Envelope No. 7152558 By: LISA COOPER Filed: 9/29/2015 4:02:38 PM
CAUSE NO. 2015 09546 m
DENBURY RESOURCES INC. and IN THE DISTRICT COURT DENBURY ONSHORE, LLC
Plaintiffs, HARRIS COUNTY, TEXAS v.
IRONSHORE SPECIALTY INSURANCE COMPANY, ALTERRA EXCESS & 157TH JUDICIAL DISTRICT SURPLUS INSURANCE COMPANY, AXIS SURPLUS INSURANCE COMPANY, AND MARSH USA INC.
Defendants
DENBURY'S CONSOLIDATED RESPONSE TO IRONSHORE'S MOTIONS FOR PROTECTIVE ORDERS
Ironshore requests entry of protective orders. 1 If granted, Denbury will be prevented from
obtaining information relevant to its allegations and Ironshore's defenses in this case. Texas law
prohibits this? Further, Ironshore has the burden of proving its objections and asserted
privileges. Ironshore cites no law, provides no facts, and attaches only self-serving, conclusory
affidavits. 3 Its motions should be denied.
Additionally, and as fully articulated m Denbury's Motion to Compel, Ironshore's
1 Ironshore filed two separate Motions for Protective Order. One for the Ironshore corporate notice and one for the FARA corporate notice. Denbury files this combined response for purposes of judicial efficiency. FARA is the third-party claims administrator for lronshore and under lronshore's control for all purposes IDlder applicable Texas rules. 2 See Tex. R. Civ. P. 192.3(a); see also Ford Motor Co. v. Castillo, 279 S.W.3d 656, 664 (Tex. 2009) ("The phrase 'relevant to the subject matter' is to be 'liberally construed to allow the litigants to obtain the fullest knowledge of the facts and issues prior to trial."') (internal citations omitted). 3 Denbury had requested Ironshore provided it with a Rille 193.3(b) compliant privilege log for its discovery responses since, at least, August 5, 2015. Ironshore refused to do so for over 45 days. Now, in response to Denbury's motion to compel, lronshore has produced the third iteration of its privilege log, an "Amended Privilege Log," dated September 25,2015, attached hereto as Exhibit T.
1 objections and asserted privileges are unfounded. 4 This is an insurance coverage lawsuit between
Denbury and its excess insurers. The crux of this coverage dispute is whether the parties intended
to cover damages to third-party property that Denbury leases in its oil and gas operations.
Denbury's position is that it does. The Umbrella policy's blended pollution endorsement was
specifically added to provide this coverage. 5 AGUe's $25 million payment suggests Denbury's
interpretation reflects the parties' actual intent when the policies issued. Ironshore's position is
that its follow-form policy excludes this coverage. 6
Relevant to this discovery dispute, Denbury seeks a declaratory judgment that the
Ironshore Policy provides coverage. Denbury requests damages for lronshore's breach of
contract, bad faith, and unfair trade practices. Denbury also alleges that certain terms and
conditions of Denbury's policies are ambiguous and/or provide illusory coverage. Denbury's
deposition notices seek basic information relevant to these allegations. 7 While Denbury's notices
are exhaustive, 8 the number of topics is driven entirely by Ironshore's refusal to provide
4 . See Tex. R. Civ. P. 192.6(a) and 215.1; see also Pace v. Jordan, 999 S.W.2d 615,622 (Tex. App.-Houston [1st Dist.] 1999, pet. denied) (if a party moves for protective order, the party seeking the discovery should file a motion to compel). 5 See Blended Pollution Endorsement, attached as Exhibit 5 to Denbmy's Second Supp. and Am. Pet. 6 See Ironshore letter denying coverage, dated June 16,2015, attached to Denbury's Mot. to Compel, as Exhibit M. 7 See 'l1:li.87-88 (declaratory judgment of coverage), 89-94 (breach of contract), 105-113 (bad faith), Denbmy's 2nd Supp. Am. Pet., filed of record June 9, 2015. Denbmy also alleges that lronshore's marketing of the policy to oil and gas operators (and then denial because portions of the damaged property are subject to mineral leases) constitutes an unfair trade practice. Id. at CJI'lJ.98-1 04. Texas courts have allowed discovery of extrinsic materials in the interpretation of a breach of contract claim. See, e.g., Ford Motor Co. v. Castillo, 279 S.W.3d at 663 (Tex. 2009) (internal citations omitted) ("Like any other breach of contract claim, a claim for breach of settlement agreement is subject to established procedures ofpleading and proof. .. "it cannot be determined without "full resolution of the surrounding facts and circumstances."); see also id. at 664 (" ... a party is not required to demonstrate the viability of defenses before it is entitled to conduct discovery."). Here too, the allegations of Denbmy's well-pled claims are sufficient to trigger the discoverability of materials and testimony responsive to Denbury's tailored requests. 8 See Denbmy's Notice of Corporate Dep. to lronshore, attached hereto as Exhibit P; see also Denbmy's Notice of Corporate Dep. to FARA, attached hereto as Exhibit Q. Unless otherwise noted, Denbmy's reference or citation to "Exhibits A-0" herein refer to the exhibits attached to Denbmy' s Mot. to Compel, flled of record on September 22, 2015. Denbury attaches an Appendix detailing all Exhibits to its Motion to Compel and this Response for the Court's ease of reference. See attached Exhibit V.
2 meaningful responses to discovery.9
Ironshore, as the party resisting discovery, bears the burden of proving Denbury's
requests seek irrelevant information. lO Ironshore must also present facts showing a particular,
specific, and demonstrable injury.l1 Ironshore cannot simply make conc1usory allegations. 12
Some evidence must be produced in support of its requested protective order. l3 If this evidentiary
burden is not satisfied, then the trial court abuses its discretion by entering the protective order to
limit otherwise proper discovery.14 Denbury asks the Court deny Ironshore's motions.
9 See generally Denbury's Mot. to Compel; see also Tex. R. Civ. P. 193.2(e) ("an objection ... that is obscured by numerous unfounded objections, is waived unless the court excuses the waiver for good cause shown."); Garcia v. Peeples, 734 S.W.2d 343, 347 (Tex. 1987) (0 rig. proceeding) (" ... th[e] goal of the discovery process is often fmstrated by the adversarial approach to discovery. The 'mles of the game' encourage parties to hinder opponents by forcing them to utilize repetitive and expensive methods to find out the facts. The truth about relevant matters is often kept submerged beneath the surface of glossy denials and formal challenges to requests until an opponent unknowingly utters some magic phrase to cause the facts to rise. Courts across the nation have commented on the lack of candor during discovery in complicated litigation .... "). The cost-effective, reasonable sharing of discoverable information is all Denbury's notices and written requests seek. 10 See In re Waste Management of Texas, Inc., 2011 WL 3855745 at *5, n. 5 (Tex. App.-Corpus Christi, 2011) ("We note that this Court and others have placed the burden of proof regarding relevance, or lack thereof, on the party seeking to avoid discovery."). And note Denbury fully addresses Ironshore's unsupported relevance objections in its separately filed Mot. to Compel. 11 See Garcia v. Peeples, 734 S.W.2d at 345. 12 I d. (requiring affidavits in support of protective order to identify specific documents and information responsive to
requests, and specific facts supporting bases for shielding same from discovery together with specifics relative to likely harm absent requested protection). Of note, while the Peeples court found the details of the subject affidavits sufficient, not only are Ironshore's affidavits lacking the factual specificity relied upon by the Court, but the solution reached there involved production of responsive documents subject to protective order. Denbury has not objection to such a remedy here and, indeed, has voluntarily offered to execute a confidentiality agreement on numerous occasions. See Exhibits A and B, Denbury's Mot. to Compel. 13 Id. ("In United States v. Garrett, 571 F.2d 1323 (5th Cir. 1978), the court noted that a movant must show "a particular and specific demonstration of fact as distinguished from stereotyped cOllclusory statements. Sweeping predictions of injury and '[b]road allegations of harm, unsubstantiated by specific examples or articulated reasoning,' do not justify a protective order.") (internal citations omitted). Tex. R. Civ. P. 192.6 is analogous to its federal counterpart. 14 Id at 345-48.
3 I. Pertinent Factual. Background
5118/15 • Denbury propounds Interrogatories and First Set of Requests for Production of Documents to Ironshore. 6114115 I) Ironshore tlxJue~t~ exte.n~.ion to r{:Epc~nd. a.nd~ j.n exchnnge ft)f ~}dditi-ona1 30 d.a'\/s~ agn-:~e~ to hold v. . .ee.k of 8/"j O/"L 5 f{:-r lrnnshorelI-? /\.Ft/, CfHT){}f;Jte d(:no~it~o.ns. 7/17115 • IroH3hore pn)'~/.ide;,; incGrrrpJ.ete respo:n~e:~ tG r)enbury:~ s 5/18/J:> (hSCO~7{:tJ'" • Iron shore : s n~:s'pnn~.i V{: prc~ducti{HI is .Un1itfd tn copies of l)enbur}'~' s 'pOHi::.~C~ !}B.d. f.:o:(((~~~Dc~nd.enee cxCh~·;tD.ged b{~t~?,/ee.n COUIU)(:!. 7/20115 • Denbury again requests available deposition dates for corporate Ironshore/FARA depositions and fact witness depositions of employees identified in discovery responses. e Denbury sends email notice of discovery deficiencies. 8/5115 e Denbury notices corporate depositions for 9/29-30/15 because IrotiEhnre reli.wed to
Denbury's cOlTespondence includes additional available dates in September and October, together vv'ith all offer to "reset" noticed depositions as necessary. e Denbury send<; formal letter detailing substantive bases of discovery deficiencies in It'onshore's 7117/15 responses. • Denbury requests Rule 193.3(b) privilege log for documents withhe1diredacted from Irollshore's 7il7/I5 responses. • Denbury propounds Second Request for Production of Documents and First Set of Requests for Admission. e Denbury sends proposed confidentiality agreement to address lronshore's confidential/proprietRry/trade secret objections to producing documents. lron"hore
8/10115 • \V!thOUt an:v ad\rance t1oti(·e to 1)e.nbury~ IfoI1~hGr{: fHe~~ n10tic~D to qU.:1~h corporate d.e~~30~~iti{}n~ Hoti(tXl for Septl-:.trtbcr 29·~ 30~ 2f~ 1.5, 8113115 e Denbury calls and emails lronshore requesting available dates to resolve Ironshore' s motion to quash. 8117115 " Ironshc~re n:.-:\ponds d:Htt ~t '·'\na.y ) be abL.~ to r~rGduc.e ~?;/itnes~es in ()c.tobc:r but d.Ges· not confirn:1 ~rvaih1bi.Ut):. e Denbury responds with October availability for requested corporate depositions and reiterates 7i20!l5 request for dates available to depose fact witnesses. 8/20115 8127115 9/2115 CD Ironshore confirnls date ~rnd dLne J~Jr JronEhore representati Vt:, c~~rt!:~jn fact \:\.:itne\~es~ aDd ::~lO be dett~.nD.Ln(:d.·-~ I';i\'l~/-\ I'(~rH'f:~entat~ \}f~, III Denburv sends revised notices of deposition reflecting October dates. 9/3/15 4» lco.n\hore ~~HJln:1t:.tr.Lty ·objtx:ts to 1)enh\j.ry\.~ /\.re.as of rnqu~f)/ \vithL~nt r~rO\}ifiing ;:tn:y \t..!Titten re~PGns(-: or b~t$is for as~erted ot~jecti(n·.ts/prtvi1eg(:g in reBpon~;e to "L)enbury' H
e Denbury requests lronshore provide specific, wlitten objections to any disputed corporate notice Areas of Inquiry so parties can undertake discove!)' conference. 9/4/15 • lronshof(: pIov~d{~s incon\ph:.~t(: n:~Er)OnSes to l)t;:nbury\-:. second Et::t G~f d.~3CO\"'e:ty> and ~-upp1en!.entaL but f'::.t11i In~~ufficier:.t~ rc~~pf.~n~h~~s to ~){:.nblrry\3 ofig.nud requests. • Denbury again sends proposed confidentiality agreement to address Ironshore's confidentiaUproprietaryltTade secret objections to producing documents. 1ronsIwre
4 9/9115 III Denbury send.,; another notice detailing substantive deficiencies present in lronshore's 9/4115 discovery responses and 8/20/15 "privilege log." • Iron~.borc~~:; ~··~l<'esponsive produclion'.~ !Hclude& hZ:H'lHy redacted ':;(~la~nl .Note t11es'!:" and '(~1ai tn I}o<.:n.n'h::nt Hje~.:~' \.\?jthout COIT{:st)o:nding nrnr~h..::~~e h){-;. 9110/15 9115115 @ Parties conduct 3 hour discovery in an effort to resolve respective objections to outstanding discovery requests. e Iroru~hore oraH): faise~ ne~\,; Gbj(:ct~OI1S to the /\rea~ uf InquLry .not inc:.tuded in. "'dra:n~": 9/10./15 \'vrltten ot~it)ctiGns, @ The parties fundamentally disagree on scope of discovery. III Denbury requests Ironshore agree to produce any court-ordered documents within 15 days of hearing on discovery motions to avoid additional discovery delays. Ironi;h{)re
9116115 @ Denbury re·iterates request that Ironshore agree to produce any court··ordered documents within 15 days of hearing on discovery motions to avoid additional discovery delays. lr(l)"l"hore rd'u:'{~i;. 9/18/15 @ lro.n~hor(-: ~G~c~s ~"'IOtio.n~ t~)r r~rGtecLb?e C~rder~ t"}(·.eki ng: to aVG~d the }najc~rity .of 1)(~nbDr'y":-s notjced nreas of'inquiry f(if 1rGHShQre ~tnd }~.i\J~l\ (h::sigH((~S. IrGru~hore ·:s rnot~on inc.1ude~ nrev1ou~lV tru~erved objecHoHs . 9/22/15 @ Dcnbury files a Motion to Compel responses to its written discovery rcquests and responsive testimony by lronshore' sand FARA.' s designees to an noticed areas of inquiry. 9/25/15 fAil tron~hore .ii1f3 c.zwh.'.h.l30ry aftldf;:.vit.~': of I ..ee Sheriden and. l~a~tHj~li "rre;;~dH\"'-ay in 3Upp(~rt of ~ts pending Iv:rGt~on:; for -Protective {)rden"). rroJl3hure:'s affidav1ts rt>ly on Ironshore':s ~'·l-\n:~(:nd.cd Prtv3leg(~ L.og':~ \:vh!<..:h. Iroru:hc~re fA)
s~ rnu~ t;:U}(~ou~s'~ ':/ ~)e.r\/e3 on l)en hury fZir the I ~;t tif.ne on this d.ate . • lro.n~hore aguiri ~:supph::Jn\~.nts~:· its 3:f.':spons(:;s to l)enbury ~s f~rEt S(t of n:-:qu(:~}ts ~f.ur pr·odnction ~);/itb ~:~n.l{:.n(k:~d :s.ubst(~.nti \/(~ rGda(:tinn.s~ 9127/15 lID Denbury requcsts Ironshore idcntify list of specific changes within lronshore's "amended production." Irollshore again ig.llores Denburv's rc;guest. 9/29/15 III Denbury files response to lronshore's Motion to Compel.
10/2/15 • Hearing set on Denbury's Motion to Compel and lronshore's Motions for Protective Orders. 10117115 @ Proposed deadline forl'..arties to comply with Court's 1012115 discovery order. 10120/15 III Corporate depositions ofIronshore and PARA set in Manhattan at Ironshore's request.
10/22/15
II. Law & Argument
a. Denbury's Deposition Topics are Reasonably Tailored to Include Only Relevant Matters
The purpose of discovery is to allow the parties to obtain knowledge of the issues and the
facts prior to trial. Texas courts recognize "the ultimate purpose of discovery is to seek the truth
5 so that disputes may be decided by what the facts reveal, not by what is concealed.,,15 Rule
192.3(a) entitles Denbury to seek discovery "regarding any matter that is not privileged and is
relevant to the subject matter of the pending action, whether it relates to the claim or defense of
the party seeking discovery or the claim or defense of any other party." The information sought
need not be admissible in evidence so long as it "appears reasonably calculated to lead to the
discovery of admissible evidence.,,16 These rules regarding the scope of discovery apply
regardless of the discovery method at issue.
Texas law requires discovery requests be reasonably tailored to avoid including tenuous
information, while still obtaining the necessary, pertinent informationY Denbury satisfies this
requirement by seeking 3 basic categories of information:
1. IronshorelFARA's adjustment of Denbury's Claim; 18
2. Denbury's Policies, including the underwriting of the policies at issue;19 and
3. Ironshore/FARA's adjustment of on-lease pollution damages claimed by similarly-
situated oil and gas operators under identical policy forms.z°
15 See Jampole v. Touchy, 673 S.W.2d 569, 573 (Tex. 1984) overruled in part on other grounds Walker v. Packer, 827 S.W.2d 833 (Tex. 1992). 16 See In re Liberty Mut. Ins. Co., 2009 WL 441897 (Tex. App.-Houston [l4th Dist.] Feb. 24, 2009, (0 rig. proceeding) (mem. op.) (evidence pertaining to the parties' understanding of insurance policy provisions is relevant to the insurer's defense that it acted reasonably and in good faith). 17 See e.g. In re CSX Corp., 124 S.W.3d 149, 153 (Tex. 2003) ("A request to identify all safety employees who worked for Relators over a 30-year period, even though [plaintiff] never worked for Relators or for their parent company for that length of time, qualifies as the kind of 'fishing expedition' this Court has repeatedly struck down." (emphasis added». Denbury's requests are much narrower in scope and time. 18 For example, See Ironshore Topic Nos. 4, 7, 8-10, 11-15,21-23, 25, 74, 77-78, 85, 96-98, and 101-02, Exhibit P; see also FARA Topic Nos. 4, 8-11, 13, 15, 17-18,28-30,32-37,39-40,54-59,84, 100-103, 114-15, 131-33, and 135-37, Exhibit Q. 19For example, See Ironshore Topic Nos. 1-3,7,21,24,26-29, and 36, Exhibit P; see also FARA Topic Nos. 1-3,8- 10,28,33,38-40, and 50-51, Exhibit Q. For example, See Ironshore Topic Nos. 8-13, 34, 39-40, 61, 82, 85-92, and 101, Exhibit P; see also FARA Topic 20 Nos. 8-10,12,14,16-18,28-30,32-35,37,39-40,54-59,84, 100-03, 114-15, 131-33, and 135-37, Exhibit Q.
6 Based on Denbury's pled claims,21 Ironshore's adjustment and underwriting of
Denbury's policy, as well as its handling of identical claims by similarly-situated policyholders
are all necessary, pertinent information. Denbury properly limits its requests to relevant time
periods and only Ironshore's handling of analogous claims?2, 23
Additionally, Ironshore publicly represents that it has "designed a more efficient system
to address and process claims." 24 lronshore's website states that "Our claims and underwriting
departments work as one unit under the same leadership team. So when timing is critical,
you're not working with an unfamiliar claims representative; you're working with experts who
21See <][<][87-88 (declaratory judgment of coverage), 89-94 (breach of contract), 105-113 (bad faith), Denbury's 2nd Supp. Am. Pet., filed of record June 9,2015. Denbury also alleges that lronshore's marketing of the policy to oil and gas operators (and then denial because portions of the damaged property are subject to mineral leases) constitutes an unfair trade practice. !d. at <][<[98-104. 22 See In re Waste Management of Texas, Inc., 2011 WL 3855745 *9 (Tex. App.-Corpus Christi, 2011) (internal citations omitted) ("In examining the appropriate breadth of discovery, it is fundamental that each lawsuit concerns a specific claim arising from a specific set of facts. Those seeking discovery, however, are often interested in learning about related accidents, products, or claims ... such requests might be appropriate ... depending on the relationship between the request for production and the claims at issue in the lawsuit."); see also Allen v. Humphreys, 559 S.W.2d 798, 803 (Tex. 1977) overr14led on other grounds, Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (approving a request for the production of "all complaints, lawsuits, or inquiries, including all correspondence, documents, investigative reports, or any paper by which the defendant responded to these complaints, claiming that persons have contracted cancer as a result of breathing fumes,:' because party could establish pattern of disease and because that infonnation was "unavailable from any other source"). 23 Cf, e.g., In re Allstate County Mut. Ins. Co., 227 S.W.3d at 670 (holding that requests for transcripts of all testimony ever given by any Allstate agent on the topic of insurance; every court order finding Allstate wrongfully adjusted the value of a damaged vehicle; personnel mes of every Allstate employee a Texas court has determined wrongfully assessed the value of a damaged vehicle; and legal instruments documenting Allstate's status as a corporation and its net worth were overbroad) (emphasis added); In re CSX Corp., 124 S.W.3d at 153 (stating that request to identify all safety employees who worked for defendant over a thirty-year period qualifies as a "fishing expedition") (emphasis added); In re Am. Optical Corp., 988 S.W.2d at 713 (stating that request for production of all documents the defendant had ever produced on any of its products over the course of its fifty years in business was overbroad and of questionable relevance) (emphasis added); In re Lowe's Cos., 134 S.W.3d 876,880 (Tex.App.-Houston [14th Dist.] 2004, orig. proceeding) (holding that discovery order was overbroad where it allowed plaintiffs to access computer data without allY limitation as to time, place, or subject matter and print data concerning falling merchandise accidents for an unlimited period of time preceding the accident in this case and for an unlimited geographic area) (emphasis added). 24 Ironshore "U.S. Claim Brochure" p. 2, available for download at httJ:r!lwww.ironshore.com!pdf3igeneralJlrmt~ihoreClaimsCGllatera1.pdf;Seealsowvv\v.ironsbore.com ("Ironshore distinguishes itself in the industry by closely aligning our claim professionals with members of the underwriting, actuarial and finance teams. This is our way of ensuring that the people who make the promises, keep the promises and that our policyholder claims are handled in a professional and expeditious manner.") (emphasis added) (sites last visited 9/28/15).
7 know your policy.,,25 Now, Ironshore has denied Denbury's claim and refuses to produce
documents or testimony about how its claims and underwriting departments work, or how
lronshore's "experts who know [Denbury's] policy" actually adjusted Denbury's claim.
Denbury is entitled to discover this relevant and potentially admissible information.
b. Ironshore's Unsupported Privilege Assertions
Ironshore maintains it has produced all "responsive, non-privileged" information
regarding Denbury's c1aim?6 However, a review of the "Claim Notes file" and "Claim
Documents file" show that relevant and discoverable information has been improperly 27 redacted. Additionally, Ironshore has withheld approximately 2,600 pages of Denbury's
underwriting file as "irrelevant, confidential, proprietary, trade secrets.,,28 Denbury asks the
Court order Ironshore produce all withheld documents for in camera inspection to (i) confmn the
accuracy of Ironshore's eleventh hour privilege log, and (ii) ensure Denbury is allowed to review
and depose Ironshore regarding all non-privileged and responsive documents.
"Any party who seeks to deny the production of evidence must claim a specific privilege
against such production. The burden is on the party asserting a privilege from discovery to
25 [d. 26 See Exhibit N, Denbmy's Mot. to Compel; see also Exhibit U hereto. Of note, Ironshore has provided Denbury with "supplemental productions" dated September 4, 2015, September 18, 2015, and September 25, 2015. These productions are not "supplemental," but a calculated piecemeal production of information and materials Denbmy is lawfully entitled to discovery under Texas law. This Court should grant Denbury's Motion to Compel and end Ironshore's improper discovery tactics. 27 See, e.g., F ARA 4058 (Exhibit N) (first sentence of "Recommendations" section not redacted in September 4, 2015 production and then redacted in September 25,2015 "amended" production (Exhibit U). lronshore represents it has also produced its "Claims Document" file. However, lronshore' s production of these materials excludes large ranges of entire pages, and its privilege logs do not allow for an accurate assessment of date range, author, recipient, or any other identifying information necessary to determine application of privilege. Denbury has not included these records in this filing due to size, where nearly every page produced is a duplicate of pleadings, communications, and discovery exchanged between parties to this lawsuit. 28 See Description of withheld documents bates labeled, FARA 4084-6608, Item No. 136, lronshore "Amended Privilege Log" produced September 25,2015, attached hereto as Exhibit T.
8 produce evidence concerning the applicability of a particular privilege.,,29 Ironshore's motions
list privileges and objections without any legal or evidentiary support. On this basis alone,
Ironshore's motions should be denied.
i. Ironsh.ore Cannot Sh.ield Responsive Materials as Work Product
Ironshore asks this Court to prevent Denbury from eliciting testimony on the basis of
"work product" privilege. 3o The disputed topics include the underwriting and interpretation of
the policies at issue, as well as IronshorelF ARA' s adjustment of Denbury' s claim?l In support,
Ironshore filed the conclusory, self-serving affidavit of its attorney Randell Treadaway on
September 25,2015. 32 This self-serving affidavit is insufficient under Texas law. 33
"Work product" is defined as: (1) "materials prepared or mental impressions developed in
anticipation of litigation or for trial by or for a party or a party's representative ... ;" or (2) "a
communication made in anticipation of litigation or for trial between a party and the party's
representatives or among a party's representatives ... ,,34 Work product only protects materials
prepared in anticipation of litigation or trial prepared by an attorney, a party, or a party's agent.
29See Peeples v. Honorable Fourth Supreme ludicial Dist., 701 S.W.2d 635, 637 (Tex. 1985) (internal citations omitted) (emphasis added). 30See Ironshore Topic Nos. 21, 22,23,24, and 25, attached as Exhibit P; see also FARA Topic Nos. 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, and 84 attached as Exhibit Q. 31See Ironshore Topic Nos. 1-3,7, 21, 24,26-29, and 36, Exhibit P; see also FARA Topic Nos. 1-3, 8-10, 28, 33, 38-40, and 50-51, Exhibit Q (underwriting); see also Ironshore Topic Nos. 4,7,8-10,11-15,21-23,25,74,77-78, 85,96-98, and 101-02, Exhibit P; see also FARA Topic Nos. 4, 8-11, 13, 15, 17-18,28-30,32-37,39-40,54-59,84, 100-103,114-15,131-33, and 135-37, Exhibit Q (Denbury's Claim). 32 See 9 Ironshore has the burden of proving that information sought in Denbury's deposition topics include Ironshore's work product. 35 Merely listing a specific privilege or exemption from discovery is insufficient. 36 Moreover, Iron shore , s reliance on the work product privilege to prevent disclosure of its underwriting documents is insufficient on its face. 37 Underwriting files, and an insurer's corresponding underwriting guidelines and manuals, constitute the criteria by which insurers determine whether the risk is acceptable, and if so, at what premium. There is no litigation or anticipated litigation when an insurer drafts and places a policy?8 Rather, these materials directly evidence what Ironshore intended to cover when issuing Denbury's policy.39 Similarly, Texas law provides that the work product privilege does not attach to claims file information until after a claim is denied. 4o To qualify as work product under Texas law, material must have been prepared or mental impressions developed in anticipation of litigation or 35 State v. Lowry, 802 S.W.2d 669, 671 (Tex. 1991). 36 See Tex. R. Civ. P. 195.2(a); see also In re Crestcare Nursing and Rehab. Ctr., 222 S.W.3d 68, 73 (Tex. App.- Tyler 2006, orig. proceeding) (internal citations omitted); see also id. at 74 citing In re DuPont, l36 S.W.3d , 224 (affidavit merely presenting global allegations that documents come within the asserted privilege has no probative value). 37 lronshore's Mot. for Protective Order claims that underwriting material is protected as work product (See, e.g. Ironshore Topic Nos., 21 and 24,Exhibit P; see also Topic Nos. 28 and 33, Exhibit Q). lronshore's "Amended Privilege Log" also states Ironshore's underwriting file has been withheld as "irrelevant, confidential, proprietary, trade secrets." See fj[fj[ 3-4, L. Sheriden Affidavit, dated September 25, 2015, attached hereto as part of Exhibit S (once again merely listing elements of the claimed privilege and concluding certain undisclosed information and materials are shielded from discovery). Notably, Ironshore has ignored Denbury's requests to enter into a confidentiality agreement, which would eliminate the need for the Court to enter a protective order. See Denbury's August 5, 2015 and September 9, 2015 offers, included in Exhibits A and B to Denbmy's Mot. to Comp.; respectively; see also Jampole v. Tourchy, 673 S.W.2d 569, 574-75 (Tex. 1984) (orig. proceeding), disapproved of on other grounds by Walker v. Parker, 827 S.W.2d 833, 842 (Tex. 1992) (orig. proceeding) (contemplating entry of protective order that allows production, not one that relieves obligation to produce). 38 Rule 192.5(c) provides, in pertinent part, that the following information is not work protect protected from discovery, even if made or prepared in anticipation of litigation or trial: (1) information discoverable under Rule 192.3 concerning witness statements and contentions; (3) the name, address, and telephone number of any person with knowledge of relevant facts; and (5) any work product created under circumstances within an exception to the attorney-client privilege in Evidence Rule 503(d). 39 Supra fn. 24. 40See Jackson v. Downey, 817 S.W.2d 858, 859 (Tex. App. Houston 1991). Ironshore did not deny coverage to Denbury for the subject claim until June 16,2015. See Exhibit M, Denbury's Mot. to Compo 10 for trial-that is, after the occurrence or transaction on which the suit is based. 41 In a breach of insurance contract, the occurrence (for purposes of work product protection) is the date the insurance company denied coverage, not the date of loss or claim. "None of the documents generated by the company or its agents prior to [denying coverage] are privileged. • • [because] the date of the occurrence or transaction upon which suit is based could not predate the communication of the denial of coverage to the plaintiff.,,42 "To hold otherwise would allow a party to choose at will a 'decision date' far in advance of its communication of a controversial decision to another party. Thus it would be possible to effectively shield virtually all internal communication from discovery.,,43 Ironshore denied coverage to Denbury on June 16, 2015 - five months after Denbury initiated this litigation and seven months after Denbury' s formal demand for payment under the Policy.44 While Ironshore has now produced a privilege log purportedly compliant with Rule 193.3(b),45 this document shows Ironshore has improperly redacted or withheld information andlor documents properly discoverable by Denbury. The September 25th log reflects that materials created between July 8, 2013 and June 16,2015 have been redacted or withheld. Based on Ironshore's original and amended "productions,,,46 Ironshore either 1) did not review any facts or specific policy provisions before denying Denbury's claim, or 2) Ironshore redacted all N such information. 47 Either way - Denbury is entitled to learn the redacted andlor withheld N "-< o 41 See Tex. R. Civ. P. 192.5(a). 42 Jackson v. Downey, 817 S.W.2d 858, 859 (Tex. App.-Houston 1991)(emphasis added). 43 Id. 44 See Ironshore's objections and responses to Request for Admission Nos. 12, 16, and 17, dated September 4,2015, attached as Exhibit K to Denbury's Mot. to Compel. 45 See generally lronshore's "Amended Privilege Log," dated September 25,2015, attached hereto as Exhibit T. 46 See Exhibit N to Denbury's Mot. to Compel; see also Exhibit U attached hereto. See, e.g., lronshore's produced "Claim Notes file" (FARA 003943 - 004083) attached is Exhibit N to Denbury's 47 Mot. to Compo This information is reflected as withheld on the basis of "irrelevant," work product, and/or 11 information Ironshore employed to adjust Denbury's claim between July 8, 2013 through June 16,2015. By definition, this information is not work product under Texas law. Alternatively, Denbury asks for an order compelling Ironshore to produce for an in camera inspection, all documentation associated with the testimony upon which its work product privilege is claimed. Then, the Court may determine the applicability of Ironshore's asserted privilege and order Ironshore to produce properly discoverable documents and testimony accordingly. Core Work Product Information Testimony discussing Ironshore's underwriting of the Policy, and adjustment of Denbury's claim, is indispensable to prove Ironshore's understanding of the ambiguous policy provisions at issue, and whether lronshore acted in bad faith in its adjustment of Denbury's claim.48 As one federal court noted, deposition testimony about the insurer's underwriting file is relevant to coverage litigation: 49 Defendant asserts that a Rule 30(b)(6) request for testimony regarding the underwriting file amounts to a "fishing expedition" because the information contained in the underwriting file is not relevant to Plaintiffs claims for denial of coverage and bad faith. The Court disagrees. Not only is information in the underwriting file relevant to Plaintiffs daims for denial of coverage but it is also discoverable because it appears reasonable that the information contained in the file may lead to the discovery of other admissible evidence. anticipation of litigation privileges. 48 Denbury's claim file is also relevant for Denbury to refute Ironshore's contention that Denbury failed to timely notify Ironshore of its settlement discussions with third parties, such as ANR and Loutre Land & Timber Company. See e.g. FC Bruckner Associates, L.P. v. Fireman's Fund Ins. Co., 114 A.D. 3d 542 (N.Y.A.D. 1 Dept., 2014) (insurer's claims files were material and necessary where excess insurer claimed it would have been more involved with underlying action had it received earlier notice). Ironshore claims it did not timely receive information from Denbury. See e.g. lronshore's objections and responses to Request for Admission No.7, attached as part of Exhibit K. 49Bayley Canst. v. Wausau Business Ins. Co., 2012 WL 6553790, *2 (W.D. Wash., 2012) (decided, in relevant part, under Federal Rules of Civil Procedure); see also Garcia v. Peeples, 734 S.W.2d 343, 345 (Tex. 1987) (0 rig. proceeding) (Texas Supreme Court citing federal jurisprudence relative to interpretation of evidence sufficient to satisfy Texas requirements for protective order). 12 Here too, Denbury reads the Policy differently than Ironshore. Because Denbury alleges the policies are ambiguous and/or illusory, Ironshore's underwriting guidelines and files are relevant to determine the intent of the parties when entering into the insuring agreement. 50 Ironshore's underwriting materials and claims file are also the only means available to Denbury to discover lronshore's understanding of the ambiguous policy provisions at issue. 51 Only core work product is exempt from disclosure. 52 The doctrine protects against compelled disclosure of information and materials prepared in anticipation of litigation or for trial. 53 However, the doctrine permits discovery oiother work product when the party seeking discovery has substantial need for the materials and that party is unable, without undue hardship, to obtain the substantial equivalent of the materials by other means. 54 Denbury is unable to obtain the substantial equivalent of the materials located in the claims and underwriting files by any other means. Thus, even if the Court finds certain materials protected as work product, Denbury is entitled to all non-core work product documentation and testimony. For these reasons, and further in the alternative, Denbury asks the Court order Ironshore to produce a witness to testify as to, and to produce, all non-core work product documents responsive to Denbury's noticed areas of inquiry. 50See Beazer Homes Corp. v. Hartford Fire Ins. Co., et ai., 2012 WL 6210323, *4 (D.S.C. Dec. 13,2012) citing Penn. Nat'IMut. Cas. Ins. Co. v. Doscher's Dorchester Road, Inc., 2012 WL 652638, *5-6 (D.S.C. Feb. 28, 2012). 51 See also Siligan Containers v. Nat'l Union Fire Ins., 2011 WL 2198141 * 1 (N.D. Cal. June 6,2011) (allowing discovery of underwriting materials in coverage action involving allegation of ambiguous terms within subject insurance policy.); Lanham v. Blue Cross and Blue Shield of So. Carolina, Inc., 563 S.E.2d 331, 333-34 (S.C. 2002) (while not expressly holding underwriting materials discoverable, Court denied insurer summary judgment as improper where insured had not been allowed to compel discovery of underwriting standards, policies, and procedures); Beazer Homes Corp. v. Hartford Fire Ins. Co., et at., 2012 WL 6210323, *4 (D.S.C. Dec. 13, 2012) (court ordered production of documents, including underwriting guidelines, as evidence of insurer's intent and purpose of policy provisions, forms, and coverage). 52 See Tex. R. Civ. P. 192.5(b)(1). The work product privilege protects "core work product," which includes the attorney's mental impressions, opinions, conclusions, and legal theories. 53 Id. 54 See Tex. R. Civ. P. 192.5(b)(2). 13 h. Ironshore Fails to Meet Its Burden of Proving Attorney-Client Privilege Ironshore also asks this Court to prevent Denbury from eliciting testimony on the basis of "attorney-client" privilege. 55 The disputed topics again include Ironshore's underwriting and interpretation of the policies at issue, as well as IronshorelFARA's adjustment of Denbury's claim. And again, Ironshore fails to meet its burden of proof. 56 Because Ironshore cannot shield these materials based on an unsubstantiated privilege, the Court should deny Ironshore's requested relief without further inquiry. Still, Tex. R. Ev. 503 only shields confidential communications between the attorney and client when those communications are made for the purpose of rendering legal services. Not all statements made between a client and an attorney are privileged. 57 Texas courts have specifically found that communications with an attorney investigating an insurance claim are not privileged. 58 Because the attorney-client privilege does not apply where the attorney acts in a capacity other than that of an attorney, Ironshore's employment of counsel to investigate or adjust Denbury's claim does not "cloak with privilege matters that would otherwise be discoverable.,,59 Instead, Ironshore most satisfy its burden of proving that specific documents were properly withheld on the basis of attorney-client privilege by pleading specific facts to demonstrate that the communications and materials at issue were prepared in Ironshore's 55 See Ironshore Topic Nos. 21, 22, 23, 24, 25, 77, 78, 95, 96, 97, and 98 attached as Exhibit P; see also PARA Topic Nos. 28, 29,30,31,32,33,34,35,36,37,84, 100, 101, 102, 103, 128, 129, 130, 131, 132, 133, 134, 135, 136, and 137, attached as Exhibit Q. 56 State v. Lowry, 802 S.W.2d 669, 671 (Tex. 1991). 57 See e.g. Borden. Inc. v. Valdez, 773 S.W.2d 718, 720-21 (Tex. App.-Corpus Christi 1989) ("For instance, the attorney-client privilege certainly does not encompass such nonconfidential matters as the terms and conditions of an attorney's employment and the purpose for which an attorney has been engaged."). 58 See, e.g., In re Texas Famlers Ins. Exch., 990 S.W. 2d 337, 341 (Tex. App.-Texarkana 1999). 59 See Merrin Jewelry Co. v. St. Paul Fire & Marine Ins. co., 49 F.R.D. 54 (S.D.N.Y. 1970); see also Exhibit R, in globo (Ironshore's corporate designation and fact witness response dated September 24, 2015, which includes curriculum vitaes for attorneys to testify regarding IronshorelFARA claims handling). 14 attorneys' rendering of legal services. 6o lronshore's September 25th privilege log identifies attorney, Randell Treadaway, as "defense counsel" as early as April 2014 - six months before Denbury's umbrella policy limits were exhausted and formal demand made under the Ironshore policy.61 Either Mr. Treadaway was not Ironshore's defense counselor Ironshore never intended to adjust Denbury's claim in earnest. If this Court accepts Ironshore's self-serving affidavit to prevent Denbury's discovery, then Texas's test for proper invocation of the attorney-client privilege is meaningless. Moreover, an insurer's denial of a policyholder's claim must be based on objective and reliable expert information. 62 Ironshore denied coverage to Denbury on June 16, 2015. 63 Yet Iron shore , s written discovery responses leave Denbury guessing as to whose expertise Ironshore relied upon to reach its coverage decision. 64 Request for Admission No. 38: Admit Ironshore relied on AGUC's Adjuster to Adjust Denbury's Claim for the Delhi Incident under the Umbrella Policy between June 17,2013 and August 14,2014. Response: Denied Request for Admission No. 39: Admit Ironshore relied on AGUC's Adjuster to Adjust Denbury's Claim for the Delhi Incident under the Ironshore Policy between June 17,2013 and August 14,2014. 60 Supra fn. 57. 61 See lronshore' s "Amended Privilege Log," dated September 25, 2015, Item No. 130, attached hereto as Exhibit T. G2 See generally Arnold v. National County Mut. Fire Ins. Co., 725 S.W.2d 165 (Tex. 1987) (recognizing an insurer's duty of good faith and fair dealing to its insured and requiring a reasonable basis for denial of a claim or delay in payment, among other things); see also Lyons v. Millers Cas. Ins. Co., 866 S.W.2d 597, 601 (Tex. 1993). See Exhibit M, attached to Denbury's Mot. to Comp.; see also Ironshore's objections and responses to Request for 63 Admission No. 16, dated September 4,2015, attached as Exhibit K to Denbury's Mot. to Compo 64See lronshore's objections and responses to Request for Admission Nos. 38-41, dated September 4, 2015, attached as Exhibit K to Denbury' s Mot. to Compo 15 Request for Admission No. 40: Admit Ironshore hired FARA to Adjust Denbury's Claim under the Ironshore Policy.65 Request for Admission No. 41: Admit Ironshore hired FARA to Adjust Denbury's Claim under the Umbrella Policy. Thus, Ironshore is either using the advice of counsel/experts as a sword in support of its coverage detennination, or has no objective and reliable basis for its denial of coverage in violation of Texas law. Whichever the case, this information is vital to Denbury's pled claims against Ironshore. Denbury is, therefore, entitled to discover the withheld materials and question lronshore's and FARA's designees as to the bases of Ironshore's evaluation, adjustment, and denial of Denbury's claim. As the Texas Farmers court noted, the attorney-client privilege "does not operate as a blanket privilege covering all of the communications between" the investigating attorney and the insurer. 66 "For instance, the privilege would not apply to those communications concerning bare facts.,,67 Importantly, the court went on to note the problems associated with allowing insurers to hire attorneys as investigators "If we were to so hold, insurance companies could simply hire attorneys as investigators at the beginning of a claim investigation and claim privilege as to aU the information gathered. This is not the intent of the privilege.,,68 This is 65 Note that Ironshore withholds as "irrelevant" F ARA's invoice to Ironshore for its claims handling services. See, e.g., Item Nos. 106, 107, and 109-111, lronshore's "Amended Privilege Log," attached hereto as Exhibit T. 66 See In re Texas Farmers Ins. Exch., 990 S.W. 2d 337,341 (Tex. App.-Texarkana 1999). 67 !d. (emphasis added). 68See In re Texas Farmers Ins. Etch., 990 S.W. 2d 337, 341 (Tex. App.-Texarkana 1999) (emphasis added) (The court went on to hold that it was proper to depose the attorney hired to investigate the claim because he "could answer questions in a deposition concerning facts gathered during the course of his investigation while he was acting as an investigator, but could claim the attorney-client privilege if asked to divulge his legal conclusions based upon those facts."). 16 precisely what Ironshore seeks here, and Texas law forbids it. 69 Denbury is entitled to discover all materials prepared, reviewed, or relied upon in connection with Ironshore's adjustment and denial of Denbury's claim. At a minimum, this Court should order Ironshore to produce all documents withheld as "attorney-client" privileged for in camera inspection such that thorough evaluation can be made of Ironshore's asserted privileges given its refusal to comply with Rule 193.3(b). And if Ironshore relied on an attorney to conduct, or assist in, an investigation that could have been conducted by an adjuster, investigator, or engineer, the Court should order Ironshore's production of those records, and a witness to testify as to their contents (including, but not limited to, a complete unredacted copy ofIronshore's investigation and claims file).7o c. Ironshore Fails to Establish .Joint Defense Privilege Ironshore seeks to preclude Denbury from obtaining testimony relative to the underwriting, and IronshorelFARA's interpretation, of the policies on the basis of "joint defense" privilege. 71 Ironshore equally fails to satisfy its burden of proving that any materials withheld 69See In re Carbo Ceramics, 81 S.W.3d 369, 378 (Tex. App.-Houston 2002) ("Texas courts apply the offensive use doctrine when the advice of counsel defense is raised."); see also Republic Ins. Co. v. Davis, 856 S.W.2d 158, 163 (Tex. 1993) ("In an instance in which the [attorney-client] privilege is being used as a sword rather than a shield, the privilege may be waived."). 70 The doctrine applies because Ironshore (i) seeks affirmative relief by raising affirmative defenses to Denbury's coverage claim; (ii) the allegedly privileged information sought, if believed by the fact finder, in all probability will be outcome determinative of Denbury's claims in this litigation; and (iii) the withheld documents are the only means by which Denbury may obtain the basis for Ironshore's denial of Denbury's claim. Id. at 163. See also Rhone- Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 864 (3d Cir. 1994), explaining when a client places its attorney's advice "at issue:" Finding a waiver of the attorney client privilege when the client puts the attorney's advice in issue is consistent with the essential elements of the privilege. That is, in leaving to the client the decision whether or not to waive the privilege by putting the attorney's advice in issue, we provide certainty that the client's confidential communications will not be disclosed unless the client takes an affirmative step to waive the privilege, and we provide predictability for the client concerning the circumstances by which the client will waive that privilege. This certainty and predictability as to the circumstances of a waiver encourage clients to consult with counsel free from the apprehension that the communications will be disclosed without their consent. 71See Ironshore Topic Nos. 14, 15,21,22,23,24,25, 77,78,96,97, and 98, attached as Ex. P; FARA Topic Nos. 28,29,30,31,32,33,34,35,36,37, 100, 101, 102, 103, 131, 132, 133, 135, 136, and 137, attached as Ex. Q. 17 under the joint defense privilege are shielded from discovery.72 Texas's joint defense privilege is narrower than that recognized in other jurisdictions because it requires that "the communication be made to a lawyer or her representative representing another party in a pending action.,;73 In order for Ironshore to successfully limit Denbury's questioning by virtue of the joint defense rule, it must establish that: (1) the communication was made "between a client, or the client's lawyer, to another party's lawyer, not the other party itself,74 and (2) the communication was made "in the context of a pending action.,,75 Ironshore has done neither. lronshore's written obj ections and responses to date are insufficient to establish it is entitled to withhold the requested information based on privilege. What they do show, however, is that Ironshore has withheld, or otherwise redacted, claim notes predating Denbury's demand for payment under the Ironshore policy and Ironshore's denial as "joint defense privilege.,,76 Ironshore's withholding of these materials contradicts basic tenants of Texas law. The joint defense privilege is not an independent privilege, but an extension of the attorney-client or work product privileges that creates "an exception to the general rule that no attorney-client privilege attaches to communications that are made in the presence. of or 72 See State v. Lowry, 802 S.W.2d 669, 671 (Tex. 1991). See also Item 138 on Ironshore's "Amended Privilege Log" (attached as Exhibit T) withholding documents bates labeled, JDA001-011, as the "Joint Defense Agreement." No date or recipient is provided for the withheld materials. As such, Denbury is unable to determine who is a party to the agreement and when it was executed. Ironshore also withholds numerous documents on the basis of "joint N defense" privilege from before both Denbmy's filing of the instant litigation on February 18, 2015 and Ironshore's N '- June 16, 2015 denial of coverage. For joint defense privilege to attach, Ironshore must first substantiate a privilege o of either work product or attorney-client. Denbury believes Ironshore has failed to satisfy either burden as detailed 00 above; however, to the extent Ironshore's joint defense claims are related to alleged work product, Denbmy is entitled to discover those materials exchanged before June 16,2015. And to the extent, Ironshore invokes attorney- client privilege, Denbury is entitled to discovery all materials through the February 2015 filing of this litigation. See, e.g., id. at Item Nos. 83, 88, 89, and 90. 73 See In re XL Specialty Ins. Co., 373 S.W.3d 46,54 (Tex. 2012) (emphasis in original). 74 !d. at 52-53 75 See id. at 52 ("Thus, in jurisdictions like Texas, which have a pending action requirement, no commonality of interest exists absent actual litigation." (emphasis added)). 76 See Category 4, p. 2, Ironshore's "privilege log" dated August 20,2015, attached as Exhibit H to Denbmy's Mot. to Comp; see also Item Nos. 83,87,88,89,90 18 disclosed to third-parties.,,77 This means Ironshore "must establish initially that the subject communications fall within the ambit of' another privilege.78 As detailed in the preceding sections, Ironshore has to support its claims of work product or attorney-client privileges. Thus, Ironshore's attempts to circumvent Denbury's proper discovery under the "joint defense" rule must also be denied. Alternatively, Denbury asks for an order compelling Ironshore/FARA to produce for an in camera inspection, the documentation associated with the testimony upon which the joint defense privilege is claimed. Then, the Court may determine the applicability of Ironshore's asserted privileges and order Ironshore to produce documents and testify accordingly. n. Ironshore's Unsubstantiated Procedural Obiections In addition to the work product, attorney-client, and joint defense privilege assertions, Ironshore also objects to 52 areas of inquiry in the Ironshore notice, and 83 in the FARA notice 79 on procedural grounds. Of those combined 135 topics, Ironshore replies that it "will provide a witness to testify as to this topic" for 1 area. Ironshore also responds that "no employee of F ARA is familiar with this topic" for 3 areas, 80 and states "Defendant will provide a witness to testify as to non-privileged information pertaining to this topic" for 5 areas. 81 Denbury interprets Ironshore's responses to mean lronshorelF ARA will refuse to answer any deposition questions 77 See In re Seigel, 198 S.W.3d 21,27 (Tex. App.-E1 Paso 2006) citing In re Skiles, 102 S.W.3d 323, 326 n. 2 (Tex. App.-Beaumont 2003); see also Robert W. Higgason, The Attorney-Client Privilege in Joint Defense and Common Interest Cases, 34 HOus. LAW. 20, 21 (1996) ("The joint defense-common interest privilege must rest upon an underlying privilege such as the attorney-client privilege or the attorney work product privilege."). 78 Id. 79See generally Exhibits P and Q; respectively. Ironshore asserts seven different procedural objections: 1) overly broad, 2) irrelevant, 3) insufficient particularity, 4) legal conclusion, 5) fishing expedition, 6) redundant/harassing, and 7) speculation. Denbury responds to these objections in its motion to compel, filed of record on September 22, 2015 and its pre-motion correspondence with lronshore's counsel, attached to DenbUlY's Mot. to Compo as Exhibits AandB. 80 See FARA Topic Nos. 52,53, and 134, Exhibit Q. 81 See FARA Topic Nos. 84, and 100-103, Exhibit Q. 19 pertaining to the remaining 126 combined areas of inquiry for which IronshorelFARA did not include such a qualifying statement. Denbury has provided comprehensive areas of inquiry. 82 It is not required to provide advanced questions. All of Ironshore's procedural objections can be preserved by proper objections at the depositions. Denbury urges the Court to deny Ironshore's motions, and compel Ironshore's and F ARA' s corporate designees to provide testimony responsive to all noticed areas of inquiry . HI. Conclusion Denbury has a limited amount of time to conduct these depositions. It does not intend to waste resources on irrelevant or duplicative testimony. Denbury is entitled to question Ironshore/FARA on the rationale of its denial, its understanding of Denbury' s policies, and the application of those policies to the facts here. Denbury is also allowed to discover Ironshore's treatment, and payment, of analogous claims for on-lease damages by similarly situated oil and gas policyholders conducting operations on leased property - policyholders to which Ironshore markets the policy at issue. Ironshore fails to prove any privilege sufficient to strike Denbury's areas of inquiry. Ironshore also fails to prove any procedural deficiencies that cannot be corrected by objections during the deposition. Because Ironshore bears the burden of proof, its motions fail. 82 See James C. Winton and Farrel A. Hochmuth, CORPORATE REPRESENTATIVE DEPOSITIONS IN TEXAS, Preparing and Taking the Deposition, The Advocate, Fall, 2004, 28 The Advocate (Texas) 34, *34 citing Prokosch v. Catalina Lighting, Inc., 193 F.R.D. 633, 638 (D. Minn. 2000) (for the proposition that, "the requesting party must take care to designate, with painstaking specificity, the particular subject areas that are intended to be questioned, and that are relevant to the issues in dispute" when noticing a corporate deposition.) (emphasis added). 20 Respectfully submitted, /'M N N t;...; - N 0 Q) ~ 0... I t- N t- oo M N t- \0 ;..; Q) ,.0 S ;::j Z ...... ~ Q) § u Ci 0 21 "0 Q) tC .-2 Q) u CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the Denbury 's Consolidated Response to Motions for Protective Orders by Defendant, Ironshore Specialty Insurance Company has been served on the following: Mr. Randell E. Treadaway Mr. Ch..'istopher Co Frost 1\11'. Michael Knippen Ms. MicheUe O'Daniels Mr. MkhaelMulvaney Mr. David Rock Mr. Brad D. Ferrand Mr. Joshua R Baker Mr. James M. Eastham Zaunbrecher Treadt.Hvay, LLC 1\tJaynard, Cooper, Gale Traub Lieberman Straus & 406 N. Florida Street, Suite 2 1901 Sixth Avenue, Suite 2400 ShrelvsberlY, LLP Covington, LA 70433 Birmingham, AL 35203 303 West Madison St, Ste. randY@'ztlala\v.com cfrost@'mavnardcooper.com 1200 U)D.\'!.h~g~J!:~~.gnH~jL~~mI1, TXlm,\}.1.y..~ns~y..~1?Lnf!ynf!,H!.f;J!.Q.Pt:.r.:.~~9rn Chicago, IL 60606 brad @ It! ala w .com jbaker@maymm.icooper.com mknippen@traublieberman,com jeasth'lm@lraublieherrnan.com drock(qltraublieberman.com Mr. Mark C. Clemer Ms. Mindy Riseden Mr. Marc J. 'vVojciechowski ML James Johnson ML Henry Kollenberg 'vVojciechowski & A.ssociates, Brown Sirns Crain, Caton & James PC th 1177 "Vest Loop South, 10 Five Houston Center 17447 Kuykendahl Rd. Ste. 200 Floor 1401 McKinney Street, Suite Spling, Texas 77379 Houston, Texas 77027 1700 marc@woiolaw.com rndemer(q;brownsims.com Houston, TX 77010 iiohnson@browllsims.com nrriseden@craincaton.com hkoHenberg@cra,incaton.com via U.S. Mail andlor electronic service on September 29, 2015 at or before 5:00 p.m., and the electronic transmission was reported as complete. JACQ~m~M. BRETTNER 4830-9568-6697, v. 1 22 I, Chris Daniel, District Clerk of Harris COtmty, Texas certify that this is a true and correct copy of t11eoriginal record filed and or recorded in my office, electronically or hard copy. as it appears OIl this date. ,\Vitness my o:fficial h;:md and seal of office this October 22,2015 Certi:fied Docmnent Number: 67238727 Chris Daniel, DISTRICT CLERK KAJtRIS COUNTY, IL~ In .u::cordance with Tex.as Gove:rnnumt Code 406JH3 electronically tran:nnirted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@.hcdistridclerkcom r"I)e~;l}t~~~1;~~S~'~)~;2II71'5U1:~'es~}()~:~'s8"t()''1:~8(~'lj~;ste(]"1:)i:{)te()tT\;8U(~)~:(~~~'rs""''''"'''''1 ~ ~ ~. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .,.,.. . . . ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . '. .,. . . . . . . '.,. . . . . . . . . . . . . . . .". . . . . .". . . . . . . . . . . . . . . . . . . . . . . . . . .,. ,. . . . . . .,. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . J CAUSE NO. 2015-09546 DENBURY RESOURCES INC. and IN THE DISTRICT COURT DENBURY ONSHORE, LLC IRONSHORE SPECIALTY INSURANCE COMPANY, ALTERRA EXCESS & 157th JUDICIAL DISTRICT SURPLUS INSURANCE COMPANY, AXIS SURPLUS INSURANCE COMPANY, AND MARSH USA INC. NOTICE OF ORAL AND VIDEOTAPED DEPOSITION AND REQUEST FOR DOCUMENTS OF SANFORD OSTER AS THE DESIGNATED CORPORATE REPRESENTATIVE(S) OF IRONSHORE SPECIALTY INSURANCE COMPANY TO: Ironshore Specialty Insurance Company through its attorneys of record, Mark C. Clemer James D. Johnson Brown Sims, P.c. 1177 West Loop South Tenth Floor Houston, Texas 77027 00 ....... -And- Randell E. Treadaway Brad D. Ferrand Michelle O'Daniels Zaunbrecher T-readaway, LLC 406 N. Florida Street, Suite 2 Covington, Louisiana 70443 I. PLEASE TAKE NOTICE that, pursuant to Texas Rule of Civil Procedure 199.2(b)(1) and 199.2(b)(5). Denbury Resources Inc. and Denbury Onshore, LLC, will take the oral and videotaped deposition of the Mr. Sanford Oster as the designated Corporate Representative of Ironshore Specialty Insurance Company ("Ironshore"), on October 20,2015, commencing at 9:00 a.m. at the law offices of Pillsbury Winthrop Shaw Pittman, LLP, 1540 Broadway Avenue, New York, New York 10036, by agreement of the parties. II. Ironshore's designee(s) is further directed to produce responsive documents to the requests listed in Exhibit "A" within thirty (30) days of service of this notice. N. The deposition will be recorded stenographically and on videotape. The stenographic and video recordings will be conducted by Kay E. Donelly & Associates. Respectfully submitted, .:/'::;~1~~~:*k(:l~• c'}::::·;::::::::··:::~::;:'··~' . PInUP ~("~NIZIALEK:"T:X'(#i5045250r' SARAH E. STOGNER (#24091139) JACQUELINE M. BRETTNER (pro hac vice) Carver, Darden, Koretzky, Tessier, Finn, Blossman, & Areaux, L.L.C. 1100 Poydras Street, Suite 3100 00 New Orleans, Louisiana 70163 Telephone: (504) 585-3800 Facsimile: (504) 585-3801 Email: ni:lialek@cafverdarden.cotn stogner@carverdarden.com brettner@cat'verdarden.cotn Counsel for Plaintiffs Page 2 of 18 CERTIFICATE OF SERVICE Deposition of Corporate Representative(s) of Ironshore Specialty Insurance Company has been served on the following: Mr. Randell E. Treadaway Mr. Christopher C Frost Ml'. Michael Knippen Ms. Michelle O'Daniels M1'. Michael Mulvaney Mr. David Rock ML Brad D. Ferrand .t\.'lr. Joshua R Baker .Mr. James M. Eastham Zaunhrecher Treadaway, LLC lVlaynard, CoopeT, Gale Traub Lieberman Straus & 406 N. Florida Street, Suite 2 1901 Sixth Avenue, Suite 2400 Shrewsbeny, ILP Covington, LA 70433 Binningham, AL 35203 303 West Madison St., Ste. 1200 1:!mgy..@.?;tl!~1.?ly':.g~,~!p' .~~fl:f;:f:t~rti.m!~;{.11?'J:dgg~,m~I&~?Xn Chicago, IL 60606 modlel:ml @gruail.com rnmulvanev@mavndardcooper.com Inknippen@tTfmblieberman.com QI?~;l~t.?:!M!,lr!,:~:~~Q.m iQ.?kfIq£nE!y.;o;1!A!:0:£~,:!,~v.~r:.g~ml j,<;?f!,f:tQ.?m,q£.tr!AUNi,f!~!,;Irmmd?mn drock (g) traubliebennan.com Mr. Mark C. Clemer Ms. Mindy Riseden Ml'. Marc J. Wojciechowski Mr. James Johnson Mr. Henry KoUenberg Wojciechowski & Associates, PC BrO'vY'nSims Crain, Caton & James 17447 Kuykendahl Rd. Ste. 200 11 .-,.-; 'l:~j ~ ,t I S ' ) th 1 qtb ct . .. I , vv"s ..,oop >.cu . ,;.'-. .t·.GO' Five Houston Center Spring, Texas 77379 Houston, Texas 77027 1401 IVIcKirmey Street, Suite 1700 rnarc@wojolaw.com ~~~;:Js:mfI~~'.12my.{.n:~L-n~~:.g~,~!p', Houston, TX 77010 jjohnson@brownsilTls.com mriseden@craincaton.com hK~,~HmQ:;'Tg~~~~T?j,!!,g!Ah?E!:g~g} via U.S. Mail and/or electronic service on September 2, 2015 at or before 5:00 p.m., and the 00 PHILIP D. NIZIALEK Page 3 of 18 EXHIBIT "A" 1. You are requested to produce all documents electronically. Pursuant to Rule 196.4, You are requested to produce electronic data responsive to these Requests in tiff or pdf searchable format, including e-mail. 2. Answer each request for documents separately by listing the documents and including in each response information that identifies the document and its bates number. 3. For a document that no longer exists or cannot be located, identify the document, state how and when it passed out of existence or could no longer be located, and the reasons for the disappearance. Also, identify each person having knowledge about the disposition or loss of the document, and identify any other document evidencing the lost document's existence or any facts about the lost document. a. When identifying the document, you must state the following: i. The nature of the document (e.g. letter, handwritten note). iii. The date of the document and the date of each addendum, 00 supplement, or other addition or change. '+-< 0 7 iv. The identities of the author, signer of the document, and person on (l) ~ ~ I whose behalf or at whose request or direction the document was 00 N r-- 00 M prepared or delivered. N r-- \0 ;..; (l) b. When identifying the Person, you must state the following: ,£:J s ;:l 1. The full name. - ;Z; :(l):: S ;:l () 0 Q Page 40f18 '"Cl (l) 1.;:::< .€ (l) u ii. The present or last known residential address and telephone 111. The present or last known office address and telephone number. address. 4. If You claim all or part of any responsive document or communication is privileged, then You are requested to provide the appropriate information regarding such assertion of privilege, as set forth in Tex. R. Civ. P. § 193.3. a. "Ironshore," "You" and "Your", as used herein, shall refer to Ironshore Specialty Insurance Company and shall include, without limitation, any and all of its parents, subsidiaries, employees, Underwriters, Adjusters, agents and attorneys. b. "Marsh" shall refer to Marsh USA, Inc. and shall include, without limitation, any and all of its parents, subsidiaries, employees, agents, broker, and attorneys. c. "Zurich" shall refer to Zurich American Insurance Company and shall include, without limitation, any and all of its parents, subsidiaries, employees, Underwriters, Adjusters, agents and attorneys. 00 d. "AGLIC" shall refer to American Guarantee & Liability Insurance Company and shall include, without limitation, any and all of its parents, subsidiaries, employees, Underwriters, Adjusters, agents and attorneys. e. "Alterra" shall refer to Alterra Excess & Surplus Insurance Company and shall include, without limitation, any and all of its parents, subsidiaries, employees, Underwriters, Adjusters, agents and attorneys. Page 5 of 18 f. "Axis" shall refer to Axis Surplus Insurance Company and shall include, without limitation, any and all of its parents, subsidiaries, employees, Underwriters, Adjusters, agents and attorneys. g. "Denbury" shall refer to Denbury Resources Inc. and Denbury Onshore, LLC, or any other Denbury entity for which Marsh procured insurance. h. "F ARA" shall refer to FARA Insurance Services, and shall include, without limitation, any and all of its parents, subsidiaries, employees, Underwriters, Adjusters, agents and 1. "CGL Policy" shall refer to the commercial general liability policy number 9242578-00, issued to Denbury by Zurich American Insurance Company, with the effective dates of April I, 2013 to April 1, 2014. Denbury by AGLIe, with effective dates of April 1, 2013 to April 1,2014. k. "Ironshore Policy" shall refer to policy number 000988602, issued to Denbury by Ironshore, with the effective dates of April 1, 2013 to April 1, 2014. 1. "Alterra Policy" shall refer to policy number MAX6XL0000443, issued to Denbury Alterra, with the effective dates of April I, 2013 to April 1, 2014. 00 m. "Axis Policy" shall refer to policy number EAU766369101/2013, issued to Denbury by Axis, with the effective dates of April 1, 2013 to April 1, 2014. n. "Policies" shall collectively refer to the CGL Policy, the Umbrella Policy, the Ironshore Policy, the Alterra Policy and the Axis Policy, as defined above, and shall include any and all policy registers, policy logs, schedules, forms, and endorsements. Page 60f18 o. "Other Insurance" shall mean any other insurance policy issued to Denbury other than the Policies. p. "Litigation" shall mean Denbury Resources Inc. et al v. lronshore Specialty Ins. Co., et al. Case No. 2015-09546 currently pending in the 157th Judicial District Court in Harris County, Texas. q. "Delhi Incident" shall mean the control of well and pollution incident commencing on or about June 13,2013 in the Delhi Field Unit located in the state of Louisiana. r. "Denbury's Claim" shall mean all insurance claims, notices, demands for defense, indemnity, or any other claim for insurance coverage related to the Delhi Incident. s. "Blended Pollution Endorsement" shall refer to endorsements bearing the form number U-UMB-200-A CW (7/99) and/or form number U-EXS-200-A-CW (4/99) that were included in and made a part of the Umbrella Policy. t. "Insurers" shall collectively refer to Zurich American Insurance Company, American Guarantee & Liability Insurance Company, Ironshore Specialty Insurance Company, Alterra Excess & Surplus Insurance Company, and Axis Surplus Insurance Company. u. "Underwriting" or "Underwrites" shall mean the process of determining the acceptability of a particular submission for insurance through evaluation and analysis of the 00 nature and extent of the risk presented, and of determining the amount, price, and conditions under which the submission is acceptable. Underwriting and Underwrites shall further mean the process of drafting an insurance policy to cover the accepted submission. v. "Submission" shall mean a proposal for insurance, including but not limited to an application, submitted for Underwriting. Page 70flS w. "Adjusting" or "Adjust" or "Adjustment" shall mean administration, handling, evaluation, analysis, investigation, review, quantification, interpretation, verification, expert consultation, negotiation, or assessment of coverage, damages, quantum, exclusions, warranties, or conditions related to any Claim by any Person, including but not limited to third party administrators. x. "On-Lease" shall refer to any surface location covered by a mineral lease where an Energy Market policyholder is a lessee. y. "Claim" shall mean demand to recover, under a policy of insurance, for loss that may come within the coverage provided by that policy, including but not limited to demands for defense, demands for indemnity, or any other request for insurance coverage under any insurance policy. "Claim" shall also refer tothe meaning of "c1aim" contemplated by Texas Insurance Code § 542.051. z. "Claims Adjuster" shall mean any Person who performs Adjusting of a Claim, and includes Your employees and the employees of any third parties performing Adjusting of a Claim for You. aa. "Reserve" shall mean an estimate of the value of a Claim or group of Claims not yet paid, including but not limited to an estimate of the amount for which a particular Claim will 00 ultimately be settled or adjudicated. bb. "Reinsurance" shall mean a transaction in which one party, the "reinsurer," in consideration of a premium paid to it, agrees to indemnify another party, the "reinsured," for part or all of the liability assumed by the reinsured under a policy of insurance that it has issued. cc. "Energy Market" shall mean Your policyholders or potential policyholders engaged in oil, gas, and petroleum exploration and production operations. Page 8 of 18 dd. "Good Faith and Fair Dealing" shall mean the duties imposed by Texas Insurance Code Chapters 541 and 542. ee. "Original Proof of Loss" shall refer to Denbury's October 14, 2014 correspondence addressed to Ironshore's attorney, Randell E. Treadaway, and all accompanying attachments thereto including Denbury's Sworn Proof of Loss to AGLIC executed September 29, 2014, Zurich's October 6,2014 correspondence to Denbury tendering payment of its $25 million policy limits, and Denbury's Sworn Proof of Loss to Ironshore executed October 14, 2014. ff. "Roberts Litigation" shall refer to the lawsuit captioned Sunflower Cemetery, Inc., et al. v. Denbury Onshore, LLC, et al., identified with Civil Action No. 43629A, pending in the 5th Judicial District Court for the Parish of Franklin, Louisiana. gg. "Voluntary Payment Clause" shall refer to the provision in Ironshore's Policy that states "The Insured shall not, except at its own expense, settle any claim or suit or incur any defense costs for any an amount to which this Policy applies without the Insurer's written consent." hh. "Updated Proof of Loss" shall refer to Denbury's February 27, 2015 correspondence addressed to Ironshore's attorney, Randell E. Treadaway, and all accompanying attachments thereto including Denbury's updated Sworn Proof of Loss to Ironshore executed 00 February 27,2015. ii. "Owned, Rented, or Occupied Exclusion" shall refer to the provision within the Blended Pollution Endorsement of the Umbrella Policy stating "Clean up, removal, containment, treatment, detoxification or neutralization of "pollutants" existing at, or under or within the boundaries of any premises, site or location owned, rented or occupied by any insured." Page 9 of 18 jj. "ANR" shall refer to ANR Pipeline Company, and shall include, without limitation, any and all of its parents, subsidiaries, employees, agents and attorneys. kk. "ANR Initial Costs Settlement" shall refer to the Agreement between ANR and Denbury dated December 11,2013 and identified as DRI-SD-5525-5534. 11. "ANR Cut and Cap Settlement" shall refer to the Agreement between ANR and Denbury dated September 25,2013 and identified as DRI-SD-5535-5545. mm. "ANR Tariff Settlement" shall refer to shall refer to the Agreement between ANR and Denbury dated February 9,2015 and identified as DRI-SD-5717-5726. nn. "Loutre Land Settlement" shall refer to the Agreement between Loutre Land and Timber Company and Denbury dated June 3, 2014 and identified as DRI-SD-5593-5612. 00. "Impacted Areas" shall refer to any premises, site or location with any discharge, dispersal, seepage, migration, release or escape of any man-made or naturally occurring solid, liquid, gaseous or thermal irritant or contaminant, including but not limited to: smoke; vapor; soot; fumes; acids; alkalis; chemicals; and waste. pp. "Communications" shall mean the transmission, sending, and/or receipt of information of any kind by and/or through any means, whether face-to-face or otherwise, including, but not limited to, speech, writings, language (machine, foreign, or otherwise), or 00 recording. qq. "Document" means all written, typed, or printed matter and all electronic, magnetic, digital, or other records or documentation of any kind or description in your actual possession, custody, or control, including those in the possession, custody, or control of any and all present or former directors, officers, employees, consultants, accountants, attorneys, or other agents, whether or not prepared by you. "Document" includes, but is not limited to, the Page 10 of 18 following: Communications, policies, schedules, calendars, spreadsheets, letters, reports, charts, diagrams, correspondence, memoranda, notes, records, minutes, contracts, agreements, records or notations of telephone or personal conversations or conferences, interoffice communications, intraoffice communications, e-mail, voicemail, microfilm, bulletins, circulars, pamphlets, photographs, faxes, invoices, recordings, computer printouts, drafts, resumes, logs, and worksheets. rr. "Electronic" or "magnetic" data means electronic or digital information that is stored in a medium from which it can be retrieved and examined. The term refers to the original (or identical duplicate when the original is not available) and any other copies of the data that may have attached comments, notes, marks, or highlighting of any kind. Electronic or magnetic data includes, but is not limited to, the following: computer programs; operating systems; computer activity logs; programming notes or instructions; e-mail receipts, messages, or transmissions; output resulting from the use of any software program, including word-processing documents, spreadsheets, database files, charts, graphs, and outlines; metadata; PIP and PDP files; batch files; deleted files; temporary files; Intemet- or web-browser-generated information stored in textual, graphical, or audio format, including _history files, caches, and cookies; and any miscellaneous files or file fragments. Electronic or magnetic data includes any items stored on magnetic, optical, digital, or other electronic-storage media, such as hard drives, floppy disks, CD-ROMs, DVDs, tapes, smart cards, integrated-circuit cards (e.g., SIM cards), removable media (e.g., Zip drives, thumb drive), microfiche, or punched cards. Electronic or magnetic data also includes the file, folder, tabs, containers, and labels attached to or associated with any physical storage device with each original or copy. Page 11 of 18 ss. "E-mail" or "Electronic Mail" shall mean any method of electronic messaging, including any text message and instant-messaging method or service. it. The term "each" includes the word "every" and "every" includes the word "each." uu. The term "and" includes the word "or" and "or" includes the word "and." vv. The term "including" shall be construed as broadly as possible and shall mean "without limitation." ww. "Person" shall mean any natural person, corporation, firm, association, partnership, joint venture, proprietorship, governmental body, governmental agency, or any other organization, business, or legal entity, and all predecessors or successors in interest. xx. The phrase "related to or discussing," as used herein, shall mean all information and all facts andlor Documents that directly, indirectly or in any other way support, negate, bear upon, touch upon, incorporate, affect, include, pertain to, andlor are otherwise connected with the subject matter about which a request is being made. DOCUMENTS 1. A copy of deponent's current resume or curriculum vitae; 2. A copy of deponent's current driver's license or government-issued photo identification; 3. A copy of each and every document reviewed in preparation for Your testimony at the scheduled deposition; and 00 4. All Documents responsive to Denbury's First and Second Sets of Requests for Production served on May 18,2015 and August 5,2015; and 5. All Documents responsive to the Examination Topics listed below. EXAMINATION TOPICS Page 12 of 18 3. The risks presented by Denbury's operations. 8. The case Aspen Ins. UK, Ltd. v. Dune Energy, Inc., 400 Fed. Appx. 960 (5th Cir. 2010). 9. The case Pioneer Exploration, LLC v. Steadfast Ins. Co., 2013 WL 3557541 (W.D. La. 2013). 10. The case Pioneer Exploration, L.L.c. v. Steadfast Ins. Co., 767 F.3d 503 (5th Cir. 2014). 11. Ironshore's application of the Aspen Ins. UK, Ltd. v. Dune Energy, Inc., 400 Fed. Appx. 960 (5th Cir. 2010) decision to its liability policies. 12. Ironshore's application of the Pioneer Exploration, LLC v. Steadfast Ins. Co., 2013 WL 3557541 (W.D. La. 2013) decision to its liability policies. 13. Ironshore's application of the Pioneer Exploration, L.L.c. v. Steadfast Ins. Co., 767 F.3d 503 (5th Cir. 2014) decision to its liability policies. 15. Ironshore's Communications with Denbury's Insurers. 16. Ironshore's review of any Adjustment ofDenbury's Claim. 00 18. Ironshore's Communications with Marsh. """'0 M 19. Ironshore's relationship with Denbury. i-:
i=: ;:I u 0 0 Page 13 of 18 '"0
25. All Documents exchanged between Ironshore and any Person related to the Litigation. 26. lronshore's Underwriting. 29. Ironshore' s Underwriting of the Ironshore Policy forms. 30. Ironshore's understanding of AGLIC' s Underwriting of the Umbrella Policy. 31. All Communications between Ironshore and AGLIC regarding AGUC's Underwriting of the Umbrella Policy 32. Ironshore's understanding of Blended Pollution Endorsement Form U-UMB-200-A CW (7/99). 33. Ironshore's understanding of Blended Pollution Endorsement Form U-EXS-200-A-CW (4/99). 34. Ironshore's Adjustment of Claims under its liability policies. 37. lronshore's Reinsurance of Energy Market risks. 00 39. Ironshore's selection of Claims Adjusters. '+-< 0 -gp " p... 41. lronshore's selection of Claims Adjusters for Denbury's Claim. 00 N t- 00 M 42. Ironshore's denial of Denbury' s Claim. N t- \0 ;...: Q) 43. FARA. ,.0 S ;j z...., 44. lronshore's employment ofFARA relative to Denbury's Claim. ~ Q) S ;j (,) 0 Q Page 14 of 18 "0 Q) !.C .~ U 45. Denbury's Original Proof of Loss. 47. Ironshore's evaluation of Denbury' s Original Proof of Loss. 48. Ironshore's evaluation of Denbury's Updated Proof of Loss. 50. lronshore's evaluation of the Roberts Litigation. 51. Ironshore's decision to deny Denbury defense and indemnity for the Roberts Litigation. 53. Ironshore's evaluation of the ANR Initial Costs Settlement. 54. Ironshore's determination that AGUC's payment of the ANR Initial Costs Settlement does not erode the limits of the Umbrella Policy. 56. lronshore's evaluation of the ANR Cut and Cap Settlement. 57. Ironshore's determination that AGUC's payment of the ANR Cut and Cap Settlement does not erode the limits of the Umbrella Policy. 59. lronshore's evaluation of the ANR Tariff Settlement. 60. Ironshore's decision to deny coverage for the ANR Tariff Settlement. 61. Ironshore's Adjustment of On-Lease costs claimed by other Energy Market policyholders against Other Liability Policies. 62. Ironshore's Adjustment of On-Lease costs in Denbury's Claim. 63. All Documents relied upon by Ironshore in its Adjustment of Denbury' s Claim. 64. All Persons consulted by Ironshore in its Adjustment of Denbury's Claim. 66. lronshore's evaluation of the Loutre Land Settlement. Page 15 of 18 67. lronshore's determination that AGUC's payment of the Loutre Land Settlement does not erode the limits of the Umbrella Policy. 70. Ironshore's notice of AGUC's tender of the policy limits of the Umbrella Policy. 71. The costs Denbury incurred as a result of the Delhi Incident. 72. Ironshore's efforts to communicate with AGUC regarding Denbury' s Claim. 73. Ironshore's efforts to communicate with AGLIC regarding the Delhi Incident. 74. All Documents Denbury produced in support of Denbury's Claim. 75. lronshore's request for information to Denbury. 76. Ironshore's understanding of the status of Denbury's Claim against the Policies. 77. Ironshore's Communications with any Person regarding Denbury' s Claim. 78. Ironshore's Communications with any Person regarding the Delhi Incident. 80. Ironshore's objections and responses to discovery requests in this Litigation. 82. lronshore's marketing of the Ironshore Policy forms to the Energy Market. 83. lronshore's documentation of Claims. 00 84. . Ironshore's documentation of Denbury's Claim. Any insurance policy Ironshore believes does or could provide coverage to Denbury for Denbury's Claim. 85. lronshore's obligations as an Insurer under Texas law. 86. Iron shore , s reporting of complaints under Tex. Ins. Code Sec. 542.006 et seq. over the last five years. 87. lronshore's compliance with Texas Ins. Code Sec. 542.005 - 542.012 over the last five years. Page 16 of 18 88. All complaints filed against Ironshore under Texas Ins. Code Sec. 542.005 over the last five years. 89. All petitions filed against Ironshore in any Texas state or federal court by an Energy Market policyholder within the last five years. 90. All petitions filed by Ironshore in any Texas state or federal court against an Energy Market policyholder within the last five years. 91. All petitions filed against Ironshore in any Louisiana state or federal court by an Energy Market policyholder within the last five years. 92. All petitions filed by Ironshore in any Louisiana state or federal court against an Energy Market policyholder within the last five years. 95. Ironshore's payments to any Person related to the Policies. 96. Any agreements between Ironshore and any Person related to Denbury's Claim. 97. Any agreements between Ironshore and any Person related to the Litigation. 98. Any agreements between Ironshore and any Person related to the Delhi Incident. 99. Any insurance policy that may defend or indemnify Ironshore in the Litgation. 100. Denbury's termination of Marsh. 101. lronshore's performance of its obligations as an insurer under Texas law. 00 102. Ironshore's performance of its obligations to Denbury. 103. Iron shore 's organizational structure. 104. The identity of all Ironshore employees with knowledge of the Ironshore Policy. 105. The identity of all Ironshore employees with knowledge of Denbury's Claim. 106. The identity of all Ironshore employees with knowledge of the Delhi Incident. 107. The identity of all Ironshore employees with know ledge of the Litigation. Page 17 of 18 108. Denbury's written discovery requests in this Litigation. 109. Ironshore's initial disclosures in this Litigation. 110. All Documents responsive to each and every written discovery request Denbury has served on Ironshore in this Litigation. 4824-2137-2455, v. 1 '+-< o 00 Page 18 of 18 I. ChuB Daniel, District Clerk of Harris County, Texas certify that this is a tmeand coned copy of the origmal record filed and or recorded ill myoffice~ electronically or hard copy, as it appears on this date. VV:itness my official hand and seal of office this October 22. 2015 Certified Document NT..IDlber: 67238728 Chris Daniel, DISTRICT CLERK HARRIS COTINTf, TEJ{)!>~S In accordance with Texas Govel:nment Code 406JH3 efiecttonicaDy transmitted authenticated doc!tlments are valid. If there is a question regarding the validity of this document and or seal please ~man support@hcdistrictde:rk.com r"""T5~~I:~'t)l~j';~~?s"§7~~'8Tr5"f:~~;S'~}()'~ls~;"to"'f~~~{~'l~;8'st~~(rF)I:'(}E~(3j:T\;~~~"{5;~a8;~s'1 ~ ~ t. . . . . . . . . . ". .,. . . ,',. . ". . . . . . .,. .". . . . . . . . . . . . . . . . . . . . . . . . . . ,.,.,.,. ",. . . :.,. . .,.;. . . . . . . . . . . . . .,. . . . .:. . . .,. . . . ,.:. . ,. . .,.,.,.:. . . ,'. .;. . . .,. . . . .,. . . . .,.". '.:. " ,. .,.:.:.,.,. . ,.,. . . . . . . .,;. . . .,. . . . '" . .,. . .,.:. . .:.:. .". . :.,.,.,.,.,.,. .,.,.,. . . ,;. . . . . .:. .,. . . . . . . . :.,. , '. ". .,. ,',.,. ,',.,.J DENBURY RESOURCES INC. and IN THE DISTRICT COURT DENBURY ONSHORE, LLC IRONSHORE SPECIALTY INSURANCE COMPANY, ALTERRA EXCESS & 157th JUDICIAL DISTRICT SURPLUS INSURANCE COMPANY, AXIS SURPLUS INSURANCE COMPANY, AND MARSH USA INC. NOTICE OF ORAL AND VIDEOTAPED DEPOSITION AND REQUEST FOR DOCUMENTS OF THE DESIGNATED CORPORATE REPRESENTATIVE(S) OF F.A. RICHARD & ASSOCIATES, INC. ("FARA") TO: F.A. Richard & Associates, Inc. through its attorneys of record, Mark C. Clemer James D. Johnson Brown Sims, P.C. 1177 West Loop South Tenth Floor Houston, Texas 77027 -And- o N Randell E. Treadaway '-I-; o Brad D. Ferrand Michelle O'Daniels Zaunbrecher Treadaway, LLC 406 N. Florida Street, Suite 2 Covington, Louisiana 70443 I. PLEASE TAKE NOTICE that, pursuant to Texas Rule of Civil Procedure 199.2(b)(1) and 199.2(b)(5), Denbury Resources Inc. and Denbury Onshore, LLC, will take the oral and videotaped deposition of the designated Corporate Representative of EA. Richard & Associates, Inc. ("FARA"), on October 21, 2015, commencing at 1:00 p.m. at the law offices of Pillsbury Winthrop Shaw Pittman, LLP, 1540 Broadway Avenue, New York, New York 10036, by agreement ofthe parties. II. FARA's designee(s) is further directed to produce responsive documents to the requests listed in Exhibit "A" within thirty (30) days of service of this notice. 1II. The deposition will continue from day to day until completed. N. The deposition will be recorded stenographically and on videotape. The stenographic and video recordings will be conducted by Kay E. Donelly & Associates. . /.;::~~:;£~f~i~~;?~:~:~l··;i(·;:::~:;~:~~::=·:::::'::::,;> x~,,; PIDLIP Ib:"NIZIALEK::T~jt"(#i5045250r SARAH E. STOGNER (#24091139) JACQUELINE M. BRETTNER (pro hac vice) Carver, Darden, Koretzky, Tessier, Finn, Blossman, & Areaux, L.L.c. 1100 Poydras Street, Suite 3100 New Orleans, Louisiana 70163 Telephone: (504) 585-3800 Facsimile: (504) 585-3801 Email: nizlalek@carverdarden.com stogner@carverdarden.com brettner@' carverdarden .com Counsel for Plaintiffs Page 2 of 20 CERTIFICATE OF SERVICE Deposition of Corporate Representative(s) of F.A. Richard & Associates, Inc. has been served on Mr. Randell E. Treadaway Mr. Christopher C. Frost Mr. Michael Knippen Ms. Michelle O'Daniels Mr. Michael Mulvaney Mr. David Rock NfL Brad D. Ferrand 1.'1/1r. Joshua It Baker Mr. James M. Eastham Zaunhrecher Treadaway, LLC Maynard, Cooper, Gale Traub LiehelTfwn Straus & 406 N. l'lorida Street, Suite 2 1901 Sixth Avenue, Suite 2400 ShrcYvsbeny, lLP Covington, LA 70433 Binnil1ghaIn, AL 35203 303 West Madison St., Ste. 1200 mn,Qy.qR.?;tl:~hn¥.:.~~n-g ~:fl:mlt~i;'i.l;Q!AY.D.?1:!!.9g~~b~~I&QXn Chicago, IL 60606 lXlodle!:YaI@ grmliL corn rmnulvanev@mavndardcoopeLcom rnknippen@traublieberman.com bI?~;t~¥:z:t\!!,\r~,\y':q;:!r: jJ??,!sf;I~~.Q}!!y.mmt~~,~!mf;r.:9~?m jg!!,slnwmqR.p.:!mNtf;b~nnfm.,9gXn arock@traubliebennau.com Mr. Mark C. Clemer IVIs. Mindy Riseden lVil". Marc J. Wojci.ecbowski Mr. James Johnson Mr. Henry KoUenberg Vlojciechowski & Associates, PC fJrovm Sims Crain. Caton & James 17447 Kuykendalll Rd. Ste. 200 1177 West Loop South, 10tt; Floor Five Houston Center Spring, Texas 77379 Houston, Texas 77027 1401 :McKinney Street, Suite 1700 marc@vv'oiolaw.com m~:t~m~IP;J.l~!:Qy.{.m;.L1]}~:g;:m Houston, TX 77010 ijohnson (robrownsiuls.com mriseden@craincaton.com N~~,~U~c11b.~1:g§;~~~n~j,!!S:!Argn:.~~,~m via U.S. Mail and/or electronic service on September 3, 2015 at or before 5:00 p.m., and the PHILIP D. NIZIALEK Page 3 of 20 EXHIBIT "A" 1. You are requested to produce all documents electronically. Pursuant to Rule 196.4, You are requested to produce electronic data responsive to these Requests in 2. Answer each request for documents separately by listing the documents and including in each response information that identifies the document and its bates 3. For a document that no longer exists or cannot be located, identify the document, state how and when it passed out of existence or could no longer be located, and the reasons for the disappearance. Also, identify each person having knowledge about the disposition or loss of the document, and identify any other document evidencing the lost document's existence or any facts about the lost document. a. When identifying the document, you must state the following: i. The nature of the document (e.g. letter, handwritten note). ii. The title or heading that appears on the document. 0 supplement, or other addition or change. N 4-< 0 " § u 0 Ci Page 40f20 '"0 Q) 1.C '-2 Q) u 11. The present or last known residential address and telephone 111. The present or last known office address and telephone number. 4. If You claim all or part of any responsive document or communication is privileged, then You are requested to provide the appropriate information regarding such assertion of privilege, as set forth in Tex. R. Civ. P. § 193.3. a. "FARA, " "You" and "Your", as used herein, shall refer to F.A. Richard & Associates, Inc. and shall include, without limitation, any and all of its parents, subsidiaries, b. "Marsh" shall refer to Marsh USA, Inc. and shall include, without limitation, any and all of its parents, subsidiaries, employees, agents, broker, and attorneys. c. "Zurich" shall refer to Zurich American Insurance Company and shall include, without limitation, any and all of its parents, subsidiaries, employees, Underwriters, Adjusters, d. "AGLIC" shall refer to American Guarantee & Liability Insurance Company and shall include, without limitation, any and all of its parents, subsidiaries, employees, e. "Alterra" shall refer to Alterra Excess & Surplus Insurance Company and shall include, without limitation, any and all of its parents, subsidiaries, employees, Underwriters, Page 50f20 f. "Axis" shall refer to Axis Surplus Insurance Company and shall include, without limitation, any and all of its parents, subsidiaries, employees, Underwriters, Adjusters, agents and g. "Denbury" shall refer to Denbury Resources Inc. and Denbury Onshore, LLC, or h. "Iron shore" shall refer to Ironshore Specialty Insurance Company, and shall include, without limitation, any and all of its parents, subsidiaries, employees, Underwriters, 1. "CGL Policy" shall refer to the commercial general liability policy number 9242578-00, issued to Denbury by Zurich American Insurance Company, with the effective dates of Aprill, 2013 to April!, 2014. j. "Umbrella Policy" shall refer to policy number AUC 924673-00, issued to Denbury by AGLIC, with effective dates of Aprill, 2013 to Aprill, 2014. k. "Ironshore Policy" shall refer to policy number 000988602, issued to Denbury by Ironshore, with the effective dates of April 1, 2013 to Aprill, 2014. 1. "Alterra Policy" shall refer to policy number MAX6XL0000443, issued to Denbury Alterra, with the effective dates of April 1, 2013 to Aprill, 2014. m. "Axis Policy" shall refer to policy number EAU766369/0 1120 13, issued to Denbury by Axis, with the effective dates of Aprill, 2013 to April 1, 2014. n. "Policies" shall collectively refer to the CGL Policy, the Umbrella Policy, the Ironshore Policy, the Alterra Policy and the Axis Policy, as defined above, and shall include any and all policy registers, policy logs, schedules, forms, and endorsements. Page 60f20 o. "Other Insurance" shall mean any other insurance policy issued to Denbury other p. "Litigation" shall mean Denbury Resources Inc. et al v. Ironshore Specialty Ins. Co., et al. Case No. 2015-09546 currently pending in the 157th Judicial District Court in Harris q. "Delhi Incident" shall mean the control of well and pollution incident commencing on or about June 13,2013 in the Delhi Field Unit located in the state of Louisiana. r. "Denbury's Claim" shall mean all insurance claims, notices, demands for defense, indemnity, or any other claim for insurance coverage related to the Delhi Incident. s. "Blended Pollution Endorsement" shall refer to endorsements bearing the form number U-UMB-200-A CW (7/99) and/or form number U-EXS-200-A-CW (4/99) that were t. "Insurers" shall collectively refer to Zurich American Insurance Company, American Guarantee & Liability Insurance Company, Ironshore Specialty Insurance Company, Alterra Excess & Surplus Insurance Company, and Axis Surplus Insurance Company. u. "Underwriting" or "Underwrites" shall mean the process of determining the acceptability of a particular submission for insurance through evaluation and analysis of the nature and extent of the risk presented, and of determining the amount, price, and conditions under which the submission is acceptable. Underwriting and Underwrites shall further mean the process of drafting an insurance policy to cover the accepted submission. v. "Submission" shall mean a proposal for insurance, including but not limited to an Page 70f20 w. "Adjusting" or "Adjust" or "Adjustment" shall mean administration, handling, evaluation, analysis, investigation, review, quantification, interpretation, verification, expert consultation, negotiation, or assessment of coverage, damages, quantum, exclusions, warranties, or conditions related to any Claim by any Person, including but not limited to third party x. "On-Lease" shall refer to any surface location covered by a mineral lease where an y. "Claim" shall mean demand to recover, under a policy of insurance, for loss that may come within the coverage provided by that policy, including but not limited to demands for defense, demands for indemnity, or any other request for insurance coverage under any insurance policy. "Claim" shall also refer tothe meaning of "claim" contemplated by Texas Insurance Code z. "Claims Adjuster" shall mean any Person who performs Adjusting of a Claim, and includes Your employees and the employees of any third parties performing Adjusting of a aa. "Reserve" shall mean an estimate of the value of a Claim or group of Claims not yet paid, including but not limited to an estimate of the amount for which a particular Claim will ultimately be settled or adjudicated. bb. "Reinsurance" shall mean a transaction in which one party, the "reinsurer," in consideration of a premium paid to it, agrees to indemnify another party, the "reinsured," for part or all of the liability assumed by the reinsured under a policy of insurance that it has issued. cc. "Energy Market" shall mean Your policyholders or potential policyholders engaged in oil, gas, and petroleum exploration and production operations. Page 8 of 20 dd. "Good Faith and Fair Dealing" shall mean the duties imposed by Texas fusurance ee. "Original Proof of Loss" shall refer to Denbury's October 14, 2014 correspondence addressed to Ironshore's attorney, Randell E. Treadaway, and all accompanying attachments thereto including Denbury's Sworn Proof of Loss to AGLIC executed September 29, 2014, Zurich's October 6,2014 correspondence to Denbury tendering payment of its $25 million policy limits, and Denbury's Sworn Proof of Loss to Ironshore executed October 14,2014. ff. "Roberts Litigation" shall refer to the lawsuit captioned Sunflower Cemetery, Inc., et al. v. Denbury Onshore, LLC, et al., identified with Civil Action No. 43629A, pending in the 5th Judicial District Court for the Parish of Franklin, Louisiana. gg. "Voluntary Payment Clause" shall refer to the provision in Ironshore's Policy that states "The fusured shall not, except at its own expense, settle any claim or suit or incur any defense costs for any an amount to which this Policy applies without the fusurer's written hh. "Updated Proof of Loss" shall refer to Denbury's February 27, 2015 correspondence addressed to Ironshore's attorney, Randell E. Treadaway, and all accompanying attachments thereto including Denbury's updated Sworn Proof of Loss to Ironshore executed Febmary 27,2015. ii. "Owned, Rented, or Occupied Exclusion" shall refer to the provision within the Blended Pollution Endorsement of the Umbrella Policy stating "Clean up, removal, containment, treatment, detoxification or neutralization of "pollutants" existing at, or under or within the boundaries of any premises, site or location owned, rented or occupied by any insured." Page 90f20 jj. "ANR" shall refer to ANR Pipeline Company, and shall include, without limitation, any and all of its parents, subsidiaries, employees, agents and attorneys. kk. "ANR fuitial Costs Settlement" shall refer to the Agreement between ANR and Denbury dated December 11,2013 and identified as DRI-SD-5525-5534. 11. "ANR Cut and Cap Settlement" shall refer to the Agreement between ANR and Denbury dated September 25, 2013 and identified as DRI-SD-5535-5545. mm. "ANR Tariff Settlement" shall refer to shall refer to the Agreement between ANR and Denbury dated February 9, 2015 and identified as DRI-SD-57 17-5726. nn. "Loutre Land Settlement" shall refer to the Agreement between Loutre Land and Timber Company and Denbury dated June 3, 2014 and identified as DRI-SD-5593-5612. 00. "Impacted Areas" shall refer to any premises, site or location with any discharge, dispersal, seepage, migration, release or escape of any man-made or naturally occurring solid, liquid, gaseous or thermal irritant or contaminant, including but not limited to: smoke; vapor; pp. "Communications" shall mean the transmission, sending, and/or receipt of information of any kind by and/or through any means, whether face-to-face or otherwise, including, but not limited to, speech, writings, language (machine, foreign, or otherwise), or o N recording. '+-; o o qq. "Document" means all written, typed, or printed matter and all electronic, magnetic, digital, or other records or documentation of any kind or description in your actual possession, custody, or control, including those in the possession, custody, or control of any and all present or former directors, officers, employees, consultants, accountants, attorneys, or other agents, whether or not prepared by you. "Document" includes, but is not limited to, the Page 10 of 20 following: Communications, policies, schedules, calendars, spreadsheets, letters, reports, charts, diagrams, conespondence, memoranda, notes, records, minutes, contracts, agreements, records or notations of telephone or personal conversations or conferences, interoffice communications, intraoffice communications, e-mail, voicemail, microfilm, bulletins, circulars, pamphlets, photographs, faxes, invoices, recordings, computer printouts, drafts, resumes, logs, and IT. "Electronic" or "magnetic" data means electronic or digital information that is stored in a medium from which it can be retrieved and examined. The term refers to the original (or identical duplicate when the original is not available) and any other copies of the data that may have attached comments, notes, marks, or highlighting of any kind. Electronic or magnetic data includes, but is not limited to, the following: computer programs; operating systems; computer activity logs; programming notes or instructions; e-mail receipts, messages, or transmissions; output resulting from the use of any software program, including word-processing documents, spreadsheets, database files, charts, graphs, and outlines; metadata; PIP and PDP files; batch files; deleted files; temporary files; Internet- or web-browser-generated information stored in textual, graphical, or audio format, including history files, caches, and cookies; and any miscellaneous files or file fragments. Electronic or magnetic data includes any items stored on magnetic, optical, digital, or other electronic-storage media, such as hard drives, floppy disks, CD-ROMs, DVDs, tapes, smart cards, integrated-circuit cards (e.g., SIM cards), removable media (e.g., Zip drives, thumb drive), microfiche, or punched cards. Electronic or magnetic data also includes the file, folder, tabs, containers, and labels attached to or associated with any Page 11 of 20 ss. "E-mail" or "Electronic Mail" shall mean any method of electronic messaging, including any text message and instant-messaging method or service. tt. The term "each" includes the word "every" and "every" includes the word "each." uu. The term "and" includes the word "or" and "or" includes the word "and." vv. The term "including" shall be construed as broadly as possible and shall mean ww. "Person" shall mean any natural person, corporation, firm, association, partnership, joint venture, proprietorship, governmental body, governmental agency, or any other organization, business, or legal entity, and all predecessors or successors in interest. xx. The phrase "related to or discussing," as used herein, shall mean all information and all facts and/or Documents that directly, indirectly or in any other way support, negate, bear upon, touch upon, incorporate, affect, include, pertain to, and/or are otherwise connected with the 1. A copy of deponent's current resume or curriculum vitae; 2. A copy of deponent's current driver's license or government-issued photo identification; 3. A copy of each and every document reviewed in preparation for Your testimony at the scheduled deposition; 4. All Documents responsive to Denbury' s First and Second Sets of Requests for Production served on May 18, 2015 and August 5, 2015; and 5. All Documents related to or discussing the Examination Topics listed below. Page 12 of 20 3. The risks presented by Denbury's operations. 8. The case Aspen Ins. UK, Ltd. v. Dune Energy, Inc., 400 Fed. Appx. 960 (5th Cir. 2010). 9. The case Pioneer Exploration, LLC v. Steadfast Ins. Co., 2013 WL 3557541 (W.D. La. 2013). 10. The case Pioneer Exploration, L.L.c. v. Steadfast Ins. Co., 767 F.3d 503 (5th Cir. 2014). 11. FARA's application of the Aspen Ins. UK, Ltd. v. Dune Energy, Inc., 400 Fed. Appx. 960 (5th Cir. 2010) decision to the Ironshore Policy. 12. FARA's application of the Aspen Ins. UK, Ltd. v. Dune Energy, Inc., 400 Fed. Appx. 960 (5th Cir. 2010) decision to Other Liability Policies. 13. FARA's application of the Pioneer Exploration, LLC v. Steadfast Ins. Co., 2013 WL 3557541 (W.D. La. 2013) decision to the Ironshore Policy. 14. FARA's application of the Pioneer Exploration, LLC v. Steadfast Ins. Co., 2013 WL 3557541 (W.D. La. 2013) decision to Other Liability Policies. 15. FARA's application of the Pioneer Exploration, L.L.C. v. Steadfast Ins. Co., 767 F.3d 503 (5th Cir. 2014) decision to the Ironshore Policy. 16. FARA's application of the Pioneer Exploration, L.L.c. v. Steadfast Ins. Co., 767 F.3d 503 (5th Cir. 2014) decision to the Other Liability Policies. 0 N 4-< 0 17. F ARA' s relationship with Denbury' s Insurers. M 0\ N 19. F ARA' s review of any Adjustment of Denbury' s Claim. t- oo M N t- 20. Ironshore's relationship with Marsh. \0 ;..; 28. All Documents exchanged between Ironshore and any Person related to Denbury. 29. All Documents exchanged between Ironshore and any Person related to Denbury's Claim. 30. All Documents exchanged between Ironshore and any Person related to the Delhi Incident. 31. All Documents exchanged between Ironshore and any Person related to the Policies. 32. All Documents exchanged between Ironshore and any Person related to the Litigation. 33. All Documents exchanged between FARA and any Person related to Denbury. 34. All Documents exchanged between F ARA and any Person related to Denbury' s Claim. 35. All Documents exchanged between FARA and any Person related to the Delhi Incident. 36. All Documents exchanged between FARA and any Person related to the Policies. 37. All Documents exchanged between FARA and any Person related to the Litigation. 38. FARA' s communications with Ironshore regarding the Underwriting of the Umbrella Policy. o N 4-< o 39. Ironshore's understanding of Blended Pollution Endorsement Form U-UMB-200-A CW "' 40. lronshore's understanding of Blended Pollution Endorsement Form U-EXS-200-A-CW (4/99). 41. F ARA' s understanding of AGLIC' s Underwriting of the Umbrella Policy. 42. FARA's understanding of Blended Pollution Endorsement Form U-UMB-200-A CW (7/99). Page 14 of 20 43. FARA's understanding of Blended Pollution Endorsement Form U-EXS-200-A-CW (4/99). 44. Iron shore , s direction of the Adjustment of Claims under its liability policies. 45. lronshore's direction of the Adjustment of Denbury's Claim. 46. Ironshore's Adjustment of Claims under its liability policies. 48. F ARA' s Adjustment of Claims under Other Liability Policies. 5l. F ARA' s review of any Submission for the Policies. 52. lronshore's Reinsurance of Energy Market risks. 54. lronshore's selection of Claims Adjusters. 55. lronshore's training of Claims Adjusters. 56. Iron shore , s selection of Claims Adjusters for Denbury' s Claim. 59. FARA' s selection of Claims Adjusters for Denbury's Claim. 0 N <;.... 0 60. Ironshore's denial of Denbury's Claim. V) gf 6l. F ARA' s recommendations to Ironshore relating to or discussing Denbury's Claim. (:l... '"oo N 62. Ironshore's employment ofFARA relative to Denbury's Claim. t- C') N t- 63. Denbury's Original Proof of Loss. '0 ;..; 67. F ARA' s evaluation of Denbury' s Original Proof of Loss. 68. FARA's evaluation of Denbury's Updated Proof of Loss. 71. lronshore's decision to deny Denbury defense and indemnity for the Roberts Litigation. 73. Ironshore's evaluation of the ANR Initial Costs Settlement. 74. lronshore's determination that AGUC's payment of the ANR Initial Costs Settlement does not erode the limits of the Umbrella Policy. 76. Ironshore's evaluation of the ANR Cut and Cap Settlement. 77. Ironshore's determination that AGUC's payment of the ANR Cut and Cap Settlement does not erode the limits of the Umbrella Policy. 80. lronshore's decision to deny coverage for the ANR Tariff Settlement. 81. FARA's Adjustment of On-Lease costs claimed by other Energy Market policyholders 0 N against Other Liability Policies. '+-< 0 1.0 82. FARA's Adjustment of On-Lease costs in Denbury's Claim. (l) gf 0.. 83. All Documents relied upon by F ARA in its Adjustment of Denbury' s Claim. 0\ N t-- 00 M 84. All Persons consulted by F ARA in its Adjustment of Denbury' s Claim. N t-- 1.0 i-: (l) 85. The Loutre Land Settlement. ,!:l S ::l z..... 86. Ironshore's evaluation of the Loutre Land Settlement. s::: (l) § u 0 0 Page 16 of 20 "0 (l) 1.;:1 .€ (l) u 87. Ironshore's determination that AGUC's payment of the Loutre Land Settlement does not erode the limits of Umbrella Policy. 90. Ironshore's notice of AGUC's tender of the policy limits of the Umbrella Policy. 91. The costs Denbury incurred as a result of the Delhi Incident. 92. Ironshore's efforts to communicate with AGLIC regarding Denbury's Claim. 93. Ironshore's efforts to communicate with AGLIC regarding the Delhi Incident. 94. FARA' s efforts to communicate with AGLIC regarding Denbury's Claim. 95. FARA's efforts to communicate with AGUC regarding the Delhi Incident. 96. All Documents Denbury produced in support of Denbury's Claim. 97. lronshore's requests for information to Denbury. 99. FARA's understanding of the status of Denbury's Claim against the Policies. 100. Ironshore's Communications with any Person regarding Denbury's Claim. 101. Ironshore's Communications with any Personregarding the Delhi Incident. 102. F ARA' s Communications with any Person regarding Denbury' s Claim. 103. FARA' s Communications with any Person regarding the Delhi Incident. 104. Ironshore's affirmative defenses in this Litigation. 105. Ironshore's objections and responses to discovery requests in this Litigation. 106. Factual bases for all FARA objections and responses to this Notice. 107. Ironshore's Reserves for Denbury' s Claim. 108. Ironshore's marketing of the Ironshore Policy forms to the Energy Market. 109. lronshore's documentation of Claims. Page 17 of 20 110. FARA's documentation of Claims. 111. FARA's documentation of Denbury's Claim. 112. Ironshore's obligations as an Insurer under Texas law. 113. F ARA' s duties under Texas law. 114. Texas requirements for third-party administrators. 115. Federal requirements for third-party administrators. 116. Ironshore's reporting of complaints under Tex. Ins. Code Sec. 542.006 et seq. over the last five years. 117. Ironshore's compliance with Texas Ins. Code Sec. 542.005 - 542.012 over the last five years. 118. All complaints filed against Ironshore under Texas Ins. Code Sec. 542.005 over the last five years. 119. All complaints filed against other insurers under Texas Ins. Code Sec. 542.005 relating to or discussing F ARA' s Adjustment of a Claim over the last five years. 120. All petitions filed against h'onshore in any Texas state or federal court by an Energy Market policyholder within the last five years. 121. All petitions filed by Ironshore in any Texas state or federal court against an Energy Market policyholder within the last five years. 122. All petitions filed against Ironshore in any Louisiana state or federal court by an Energy Market policyholder within the last five years. o N 123. All petitions filed by Ironshore in any Louisiana state or federal court against an Energy "-' o Market policyholder within the last five years. 00 124. All petitions filed against FARA in any Texas state or federal court by an Energy Market policyholder within the last five years. 125. All petitions filed against FARA in any Louisiana state or federal court by an Energy Market policyholder within the last five years. 126. lronshore's payments to FARA. 127. F ARA' s invoices to Ironshore. Page 18 of 20 128. Ironshore's payments to any Person related to the Policies. 129. F ARA' s payments from any Person related to the Policies. 130. F ARA' s payments to any Person related to the Policies. 131. Any agreements between Ironshore and any Person related to Denbury's Claim. 132. Any agreements between Ironshore and any Person related to the Litigation. 133. Any agreements between Ironshore and any Person related to the Delhi Incident. 134. Any insurance policy that may defend or indemnify Ironshore in the Litigation. 135. Any agreements between FARA and any Person related to Denbury's Claim. 136. Any agreements between FARA and any Person related to the Litigation. 137. Any agreements between FARA and any Person related to the Delhi Incident. 138. Any insurance policy that may defend or indemnify FARA in the Litigation. 139. Denbury's termination of Marsh. 140. Ironshore's performance of its obligations as an insurer under Texas law. 141. lronshore's performance of its obligations to Denbury. 142. Ironshore's organizational structure. 143. FARA's organizational structure. 144. The identity of all Ironshore employees with knowledge of the Ironshore Policy. 0 N '-+-< 0 145. The identity of all Ironshore employees with knowledge of Denbury's Claim. 0\ (!) gp 146. The identity of all Ironshore employees with knowledge of the Delhi Incident. A-. 0\ N 147. The identity of all Ironshore employees with knowledge of the Litigation. t"- oo (") N t"- 148. The identity of all FARA employees with knowledge of the Ironshore Policy. \D j..; (!) ..0 s 149 . The identity of all F ARA employees with knowledge of Denbury' s Claim. ;::3 z..... c: (!) 150. The identity of all FARA employees with knowledge of the Delhi Incident. S ;::3 u 0 Ci Page 19 of 20 "0 (!) t;:i 'f: (!) u 151. The identity of all FARA employees with know ledge of the Litigation. 152. Denbury's written discovery requests in this Litigation. 153. lronshore's initial disclosures in this Litigation. 154. All Documents responsive to each and every written discovery request Denbury has served on Ironshore in this Litigation. 4848-2916-8424, v. 1 Page 20 of 20 1, Chris Daniel, District Clerk of Harris County, Texas certify that dns is a true and correct copy of tl1eoriginal record filed and or recorded in my office, electronically or hard copy, as it appears on this date. \'Vitness my official hand and seal .of office dus October 22.2015 Certi:fied Document Number: 67238729 Chris Daniel, DISTRICT CLERK BAlUtIS COm~IT, TEXA..8 )In ;;,:u:c DENBURY RESOURCES INC. and § IN THE DISTRICT COURT DENBURY ONSHORE, LLC § § Plaintiffs § VS. § 157 th JUDICIAL DISTRICT § IRONSHORE SPECIALTY INSURANCE § COMPANY, ALTERRA EXCESS & § SURPLUS INSURANCE COMPANY, § AXIS SURPLUS INSURANCE § HARRIS COUNTY, TEXAS COMPANY, and MARSH USA INC. § § Defendants § DEFENDANT IRONSHORE SPECIALTY INSURANCE COMPANY AND NON-PARTY DEPONENTS F.A. RICHARD & ASSOCIATES, INC., SANFORD OSTER, LEE SHERIDAN AND THOMAS DEVINE'S RESPONSE TO PLAINTIFFS' REQUESTS FOR DOCUMENTS CONTAINED IN NOTICES OF DEPOSITION To: Denbury Resources Inc. and Denbury Onshore, LLC by and through their counsel of record, Philip D. Nizialek, T.A.; Sarah E. Stogner; and Jacqueline M. Brettner, CARVER, DARDEN, KORETZKY, TESSIER, FINN, BLOSSMAN & AREAUX, LLC, 1100 Poydras St., Suite 3100, New Orleans, LA 70163. COMES NOW, Defendant, Ironshore Specialty Insurance Company (hereinafter "Defendant" or "Ironshore"), and Non-Party Deponents, F.A. Richard & Associates, Inc. (hereinafter "FARA"), Sanford Oster, Lee Sheridan and Thomas Devine, appearing by and through the assistance of undersigned counsel of record, and pursuant to Rules 193 and 196 of the Texas Rules of Civil Procedure serve their Objections and Responses to Plaintiffs Denbury Resources Inc. and Denbury Onshore, LLC's (hereinafter collectively "Denbury" or "Plaintiffs") Request for Documents contained in the notices of oral and videotaped deposition and request for documents of the designated corporate representative(s) of Ironshore and FARA, and contained in the notices of oral and videotaped fact deposition of Sanford Oster, Lee Sheridan and Thomas Devine. r"'''''~~~'xT1E)E''::'F1';;'''''''''''''1 ~ ~ ~ . ,.:.,.,.,. "'...,.,.,....,..." ......"".,..........,...,.................,.,.....,.,. ,.,....."'.......,.....,~ ~.,., Respectfully submitted, BROWN SIMS, P.e. By: slRandell E. Treadaway Mark C. Clemer Texas Bar No. 04372300 James D. "J.D." Johnson Texas Bar No. 24085918 Michelle Richard Texas Bar No. 24093037 Tenth Floor 1177 West Loop South Houston, Texas 77027-9007 Telephone: (713) 629-1580 Facsimile: (713) 629-5027 mclemer@brownsims.com jjohnson @brownsims.com mrichard@brownsims.com and Randell E. Treadaway (admitted pro hac vice) LA Bar No. 01624 Brad D. Ferrand (admitted pro hac vice) LA Bar No. 29860 ZAUNBRECHER TREADAWAY, L.L.C. 406 N. Florida Street, Suite 2 Covington, Louisiana 70433-2907 Telephone: (985) 871-8787 Telefax: (985) 871-8788 randy@ztlalaw .com brad@ztlalaw .com COUNSEL FOR DEFENDANT IRONSHORE SPECIALTY INSURANCE COMPANY 2 CERTIFICATE OF SERVICE This will certify that a true and correct copy of the foregoing pleading has been sent to all counsel of record via e-mail on this the 24th day of September, 2015: Phillip D. Nizialek, T.A. Sarah E. Stogner Jacqueline M. Brettner CARVER, DARDEN, KORETZKY, TESSIER, FJNN, BLOSSMAN & AREAUX, LLC 1100 Poydras St., Ste. 3100 New Orleans, LA 70163 Phone: (504) 585-3800 Fax: (504) 585-3801 nizialek@carverdarden.com stOfmer@carverdan::1en.com !,~g~HJlc~~I~~J.Wr.y.tnJ.m:fJ.tn:S~~!x!J Counsel for Plaintiffs Michael S. Knippen Kimberly H. Petrina David Rock James M. Eastham TRAUB, LIEBERMAN, STRAUS & SHREWSBERRY, LLP 303 W. Madison, Suite 1200 Chicago, lllinois 60606 Phone: (312) 332-3900 Fax: (312) 332-3908 mknlppen@traublieherman.com knetrina @tr?.lJRlL~;.bertmm.£orH drock@tral1blieberman,com .ieastham @traubl1eberman,com Counsel for Defendant Axis Surplus Insurance Company C. Henry Kollenberg Melinda M. Riseden CRAJN, CATON & JAMES, P.C. 1401 McKinney Street 17th Floor, Five Houston Center Houston, Texas 77010 Phone: (713) 658-2323 Fax: (713) 658-1921 hkollenberg@craincaton.com rnriseden @craincaton.com Counsel for Defendant Marsh USA, Inc. 3 Marc J. Wojciechowski WOJCIECHOWSKI & ASSOCIATES, P.c. 1747 Kuykendahl Road, Suite 200 Spring, Texas 77379 Phone: (281) 999-7774 Fax: (281) 999-1953 marc@;wojolaw.com and Michael D. Mulvaney Christopher C. Frost Josh B. Baker MAYNARD, COOPER & GALE, P.C. 2400 Regions/Harbert Plaza 1901 Sixth Avenue North Birmingham, AL 35203 Fax: (205) 254-1999 mmulvanev@mavnardcooper,com cfrost @ Ilia yn ardcoopeLcom jnaker@lnayna.rdcooper.com Counselfor Defendant Alterra Excess & Surplus Insurance Company slRandell E. Treadaway tr) '-<-< 0 "1- Q) b1) C':l 0.- 0 M t- oo M N t- \0 ;..; Q) ,.0 S Z= ...., .::: Q) § u Q 0 4 '"0 Q) t;:::: '-e Q) u GLOBAL OBJECTIONS 1. Defendant and Non-Party Deponents object to the extent that any request may be construed as calling for documents subject to a claim of privilege or other protective doctrine, including without limitation the attorney-client privilege and the work product exception, and all responses and production shall exclude any such privileged or protected information and documentation. It is not Defendant's intention to waive any privileges, and to the extent any privileged or protected document or information is produced, that production is inadvertent. 2. Defendant and Non-Party Deponents object to the extent that any request is unreasonably cumulative and duplicative of other discovery requests propounded against Defendant. 3. Defendant and Non-Party Deponents object to the discovery requests as harassing to the extent that requests are unreasonably cumulative and duplicative of other discovery requests propounded to Defendant. 4. The objections and responses provided below are made subject to and without waiving the foregoing Objections. DOCUMENT REQUEST NO.1: A copy of deponent's current resume or curriculum vitae. RESPONSE: Copies of the current resume or curriculum vitae of Sanford Oster, Lee Sheridan, Shabbir Bengali and Thomas Devine are attached hereto. DOCUMENT REQUEST NO.2: A copy of deponent's current driver's license or government-issued photo identification. Copies of the current driver's license or government-issued photo identification of Sanford Oster, Lee Sheridan, Shabbir Bengali and Thomas Devine are attached hereto. 5 DOCUMENT REQUEST NO.3: A copy of each and every document reviewed in preparation for Your testimony at the scheduled deposition. Ironshore and the Non-Party Deponents object to this request as premature as they have not yet reviewed any documents in preparation for their testimony, which is scheduled to begin the week of October 20,2015. This response will be supplemented if and when the deponents review any documents in preparation for their deposition testimony. DOCUMENT REQUEST NO.4: All Documents responsive to Denbury's First and Second sets of Requests for Production served on May 18,2015 and August 5,2015. Ironshore and the Non-Party Deponents object to this request for the reasons set forth in Ironshore's motions for protective order, which are set for hearing on October 2, 2015. Without waiving said objections, all non-privileged documents, and documents to which there is no objection, have been produced by Ironshore in response to Denbury's First and Second sets of Requests for Production served on May 18,2015 and August 5,2015. DOCUMENT REQUEST NO.5: All documents responsive to the Examination Topics listed below. Ironshore and the Non-Party Deponents object to this request for the reasons set forth in Ironshore's motions for protective order, which are set for hearing on October 2, 2015. Without waiving said objections, all non-privileged documents and documents responsive 6 to the Examination Topics listed in the notices of deposition of Ironshore and the Non- Party Deponents have been produced by Ironshore in response to Denbury's First and Second sets of Requests for Production served on May 18,2015 and August 5,2015, tr, ""'0 r-- 0 M r-- 00 M N r-- \0 ;.; S ;:::I u 0 0 7 '"<;:: '12 (H) 908-393-6148 (W) 609-610-1080 (C) 973-432-8777" Sbengali@verizon.net Profile Attorney with expertise in insurance law, including insurance defense, coverage, process, and claims with respect to standard General Liability, Commercial Auto, Pollution Liability and Medical Malpractice claims. Managed environmental claims unit which dealt with investigation and resolution of complex CGL, CA, GL and PL claims. Excellent analytical skills and ability to handle difficult situations effectively. Licensed to practice law in NY and NJ. Professional Chartered Property Casualty Underwriter. Experience FARA insurance Services, Princeton, NJ Unit Manager, January 2011 to Present , Unit Manager of Environmental Claims Unit Handled complex General Liability claims including construction defect, commercial auto, environmental, security and fire suppression claims , Granted settlement and reserve authority, reviewed coverage letters, audited files, and monitored trials. Received outstanding performance reviews. Everest National Insurance Company, Liberty Corner, NJ Claims Manager, January 2006- January 2011 Direct all processes related to healthcare professional liability claims. Participate in recruitment and employment matters. Independently established and managed claims program within year. Interviewed and evaluated candidates, administered performance reviews, granted settlement and reserve authority, reviewed coverage letters, audited files, and monitored trials. Recruited representatives to handle daily claims. Received outstanding performance reviews. American International Group, New York, NY Complex Claims Director, February 2000-January 2006 Determined coverage and conducted investigation, evaluation, negotiation, and disposition of complex healthcare professional liability claims. Independently resolved numerous medical malpractices cases, including case worth $3 million. Received defense verdicts for all but one. , Traveled extensively to attend mediations and settlement conferences. , Obtained outstanding reviews and promotions. St Paul Fire & Marine Insurance Company, New York, NY Claims Adjuster II, November 1996-February 2000 Determined coverage and conducted investigation, evaluation negotiation, and disposition of premises liability and professional auto and construction claims within General Liability claims unit. Traveled throughout New York to investigate and resolve claims. Attended numerous mediations and settled cases directly with counse1. Received promotion and consistent outstanding performance reviews. State Farm Mutual Insurance Comp, Paramus, NJ Claims Representative, January 1995-November 1996 , Determined coverage and conducted investigation, evaluation, negotiation, and disposition of no-fault auto claims. Education AICPCU Cumculum- College of Insurance, New York, NY CPCU, May 2003 Rutgers School of Law, Camden, NJ Juris Doctor, May 1993 Rutgers CoHege- Rutgers University, New Brunswick, NJ Bachelor of Arts in Political Science and Economics, May 1990 Affiliations New York State Bar Associationi New York CPCU Societyi Sigma Alpha Mu Fraternity • Adjusters License: Texas, North Carolina, Florida, and New York Tom Devine I Linkedln Page lof3 Mvan<:eQ Home Profile Connections Jobs Interests Business Services Try Premium for free This is what your pfo1AAl1~,*~limIl~ ~iimdU~lry: Leading Insurance Lead ProvidE!(. Get 50% Off All Leads. Start Now. 1Read MOI.e fileturn to your profile Tom Devine Litigation Adjuster Grealer New York City Areai Insurance Previous Sj)ecialty Claims MallajJeme~l, Chubb Insurance, General Accident Insurance Company Edtlcallol1 West Virginia Wesleyan College 45 connectkms. htfps'}f\wlW,linkedin.con 1/pLlbilom-devineI28/331Jb2a fl!!lI Cornacllnfo People Also Viewed Background DjWhito Claim Amllyst at AmTrust Fmancial SenAces, Inc. (AFSI) ~ Experience David Pearce Assist,,>]! Plincipal at Clark County Senior Litigation Adjuster School Oistlict Specially Claims Management August 2001 - April 2014 (12 years 9 months) I Saddle Brook/Secauctls,New Jersey Brian Davis FirefighterlParamedlc I handled liligated and non-litigated claims througoollt the United States for NaUooal Accounts, Primary and Excess Insurance Companies, Risk Retention Groups, and Self-Insured clients. The types of claims I have handled include prernisBsliability. environmental claims, excess umbrella claims, construction Kent Swartzlander defect, as well as somB New York State labor law li\i..qation. Duties included account management, Baltalion Chief al Chester Fire Dept analyzing coverage issues, drafting coverage position letters, monitoring UUgation, and preparing Large Loss Advisories. The position also entailed performing legal billing reviews for self insur~ clients. Attendance at trials and mediations is sometimes required. I am licensed in New York, Texas, and Pr[scllla Tom Sr. CRenl Representative at Marsh Florida Risk & Insurance Servi<:oo Claims Officer/litigation Examiner Kevin Williams Unit Manager, Auto liability Major Chubb insurance Cas<> !II Travelers March 1009 - August 2001 (12 years (> months) I New Prnliidence/F[orham Park! Warren New Jersey I handled and monitored litigated and non-litigated claims throughout the New Jersey/New York Jaffrey Petway Metropolitan region. The types of claims I hanQled included general liability , excess! umbrella, as well as Claims Representalive al The Besi Insurance RecruiUng Specialist - Stat" Borne errors and omissKlOs litigation. Tho position involved evaluating complex coverage issues, {jraftiflg Farm coverage position lelters. coordinating file invesligations, evaluating !iability and, negotiatlng setllementa. Bob Galluwi My dulies also included preparing cases for lrial as wei! as attendance at settlement conferences, Senior Consultant at Lombard mediations, and Irials. Consulting Kirkland McKenzie Suit Examiner Senior CD Specialist at QBE General Accident Insurance Company Insurance March 1985 - March 1989 (4 years 1 monlh) I New York. New York 1 Handled litigated generalliabili\y and labor law claims in New York, Bronx, Kings, Queens and Paul Eilers Assistant Vice Pre$ideol at RLl Richmond Counties. Duties included coordinaling file invesligajions; evaluating liability, and preparing Insuraru:e Company cases for trial. In addition to f!egotiating settlements. the position entailed attending settlement conferences and monitoring ongoing trials. https:llwww.linkedin.com/profile/preview?locale=e~US&trk=prof-O-sb-preview-primary-., , 9/1412015 Tom Devine I LinkedIn Page 2 of3 Advanced Connections Jobs Interests Business Services Try Premium lor free This is what your profile looks like to Conn Bclions :; Return to your profile Top Skills ......... ~ 3 =- 6 Liability 5 Claim 3 Legal liability Litigation Management Claims Management Professional liability Excess Casualty Insurance Property & Casualty... Tom also knows about._. Commercial Lines Coverage Environmental Mediation Product liability Trials Litigation Public LiaMily Worke.s Compensation Insurance law Property Damage Legal Writing Arbitration 1/1 Education West Virginia Wesleyan College Bachelor's degree, Political Science and Government Ac1ivities and SOCieties: DebateTeam Additional Info • Advice for Contacting Tom please e-mail meatdevine8@optonllne.net Recommendations Tom, would you like to recommend Tom? Recommend Tom', ..... Connections ~ U https:/lwww.linkedin.com/profile/preview?locale=en_ US&trk=prof-O-sb-preview-primary-... 9/14/2015 Tom Devine I Linkedln Page 3 of3 President. Pele Fowler Constnlction Servi Lead Recruiter/President ces, Inc. and Construe. Gonsullan! ultants, Inc. and Owner, nis,!"". +.1 Com~ections Jobs Florence GarlitL Business Services T'Y Premium for free Managing Partner, Clqr Shannon Splaine Thomas Young, PE Partner at Uncoil} Gustafson & CereQs Helping Attnmeys and Insurance Companl as UndQfSlalld Their Case-Expart \J\liIness lForensicslBaldlige Quuiity Award Examil] ar Sam Hooper Ron Lauter President, Sam Hooper & Associates, Inc., AV rated Marketing Partner and UUgator a Multi-line Claims Adjusters/Privete Inveall I FroorickSon, Mazeika & Grant gators Steven Lee Jim Glen P~rtner at Quirt< and Bakalor, P.C. Senior Claim Specialist at Hooper and Ass otlates, Inc. Previous Next Groups ConslructlQtl Oef&CI CI aims 8. Coverage 4 :184 memlJers Join Following Liberty Mutual Insurance Insurance Follow Schools West Virginia Wesley'" nCollogo Greater PiIIsburgn Area Follow Help Center ,About Careers Adllertising Talent Solutions Sales Solutions ; Small Business i Mobile i Language' Upgrade Your Account Lili~edjll Corporation © 2U 1S User Agreement ; Privacy Pclicy . Ad Chojces : Community Guidelines : Cookie Policy ! Copyright Policy i SeJKl Feedback https:llwww.linkedin.comlprofile/preview?1ocale=en_ US&trk=prof-O-sb-preview-primary -... 9/14/2015 I, Chris Daniel, District Clerk of Harris Cm.:mty, Texas certify that this is a tmeand correct copy of th.e original record filed aIrd or recorded my ot11ce, electronically or hard copy~ as it appears on this date. VV']tness my official hand and seal of oft1ce this October 22. 2015 Certified Document Number: 67238730 Cillis Daniel, DISTRICT CLERK H.AJUtIS COUNTY, TEXt'4~S In ae.cordance with Texas Gove:rnnumt Code 406JH3 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this. document and or seal please e-:mail suppori@hcdisttidderkcom CAUSE NO. 2015-09546 DENBURY RESOURCES INC. and § IN THE DISTRICT COURT DENBURY ONSHORE, LLC § § Plaintiffs § VS. § 157th JUDICIAL DISTRICT § IRONSHORE SPECIALTY INSURANCE § COMPANY, ALTERRA EXCESS & § SURPLUS INSURANCE COMPANY, § AXIS SURPLUS INSURANCE § HARRIS COUNTY, TEXAS COMPANY, and MARSH USA INC. § § Defendants § AFFIDA VITS IN SUPPORT OF DEFENDANT IRONSHORE SPECIALTY INSURANCE COMPANY'S OBJECTIONS AND PRIVILEGES To: Plaintiffs, Denbury Resources Inc. and Denbury Onshore, LLC, by and through their attorneys of record, Philip D. Nizialek, Sarah E. Stogner, and Jacqueline M. Brettner, CARVER, DARDEN, KORETZKY, TESSIER, FINN, BLOSSMAN & AREAUX, LLC, 1100 Poydras Street, Suite 3100, New Orleans, LA 70163. COMES NOW, Defendant Ironshore Specialty Insurance Company and serves its Affidavits in Support of its Objections and Privileges to Plaintiffs' discovery requests. Attached hereto are the affidavits of Lee Sheridan and Randell E. Treadaway to be used as evidentiary support to Defendant Ironshore's Specialty Insurance Company's asserted and raised objections and privileges to Plaintiffs' discovery requests and all other purposes. 00 '+-< o [Signature block on next page] Respectfully submitted, BROWN SIMS, P.C. By: lsiRandell E. Treadawawy Mark C. Clemer Texas Bar No. 04372300 James D. "J.D." Johnson Texas Bar No. 24085918 Michelle Richard Texas Bar No. 24093037 Tenth Floor 1177 West Loop South Houston, Texas 77027-9007 Telephone: (713) 629-1580 Facsimile: (713) 629-5027 mc1emer@brownsims.com jjohnson@brownsims.com mrichard@brownsims.com and Randell E. Treadaway (admitted pro hac vice) LA Bar No. 01624 Brad D. Ferrand (admitted pro hac vice) LA Bar No. 29860 ZAUNBRECHER TREADAWAY, L.LC. 406 N. Florida Street, Suite 2 Covington, Louisiana 70433-2907 Telephone: (985) 871-8787 Telefax: (985) 871-8788 randy@ztlalaw.com brad@ztlalaw.com COUNSEL FOR DEFENDANT IRONSHORE SPECIALTY INSURANCE COMPANY CERTIFICATE OF SERVICE This will certify that a true and correct copy of the foregoing pleading has been sent to all counsel of record via e-mail on this the 25th day of September 2015: Phillip D. Nizialek, T.A. Sarah E. Stogner Jacqueline M. Brettner CARVER, DARDEN, KORETZKY, TESSIER, FINN, BLOSSMAN & AREAUX, LLC 1100 Poydras St., Ste. 3100 New Orleans, LA 70163 Phone: (504) 585-3800 Fax: (504) 585-3801 nizialek@carverdarden.com stogner@carverdarden.com brettner@carverdarden.com Counselfor Plaintiffs Michael S. Knippen David Rock James M. Eastham Kimberly Hansen Petrina TRAUB, LIEBERMAN, STRAUS & SHREWSBERRY, LLP 303 W. Madison, Suite 1200 Chicago, lllinois 60606 Phone: (312) 332-3900 Fax: (312) 332-3908 mknippen@traublieberman.com drock@traublieberman.com jeastham@traubliebennan.com kpetrina@traublieberman.com Counsel for Defendant Axis Surplus Insurance Company C. Henry Kollenberg Melinda M. Riseden CRAIN, CATON & JAMES, P.c. 1401 McKinney Street 17 th Floor, Five Houston Center Houston, Texas 77010 Phone: (713) 658-2323 Fax: (713) 658-1921 hkollenberg@craincaton.com mriseden@craincaton.com Counsel for Defendant Marsh USA, Inc. Marc J . Wojciechowski WOJCIECHOWSKI & ASSOCIATES, P.C. 1747 Kuykendahl Road, Suite 200 Spring, Texas 77379 Phone: (281) 999-7774 Fax: (281) 999-1953 marc@wojolaw.com and Michael D. Mulvaney Christopher C. Frost Josh B. Baker MAYNARD, COOPER & GALE, P.C. 2400 Regions/Harbert Plaza 1901 Sixth Avenue North Birmingham, AL 35203 Fax: (205) 254-1999 mmulvaney@maynardcooper.com cfrost@maynardcooper.com jbaker@maynardcooper.com Counsel for Defendant Alterra Excess & Surplus Insurance Company IslRandeli E. Treadaway Randell E. Treadaway DENBURY RESOURc13~ lNCtan.n DENBlJRY ONSHORE~LLG 'Is. f57 1li JUDICTALDISTRICT· IRQNSHQRBSpEOLAIn7\FrwsURt:\:NCE § co.• MPA.:.·N}..·•.lSALTE .• :~RRA EX.C:ESS.& § SURPL.US INS"tJRANCE COMPANY', § J))USSURPLOS INSURAWQE § HARRIS COUlNTY,TEX:..4S GOMPA.N'i. an4MAR$H(J;3t\ fNG. § ~. :>'}. :Defertdants § AFF'l:oAV):r Of~LF;El'.Sa:EldI)AN S'fAl'EOF NEr.irYORK § § GPUl\jTY QFN:EW 'YORK § BEFQREME, the 'undersigned authority, on this day persqnaily (ippeaped :L rvrx.name i~ .L~e'T,$heri(i~t1-.J }~rllA$$i~tant Vi~G-Pre8id¢nt pfSl)edalty' Casualty Cli,lirns . ;'1i IrOil$hore $pt;cia!ty 111~:Up:l.m:;eGotnpany ('i.Jronsh{)re~)" r a~!l()yer.twcnty~ oue{(1) years of age, of soundmiml,an4(itllet\:vi~~cPJl1pet(;)nt tP111a'Ke thi$(j:fJ:ldavit, I hAVe p¢rsoPt)L k!1('!\vledge ofthet1tctS stated inthis affidavit; and tll~y
2, lhcfverevie\v¢{t Deribury's SecolldSet of Requests For ProductkmtQ If(mshor~ 00 '<-< 0 Spl';cialtyh1,stwan(:e Cq~11pc:uW, jnplu(ii,Il:g RGtltiefjts tl~r:BrDductiOilNos,7,8, . . 14, ·15, V) ~ S ~ u 0 0 '"0 ·3,. ,All1nsl.lra11t¢CQrnp$hy~$·¢Cimf'etitiveadvarltagemayhe1?l:'e$efyeti l')yikSIraue Se<;fets H'l:iateci ~'dlmdeJjli'11t~ng and its: :rl$k fr1anagementtnto Ugh reinsurance, 4. Tam fatni1iar with Itonshme~s yl41m P9U;;;ie~ DENBURY RESOURCES INC. and § IN THE DISTRICT COURT DENBURY ONSHORE, LLC § § PlaintWs § VS. § 157!h JUDICIAL DISTRICT § IRONSHORE SPECIALTY INSURANCE § COMPANY, ALTERRA EXCESS & § SURPLUS INSURANCE COMPANY, § AXIS SURPLUS INSURANCE § HARRIS COUNTY, TEXAS COMPANY, and MARSH USA INC. § § Defendants § AFFIDAVIT OF RANDELL E. TREADAWAY STATE OF LOUISIANA PARISH OF ST. TAMMANY BEFORE ME, on this day, personally came and appeared RANDELL E. TREADAWAY, who after being duly swom by me on his Oath, stated the following: I. My name is Randell E. Treadaway. I am over twenty-one (21) years of age, of SOtU1d mind, and capable of making this Affidavit. I have pers(mal knowledge of the facts stated in this Affidavit because I am cOlU1sel of record representing l1'Ons11ore Specialty Insurance Company C"I1'onshore"), and said facts are true and correct. 2. I am a fOtUlding member of the law firm Zaunbrecher Treadaway, LLC, and a counsel of record, being admitted pro hac vice, for Defendant 1ronsho1'e in Cause 00 4-< No. 2015-09546; Denbwy Resources Inc., ef af. v. lronshore Specialty Insurance 0 t- Company, et al.; in the 157111 Judicial District Court of Harris County, Texas. 4. I have reviewed and am familiar with the definitions of "client/' "representative of client," L'lawyer," "representative of lawyer," and "confidential" as defined in Rule 503 of the Texas Rules of Evidence. Based on my review of the documents listed in lronshore's privilege logs, as supplemented and amended, all the documents and conespondence exchanged between Ironshore; F ARA, the authorized claims administrator for b.-onshore; and Ironshore' s attorneys, indicate a lawyer, or representative of lawyer engaging in confidential communications with their client, lronshore, or representative of Ironshore regarding professional legal services, or a lawyer or representative of a lawyer rendering professional legal services or performing a requested task for lronshore, or a representative of lronshore, involving the rendering of legal services. 5. I have read this affidavit and it is true and correct to the best of my personal knowledge. Further Affiant sayeth not. SUBSCRIBED AND SWORN TO ME by Rand~r9 E. Treailln~y-onAhis-25th-cl yof September, 2015, to certify which witness my hand anq~alS~" f f i c e . _ "'\ My commission expires: 2 I. Chris Daniel, District Clerk of Harris County, Texas certi:f]{ that this is a true and correct copy of the original record illed and or recorded in my office, electronicaUy or hard copy, as it appe2IS on tIllS" date. \'ihnes!> my official hand al1d seal of office this October 22. 2015 Ce:rt:iJied Document Number: 67238731 Chris D;nllel, DISTRICT CLERK HARRIS COUNTY, TL'L\S In accordance with Texas Government Code 406.013 eledronically transmitted authenticated docu.ments are valid. If there is a question regarding the validity of this. document and or seal please e-:mail.support@.hcdistrictderk.com CAUSE NO. 2015-09546 DENBURY RESOURCES INC. and § IN THE DISTRICT COURT DENBURY ONSHORE, LLC § § Plaintiffs § VS. § 157 th JUDICIAL DISTRICT § IRONSHORE SPECIALTY INSURANCE § COMPANY, ALTERRA EXCESS & § SURPLUS INSURANCE COMPANY, § AXIS SURPLUS INSURANCE § HARRIS COUNTY, TEXAS COMPANY, and MARSH USA INC. § § Defendants § IRONSHORE SPECIALTY INSURANCE COMPANY'S AMENDED PRIVILEGE LOG COMES NOW, Defendant Ironshore Specialty Insurance Company (hereinafter "Iron shore" or "Defendant"), pursuant to Rule 193.3 of the Texas Rules of Civil Procedure, and submits the following Amended Privilege Log describing information and/or material withheld from production; the date and a description of the material; and the privilege or privileges asserted: Item FARA BATES DATE Description of Document Privilege 0001 08/04115 F ARA Invoice to Ironshore Irrelevant Atty. Client 2 0002 - 0018 06/30/15 Correspondence from Defense Counsel to F ARA Work Product Re: Invoices Atty. Client Irrelevant 3 0019 07/06/15, Correspondence between F ARA & Ironshore Work Product 07/14115 Re: Invoices Atty. Client Irrelevant 4 0020 - 0024 06/24/15, Corresp. between Defense Counsel, FAR A & lronshore Work Product 07/06/15, Re: F ARA file; Defense Counsel Memorandum Atty. Client 07114/15 5 0047 - 0048 06/24/15 Defense Counsel Litigation Budget to F ARA & Ironshore Work Product Atty. Client Irrelevant 1 rn"~'1~~x'fl'II1~t";;~r~;;''''''''''1 ~ ~ ,~ ~,.............,.....................,......., ...." ........................................................................~ 6 0049 - 0050 06/24115, Corresp. between Defense Counsel, F ARA & Ironshore Work Product 07114115 Re: Litigation Budget Atty. Client Irrelevant 7 0051 - 0069 06/24115 Legal Memorandum to FARA and Ironshore Work Product Atty. Client 8 0076 - 0184 Undated Legal Memorandum prepared by Defense Counsel Work Product 9 0241 - 0242 06/24115, Corresp. between Defense Counsel, FARA & Ironshore Work Product 07114115 Re: File Materials; Legal Memorandum Atty. Client 10 0243 - 0249 06116115, Corresp. between Defense Counsel, FARA & Ironshore Work Product 07/14/15 Re: Legal Memorandum Atty. Client 11 0255 - 0259 06/16115 Legal Memorandum prepared by Defense Counsel Work Product 12 0260 - 0262 06/16115 Corresp. from Defense Counsel to FARA & Ironshore Work Product Re: Legal Memorandum Atty. Client 13 0267 - 0285 06/24115 Legal Memorandum prepared by Defense Counsel Work Product Atty. Client 14 0308 - 0309 06/24115 Defense Counsel Litigation Budget Work Product Atty. Client IITelevant 15 0310 06/24115 Corresp. from Defense Counsel to F ARA & Ironshore Work Product Re: Exhibits attached to Legal Memorandum Atty. Client 16 0311-0329 06/24115 Legal Memorandum prepared by Defense Counsel Work Product Atty. Client 17 0336-0444 Undated Legal Memorandum prepared by Defense Counsel Work Product 18 0501- 0505 06/16115, Corresp. from Defense Counsel to FARA & lronshore Work Product 06/24115 Re: Legal Memorandum Atty. Client 19 0511- 0515 06116/15 Legal Memorandum prepared by Defense Counsel Work Product ('I 20 0516 06/09115 F ARA Invoice to Ironshore Irrelevant '+-< 0 Atty. Client ('I Q) 01) 21 0517 - 0520 05/04115- Corresp. between Defense Counsel, FARA & Ironshore Work Product CI:l 0... 05/06115 Re: Litigation update Atty. Client M M t- 22 0521 - 0523 05/08115 Legal Memorandum draft prepared by Defense Counsel Work Product oo M ('I t- \0 23 0601 - 0621 05111115 Defense Counsel Invoice to F ARA Work Product ;..; Atty. Client Q) ,..c Irrelevant § Z 24 0622 - 0623 05/27115 F ARA Invoice to Ironshore Irrelevant "ElQ) Atty. Client § u 0 0 2 "0 Q) 1.1:: '-2 Q) u 25 0624 - 0660 03/09/15, Defense Counsel Invoices to FARA Work Product 04/06/15 Atty. Client Irrelevant 26 0661 OS/27/15 F ARA Invoice to Ironshore Irrelevant Atty. Client 27 0662 OS/22/15 Proposed Reserves Irrelevant 28 0663 - 0665 04/02115 Corresp. between Defense Counsel, FARA & Ironshore Work Product Re: Draft Pleadings Atty. Client 29 0683 - 0684 03/27/15 Correspondence from Board of Law Examiners, TX Irrelevant Re: Non-resident acknowledgement letter 30 0685 - 0686 04/01115 Correspondence between Defense Counsel Work Product Re: Case Strategy; Draft Pleadings 31 0694 - 0696 04/01115 Correspondence between Defense Counsel and Ironshore Work Product Re: Case Strategy; Draft Pleadings Atty. Client 32 0704 - 0706 04/01/15 Correspondence between Defense Counsel and Ironshore Work Product Re: Case Strategy; Draft Pleadings Atty. Client 33 0707 - 0714 Undated Draft Pleadings prepared by Defense Counsel Work Product 34 0741 - 0742 04/02/15 Corresp. from Defense Counsel to FARA & lronshore Work Product Re: Draft Pleadings Atty. Client 35 0751 - 0752 04/06/15 Corresp. from Defense Counsel to FARA & Ironshore Wark Product Re: Draft Pleadings; Defense Investigation Atty. Client 36 0753 - 0755 04/06/15 Corresp. between Defense Counsel, FARA & Ironshore Wark Product Re: Draft Pleadings Atty. Client 37 0756 - 0768 Undated Draft Pleadings prepared by Defense Counsel Work Product 38 0769 - 0771 05/04/15 Corresp. from Defense Counsel to FARA & Ironshare Work Product Re: Legal Memorandum Atty. Client 39 0773 - 0775 03/16/15 Corresp. from Defense Counsel to FARA & Ironshore Work Product N Re: Legal Memorandum Atty. Client '+-< 0 M 40 0844 - 0847 10/21/14, Corresp. between Defense Counsel, F ARA & Ironshore Wark Product 44 0973 - 0974 03/10/15 Corresp. between Defense Counsel, F ARA & Ironshore Work Product Re: Draft Pleadings Atty. Client 45 0975 - 0980 Undated Draft Pleadings prepared by Defense Counsel Work Product 46 0985 - 0986 03110115 F ARA Invoice to Ironshore Irrelevant Atty. Client 47 0987 - 0989 02/27/15, Corresp. between Defense Counsel, F ARA & Ironshore Work Product 03/03/15 Re: Case Pleadings Atty. Client 48 1058 - 1061 10/21114, Corresp. between Defense Counsel, F ARA & Ironshore Work Product 10/22114 Re: Claim Investigation Atty. Client 49 1062 - 1064 02/27/15, Corresp. between Defense Counsel, F ARA & Ironshore Work Product 02/28/15 Re: Legal Memorandum Atty. Client 50 1069 -1070 03/06115 Corresp. between Ironshore and F ARA Work Product Re: Claim investigation 51 1071 03/05115 Ironshore Claim Summary Work Product Atty. Client 52 1099 02/27115 Proposed Reserves hTelevant 53 1100 - 1106 02/20/15 Corresp. from Defense Counsel to FARA & Ironshore Work Product Re: Legal Memorandum Atty. Client 54 1125 - 1126 02111115 FARA Invoice to Ironshore hTelevant Atty. Client 55 1127 02/11115 Correspondence from Defense Counsel to FARA Work Product Re: Defense Counsel Invoice Atty. Client Irrelevant 56 1128 - 1139 02/09115 Defense Counsel Invoice to FARA Work Product Atty. Client Irrelevant 57 1140 01112115 Correspondence from Defense Counsel to F ARA Work Product - N "0-' Re: Invoice Atty. Client Irrelevant "'i" (]) bJ) 58 1141-1145 01112115 Defense Counsel Invoice to F ARA Work Product o:l p.. Atty. Client M Irrelevant M t- oo M 59 1146 01/29/15 Proposed Reserves Irrelevant N t- \0 ;..; (]) ,.0 60 1147 - 1148 11/20/14 Corresp. from Defense Counsel to FARA & Ironshore Work Product S Re: Legal Memorandum Atty. Client Z 1:: (]) 61 1161 01/06115 FARA Invoice to Ironshore Irrelevant S := u 0 Cl 4 "0 (]) t;:: .€ (]) u 62 1162 12/09/14 Correspondence from Defense Counsel to FARA Work Product Re: Invoice Atty. Client Irrelevant 63 1163 - 1168 12/09114 Defense Counsel Invoice to F ARA Work Product Atty. Client Irrelevant 64 1169 12/02114 F ARA Invoice to Ironshore Irrelevant Atty. Client 65 1170 11117114 Correspondence from Defense Counsel to F ARA Work Product Re: Invoice Atty. Client Irrelevant 66 1171 - 1188 12/09114 Defense Counsel Invoice to FARA Work Product Atty. Client Irrelevant 67 1189 - 1191 11117114 FARA Invoice to Ironshore Irrelevant Atty. Client 68 1192 - 1193 10/29/15 Corresp. from Defense Counsel to FARA & Ironshore Work Product Re: Legal Memorandum Atty. Client 69 1208 - 1264 10/06114 Claim Presentation by Defense Counsel to Ironshore Work Product Atty. Client 70 1279 10/23114 Corresp. from Defense Counsel to FARA & Ironshore Work Product Re: Information Request Atty. Client 71 1295 - 1296 10/23114 Corresp. from Defense Counsel to FARA & Ironshore Work Product Re: Draft Legal Memorandum Atty. Client 72 1302 - 1303 10/23114 Draft Legal Memorandum by Defense Counsel Work Product 73 1304 - 1305 10114114 Corresp. from Defense Counsel to FARA & Ironshore Work Product Re: Legal Memorandum Atty. Client N .- 74 1314 10114114 Corresp. from Defense Counsel to FARA Work Product '+-< 0 Re: Invoice Atty. Client V) Irrelevant Q) ~ 0.. 75 1315 - 1322 10/14114 Defense Counsel Invoice to F ARA Work Product C'") Atty. Client C'") r- Irrelevant oo C'") N r- 76 1323 09111114 Corresp. from Defense Counsel to FARA Work Product \0 ;..; Re: Invoice Atty. Client Q) .D Irrelevant S::l Z .... 77 1324 - 1337 09110114 Defense Counsel Invoice to F ARA Work Product ~ Q) Atty. Client S ::l u 0 Q 5 '"0 Q) ~ '-2 Q) u Irrelevant 78 1338 10/16114 Reserves Irrelevant 79 1339 - 1340 10/09114 F ARA Invoice to Ironshore Irrelevant Atty. Client 80 1347 - 1374 09/22114 Corresp. from Defense Counsel to FARA & Ironshore Work Product Re: Legal Memorandum Atty. Client 81 1375 - 1377 08114/14 Corresp. between Defense Counsel, F ARA & lronshore Work Product Re: Joint Defense Agreement; Legal Memorandum Atty. Client Joint Defense 82 1378 - 1386 08/14114 Draft of Legal Memorandum by Defense Counsel Work Product 83 1387 - 1397 08/14114 Joint Defense Agreement Work Product Atty. Client Joint Defense Irrelevant 84 1398 - 1399 09/08114 F ARA Invoice to Ironshore Irrelevant Atty. Client 85 1401 08112114 Corresp. from Defense Counsel to FARA & Ironshore Work Product Re: Draft Legal Memorandum Atty. Client 86 1402 - 1409 Undated Draft Legal Memorandum by Defense Counsel Work Product 87 1410 - 1412 08/13/14, Corresp. between Defense Counsel, F ARA & Ironshore Work Product 08/12114 Re: Joint Defense Agreement Atty. Client Joint Defense Irrelevant 88 1413 - 1420 08/11114 Joint Defense Agreement Work Product Atty. Client Joint Defense Irrelevant 89 1421 08/12/14 Corresp. from Defense Counsel to FARA & Ironshore Work Product Re: Joint Defense Agreement Atty. Client Joint Defense N Irrelevant '+-< 0 '-0 90 1422 - 1429 08/11114 Joint Defense Agreement Work Product Q) OIl Atty. Client c 8 Irrelevant = u 0 Q 6 '"0 Q) t;:::: .€ Q) u 93 1460 - 1466 08/12114 Defense Counsel Invoice to FARA Work Product Atty. Client Irrelevant 94 1467 08112114 Reserves Irrelevant 95 1468 08/07/14 F ARA Invoice to Ironshore Irrelevant Atty. Client 96 1469 - 1471 07/09114 Corresp. from Defense Counsel to FARA & Ironshore Work Product Re: Legal Memorandum Atty. Client 97 1472 07115114 Correspondence from Defense Counsel to F ARA Work Product Re: Invoice Atty. Client Irrelevant 98 1473 - 1484 07/15114 Defense Counsel Invoice to F ARA Work Product Atty. Client Irrelevant 99 1485 07117114 Reserves Irrelevant 100 1486 07/02/14 F ARA Invoice to lronshore Irrelevant Atty. Client 101 1764 06/10114 Correspondence from Defense Counsel to F ARA Work Product Re: Invoice Atty. Client Irrelevant 102 1765 - 1767 06110114 Defense Counsel Invoice to FARA Work Product Atty. Client Irrelevant 103 1768 05/13114 Correspondence from Defense Counsel to F ARA Work Product Re: Invoice Atty. Client Irrelevant 104 1769-1771 05/12114 Defense Counsel Invoice to FARA Work Product Atty. Client ,..... N Irrelevant <;.... 0 r- 105 1772 06/18/14 Reserves Irrelevant (\) ~ Po. <'1 106 1773 06/06/14 F ARA Invoice to Ironshore Irrelevant <'1 r- oo <'1 N r- 107 1778 - 1780 03111114 F ARA Invoice to Ironshore Irrelevant 'C> ;..; (\) ,J:J E1 ;::l 108 1781- 1782 12/12/13 Reserves Irrelevant Z ....., .::: (\) E1 ;::l u 0 Q 7 "Cl (\) <.:: 'E(\) u 109 1783 12/11/13 F ARA Invoice to Ironshore Irrelevant 110 2868 - 2869 08/08/13 F ARA Invoice to Ironshore Irrelevant 111 3623 07/08113 F ARA Invoice to Ironshore Irrelevant 112 3638 07/08/13 Reserves Irrelevant 113 3943 - 3948 06/16/15- Corresp. between Defense Counsel, F ARA & Ironshore Work Product 07123/15 Re: Draft Pleadings; Legal Memorandum; Budget Atty. Client 114 3949 - 3950 06/22/15 Corresp. between Defense Counsel, FARA & Ironshore Work Product Re: Invoices Atty. Client Irrelevant 115 3951 - 3952 06/16/15 Corresp. between Defense Counsel, FARA & Ironshore Work Product Re: Legal Memorandum Atty. Client 116 3952 - 3959 OS/22/15- Corresp. between Defense Counsel, F ARA & Ironshore Work Product 06/22/15 Re: Invoices; Reserves Atty. Client Irrelevant 117 3954 - 3976 02111/15- Corresp. between Defense Counsel, FARA & Ironshore Work Product OS/29/15 Re: Legal Memorandum; Draft Pleadings and Corresp. Atty. Client 118 3967 - 3968 03/16/15 Correspondence from Defense Counsel to F ARA Work Product Re: Invoices Atty. Client Irrelevant 119 3971 - 3972 02111/15- Corresp. between Defense Counsel, FARA & Ironshore Work Product 03/06/15 Re: Invoices Atty. Client Irrelevant 120 3976 - 3979 02/27/15 Correspondence between F ARA and Ironshore Irrelevant Re: Reserves 121 3979 - 4037 02/27115- Corresp. between Defense Counsel, FARA & Ironshore Work Product 02/24115 Re: Legal Memo; information request; draft corresp. Atty. Client - N ' +-; 0 122 3990 - 3991 01/29115 Correspondence between F ARA and Ironshore Irrelevant 00 Re: Reserves Cl) OJ) '" A.. 123 3988 - 3991 01/29/15- Corresp. between Defense Counsel, F ARA & Ironshore Work Product M 02112/15 Re: Invoices Atty. Client M r- Irrelevant oo M N r- 124 4012 - 4013 10/16/14 Corresp. between Defense Counsel, F ARA & Ironshore Work Product 'CI ;..; Re: Reserves; Invoices Atty. Client Cl) ,.0 Irrelevant S :::s Z ..... 125 4018 09/05/14 Corresp. from Defense Counsel to FARA & Ironshore Work Product ~ Cl) Atty. Client S :::s u 0 0 8 "0 Cl) <;:::: .€ Cl) u Joint Defense Irrelevant 126 4026 - 4027 08112114 Corresp. between Defense Counsel, F ARA & Ironshore Work Product Atty. Client Irrelevant 127 4033 - 4034 07114114 FARA Note Re: Reserves Irrelevant 128 4038 - 4039 06118/14 FARA Note Re: Reserves Irrelevant 129 4040 06/05/14 Corresp. from F ARA to Defense Counsel & Ironshore Work Product Atty. Client 130 4042 - 4043 04/24114 Corresp. between Defense Counsel, FARA & Ironshore Work Product Atty. Client 131 4044 02111114 FARA Note Re: Reserves Irrelevant 132 4049 - 4050 12112113 Correspondence between F ARA and Ironshore Irrelevant Re: Reserves 133 4053 11114/13 FARA Note Re: Reserves Irrelevant 134 4058 08/06113 FARA Note Re: Reserves Irrelevant 135 4077 07/08113 FARA Note Re: Reserves Irrelevant 136 4080 07/08113 F ARA Note Re: Reserves Irrelevant 137 4084-6608 lronshore Underwriting File Irrelevant Confidential, Proprietary, Trade Secrets Item JDA Description of Document Privilege 138 001-011 Joint Defense Agreement Work Product Joint Defense Irrelevant [SIGNATURE BLOCK ON FOLLOWING PAGE] 9 Respectfully submitted, By: slRandell E. Treadaway Mark C. Clemer Texas Bar No. 04372300 James D. "J.D." Johnson Texas Bar No. 24085918 Michelle Richard Texas Bar No. 24093037 Tenth Floor 1177 West Loop South Houston, Texas 77027-9007 Telephone: (713) 629-1580 Facsimile: (713) 629-5027 mc1emer@brownsims.com jjohnson @brownsims.com mrichard@brownsims.com Randell E. Treadaway (admitted pro hac vice) LA Bar No. 01624 Brad D. Ferrand (admitted pro hac vice) LA Bar No. 29860 ZAUNBRECHER TREADAWAY, L.L.C. 406 N. Florida Street, Suite 2 Covington, Louisiana 70433-2907 Telephone: (985) 871-8787 Te1efax: (985) 871-8788 randy@ztlalaw.com brad@ztlalaw.com - N '-+-; o COUNSEL FOR DEFENDANT SPECIALTY INSURANCE COMPANY IRONSHORE o 10 CERTIFICATE OF SERVICE This will certify that a true and correct copy of the foregoing pleading has been sent to all counsel of record via e-mail on this the 25 th day of September, 2015: Phillip D. Nizialek, T.A. Sarah E. Stogner Jacqueline M. Brettner CARVER, DARDEN, KORETZKY, TESSIER, FINN, BLOSSMAN & AREAUX, LLC 1100 Poydras St., Ste. 3100 New Orleans, LA 70163 Phone: (504) 585-3800 Fax: (504) 585-3801 nizialek (Wcarvcrdardcn.com stogner@carverdm·den.com hI~Hn!;T.@.f.fir.Y.~~~Itfir.4~~X!.,~.Qrg Counsel for Plaintiffs Michael S. Knippen Kimberly H. Petrina David Rock James M. Eastham TRAUB, LIEBERMAN, STRAUS & SHREWSBERRY, LLP 303 W. Madison, Suite 1200 Chicago, illinois 60606 Phone: (312) 332-3900 Fax: (312) 332-3908 mknippen@trauhliebermal1.com kpetrina@ traublieberman. com dmck@traublicbcrmml.com ieastham @trauhEeherman,com Counsel for Defendant Axis Surplus Insurance Company C. Henry Kollenberg Melinda M. Riseden CRAIN, CATON & JAMES, P.c. '+-< 1401 McKinney Street o 17th Floor, Five Houston Center Houston, Texas 77010 Phone: (713) 658-2323 Fax: (713) 658-1921 hko llenberg (cD cralncaton .com mr1 seden ({:Ii craincaton .com Counsel for Defendant Marsh USA, Inc. 11 Marc J. Wojciechowski W OJClECHOWSKI & ASSOCIATES, P.C. 1747 Kuykendahl Road, Suite 200 Spring, Texas 77379 Phone: (281) 999-7774 Fax: (281) 999-1953 marc@\voiolaw.com and Michael D. Mulvaney Christopher C. Frost Josh B. Baker MAYNARD, COOPER & GALE, P.C. 2400 Regions/Harbert Plaza 1901 Sixth Avenue North Birmingham, AL 35203 Fax: (205) 254-1999 mmul yaney (W mavnardcooper.com cfrost@rnaynardcooper.com ibaker(g!maynardcooper.colH Counsel for Defendant Alterra Excess & Surplus Insurance Company ('.l 4...; 0 ('.l .- ~ p... M M r- oo M ('.l r- ~ ;..; S :::I (,) 0 Q 12 "0 Certified Docmnent Number: 67238733 ChrIS Daniel, DISTRICT CLERK B.4RRIS COUNIT, TEXi\S In accord::mce with Texas 'Government Code 406JU3 electronically u'ansmitted authenticated documents are valid. H there is a question regarding the validity of this document aud or seal pleas.e e-:mail support@hcdisuidclerk.com Date: 138/136/2015 Time: 14:139:28 F.A. Richard & Associates, Inc. For: Tom Devine Claim: South Delhi Field, LA Spill, * C I aim Not e s * ID: 3927045 Client Claim No: DOL: 06/14/2013 Date 08/133/21315 Type: General By Tom Devine Subject: EM FROM COVERAGE COUNSEL From: Randy Treadaway [mailto:randy@ztlalaw.com] Sent: Thursday, July 23, 2015 4:52 PM To: Alan Zaunbrecher; Brett Bollinger; Michelle O'Daniels; Brad Ferrand; Jeff McDonald; Peter Englande Cc: Bonni;e.clhla.miP.aigne; Patricia Musso; Devine) Tom Subject: II iii All, Randell E. Treadaway, Esq. Zaunbrecher Treadaway, L.L.C. 4136 N. Florida Street, Suite 2 Covington, LA 713433 Telephone: (985) 871-8787 Date 08/03/21315 Type: General By Tom Devine Subject: EM FROM CLIENT TO COVERAGE COUNSEL From: Lee T. Sheridan [mailto:Lee.Sheridan@ironshore.com] Sent: Thursday, July 23, 21315 3:413 PM To: Randy Treadaway Cc: Mark C. Clemer (mclemer@brownsims.com); James D. Johnson; Michelle O'Daniels; Brad Ferrand; Stephanie Cochran; Devine J Tom Subject: RE: 137-23-15 Sheridan re Claim #3927045 South Delhi Field/Denbury Resources LEE SHERIDAN Assistant Vice President IRONSHORE SPECIALTY CASUALTY CLAIMS ONE STATE STREET PLAZA 18TH FL I NEW YORK, NY 11313134 Office: 646.826.6638 I Cell: 646.599.7122 -- " i" Date 08/133/21315 Type: General By Tom Devine Subject: EM FROM COVERAGE COUNSEL Date 07/14/2015 Type: General By Tom Devine Subject: EM FROM C/C From: Randy Treadaway [mailto:randy@ztlalaw,com] Sent: Wednesday, June 24, 2015 12:21 PM To: Sanford Oster (Sanford,Oster@Ironshore,com); Devine, Tom Cc: Mark C, Clemer (mclemer@brownsims,com); James D, Johnson; Michelle O'Daniels; Stephanie Cochran Subject: 06-24-15 oster-l-Die.vili'niejllrejlDiieinibiuiriYIiRieisioiuiricje.sl'lieitliaili'ilvi'IiIironshore, et al,-FARA Claim #3927045 FARA003945 Sandy/Tom, Randell E. Treadaway, Esq. Zaunbrecher Treadaway, L.L.C. 406 N. Florida street, Suite 2 Covington, LA 70433 Telephone: (985) 871-8787 Direct Dial: (985) 273-3122 Mobile: (504) 583-3999 Telefax: (985) 871-8788 Email: randy@ztlalaw.com Website: www.ztlalaw.com Date 07/14/2015 Type: General By Tom Devine Subject: EM FROM CLIENT RE: l1li11111111l1li Date 07/14/2015 Type: General By Tom Oevine Subject: EM FROM COVERAGE COUNSEL RE: STATUS REPORT FARA003946 Date 07/14/2015 Type: General By Tom Devine Subject: EM FROM COVERAGE COUNSEL 111111111111111111111111 Date 07/14/2015 Type: General By Tom Devine Subject: EM FROM CLIENT RE: From: Sanford Oster [mailto:Sanford.Oster@ironshore.com] Sent: Tuesday, June 16, 2015 2:58 PM To: Randy Treadaway; Devine, Tom Cc: Mark C. Clemer (mclemer@brownsims.com); Michelle O'Daniels; Stephanie Cochran; Johnson RE: 06-16-15 Oster-Devine re FARA Claim 3927045- Resources Inc. Date 07/14/2015 Type: General By Tom Devine Subject: EM FROM COVERAGE COUNSEL From: Randy Treadaway [mailto:randy@ztlalaw.com] Sent: Tuesday, June 16, 2015 2:16 PM To: Sanford Oster (Sanford.Oster@Ironshore.com); Devine, Tom Cc: Mark C. Clemer (mclemer@brownsims.com); Michelle O'Daniels; Stephanie Cochran; James D. Johnson Subject: 06-16-15 Oster-Devine re FARA Claim 3927045- Resources Inc. vs Good afternoon Sandy and Tom. Hope all is well. FARA003947 Best Regards, Randell E. TreadaNay> Esq. Zaunbrecher Treadaway, l.l.C. 466 N. Florida street, Suite l Covington~ LA 73433 Telephone: (98S) 871-8787 Direct Dial: (985) 273-3122 Mobile: (594) 583-3999 Telefax: (985) 871-8788 Email: r.andy@ztlalaw.com l>Jeosite: "'''''".ztlalaw.com CONFIDENTIALITY NOTICE: FARA003948 Date 06/22/2015 Type: General By Ronnie Ronzello Subject: EM to and from client re111111111111111111 Da"te 66/22/2e1S Type, General By Tom Devin" Subject: EM TO CLIENT RE: From! Devine~ Tom Sent: Nonday, June 22, 2015 5:96 PM To: 'John Reu5ch'; 'bill.gleason@ironshore.com'; San.ford oster Cc: Ran2ello~ Ronald Subject: FW: '111111111111111111111 Claim 3927645 Importance: H~gh - ' - . , , ~ . c" . ., . . Date 06/22/2915 Type: General By Tom Devine Subject: EM FROM CLIENT TO cle From: Randy Treada,.ay [mailto:randY@Ztlala,,,.com) Sent: Tuesday, June 16, 2015 2:59 P14 To: Sanford Oster; Devine. Tom Cc: Nark. Co Clemer (mclemer@brownsims.com); Nichelle O'Daniels; S"tephanie Cochran; James j). Johnson FARA003950 Resources Inc. Randell E. Treadaway, Esq. Zaunbrecher Treadaway, L.L.C. 4e5 N. Florida Street, Suite 2 Covington, LA 7e433 Telephone: (985) 871-8787 Direct Dial: (985) 273-3122 Mobile: (594) 583-3999 Telefax: (985) 871-8788 Email: randy@Ztlalaw.com Website: www.ztlala;;.com CONFIDENTIALITV NOTICE: INFORMATION IN THIS MESSAGE IS INTENDED ONLY FOR THE PERSONAL AND CONFIDEfiTIAL USE OF THE RECIPIENT(S) NAMED ABOVE This message is sent by 0,. on behalf of a lawyer at the law firm of Zaunbrecher Treadaway, L.t.C. and is intended only for the use of the individual or entity to ,.horn it is addressed, This message contains information and/or attachments that are privileged, confidential and exempt from disclosure under applicable la,., If the reader of this message is not the intended recipient or is not the employee or agent responsible for delivering this ",essage to the intended recipient, please do nat read, copy, use or disclose this communi-cation to other'S. IT you have received this communication in error .. please notify us immediately by reply e-mail or by telephone (call us collect at 5134-8.33-7300) and illl!!1ediately delete this ....ssage and all of its attachments. Thank you. From: Sanford Oster [mailta:Sanford.Oster@ircnshore.com] Sent: Tuesday, June 16, 2015 1:58 PM To: ~tandy Treadaway; Devine~ Tom Cc: Mark C. Clemer (mclemer@brownsims.com); Michelle O'Oaniels; Stephanie Cochran; James 0, Johnson Subject: RE: 06-16-15 Oster-Devine re FARA Claim 3927045- Resources Inc. vs Ir-ans.hore SANFORD OSTER Vic.. President IROI'lSHORE SPECIALn' CASUALn' CLAIl'lS Oat.. 06/22/2015 Type: General By Tom Devine subject: EM FROM COVERAGE COUNSEL Date OS/29/2015 Type: General By Tom Devine Subject: MAY 8TH E-MAIL FROM COVERAGE COUNSEL From: Randy Treadaway [mailto:randy@ztlalaw.com] Sent: Friday, May 08, 2015 1:55 PM To: Sanford Oster (Sanford.Oster@Ironshore.com); Devine, Tom Cc: Michelle O'Daniels; Mark C. Clemer (mclemer@brownsims.com); James D. Johnson; Brad Ferrand; Stephanie Cochran Subject: 05-08-15 Oster-Devine . vs Ironshore Randell E. Treadaway, Esq. Zaunbrecher Treadaway, L.L.C. Date OS/29/2015 Type: General By Tom Devine Subject: EM TO COVERAGE COUNSEL From: Sanford Oster [mailto:Sanford.Oster@ironshore.com] Sent: Friday, May 29, 2015 11:34 AM To: Devine., Tom Cc: John Reusch; Ronzello, Ronal~dllllllllllllllllllllllill Subject: RE: 05-27-15 Devine re • SANFORD OSTER Vice President IRONSHORE SPECIALTY CASUALTY CLAIMS Date OS/29/2015 Type: General By Tom Devine Subject: EM FROM CLIENT RE: FARA003954 From: Sanford Oster [mailto:Sanford.Oster@ironshore.com] Sent: Friday, May 29, 2815 11:34 AM To: Devine" Torn Cc: John Reusch; Ronzello, Subject: RE: 85-27-15 Devine r:;e;-iilllllllllllllllllllllill SANFORD OSTER Vice President IRONSHORE SPECIALTY CASUALTY CLAIMS Date 85/29/2815 Type: General By Tom Devine Subject: EM FROM COVERAGE COUNSEL From: Randy Treadaway [mailto:randy@ztlalaw.com] Sent: Wednesday, May 86, 2815 5:85 PM To: Devine) Tom; Sanford Oster Cc: mclemer@brownsims.com; Michelle O'Daniels; James D. Johnson; Brad Ferrand; Stephanie Cochran Subject: RE: 85-86-15 Oster-Devine Insurance Best Randell E. Treadaway, Esq. Date 85/29/2815 Type: General By Tom Devine Subject: EM TO COVERAGE COUNSEL Date OS/29/2015 Type: General By Tom Devine Subject: EM FROM DENBURY Randell E. Treadaway, Esq. Zaunbrecher Treadaway, L.L.C. 406 N. Florida Street, Suite 2 Covington, LA 70433 Telephone: (985) 871-8787 Direct Dial: (985) 273-3122 Mobile: (504) 583-3999 Telefax: (985) 871-8788 Email: randy@ztlalaw.com Website: www.ztlalaw.com CONFIDENTIALITY NOTICE: INFORMATION IN THIS MESSAGE IS INTENDED ONLY FOR THE PERSONAL AND CONFIDENTIAL USE OF THE RECIPIENT(S) NAMED ABOVE This message is sent by or on behalf of a lawyer at the law firm of Zaunbrecher Treadaway, L.L.C. and is intended only for the use of the individual or entity to whom it is addressed. This message contains information and/or attachments that are privileged, confidential and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient or is not the employee or agent responsible for delivering this message to the intended recipient, please do not read, copy, use or disclose this communication to others. If you have received this communication in error~ please notify us immediately by reply e-mail or by telephone (call us collect at 504-833-7300) and immediately delete this message and all of its attachments. Thank you. From: Devine, Tom [mailto:Tom.Devine@FARA.com] Sent: Tuesday, May 05, 2015 1:45 PM To: Randy Treadaway Cc: Sanford Subject: FW: 0ms.t;eirllllllllllllil ill Randy: Tom Devine From: Jack Strother mailto:jack.strother@denbury.com] Sent: Tuesday, May 05, 2015 2:43 PM To: Devine" Tom Cc: randy@ztlalaw.com Subject: Delhi excess claim Tom" -- "1" Please see the attached response and accompanying documentation to your March 16, 2015 correspondence. Please let me know if you have any questions. Thank you. Jack Strother Chief Corporate Counsel - Litigation & Risk Management Office: 972.673.2617 Fax: 972-673-2460 5320 Legacy Drive Plano, TX 75024 Date OS/29/2015 Type: General By Tom Devine Subject: EM TO CLIENT RE: From: Devine" Tom Sent: Friday, May 29, 2015 11:09 AM FARA003956 To: Sanford Oster Ce: 'Jonn.Reusch@ironshore.com'; Ronzello, Ronald Subject: FW: 05-27-15 Devine re 3927045 Sanely: Date OS/28/2615 Type: General By Tom Devine Subject: EM TO COVERAGE COUNSEL From; Devine; Tam Sent: Thursday, May 28, 2015 8:09 AM To: 'Randy Treacla\~ay' Cc: Bonnie Champagne Subject: RE: e5-27-15 Devine 111111111111111111111 Date 05/27/2015 Type: General By Shirley A Fritch Subject: Date 05/27/2015 Type: General By Ronnie Ronzello Subject; E~l to Kelly re • • • 11 Date 05/05/2015 Type: General By Tom Devine Subject: EM FROM C/C From: Randy Treadaway [mailto:randy@ztlalaw.com] Sent: Monday, April 27, 2015 12:29 PM To: Sanford Oster (Sanford.Oster@Ironshore.com); Devine, Tom Cc: Michelle O'Daniels; Mark C. Clemer (mclemer@brownsims.com); Brad Ferrand; Stephanie Cochran Subject: 04-27-15 Oster-Devine re FARA.~lclllalilmIl31912171041151-IIDlelnlblulrIYIIRlelslolu.rces Inc. vs Ironshore Specialty Insurance CompanYl Date 05/05/2015 Type: General By Tom Devine Subject: EM FROM CLIENT TO D/C From: Randy Treadaway [mailto:randy@ztlalaw.com] Sent: Thursday, April 02, 2015 4:23 PM To: Sanford Oster; Devine, Tom Cc: 'mclemer@brownsims.com'; 'modlegal@gmail.com'; 'jjohnson@brownsims.com' Subject: RE: 04-02-15 Oster-Devine re FARjAilc.llailj·mil3.9.2.7.014.5.-IIDle.n.biujlrYIiR.e.s.o.u.r.cjeisIllInc. vs Ironshore Specialty Insurance CompanYl FARA003961 Many thanks Sandy. Randell E. Treadaway, Esq. Zaunbrecher Treadaway, L.L.C. 406 N. Florida Street, Suite 2 Date 05/05/2015 Type: General By Tom Devine Subject: EM FROM COVERAGE COUNSEL From: Randy Treadaway [mailto:randy@ztlalaw.com] Sent: Thursday, April 02, 2015 3:41 PM To: Sanford Oster (Sanford.Oster@Ironshore.com); Devine, Tom Cc: Mark C. Clemer (mclemer@brownsims.com); Michelle O'Daniels; James D. Johnson Subject: 04-02-15 Oster-Devine re FARA~cllialll'mIl31912171014151-IIDlelnlblulrIYIiRlelslolu.r.cieisilIilnc. vs Ironshore Specialty Insurance Company I We await your instructions. Date 05/05/2015 Type: General By Tom Devine Subject: em from coverage counsel From: Randy Treadaway [mailto:randy@ztlalaw.com] Sent: Wednesday, April 01, 2015 5:39 PM To: Mark C. Clemer Cc: Michelle O'Daniels; Sanford Oster (Sanford.Oster@Ironshore.com); Devine, Tom; Stephanie Cochran : RE: 04-01-15 Clemer re Denbu Many thanks Mark. Randell E. Treadaway, Esq. Zaunbrecher Treadaway, L.L.C. 406 N. Flordia Street, Suite 2 Covington, LA 70433 Telephone: (985) 871-8787 Telefax: (985) 871-8788 Cell: (504) 583-3999 Email: Randy@ztlalaw.com Website: www.ztlalaw.com Date 05/05/2015 Type: General By Tom Devine Subject: EM FROM D/C Date 04/07/2015 Type: General By Kylie Miller Subject: **OUTGOING MAIL CONFIRMATION** Date 04/07/2015 Type: General By Tom Devine Subject: EM FROM COVERAGE COUNSEL -- "<:t Date 04/e7/2815 Type: General By Tom Devine Subject: E~l fROM COVERAGE COUNSEL From: Randy Treadaway [lllailto;randy@Ztlalaw.com] Sent: ;'londay, t·larch 16, 21i'!1S 2;e1 PM To: Springmann, Michael; Sanford Oster Cc: Michelle O)Oaniels; mclemer~~rO\~nsims.cQm; Brad Ferrand; Stephanie Cochran; Devine J Tom Good afternoon Mike and thanks for your email. FARA003966 Randell E. Treadaway, Esq. Zaunbrecher Treadaway, L.L.C. 406 N. Florida street, Suite 2 Covington, LA 70433 Telephone: (985) 871-8787 Direct Dial: (985) 273-3122 Date 04/07/2015 Type: General By Tom Devine Subject: EM FROM CIC From: Randy Treadaway [mailto:randy@ztlalaw.com] Sent: Monday, March 16, 2015 2:01 PM To: Springmann, Michael; Sanford Oster Cc: Michelle O'Daniels; mclemer@brownsims.com; Brad Ferrand; Stephanie Cochran; Tom Randell E. Treadaway, Esq. Zaunbrecher Treadaway, L.L.C. 406 N. Florida Street, Suite 2 Date 03/17/2015 Type: General By Ryan Roads Subject: "Outgoing Mail Confirmation" *'SENT AS DIRECTED*' 91 7199 9991 7035 6099 0872 From: Devine) Tom Posted At: Monday, March 16, 2015 2:15 PM Posted To: OSC EAST Conversation: 3927045 Subject: 3927045 Please attach theu Denbury original reservationu to the first attachment dated March 16, 2015 and mail certified return receipt requested. Tom Devine Thomas Devine Senior Environmental Adjuster FARA 973.404.1119 office tom.devine@FARA.com email FARA, A York Risk Services Company 1625 West Causeway Approach Mandeville, LA 70471 Date 03/16/2015 Type: General By Michael springmamninilllllllllllllill Subject: EM to Tom w/ CC I Date 03/18/2015 Type: Supervisory Claim Review By Ronnie Rooze110 subject: Supervisory Review FARA003970 Date 03/06/2015 Type: General By Michael Subject: F/U to Date 03/06/2015 Type: General By Michael Springmann Subject: EM from client liliiii Date 02/27/2015 Type: General Subject: By ~iiiillliliiiilllllllllllllllllill ill Date 02/27/2015 Type: General By Michael Springmann Subject: EM from Shirley Fritch 11111111111111111111 Date 02/27/2015 Type: General By Michael 5pringmann Subject: EM (2) from client 1111111111111111111 Date 02/23/2015 Type: General By Michael Springmann Subject: EM from J. Reusch re E-mail regarding unrelated case Date 02/19/2015 Type: General By Michael Springmann Subject: EM from client/to CC and DC 1111111111111111111111 Date 02/19/2015 Type: General By Michael Springmann Subject: EM from/to client 1111111111111111 Date 02/12/2015 Type: General By Michael Subject: EM from/to Date 01/29/2015 Type: General By Michael Springmann Subject: EM to/from client 1111111111111111111111111 FARA003990 Date 11/18/2014 Type: General By Michael Springmann Subject: EM to CC req status 11111111111111111111111111 Date 10/27/2014 Type: General By Michael Springmann Subject: EM to LA Clemer re 1111111111111111111111111 1. Alternatively, Denbury is Entitled to aU Responsive Non Q
III. The deposition will continue from day to day until completed.
I HEREBY CERTIFY that a copy of the Denbury's Notice of Oral and Videotaped
I. Instructions
11. The title or heading that appears on the document.
IV. The present occupation, job title, employer, and employer's
II. Definitions
J. "Umbrella Policy" shall refer to policy number AUC 924673-00, issued to
1. Denbury.
2. Denbury's operations.
4. The Delhi Incident.
5. The Policies.
6. Reserves under the Policies.
7. The Blended Pollution Endorsement.
14. Ironshore's relationship with Denbury's Insurers.
17. Ironshore's relationship with Marsh.
27. Ironshore's Underwriting of Denbury.
28. Ironshore's Underwriting for the Energy Market.
35. Ironshore's Adjustment of Denbury's Claim.
36. Ironshore's review of any Submission for the Policies.
38. Ironshore's Reinsurance of the lronshore Policy.
46. Denbury's Updated Proof of Loss.
49. The Roberts Litigation.
52. The ANR Initial Costs Settlement.
55. The ANR Cut and Cap Settlement.
58. The ANR Tariff Settlement.
65. The Loutre Land Settlement.
68. The Impacted Areas related to the Delhi Incident.
69. Ironshore's notice of Denbury's Claim.
79. Ironshore's affirmative defenses in this Litigation.
81. Ironshore's Reserves for Denbury' s Claim.
93. Denbury's payments of premium to Ironshore.
94. Ironshore's premium invoices to Denbury.
I HEREBY CERTIFY that a copy of the Denbury's Notice of Oral and Videotaped
IV. The present occupation, job title, employer, and employer's
24. Ironshore's relationship with Denbury.
25. Ironshore's Communications with Denbury.
26. FARA' s relationship with Denbury.
27. FARA's Communications with Denbury.
47. Ironshore's Adjustment of Denbury' s Claim.
49. FARA's Adjustment of Denbury's Claim.
50. Ironshore's review of any Submission for the Policies.
53. Ironshore's Reinsurance of the lronshore Policy.
57. F ARA' s selection of Claims Adjusters.
58. F ARA' s training of Claims Adjusters.
69. The Roberts Litigation.
70. Ironshore's evaluation of the Roberts Litigation.
72. The ANR Initial Costs Settlement.
75. The ANR Cut and Cap Settlement.
78. The ANR Tariff Settlement.
79. Ironshore's evaluation of the ANR Tariff Settlement.
88. The Impacted Areas related to the Delhi Incident.
89. Ironshore's notice of Denbury's Claim.
98. F ARA' s requests for information to Denbury.
II Certifications
I possess an adjuster's license in New York, Texa~, and Florida
Date 10/27/2014 Type: General By Michael Springmann Subject: EM from client to Mark Clemer 11111111111111111111
Date 10/27/2014 Type: General By Michael Springmann Subject: EM from client to CC:
Date 1B/27/2B14 Type: General By Michael springjm.aininillllllllllli Subject: EM from CC re ~
Date 10/16/2014 Type: General By Michael Subject: EM from
Date 10/16/2014 Type: General By Michael Springmann Subject: EM from client to CC: POA re 11111111111111111
Date 10/16/2014 Type: General
By Subject: EM from ~~~Iiliiiillllllllllllllllllllllllil Michael CC:
Date 09/29/2014 Type: General By Michael Springmann Subject: EM from CC to Zurich atty req DVDs
Date 09/29/2014 Type: General By Michael Springmann Subject: EM from CC to client 11111111111111111111111111111
Date 09/12/2014 Type: General By Michael Springmann Subject: EM exch client and CC req detailed status report
Date 08/20/2014 Type: General By Michael Springmann Subject: conf call w/ CC and client re 8/15 meet w/ Id
Date 08/14/2014 Type: General By Ryan Roads Subject: "Outgoing Mail Confirmation"
-- '<1" 91 7199 9991 7034 1620 1657
From: Springmann, Michael Posted At: Thursday, August 14, 2014 10:44 AM Posted To: OSC EAST Conversation: iCE 3927045 South Delhi Field, LA Spill/Denbury Resources Inc. - ROR Letter Subject: iCE 3927045 South Delhi Field, LA Spill/Denbury Resources Inc. - ROR Letter
Please send by Certified Mail, Return Receipt Requested and Regular Mail to:
Jack Strother Denbury Resources, Inc. 5320 Legacy Drive Plano, TX 75024
Michael K. Springmann, J.D. Senior Environmental Adjuster Please send all attachments to: claimattachments@fara.com 985.674.4802 office 985.624.8684 fax
FARA004020 michael.springmann@fara.com email FARA, A York Risk Services Company 1625 West Causeway Approach Mandeville, LA 70471
Date 08/14/2014 Type: General By Michael Springmann Subject: ROR Letter
Date 08/14/2014 Type: General By Michael Springmann Subject: EM exch CC and Client re 111111111111111111111
Date 08/13/2014 Type: Supervisory Claim Review By Ronnie Ronzello
--""" Subject: Supervisory Review
Date 08/13/2014 Type: General By Michael Springmann Subject: EM from Markel adjuister
Date 08/12/2014 Type: General By Subject:
Date 08/04/2014 Type: General By Michael Springmann Subject: EM from CC: Id 111111111111111111111111111111
Date 07/24/2014 Type: General By Michael Springmann Subject: Conference call w/ Sandy and CC
FARA004029
Date 07/24/2014 Type: General By Michael Springmann Subject: EM from CC req teleconf w/ client
Date 07/17/2014 Type: General By Michael Springmann Subject: Reserves as of 07/17/14
Date 06/19/2014 Type: General By Michael Springmann Subject: EM from Zurich w/ policies
Date 06/18/2014 Type: General By Michael Springmann Subject: EM to CC to include FARA claim no.
Date 06/18/2014 Type: General By Michael Springmann Subject: EM to Zurich counsel req policies
Date 06/18/2014 Type: General By Michael Springmann Subject: EM from client: Zurich wid its denial
Date 06/09/2014 Type: General By Mary Ann Matthiessen Subject: EM to/from Markel
Date 04/24/2014 Type: General By Subject: Michael EM to CC SjPlrli.ndg.mialnlnllllllllllllllllllllll ~
Date 82/11/2814 Type: Exposure Evaluation By Mary Ann Matthiessen Subject: Claim Review - Exposure Evaluation
Date 02/11/2014 Type: Subrogation By Mary Ann Matthiessen Subject: Claim Review - Subrogation and SIF
Date 02/11/2014 Type: Facts Summary By Mary Ann Matthiessen Subject: Claim Review - Summary Of Facts
--""'" Date 132/11/2814 Type: General By Mary Ann Matthiessen Subject: TC with Nokomis Lemons of Markel
Date 12/12/2013 Type: General By Mary Ann Matthiessen
FARA004046 Subject: EM to Nokomis Lemons of Markel
Date 12/12/2813 Type: General By Mary Ann Matthiessen Subject: TC with Carrie Von Hoff of Zurich
Date 11/19/2013 Type: General By Mary Ann Matthiessen Subject: EM to/from Zurich -still need coverage opinion
Date 11/14/2013 Type: Exposure Evaluation By Mary Ann Matthiessen Subject: Claim Review - Exposure Evaluation
Date 11/14/2013 Type: General By Mary Ann Matthiessen Subject: EM to Carrie Voh Hoff of Zurich for coverage op,
FARA004057 Date 08/06/2013 Type: Exposure Evaluation By Mary Ann Matthiessen Subject: Claim Review - Exposure Evaluation
Date 08/06/2013 Type: Subrogation By Mary Ann Matthiessen Subject: Claim Review - Subrogation and SIF
Date 08/06/2013 Type: Facts Summary By Mary Ann Matthiessen Subject: Claim Review - Summary Of Facts
Date 138/136/21313 Type: General By Mary Ann Matthiessen Subject: TC with Sandy Oster
Date 138/136/21313 Type: General By Mary Ann Matthiessen Subject: EM to Carrie Von Hoff of Zurich underlying
Date 07/17/2013 Type: General By Mary Ann Matthiessen Subject: EM response from Sandy Oster- file direction
Date By Mary Ann Matthiessen Subject: EM to Carrie Von Hoff- Zurich Lead Umbrella
FARA004063 Date 07/17/2013 Type: General By Mary Ann Matthiessen Subject: EM to Sandy Oster of file direction
Date 07/09/2013 Type: General By Mary Ann Matthiessen Subject: Lloyds well Policy
Date 07/09/2013 Type: General By Mary Ann Matthiessen Subject: EM from Marsh with Zurich info
Date 07/08/2013 Type: Exposure Evaluation By Mary Ann Matthiessen Subject: Claim Review - Exposure Evaluation
(xmp>Louisiana Environmental Exposure. We still do not have the underlying controlling policy form from American Guarantee & Liability Insurance Company- we have requested same along with coverage positions when completed.
Damages and liability: The cause of the spill has not yet been determined. At this time there does not appear to be any other parties involved aside from Denbury, who is the operator of a oil well located in Lousina involved, but this is as per Denbury and the facts still are not developed.
The property is leased from private owners (unknown to us at this time) and is private property. Currently, the .incurred for remediation is $16,047,132. They are only in the early stages of the cleanup as this loss just occurred on June 14, 2013.
RECOMMENDATIONS: we do not yet have a copy yet of the controlling policy, it appears that baring any coverage questions, this loss may breach the Ironshore excess layer. We suggest that Ironshore may seek to retain its own attorney for monitoring of underlying erosion as well as auditing the expenses submitted for reimbursement to Denbury as a result of the remediation efforts if and when this matter is tendered to the Ironshore layer. Denbury has a response team in place and provides weekly reports to all carriers of their efforts and exposure. Initial discussions with Denbury Martha Balogh- Risk Management Specialist Denbury Resources Inc. indicates that Denbury will be responsible for this loss; however~ we suggest that there remains much investigation that is necessary before this matter can be fully evaluated, as such we will be following with Denbury, Marsh and Zurich to determine the cause.
We have requested a copy of the controlling policy as well as the name of the adjuster handling and will also request a copy of their coverage opinion once render'ed.
Date 07/08/2013 Type: Subrogation By Mary Ann Matthiessen Subject: Claim Review - Subrogation and SIF
Date 07/08/2013 Type: Facts Summary By Mary Ann Matthiessen Subject: Claim Review - Summary Of Facts
Date 07/08/2013 Type: General By Mary Ann Matthiessen Subject: TC to Marth Balough 972 673 1132- Denbury
Date 07/08/2013 Type: General By Mary Ann Matthiessen Subject: Initial loss report to Ironshore.
Date 06/25/2013 Type: General By Mary Ann Matthiessen Subject: EM to Alice Williams of Marsh for more info
Date 06/18/2013 Type: Initial Contact - Claimant By Mary Ann Matthiessen Subject: Initial Contact With Claimant
Date 06/18/2913 Type: Coverage By Mary Ann Matthiessen Subject: IRONSHORE SPECIALTY - 25mm xs of 25mm
Date 06/18/2013 Type: General By Mary Ann Matthiessen Subject: Response to Supervisor
Date 06/18/2013 Type: Supervisory Claim Review By Ronnie Ronzello Subject: Supervisory Review
Date 06/17/2913 Type: General By QRM 10 Subject: NOTICE TO ADJUSTER!
FARA004083 I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and conect copy of 111.e original record fl1ed and or recorded in my office, electronically or hard copy. as it appears on this date. \'Viitness my official hand. and seal of office tms, October 22.2015
Certitied Document Number: 67238734
Chris Daniel, DISTRICT CLERK HARRIS COUNTY, TEXJili
In acc'Ordance with Texas Gmre:rnnlent Code 406JH3 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail suppoTt@hcdistridderk.com APPENDIX OF EXHIBITS Exhibit A - 08.05.15 Letter to Randy fwd ANR Settlement Agreements
Exhibit B - 09.09.15 Letter to Ironshore re discovery deficiencies
Exhibit C -Ironshore's objections to NOD of Ironshore
Exhibit D -Ironshore's objections to NOD of FARA
st Exhibit E - Denbury's 1 Set of RaGs and RFPDs
st Exhibit F - Denbury's 1 Set for RFAs
nd Exhibit G - Denbury's 2 RFPD
Exhibit H - 08.20.15 Ironshore Privilege Log - FARA Claims File Documents
Exhibit 1- 09.04.15 Ironshore Supplemental Privilege Log
Exhibit J - Ironshore's objections to 1st RaGs and RFPDs
Exhibit K -Ironshore's objections and response and supp answers dated 09.04.15
Exhibit L - Ironshore's objections and response and supp answers dated 09.18.15
Exhibit M - 06.16.15 Ironshore Letter denying coverage
Exhibit N -Ironshore's redacted Claims Note File
Exhibit a - Treadaway email dated 09.02.15 re blanket objections to NOD
Exhibit P - Corporate NOD of Sanford Oster of Ironshore
Exhibit Q - Corporate NOD of FARA
Exhibit R - lronshore's Response to NOD Requests with CVs
Exhibit S - Treadaway and Sheriden Affidavits
Exhibit T - Ironshore Amended Privilege Log
Exhibit U - Amended Production FARA3943-4083
Exhibit V - Appendix of Exhibits to Mtn to Compel and Opposition to Mtn for Protective Order
4824-0139-8313, v. 1 1. Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this November 6.2015
Certified Document Number: 67238735 Total Pages: 1
Chris Daniel, DISTRICT CLERK HARRIS COUNTY, TEXAS
In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e~mail support@hcdistrictderk.com 9/29/20154:02:38 PM Chris Daniel - District Clerk Harris County Envelope No: 7152558 By: COOPER, USA l Filed: 9/29/20154:02:38 PM CAUSE NO. 2015-09546
DENBURY RESOURCES INC. and IN THE DISTRICT COURT DENBURY ONSHORE, LLC
IRONSHORE SPECIALTY INSURANCE COMPANY, ALTERRA EXCESS & 157th JUDICIAL DISTRICT SURPLUS INSURANCE COMPANY, AXIS SURPLUS INSURANCE COMPANY, AND MARSH USA INC.
ORDER
Considering Ironshore's Motion for Protective Order and Objections to Plaintiffs' Notice
of Oral and Videotaped Deposition and Request for Documents of the Designated Corporate
Representative(s) ofF.A. Richard & Associates, Inc. ("FARA ");
IT IS HEREBY ORDERED that Ironshore' s Motion is DENIED.
JUDGE RANDY WILSON
(]) gf 0.. I 4820-9383-7609, v. 1 1,0 <') t- oo <') N t- 1,0
~ "S Z ~ (])
E ;::l u o o "0 (]) t;::l .~ u I, Chris DroneI, District Clerk of Harris CountYo Texas cenify that this is a trr.re and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. \'\I1tne55 my official h.and rold seal of oftlce this October 22. 2015
CertifIed Document Number: 67238736
ChI]S Daniel, DISTRICT CLERK Hil.RRIS COUNTY, TEJL.i\S
In aCC6l'cia.nce with Te:ns Government Code 406JH3 electronically fi'ansmitted authenticated documents are yalid. H there is a question regarding the validity of this document and or seal please e-mailsllpport@.hcdistridderk.com 9/29/20154:02:38 PM Chris Daniel - District Clerk Harris County Envelope No: 7152558 By: COOPER, LISA L Filed: 9/29/20154:02:38 PM CAUSE NO. 2015-09546
DENBURY RESOURCES INC. and IN THE DISTRICT COURT DENBURY ONSHORE, LLC
Plaintiffs, HARRIS COUNTY, TEXAS v. IRONSHORE SPECIALTY INSURANCE COMPANY, ALTERRA EXCESS & 157th JUDICIAL DISTRICT SURPLUS INSURANCE COMPANY, AXIS SURPLUS INSURANCE COMPANY, AND MARSH USA INC.
Considering Ironshore's Motion for Protective Order and Objections to Plaintiffs' Notice
of Oral and Videotaped Deposition and Request for Documents of Sanford Oster as the
Designated Corporate Representative(s) of Ironshore Specialty Insurance Company;
IT IS HEREBY ORDERED that Ironshore's Motion is DENIED.
~ ~ I 4839-9031-8377, v. 1 co ,.,., I:"- co ,.,., N I:"- 1,0 ;..; 1 1] S ::l u o o "0 Certid:led Docmnent Number: 67238738 ChIi::; Daniel, DISTRICT CLERK ILA..RRIS COUNTY, TEXJ\.S In accorda.iiice with Texas ·Government Code 406JH3 electronically transnntted authenticated documents an valid. If then is a question regarding the validity of this document and or seal please e-man support@hcdistrktde.rkcom 9/30/20154:24:00 PM Chris Daniel - District Clerk Harris. County Envelope No. 7174347 By: LISA COOPER Filed: 9/30/2015 4:24:00 PM DENBURY RESOURCES INC. and § IN THE DISTRICT COURT DENBURY ONSHORE, LLC § § Plaintiffs § VS. § 157 th JUDICIAL DISTRICT § IRONSHORE SPECIALTY INSURANCE § COMPANY, ALTERRA EXCESS & § SURPLUS INSURANCE COMPANY, § AXIS SURPLUS INSURANCE § HARRIS COUNTY, TEXAS COMPANY, and MARSH USA INC. § § Defendants § DEFENDANT IRONSHORE SPECIALTY INSURANCE COMPANY'S RESPONSE TO PLAINTIFFS' MOTION FOR RULE 193.4(A) HEARING AND MOTION TO COMPEL COMPLETE DISCOVERY RESPONSES TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Defendant Ironshore Specialty Insurance Company ("Ironshore") and files this Response to Plaintiffs' Motion for Rule 193.4(a) Hearing and Motion to Compel Complete Discovery Responses, respectfully showing this Court as follows: This is an insurance coverage dispute arising out of a well blowout that occurred in northeastern Louisiana. Plaintiffs Denbury Resources Inc. and Denbury Onshore, LLC (hereinafter collectively "Plaintiffs" or "Denbury") seek a declaratory judgment that Defendants must indemnify Denbury for costs and expenses, not recoverable under the well control policy, and in excess of the underlying policies that Denbury incurred in responding to pollution resulting from the blowout. In the span of less than three months, with a flurry of discovery requests, Plaintiffs have served Ironshore with over 207 discovery requests and submitted 264 corporate representative deposition topics of inquiry, of which most seek privileged, irrelevant information, in not merely an impermissible attempt to go on a fishing expedition, but rather, in an effort to dredge the lake in hopes of finding a fish. Despite Ironshore's timely responses, its production of over 3,000 pages of documents, its repeated supplementation of discovery responses and production of a privilege log, supplemental privilege log and amended privilege log, Plaintiffs continue to seek unfettered access to not only the claim file in this matter, and other unrelated matters as well, but apparently also seek to be allowed to generally peruse all evidence Ironshore may have regardless of privilege or relevancy. Plaintiffs seek irrelevant discovery beyond the policy language contained within the policies in an attempt to create ambiguity, despite a recent United States Fifth Circuit Court of Appeals decision holding the policy language at issue to be clear and unambiguous. Further, Ironshore's liability on the contract is undetermined; thus, Denbury's alleged requests to support its bad faith and claim mishandling claims are improper at this time. Plaintiffs complain that Ironshore's production and responses are insufficient. To the contrary, after participating in a discovery conference that lasted over three (3) hours to try to resolve the issues raised by Denbury, Ironshore has produced all of its relevant, responsive, non- privileged documents as required by the Texas Rules of Civil Procedure. Consequently, Plaintiffs' Motion should be denied. Denbury is an oil and gas operator who has mineral leases in the Delhi Field in north Louisiana and in other states, including Texas. In June 2013, under its mineral leases, Denbury was performing enhanced oil recovery operations ("EaR") in the Delhi field, which is within Denbury's Holt-Bryant Unit, which involved injecting C02 through injection wells into the 2 formation under pressure and producing oil from production wells located in the field. As part of its operations, Denbury had numerous wells in the Delhi field and various surface installations to support its oil and gas operations. On June 13,2013, during an inspection of the Delhi field, Denbury discovered reservoir fluids on the surface of the land in the vicinity of a pipeline right of way ("ROW") that runs through the Delhi field, where Denbury was performing its EOR operations. Upon investigation, Denbury discovered a plugged and abandoned well inside the Delhi Field, the Sun 220-2 well, had blown out during its EOR operations in early June 2013 resulting in an uncontrolled release of reservoir fluids from the well. Denbury subsequently responded to the incident by drilling a well to intercept and stop the flow of fluids from the Sun 220-2 well, after which Denbury began cleaning up the surface pollution in the Delhi field. Although discovery has just begun in this matter, the evidence will show that on April 1, 2013 when Denbury' s insurance came up for renewal, Denbury elected not to purchase insurance coverage for well control or for pollution coverage for plugged and abandoned wells, or commercial pollution liability insurance. These insurance policies would have provided insurance coverage for the costs Denbury incurred to regain control of the Sun 220-2 well, to clean up pollution in the Delhi field from the well, and for any damage to the land comprising the Delhi field that resulted from the blowout. Now, as a result of Denbury' s failure to obtain the proper insurance coverage to respond to this incident, Denbury seeks recovery of its clean-up and remediation expenses, and recovery for damage to the land comprising its Delhi field from its commercial general liability insurers, including Iron shore, whose policies clearly and unambiguously exclude coverage for damage to property Denbury owns, rents or occupies and 3 which unambiguously exclude coverage for cleaning up pollution on land that Denbury owns, rents or occupies. As with any major incident, Denbury put all of its insurance carriers on notice, including layers not implicated by the event. Initially, the first excess layer, AGLIC, denied coverage for Denbury's claim under its policy. But on October 6, 2014, AGLIC tendered its $25 million policy limit to Denbury, in payment of three claims, including a $9,900,000.00 settlement Denbury entered into without Ironshore's knowledge or consent with Loutre Land and Timber Company ("Loutre") for damage to land that appears to be located within the Delhi field; an $8,755,139 settlement Denbury entered into without Ironshore's knowledge or consent with ANR Pipeline Company for alleged damage to an ANR pipeline located in the ROW that runs through Denbury's Delhi field; and for $6,344,861 in cleanup and remediation costs on property that Denbury characterized as being outside of its Delhi fieldlHolt-Bryant Unit, but which Denbury admits includes the ROW that runs through the Delhi field. On September 22,2014, shortly before AGLIC tendered its policy limits to Denbury, the United States Fifth Circuit Court of Appeals issued a decision in Pioneer Exploration, L.L.C. v. Steadfast Co., 767 FJd 503 (5th Cir. 2014), which considered the same property damage exclusion and Blended Pollution Endorsement exclusion that are contained in the excess liability policies AGLIC and Ironshore issued to Denbury. After considering the exclusions in the context of a well blowout that resulted in surface pollution, the Fifth Circuit Court of Appeals held that under Texas law remediation and containment costs within the boundaries of a mineral lease are excluded from coverage under the "owned, rented, or occupied" exclusions contained in the "Property Damage" exclusion and "Blended Pollution Endorsement" attached to the Steadfast policy. Further, those policy exclusions and their limitations on coverage were held to 4 be clear and unambiguous, limiting the policy coverage to its clear meaning-coverage for third- party damages to property or land that Denbury does not own, rent or occupy. The dispute concerning the appropriate types of insurance Denbury should have procured is also contained in Denbury's lawsuit, but those issues are strictly between Denbury and its broker, Marsh. Denbury's dispute with Ironshore is a coverage dispute based solely on the interpretation of the unambiguous terms and conditions of Ironshore's policy to the facts and nothing more. As stated 1ll Denbury's brief, once AGLIe tendered its policy limits, Ironshore immediately asked Denbury to provide information supporting its claim, including its settlement with Loutre, its settlement with ANR, and how it allocated or identified the remediation expenses it incurred to clean up the land it leased and occupied from those expenses and/or damages outside of the land Denbury leased or occupied. Although Ironshore repeatedly requested information from Denbury about whether any timber outside of the Delhi field and/or the Holt- Bryant Unit was damaged as a result of the blowout; the value of any such damaged timber, and an accounting of the clean-up expenses Denbury incurred cleaning up any pollution outside of the Delhi fieldlH01t-Bryant Unit, Denbury has repeatedly refused to provide this critical information. 1 In fact, on November 11, 2014, Denbury responded to numerous requests for information from Ironshore by stating it was not "making a distinction in its claim between 'on- lease' and 'off-lease' clean-up and related pollution costs," it could not identify the amount it spent cleaning up pollution outside of the Delhi field/Holt-Bryant Unit because it did not segregate those expenses from what it spent cleaning up pollution within the field, and it was not 1 See Exhibit M attached to PIs.' Mot. to Compel p. 1-2. 5 gomg to provide any further information about the Loutre settlement. 2 Finally, although Ironshore was made aware of a claim for loss of use of the ANR pipeline while the line was being repaired, in December 2014, without Ironshore's knowledge or consent and in direct violation of the voluntary payment clause contained in the Ironshore policy, Denbury entered into a $14,000,000.00 binding settlement agreement with ANR. As a result of Denbury' s repeated failure to provide information supporting its claim, on June 16,2015, Ironshore advised Denbury that while it would continue to investigate Denbury's claim, based on the information provided by Denbury Ironshore must decline to accept, as being covered property damage, AGLIC's payment of $9,900,000.00 to Loutre as that settlement appears to be payment for damage to property that Denbury leased and occupied, which is excluded from coverage under Exclusion 8, Damage to Property, contained in the AGLIe and Ironshore policies. 3 Ironshore also advised Denbury that based on Denbury's inability to identify the amount it spent cleaning up pollution outside of the Delhi fieldlHolt-Bryant Unit, Ironshore must decline Denbury's demand that Ironshore accept AGLIC's payment of $6,443,636.00 in what Denbury characterized as "off unit" clean up expenses. Finally, Ironshore advised Denbury that as a result of AGUC's payment of $16,244,861.00 in uncovered claims, the underlying AGLIC policy has not been exhausted and Ironshore's policy has not been triggered. 2 See Plaintiffs' November 11,2014 correspondence attached hereto as Exhibit 8. Further, it should be noted that Plaintiffs claim in their Memorandum in Support of their motion to compel that following Ironshore's October 23, 2014 request for information that "Denbmy replied in earnest to each and every RFI" and filed suit thereafter on February 19,2015 only after lronshore refused to accept or deny coverage. See PIs.' Memo. In Support of Mot. to Compel p. 3. However, Denbury actually filed its first lawsuit against Ironshore and the other defendants in this matter much earlier on October 14,2014, the same day Denbury claims it made its formal claim under lronshore's policy. See Exhibit 4 attached hereto, a copy of the docket sheet, Denbmy's Petition and civil process request for Denbury Resources Inc., et at. v. Ironshore Specialty Insurance Co., et at., Cause No. 2014-59947, in the 157th Judicial District Court of Harris County, Texas, for the Court's ease ofreference 3 See Ex. M attached to PIs.' Mot. to Compel. 6 There are three (3) policy limitations at the core of this insurance coverage dispute, including the Property Damage exclusion contained in the Ironshore policy; the Blended Pollution Endorsement; and the voluntary payment clause, which clearly, unambiguously, and respectively exclude coverage for damage to property Denbury owns, rents or occupies; coverage for remediation of pollution on land Denbury owns, rents or occupies; and which prohibit the settlement of any claims without first obtaining Ironshore's written consent. Despite the fact Ironshore has produced thousands of documents that include all of its relevant, responsive, non-privileged documents as required by the Texas Rules of Civil Procedure, Plaintiffs nonetheless seek recovery of information that is irrelevant and that will not lead to the discovery of admissible evidence, as well as information that is protected by the attorney-client and work-product privileges, which must be denied. While the Texas Rules of Civil Procedure allow Denbury a broad scope of discovery, a discovery request must nonetheless be reasonably tailored to include only matters that are relevant to the case. In re Alford Chevrolet-Geo, 997 S.W.2d 173, 180-81 (Tex. 1999); In re American Home Assurance Co., 88 S.W.3d 370,373 (Tex.App.-Texarkana 2002, no pet.). A litigant may not use discovery as a weapon, or as a fishing expedition. Id. The court accordingly has the authority to limit discovery when the requests are unreasonably cumulative or duplicative, or obtainable from a more convenient, less burdensome or less expensive source; or when the burden or expense of the discovery outweighs its likely benefit. TEX.R.OV.P. 192.4; In re Chevrolet-Geo, 997 S.W.2d at 181; In re American, 88 S.W.3d at 373. In general, a party may obtain discovery regarding any subject matter that is not privileged, is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking 7 discovery or the claim or defense of any other party. TEX.R.CIv.PRO. 192.3. While the scope of discovery is quite broad, it is nevertheless confined by the subject matter of the case and reasonable expectations of obtaining information that will aid resolution of the dispute. TEX.R.CIv.PRO. 192.3, cmt. 1 (citing In re American Optical Corp., 988 S.W.2d 711 (Tex. 1998) (per curiam); K-Mart v. Sanderson, 937 S.W.2d 429 (Tex. 1996) (per curiam)). Plaintiffs assert in their motion to compel that they are entitled to responses to discovery requests regarding Ironshore's underwriting, reserves, claims handling, reinsurance, claims adjustment, and other areas because "the terms and conditions of Ironshore's policy are ambiguous and/or illusory.,,4 Plaintiffs, however, have never asserted that any specific policy provision, term, condition, exclusion or endorsement of Ironshore's policy is ambiguous. Instead, the only mention of ambiguity in Plaintiffs' live petition is the single sentence that claims "[e]xcess carriers and Marsh engaged in unconscionable conduct by selling insurance policies with ambiguous and/or illusory coverage."s There is no assertion that any specific policy language is ambiguous. To the contrary, Denbury asserts in its petition that "[t]here are no applicable policy provisions, conditions or exclusions which preclude or limit the coverage available to Denbury for these costs, or which mitigate the Excess carriers' obligations to indemnify Denbury under the Excess policies.,,6 The interpretation of a contract is governed first and foremost by the language contained within the contract. Under Texas law, a court must "ascertain the true intent of the parties as expressed in the instrument." Nat'l Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517,520 4 PIs.' Memo. In Support of Mot. to Compel at 6. 5 PIs.' Second Supp. Am. Pet. at p. 22, <[104. 6 PIs.' Second Supp. Am. Pet. at p. 21, <[93. 8 (Tex. 1995) (internal citation omitted). Extrinsic evidence is only admissible to interpret a contract if the contract language at issue is ambiguous. Id. Importantly, extrinsic evidence is not admissible for the purpose of creating an ambiguity. Id. Thus, before Denbury can colorably argue that the underwriting, reserves, claims handling, reinsurance, and claims adjustment information it seeks is reasonably calculated to lead to the discovery of admissible evidence, it must show that the Policy language at issue is ambiguous. In that regard, Denbury has failed to even allege that a specific policy terms is ambiguous. Further, the Fifth Circuit has already held the language at issue to be clear and unambiguous. Pioneer Exploration, L.L.c., 767 F.3d 503. Extrinsic evidence is admissible only to resolve an ambiguity, not to manufacture one. Courts accordingly have held that discovery of such extrinsic evidence is inappropriate until there has been finding that contraq language is ambiguous. For example, in In re American Home Assurance Co., 88 S.W.3d at 377, the court held that a determination as to whether the disputed policy language was ambiguous must precede efforts to discover extrinsic evidence "because evidence would not be admissible that would conflict with the legal interpretation of that provision." The court further noted that "discovery undertaken with the purpose of finding an issue, rather than in support of an issue already raised by the pleadings, would constitute an impermissible 'fishing expedition.'" Id. Importantly, Denbury has made no showing that the Policy is ambiguous. Instead, in one sentence, Denbury has vague! y asserted that "[ e]xcess earri ers and Marsh engaged in unconscionable conduct by selling insurance policies with ambiguous andlor illusory coverage."7 Denbury's bare assertion is plainly insufficient to show the Policy is ambiguous, as case law is clear that mere dissension over the meaning of contract language does not render a contract 7 PIs.' Second Supp. Am. Pet. at p. 22, 'J[104. 9 ambiguous. See Columbia Gas Transmission Corp. v. New Vlm Gas, Ltd., 940 S.W.2d 587,589 (Tex. 1996) (an "ambiguity does not arise simply because the parties advance conflicting interpretations of the contract"). Thus, the documents Denbury seeks are protected from discovery, and are irrelevant to this action. Accordingly, Denbury's motion to compel should be denied. By seeking to obtain evidence or testimony related to reasons why Ironshore issued the policy or specific endorsements, Plaintiffs are attempting to use parole evidence to change the express and clear terms (and the coverages) of the policies at issue and create an ambiguity in the policies where there is none. The meaning of the policy and the intent of the parties must be determined from the policy itself, not from extrinsic evidence. Carrabba v. Employers Cas. Co., 742 S.W.2d 709, 716 (Tex.App.-Houston [14th Dist.] 1987, no writ) (holding disputed facts related to the circumstances surrounding the purchase of the policy and the intent of the parties in selecting the policy were not relevant and did not preclude summary judgment). "The only relevant evidence is the actual policy." [d. Ironshore will now address the specific categories of requests Denbury has identified in its motion to compel in which it seeks the Court's intervention. Under Texas law, Denbury is not entitled to an unredacted and complete copy of the claim file and claim notes maintained by Ironshore's Third-Party Administrator, FARA, as it would include documentation and notes protected from disclosure by the attorney-client and work product privileges. See TEX.R.CIV.P. 192.5(a) and (b). Further, the Texas Rules of Civil Procedure only provide for the disclosure of the existence and contents of any applicable insurance agreement. See TEx.R.CIv.P. 192.3(f). In Loftin v. Martin, the Texas Supreme Court 10 held a request for "all notes, records, memoranda, documents and communications made that [plaintiff] contends support its allegations" was so vague, ambiguous and overbroad as to amount to "a request that [defendant] be allowed to generally peruse all evidence [plaintiff] might have." 776 S.W.2d 145, 148 (Tex. 1989). Denbury goes further here and actually requests the claim file and notes not only for the present action but also claims handling information for other unrelated claims. Denbury requests this Court enter an order compelling Ironshore to produce a copy of "Denbury's unredacted claim file and claim notes as well as all communications by Ironshore to third-parties relative to Denbury's c1aim."g Under Texas law, however, an insurer's investigative files, such as the claim file and claim notes at issue, are not subject to discovery simply because the plaintiff alleges bad faith and breach of contract claims in the same action. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 458 (Tex. 1982). An insurer is entitled to assert a privilege in response to actions for breach of contract and bad faith, so long as the insurer's liability on the contract is undetermined. Id. at 457-58. Ironshore's contractual liability to Denbury has not been determined. Therefore, Ironshore is entitled to assert the attorney-client and work product privileges in response to Denbury's claims. Accordingly, Denbury is not entitled to unredacted and complete claim file or claim notes. Regardless, upon review of the Amended Privilege Log produced by Ironshore to Denbury, it demonstrates that only irrelevant documents or privileged documents and communications remain in the file. 9 Ironshore retained counsel regarding Denbury's claim on 8PIs.' Memo. In Support of Motion to Compel at 11. 9See lronshore's Am. Privilege Log attached hereto as Exhibit 1; see also Randell Treadaway's Aff. attached hereto as Exhibit 2. Also, see lronshore's Service of Affidavits in Support of its Objections and Privileges, attached hereto as Exhibit 7, which served counsel of record with Randell Treadaway and Lee T. Sheridan's affidavits seven days prior to the hearing on Denbury's motion to compel pursuant to Texas Rules of Civil Procedure 193.4(a). 11 April 24, 2014. During the course of that representation, Ironshore's counsel developed mental impressions, prepared materials, and communicated with Ironshore regarding Denbury's claim. A review of the Amended Privilege Log reflects internal discussions regarding communication with counsel, as well as direct communications with counsel, which are protected by the work product privilege. 1o Communications and correspondence with coverage counsel and defense counsel in the instant lawsuit are protected from discovery by the attorney-client privilegeY Communications among Ironshore's representatives are protected by the attorney-client privilege and are not discoverable as such communications are "made for the purpose of facilitating the rendition of professional legal services to" Ironshore and are not subject to a recognized exception or otherwise waived. TEx.R.EvID. 503(b)(1)(D). There is no exception to the attorney-client privilege applicable to the communications among Ironshore personnel or with regard to communications pertaining to the instant lawsuit, nor has Ironshore waived the attorney-client privilege. The attorney-client privilege attaches to the complete communication between the attorney and the client. In re JDN Real Estate-MckInney L.P., 211 S.W.3d 907,922 (Tex.App.-Dallas 2006, pet. denied). The subject matter of the information communicated is irrelevant when determining whether the privilege applies. Id. The privilege attaches to legal advice and factual information included in the completed communications between the attorney and the client. Id. Denbury seeks unfettered access to everything in the claim file and notes on this matter. Texas law has created privileges for work product and attorney-client communications which prevent Denbury' s overly broad requests. However, in certain circumstances, documents that do not fall under privileges discussed above are placed in a claim file. For example, it is common 10 See Am. Privilege Log attached as Ex. 1. 11 See Randell Treadaway's Aff. attached as Ex. 2. 12 practice for a police report to be placed in a claim file. The act of placing a non-privileged document in a claim file does not change the document's status. Below is a list of documents that have been previously produced to Denbury in this matter in response to discovery requests, including a list of non-privileged documents that were placed in the claim file. 07-17-15 Attachments to Ironshore's Answers and Responses to Denbury's Discovery 1. 03-16-15 Attachmentto supplement ROR-Denbury original reservation 2. 03-16-15 Ironshore supplemental ROR 3. 06-16-15 Correspondence to Nizialek re: Ironshore coverage position 4. 08-14-14 Ironshore ROR to Denbury 5. 10-06-14 Von Hoff correspondence to Denbury re: tender of payment 6. 10-23-14 Correspondence to Nizialek re: Denbury POL-RFI 7. 3927045 Lead Zurich umbrella policy 2013-2014 8. Zurich Endorsement #14 issued 08-05-14 07-23-15 lronshore Supplemental Responses to Denbury 1st RFP: 1. Certified copy of Ironshore ExcessProtect Commercial Excess Liability Policy No. 000988602 issued to Denbury Resources, Inc. effective 04/01113 to 04/01114 09-04-15 Ironshore Supplemental Responses to Denbury 1s1 RFP: 1. 02-06-15 Voice message from Nizalek 2. 02-27-15 Email from Nizialek re Delhi - revised POL 3. 03-16-15 Correspondence from Nizialek re: Denbury response to revised Ironshore POL 4. 09-05-15 Correspondence to Nizialek re: Ironshore's Answers and Responses to Denbury's Int-RFP-RFA-Privilege Log Document Production 5. 3,164 pages of non-privileged claims file documents redacted, including: a) All F ARA correspondence to Denbury; b) All correspondence F ARA received from Denbury; 0'\ c) All proofs of loss submitted by Denbury; M ...... d) Correspondence from Zurich to Denbury; 0 M e) Denbury pleadings with attachments; Q) b1) f) Denbury's discovery to Ironshore; C':l 0- g) Ironshore's RORs and 6116115 coverage position issued to Denbury; .-< h) Documents produced by Denbury; N If) 00 i) Denbury settlement agreements with ANR and Loutre Timber; If) N j) Policies issued to Denbury by Zurich, Ironshore, Alterra, AXIS and London (EED t-- 1.0 ;...; policy); ~ Q) k) Ironshore's counsel's correspondence to Denbury's counsel; Ei :::l Z..... ;:: Q) 13 Ei :::l (,) 0 Q "0 Q) 1.C '-2 Q) u 1) Incident Action Plan and Cost Tracking Reports Denbury sent to FARA during incident response; m) Maps of Incident Area Denbury sent to FARA during incident response; n) VendorlInvoice Lists Denbury sent to FARA during incident response; 0) Incident Organizational Chart Denbury sent to F ARA; p) LDEQ documents Denbury sent to FARA; q) Denbury reports to state agencies pertaining to incident and incident response; r) Photographs of incident Denbury sent to FARA; s) All non-privileged correspondence between FARA and other carriers; and t) All non-privileged claim notes (this is the additional 141 pages) 6. 141 pages of claims notes redacted 7. 10-23-14 Correspondence to Nizialekre: Denbury POL-RFI 8. 11-11-14 Correspondence from Nizialek re: Denbury response to Ironshore RFI 09-04-15 Ironshore's Supplemental Responses to Denbury's 2nd RFP: 1. Internal organizational chart of the property and casualty claims department 2. Declaration page from Policy No. KP-96708-0814 issued by Catlin Specialty Insurance Company 09-24-15 lronshore-FARA Response to Denbury's Deposition Document Request: 1. Shabir Bengali ID 2. Shabir Bengali CV 3. Thomas Devine CV 4. Thomas Devine driver's license 5. Sanford Oster Resume and ID 6. Lee Sheridan ID 7. Lee Sheridan resume 09-25-15 Ironshore Second Supplemental Responses to Denbury 1st RFP: 1. Amended non-privileged claim notes redacted 2. Lee T. Sheridan Affidavit 3. Randell E. Treadaway Affidavit The non-privileged documents that have not been produced are wholly irrelevant to Denbury's claims and will not lead to discoverable evidence. The remaining documents in the claim file are irrelevant invoices, correspondence between counsel and Ironshore and/or FARA, litigation materials, irrelevant reserves, defense counsel's j oint defense agreement, and documents prepared in anticipation of litigation for Ironshore and Ironshore's representatives. Pursuant to 14 Texas Rule of Civil Procedure, the documents are work product privilege as the documents were created in anticipation of litigation, attorney-client privilege, joint defense privilege, or irrelevant. 12 B. Denbury's Request for Ironshore's Entire Underwriting Files is Irrelevant and it Seeks Information Protected by the Trade Secret Privilege Courts must "analyze disputes over insurance contracts under the well-established principles of contract construction, attempting to determine the parties' intent through the written language of the policy." Mid-Continent Cas. Co. v. Global Enercom Mgmt., Inc., 323 S.W. 3d 151, 154 (Tex. 2010). If the insurance policy is not ambiguous, the court must enforce it as written. Don 's Bldg. Supply, Inc. v. OneBeacon Ins. Co., 267 S.W. 3d 20, 23 (Tex. 2008). "Parol evidence is not admissible for the purpose of creating an ambiguity." CBI Indus., Inc., 907 S.W.2d at 520. Under the live pleadings to this case, Ironshore's underwriting files are irrelevant and non-discoverable because Denbury has not pointed out any policy terms that it contends are ambiguous. Denbury is merely seeking parole evidence to create an ambiguity. Specifically, Denbury's single argument is that the "Excess carriers and Marsh engaged in unconscionable conduct by selling insurance policies with ambiguous and/or illusory coverage.,,13 Denbury has failed even to plead what terms it believes are ambiguous. Simply put, Denbury is seeking the underwriting files as an impermissible fishing expedition for an ambiguity. As evidence, take Denbury's Second Request for Production No. 51, which requests "[a]U documents related to or 12 See lronshore's Am. Privilege Log attached as Ex. 1. 13 PIs.' Second Supp. Am Pet. p. 22, 1104. 15 discussing how You Underwrite Energy Market insurance."14 This request is wholly unrelated to Denbury, the policy at issue, or this litigation. Denbury offers no justification as to the relevance of the underwriting files, other than to make a blanket statement, while citing an lllinois case, that "[u]nderwriting files have long been held to be relevant to prove the meaning of disputed policy terms and an insurer's understanding of those terms."15 This comes after failing to specify in its petitions any terms in Ironshore's policy that Denbury contends are ambiguous and after Ironshore raised its discovery objections. Denbury's argument now is to allege that the underwriting file is relevant to prove the meaning of unspecified policy terms that are disputed. In the unlikely event this Court believes such generalizations suffice to allege ambiguity and make any portion of the underwriting file discoverable, this Court should exercise its discretion to narrowly tailor any production of the file to those portions relevant as to specific policy provisions alleged to be ambiguous and for which courts have not already held are unambiguous. See In re American Home Assurance Co., 88 S.W. 3d 370. However, notwithstanding the irrelevancy of these requests, Ironshore asserts that its underwriting of the Energy Market; underwriting for any Ironshore policy, including the one at issue; and underwriting of any Ironshore policy provision are confidential and trade secrets. 16 Texas Rule of Evidence 507 establishes a qualified privilege allowing a person to refuse to disclose and to prevent others from disclosing trade secrets, provided the exercise of the privilege will not tend to conceal fraud or otherwise work injustice. Trade secret issues are 14 See Ironshore's Objections and Responses to Denbury's Second Request for Production No. 51 attached as Ex. K to PIs.' Mot. to Compel. 15 See PIs.' Memo. In Support of Mot. to Compel at 13. 16 See Lee T. Sheridan's Aff. attached hereto as Exhibit 3. 16 governed by state law. Aroson v. Quick Point Pencil Co., 940 U.S. 257, 265-66 (1979). A trade secret is any fonnula, pattern, device or compilation of infonnation which is used in one's business and presents an opportunity to obtain an advantage over competitors who do not know or use it. Computer Assocs. Int'l Inc. v. Altai, Inc., 918 S.W.2d 453, 455 (Tex. 1996). When a party asserts trade secret privilege, the trial court must determine: (1) whether the information constitutes a trade secret, and (2) if so, the court must require the party seeking production to show reasonable necessity for the requested materials. In re Union Pacific R.R. Co., 294 S.W.3d 589,591 (Tex. 2009). Ironshore's "business is underwriting and making insuring and indemnity decisions based on that infonnation", and thus, documents related to Ironshore's underwriting of policies are trade secretP The infonnation is not public knowledge and is not known outside of Ironshore' s business because "Ironshore makes every effort to safeguard and protect its underwriting files and processes from persons outside of lronshore.,,18 Ironshore considers its underwriting to be confidential and trade secret such that it would be "irreparably harmed in the marketplace by disclosing the information" because "[a]n insurance company's competitive advantage may be preserved by its trade secrets related to underwriting" .19 Denbury must show a reasonable necessity for Ironshore's underwriting files and documents in order to justify production. Which it has not done. Denbury claims in its motion to compel that Ironshore's refusal to pay Denbury's claim after AGLIe paid its $25 million policy limit justifies production of all of Ironshore's underwTiting infonnation and documentation. 20 However, as discussed in detail above, there has not been any finding of ambiguity in any Ironshore policy provision and 17ld. 18ld. 19ld. 20 PIs.' Memo. In Support of Mot. to Compel at 13-14. 17 Ironshore's contractual liability in this matter has not been determined. Instead, there is case law on point interpreting the relevant terms of the policies at issue in this matter. Denbury only seeks Ironshore's underwriting materials in an attempt to improperly use parol evidence to create ambiguity. Ironshore has asserted and supported is claim of trade secret privilege regarding its underwriting information and documentation, and therefore, Denbury's motion to compel in this regard should be denied. As an initial matter, any discussion of the value of a potential legal claim likely is going to be privileged. Nevertheless, whether or not Ironshore altered its reserves is not relevant to whether Ironshore has indemnity obligations under the policy. First, such reserve information cannot be considered to construe an unambiguous policy provision. Second, to the extent a policy provision is ambiguous, reserve information does not shed any light to its interpretation. Third, reserve information is irrelevant to any bad faith claim. Rather, the relevant questions in a bad faith dispute are whether Ironshore knew it had indemnity obligations and whether Ironshore had a bona fide dispute about its liability. See U.S. Fire Ins. Co. v. Williams, 955 S.W. 2d 267, 268 (Tex. 1997) ("Evidence that only shows a bona fide dispute about the insurer's liability on the contract does not rise to the level of bad faith.") The reserve information simply has no beming on the outcome of whether the controlling policy had been exhausted by covered claims, whether Denbury has demonstrated a loss within Ironshore's layer of coverage, or whether exclusions apply. See In re American Home Assurance Co., 88 S.W.3d at 377 (holding that a discovery order requiring documentation "regarding the setting of reserves for third-party claims against the plaintiffs is improper because the information sought is not admissible and would not lead to the discovery of admissible evidence. "). 18 In In re American Home Assurance Co., 88 S.W.3d 370, the court concluded discovery of reserve information was improper. Specifically, American Home involved a mandamus review of a discovery order compelling discovery of various information, including insurance reserves. ld. at 371-72. In the underlying matter, the insured brought suit against its various insurers, claiming those insurers refused to indemnify it for third-party claims made on its environmental policies. ld. at 374. Thereafter, the insured sued its insurers under various theories of recovery, including, among others, breach of contract, fraud, declaratory judgment and violation of the Texas Insurance Code, and the trial court compelled the insurers to produce information including insurance reserves. ld. Upon mandamus review, the Texarkana Court of Appeals summarily concluded: [R]equiring documentation ... regarding the setting of reserves for third-party claims against the plaintiffs is improper because the information sought is not admissible and would not lead to the discovery of admissible evidence. Id. at 377. The case instructs that discovery of such information is improper. Thus, the reserve infonnation sought by Denbury is not discoverable under Texas law, and Denbury's motion to compel in that regard should be denied. Further, where Texas law requires setting of reserves, such reserves are not admissions of bad faith or unfair claims handling, and thus, are not discoverable. Under Texas law, the question of whether an insurer engages in bad faith or unfair claims handling does not automatically make relevant the insurer's setting of loss or claim reserves. Indeed, in Texas, an insurer is required to maintain reserves. Tex. Ins. Code Ann. § 421.001 (Vernon 2007). The purpose of such statutes, enacted by Texas and other states, is to ensure that there is adequate money available for insurers to pay their claims, and do not constitute admissions by the insurer of any conduct, much less evaluation of liability in bad faith or unfair claims practice. See 19 Heights at Issaquah Ridge Owners Ass 'n v. Zurich American Ins. Co., No. C07-1045RSM, 2007 U.S. Dist. LEXIS 95213, at *6-7 (W.D. Wash. Dec. 13, 2007). Texas law requiring the maintenance and reporting of reserves creates obligations relevant to the financial condition and business operations of the insurer. By complying, the insurer's establishment of loss reserves is not an admission of any kind, is not a concession the insurer breached any duties owed to the insured and does not constitute evidence the company has engaged in unfair claims practices. Accordingly, the establishment of a mandatory reserve has no bearing upon an insurer's liability in an action for bad faith or unfair claims practices. Consequently, reserves information is simply irrelevant to the issues here and Denbury's motion to compel should be denied in that regard. See In re American Home Assurance Co., 88 S.W.3d at 377. Texas insurers who are required to maintain loss or claim reserves as required by the Texas Department of Insurance must not be penalized for compliance with that requirement. The use of loss or claims reserves information by insureds in litigation against the insurer is improper where the setting of reserves is in no way relevant and does not constitute an admission or concession of any kind, much less an admission of bad faith or unfair claims practices. A common misconception exists that reserves are equivalent to an admission or valuation by the insurer. In a matter of first impression determining disclosure of reserve information was improper where same was not reasonably calculated to lead to discovery of admissible evidence, the Colorado Supreme Court explained that "reserves should be not be equated with an admission or valuation by the insurer" and that reserve amounts are only partially within the insurer's control. Silva v. Basin Western, Inc., 47 P.3d 1184, 1189 (Colo. 2002) (en banc). At least one legal journal instructs that a presumption exists against disclosure of reserve information. See Sukel & Mike F. Pipkin, Discovery and Admissibility of Reserves, 34 TORT & 20 INS. L. J. 191, 220 (Fall 1998). Although Denbury contends the amount of reserve set by Ironshore in this case is discoverable, Denbury has not demonstrated in any fashion that the reserve information is relevant to the claims or defenses asserted in this matter. To the contrary, the amount of reserves established by Ironshore is not relevant and is not reasonably calculated to lead to the discovery of admissible evidence on any claim or defense in this matter. As such, Ironshore's objections to Denbury's Interrogatory No.9; First Set of Request for Production Nos. 2 and 23; and Second Set of Request for Production Nos. 29, 30, and 31 should be sustained. Denbury asserts that its bad faith allegations "places additional facts at issue over and above an ordinary insurance coverage action."21 Without citing Texas case law, it then broadly claims that "Ironshore's reinsurance information and communications are, therefore, discoverable to the extent 'the timing and content' of those documents can lead to the discovery of admissible evidence concerning Ironshore's evaluation of Denbury' s claim or the validity or application of policy provisions to Denbury's claim throughout Ironshore' s adjustment.,,22 However, discovery of privileged material prepared by an insurer during its investigation and evaluation of a claim is improper where the insurer's liability for the claim has not been determined. See Blackmon, 639 S.W.2d at 458. Ironshore asserts that its risk management through reinsurance is information that it keeps confidential and is trade secret. 23 Further, Denbury's requests are moot because Ironshore has supplemented its discovery responses to provide Denbury with a copy of the declarations page for its professional liability policy. 21 See PIs.' Memo. In Support of Motion to Compel at 15. 221d. 23 See Lee Sheridan's Affidavit attached hereto as Exhibit 3. 21 Accordingly, Ironshore's objections to Denbury's Interrogatory No.1; First Set of Request for Production Nos. 26 and 27; and Second Request for Production No. 16 should be sustained. Ironshore has supplemented its response to Second Request for Production No. 69 seeking any insurance policy that may defend or indemnify Ironshore in this litigation and produced a copy of the declarations page for professional liability insurance; therefore, this request is moot. 24 E. Denbury's Requests Regarding "Similar Claims" is an Overly Broad Fishing Expedition in an Attempt to Harass Ironshore Before Ironshore's Contractual Liability in This Matter is Determined Denbury asserts that its discovery requests Interrogatory Nos. 10 and 12; First Request for Production 4, 9, 10, 11, and 42; Second Request for Production 4-12 and 43-53; and Request for Admission 52 seek information regarding similar claims. It should be kept in mind that. " ... discovery is not only 'a tool for uncovering facts essential to accurate adjudication,' but also 'a weapon capable of imposing large and unjustifiable costs on one's adversary.'" In. re Alford Chevrolet - Geo, 997 S.W.2d at 180. As set forth by the Texas Supreme Court in Alford Chevrolet - Geo, " ... discovery may not be used as a fishing expedition or to impose unreasonable discovery expenses on the opposing party". Id. at 181. Plaintiffs' requests seek irrelevant and likely inadmissible infonnation. Denbury's requests appear to be nothing more than a fishing expedition and an attempt to impose large and unjustifiable costs on Ironshore. See In. re American. Optical Corp., 988 S.W.2d 711; K-Mart Corp., 937 S.W.2d 429. In these requests, Denbury seeks documents and infonnation such as "[a]ll documents related to discussing how to perform Your obligations as an insurer", "[aJ11 documents by and between You and any other Person related to or discussing Your failure to comply with Texas 24See Ex. L attached to PIs.' Motion to Compel, lronshore's Second Supp. Objections and Responses to Denbury's Second Request for Production, with the attached, produced declarations page. 22 Insurance Code § Sec. 542.005-542.012", all complaints received by Ironshore, all documents discussing Ironshore's reporting under the Texas Insurance Code, all petitions filed against Ironshore by an Energy Market policyholder, all petitions filed by Ironshore against an Energy Market policyholder within last five years, all documents discussing how Ironshore underwrites Energy Market insurance, all documents discussing Iron shore , s methods for adjusting claims, all documents related to how Ironshore selects claims adjusters, "how many times has Ironshore denied coverage for pollution cleanup costs because the policyholder owned, rented, or occupied the premises where pollution occurred", "[i]dentify each and every lawsuit in the past five (5) years in which You have been involved in which insured claimed the following with respect to the Ironshore Excess Policy ... ", "[a]l1 manuals, directives, guidelines, procedures, training materials, checklists, policy manuals and/or company policies that describe the method You use to investigate claims ... ", "[a]ny and all materials, documents, statements and/or files that reflect complaints and/or lawsuits filed by Ironshore's insureds against Ironshore ... ", "[a] complete list of any and all cases in which Ironshore has filed and/or otherwise asserted a claim for declaratory judgment regarding its obligations to its insureds for claims under Commercial Excess Liability Policies it issued", and "[a] complete list of any and all cases initiated by Ironshore insureds against Ironshore asserting one or more violations of the Texas Insurance Code" to demonstrate a few. 25 Ironshore objected to these requests on the grounds that they were overbroad, vague, unduly burdensome, harassing, an impermissible fishing expedition, not relevant to the subject litigation nor reasonably calculated to lead to the discovery of admissible 25 See Ironshore's Objections and Responses to Denbnry's Second Set of Requests for Production, attached to PIs.' Motion to Compel as Exhibit K; see also Ironshore's Objections and Responses to Denbury's First Set of Interrogatories and Request for Production, attached to PIs.' Motion to Compel as Exhibit J. 23 evidence, not limited to Denbury or to any particular policy, and fails to describe the item requested with reasonable particularity.26 Without limitation, Denbury's discovery requests are a fishing expedition, and "fishing" for evidence is impermissible. K Mart Corp., 937 S.W.2d at 431. Although the scope of discovery is broad, requests must show a reasonable expectation of obtaining information that will aid in the dispute's resolution. In re CSX Corp., 124 S.W.3d at 152. Because the trial court may compel discovery only on matters that are relevant to the subject matter of the pending action, the burden to demonstrate that the requested information falls within the scope of discovery is on the party propounding the discovery. In re TIG Ins. Co., 172 S.W.3d 160, 167 (Tex.App.-Beaumont 2005, no pet.). Denbury has failed to meet its burden. It appears Denbury is using its requests simply to explore. Discovery requests relating to other policies not at issue in Denbury' s petitions, other lawsuits filed by and against Iron shore , complaints received by Ironshore, and a complete list of Ironshore' s declaratory judgment lawsuits are overbroad and not relevant to the subject litigation, and thus, are beyond the scope of discovery. Denbury's requests would require a file-by-file search of the potentially responsive files. Ironshore is requesting this Court to sustain its objections to these requests because on their face they are improper. Only where a contract is first determined to be ambiguous may the courts consider the parties' interpretation, see Sun Oil Co. v. Madeley, 626 S.W.2d 726, 732 (Tex. 1981), and admit extraneous evidence to determine the true meaning of the instrument. See R & P Enterprises v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517, 518 (Tex. 1980). As with any contract, absent 26ld. 24 a pleading of ambiguity, the courts will interpret the meaning and intent of an insurance policy from the four comers of the document without the aid of extrinsic evidence. Carrabba, 742 S.W.2d at 716 (citing Houston Lighting & Power Co. v. Tenn-Tex Alloy & Chemical Corp., 400 S.W.2d 296, 300 (Tex. 1966)). Unambiguous provisions cannot be varied by parol evidence of surrounding circumstances or the parties' subjective intent. Id. The only relevant evidence is the actual policy. Id. Denbury claims entitlement to an unredacted copy of the claim notes in this matter because it has asserted a bad faith claim against Ironshore in this lawsuit. Under Texas law, an insurer's investigative files are not subject to discovery simply because an insured alleges bad faith and breach of contract claims in the same action. See Maryland Am. Gen Ins. Co. v. Blackmon, 639 S.W.2d 455, 458 (Tex. 1982). There, as here, the plaintiff sued its insurer on theories of breach of contract and bad faith (including violations of the Texas Insurance Code) arising out of the insurer's denial of a third-party claim, and sought discovery of materials prepared by the insurance company in connection with its investigation and evaluation of the underlying claim. See id. at 456. The insurer refused to produce the materials, citing Rule 186b of the Texas Rules of Civil Procedure and the attorney-client privilege. 27 Id. The trial court granted the plaintiffs motion to compel and ordered the insurer to produce all documents requested by the plaintiff. Id. at 457. In a subsequent mandamus proceeding, the Texas Supreme Court held the trial court abused its discretion by ordering the insurer to produce the materials in question. Id. The court determined the materials were privileged and reasoned that "if a plaintiff attempting to prove the validity of a claim against an insurer could obtain the insurer's investigative files merely by alleging the insurer acted in bad faith, all insurance claims would 27 Rule 193 of the Texas Rules of Civil Procedure embodies the subject matter of former 186b, which has been repealed. See TEX.R.CIV.P. 186-189, comments. 25 contain such allegations." [d. at 457-58. The court held an insurer is entitled to assert a privilege in response to actions for breach of contract and bad faith, so long as the insurer's liability on the contract is undetermined. [d. at 458. Blackmon is on point because Ironshore's contractual liability has not been determined. Therefore, Ironshore is entitled to assert the attorney-client and work product privileges in response to Denbury's requests for information and documents regarding the investigation of Denbury' s claims. As such, Denbury is not entitled to unredacted claim notes or claim files, and Denbury's motion in this regard should be denied. G. Denbury is Not Entitled to Documents or Information Regarding Ironshore's Handling of Other Claims or Other Policies Denbury seeks a litany of documents unrelated to the facts of Denbury's claim or the current litigation, and it relies on Aztec Life Ins. Co. of Texas v. Dellana, 667 S.W.2d 911 (Tex.App.-Austin 1984, orig. proceeding) in support of its requests for discovery of other claim files from other claims; Denbury contends these would be germane to its bad faith claim. 28 However, Aztec is easily distinguishable. There, the plaintiff's suit for breach of the insurance contract was tried first and the district court rendered judgment for plaintiff upon a jury verdict. Id. at 913. The district court specifically "reserved the balance of [plaintift]'s [extra-contractual] claims for separate trial at such time as discovery was complete." !d. Accordingly, after a determination that plaintiff was entitled to insurance coverage, the court allowed discovery on plaintiff's bad faith, violation of the Texas Insurance Code, and punitive damages claims. Id. at 913-14. Here, there has not been a determination of Ironshore's contractual liability to Denbury. Thus, discovery of other claim files and other policies unrelated to Denbury is irrelevant and improper at this time. 28 Pis.' Memo. In Support of Mot. to Compel at p. 12. 26 Also, Aztec involved a suit by a policyholder against an insurance company for an alleged bad faith denial of an insurance claim when the insurer had a duty of good faith and fair dealing. The Third Court of Appeals ultimately allowed discovery of the defendant insurance company's files that related to claims that had been denied under the same pre-existing illness or condition under which the plaintiff's claim had been denied specifically because the plaintiff pled that Aztec's denial "evidence[d] a common scheme and design on [Aztec's] part to avoid liability." ld. at 913. The court's requirement of pleading the presence of a common scheme or design in a bad faith claim against an insurance company is directly stated in the court's holding: "This Court has concluded that Aztec should be ordered to produce those files ... in that those files may well contain information relevant to [the plaintiff's] claim that Aztec was engaged in a course of dealing that was unfair or deceptive in the business of insurance." [d. at 915. "[E]vidence ... that Aztec had consistently denied claims upon the basis of the exclusion without reasonable investigation ... is generally admissible when the other acts are so closely connected with the act charged so as to disclose a plan or scheme." [d. In contrast, Denbury has not pled that Ironshore was involved in a bad faith common scheme or design that has caused Denbury injury. Instead, Denbury alleges that Ironshore failed to reasonably investigate Denbury' s claims for coverage. 29 H. Ironshore has Produced all Relevant, Non-Privileged Documents Concerning Denbury's Policies In this category of discovery requests identified by Denbury, "Denbury's Policies", Denbury seeks to obtain documents from Ironshore under such requests as: Second Request for Production No.1: All Documents related to or discussing the Policies. 29 PIs.' Second Supp. Am Pet. at p. 23. 27 Second Request for Production No.2: All Documents related to or discussing the Ironshore Policy. Second Request for Production No.3: All Documents related to or discussing the Blended Pollution Endorsement. Second Request for Production No.4: All Documents related to or discussing the case Aspen Ins. UK, Ltd. v. Dune Energy, Inc., 400 Fed.Appx. 960 (5 th Cir. 2(10). Second Request for Production No.5: All Documents related to or discussing the case Pioneer Exploration, LLC v. Steadfast Ins. Co., 2013 WL 3557541 (W.D.La. 2(13). Second Request for Production No.7: All Documents related to or discussing pollution dean-up Underwriting for the Energy Market. This request is limited to the last five years. Second Request for Production No. 13: All Documents related to or discussing the Ulzderwriting of any Umbrella Policy provision You contend excludes coverage for Denbury's Claim. Second Requestfor Production No. 22: Any invoice You sent to Denbury. Second Request for Production No. 23: All Documents related to or discussing any invoice You sent to Denbury. Second Request for Production No. 32: All documents related to or discussing Your compensation by Denbury. Second Request for Production No. 37: All Documents related to or discussing Your interactions with Marsh related to or discussing Denbury. Second Request for Production No. 41: All documents related to or discussing Your interactions with Axis related to or discussillg Denbury. Secolld Request for Production No. 59: All documellts exchanged between You and any other PerSOIl related to or discussing Denbury. Second Requestfor Production No. 62: All Documents exchallged by and between You alld any other Person related to or discussing the Policies. lronshore objected to most of these requests as being overbroad, vague, unlimited in time or scope, failing to describe the item with reasonable particularity, seeking ilTelevant documents not reasonably calculated to lead to the discovery of admissible evidence, and an impermissible fishing 28 expedition. When a request is overly broad as a matter of law, the presentation of evidence is unnecessary to decide the matter. In re Am. Optical, 988 S.W.2d at 712. Requests must show a reasonable expectation of obtaining information that will aid in the dispute's resolution. In re CSX Corp., 124 S.W.3d at 152. Thus, discovery requests must be "reasonably tailored" to include only relevant matters. !d. As is self-evident, the requests are overly broad on their face; they are not narrowly tailored to include only relevant matters. Because discovery is limited to matters that are relevant to the case, requests for information that are not reasonably tailored as to time, place, or subject matter amount to impermissible "fishing expeditions." See In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003); Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex. 1995). Further, as identified in the list of documents already produced above and as reflected in lronshore's amended privilege log, Ironshore has produced all relevant, non-privileged documents responsive to Denbury's requests. Accordingly, Denbury's motion to compel in this I. Ironshore's Claims Handling Procedures are Irrelevant to this Litigation and Protected by Trade Secret Privilege In Interrogatory Numbers 13 and 21; First Request for Production 4, 13, 14, 15, 19, 41, 42 and 46; Second Request for Production 25-30, 43, 52, and 53; and Request for Admission 51 Denbury seeks to obtain from Ironshore various documents and materials concerning the training of claim representatives and adjusters to handle claims and policy and procedure manuals for guidelines provided to claim representatives in insurance claims. Denbury has not satisfied its burden to show Ironshore's claim policies and procedures are relevant and reasonably necessary such that the Court should order production despite the trade secret status of the information 29 sought. 30 Moreover, Ironshore does not have guidelines which pertain ONLY to Denbury's policy. Ironshore does have claim policies and guidelines which relate to all its policies, which further reinforces Ironshore's argument they should be protected. Texas Rule of Evidence 507 establishes a qualified privilege allowing a person to refuse to disclose and to prevent others from disclosing trade secrets, provided the exercise of the privilege will not tend to conceal fraud or otherwise work injustice. Trade secret issues are governed by state law. Aroson, 940 U.S. at 265-66. A trade secret is any formula, pattern, device or compilation of information which is used in one's business and presents an opportunity to obtain an advantage over competitors who do not know or use it. Computer Assocs. Int'l Inc., 918 S.W.2d at 455. When a party asserts trade secret privilege, the trial court must determine: (1) whether the information constitutes a trade secret, and (2) if so, the court must require the party seeking production to show reasonable necessity for the requested materials. In re Union Pacific R.R. Co., 294 S.W.3d at 591. Ironshore's claim policies and procedures are trade secret. The information is not public knowledge and is not known outside of Iron shore , s business. 31 Ironshore considers the claim policies and procedures to be confidential and proprietary.32 Courts routinely protect similar information. See e.g., Cohen v. Metropolitan Life Ins. Co., No. 00CV6112, 2003 WL 1563349 (S.D.N.Y. Mar. 26, 2003) (finding the "Best Practices Manual" and "Claims Management Guidelines" of the defendant insurance company were protected); Republic Services, Inc. v. 30 See Lee Sheridan's Aff. attached hereto as Ex. 3, stating that lronshore's claim policies and procedures "have been developed to provide Ironshore's clients with claims handling services" and "[i]f those materials were disclosed in writing or by word of mouth to Ironshore's competitors, lronshore's competitive advantage over other insurance companies, adjusting firms, and other third party administrators would be jeopardized." 31 See Lee Sheridan's Aff. attached hereto as Ex. 3. 32ld. 30 Liberty Mut. Ins. Companies, No. 03CV494, 2006 WL 1635655 (E.D. Ky. June 9, 2006) (protecting claims handling and training manuals); Adams v. Allstate Ins. Co., 189 F.R.D. 331 (E.D. Pa. 1999) (company's claims manuals and training materials were to be kept confidential). Denbury must show a reasonable necessity for the claim policies and procedures in order to justify production. Denbury claims in its motion to compel that they may show how Ironshore applied the ambiguous policy provisions at issue and may provide guidance on how adjusters should read the policy.33 However, as discussed in detail above, Denbury has not identified a singly policy provision that it contends is ambiguous, nor has there been any finding of ambiguity. Instead, Denbury has presented merely pretextual reasons for compelling production of Ironshore' s claims policies and procedures. The Texas Supreme Court has repeatedly stated discovery requests must be reasonably tailored to include only matters relevant to the case. In re American Optical Corp., 988 S.W.2d at 713; see also Olinger v. Curry, 926 S.W.2d 832, 835 (Tex.App.-Fort Worth, orig. proceeding) (reiterating that discovery is limited to relevant matters). Denbury asserts that "Ironshore's claim manuals may provide guidance on how adjuster should read the Policy" and these "resources may similarly contain infonnation resolving the Policy provisions Denbury alleges to be ambiguous such as lronshore's course of dealing related to the adjustment of claims under similar policy forms or for similarly situated energy policyholders.,,34 However, again, Ironshore's contractual liability has not been determined and Denbury has not asserted a single provision to be ambiguous. Because Ironshore's claim policies and procedures are not relevant to the adjudication of the coverage issues in this lawsuit, and they are privileged, Ironshore should not be compelled to produce its claim policies and procedures. 33 PIs.' Memo. In Support Mot. to Compel at 16-17. 34 PIs.' Memo. In Support of Motion to Compel at 17. 31 J. Denbury's Other Requests Denbury's First Request for Production 6 and Second Request for Production 56 are moot because Ironshore has supplemented its responses and provided Denbury with an organizational chart of its property and casualty claims section. 35 Also, Interrogatory No.2 is moot because Ironshore has supplemented its answer to provide the requested inforrnation. 36 Denbury's requests for Iron shore , s advertisement and marketing materials for its Commercial Excess policies and policies for the Energy Market are wholly irrelevant to the subject litigation, overbroad, harassing, an impermissible fishing expedition, and not reasonably calculated to lead to the discovery of admissible evidence. 37 Denbury's Second Request for Production 36 seeks "All documents related to or discussing Denbury's termination of Marsh." Despite being irrelevant, overly broad, failing to describe with reasonably particularity the item requested, and not reasonably calculated to lead to the discovery of admissible evidence, Ironshore has indicated that it has produced any relevant documents. 38 K. Ironshore's Discovery Objections are Valid and Are Not Obscured by Unfounded Objections Denbury complains that Ironshore's objections to various discovery requests should be overruled because its responses "are obscured by Ironshore's unfettered reliance on unfounded objections."39 On the contrary, the objections were specific and well..:founded in each case. Each objection is fully supported by the applicable Rules of Civil Procedure and previous case law 35 See Ironshore's supplemental discovery responses attached as Ex. L to PIs.'s Mot. to Compel, which includes the attached organizational chart. 36 See lronshore's Second Supp. Objections and Answers to Denbury's First Set ofInterrogatories attached as Ex. L to PIs.' Mot. to Compel at 7-9. 37 See Ironshore's Objections to First Request for Prod. 12, First Interrogatory 4, and Second Request for Production 65, attached as Exhibit K to Pis.' Mot. to Compel. 38 See lronshore's Response to Denbury's Second Request for Production No. 36 attached as Ex. K to PIs.' Mot. to Compel. 39 Pis.' Memo. In Support of Mot. to Compel at 18. 32 relating to discovery objections. The following is a list of some of the objections at issue and support therefor: (a) Not within scope of discovery - TEX.R.CIV.P. 192.3; (b) Unduly burdensome, frivolous, oppressive and constitutes unnecessary harassment - TEx.R.CIv.P. 192.4; (c) Materialslinformation equally available/obtainable from some other source - TEX.R.CIv.P. 192.4, Crown Central Petroleum Corp. v. Garcia, 904 S.W.2d 125 (Tex. 1995); (d) Information is privileged and non-discoverable work product - TEx.R.CIv.P. 192.5; (e) The discovery request constitutes nothing more than a "fishing expedition" - Loftin v. Martin, 776 S.W.2d 145 (Tex. 1989); (f) Said discovery request is overly broad - In re American Optical Corp., 988 S.W.2d 711 (Tex. 1998), see TEX.R.CIV.P. 192, cmt. 1; (g) Request is vague, ambiguous and overbroad and fails to describe the item of which discovery is requested with reasonable particularity - TEx.R.CIv.P. 196; (h) Trade secret privilege - TEX.R.EvID. 507, In re Continental General Tire, Inc., 979 S.W.2d 609 (Tex. 1998). (i) Attorney-client privilege - TEX.R.EvID. 503, In re XL Specialty Ins., 373 S.W.3d 46 (Tex. 2012); and (j) Joint-defense privilege - TEX.R.EvID. 503(b). Ironshore has properly complied with the applicable Rules of Civil Procedure and propounded proper and well-founded objections to the discovery requests. Thus, said objections should be considered by this Court. L. Ironshore has Properly Asserted the Joint Defense Privilege ("Allied Litigant Privilege") to the Joint Defense Agreement Between Defendants' Counsel Denbury complains that Ironshore's privilege log and supplemental privilege log are insufficient to establish that communications were made "between a client, or the client's lawyer, 33 to another party's lawyer, not the other party itself, and (2) the communication was made 'in the context of a pending action."'4o These complaints are now moot as on September 25, 2015, Ironshore served Denbury with its Amended Privilege Log identifying privileged correspondence, including recipients and dates. 41 The privilege log identifies correspondence between defense counsel and their client, Ironshore, regarding the joint defense agreement between counsel for the other excess carriers. Texas courts "have generally applied Rule 503(b)(1)(C) to joint defense situations where multiple defendants, represented by separate counsel, work together in a common defense." In re XL Specialty Ins., 373 S.W.3d at 51; see also In re Daleo, 186 S.W.3d 660, 666 (Tex.App.-Beaumont 2006, no pet.) ("When applicable, the joint defense privilege cloaks communications with confidentiality where a joint defense effort or strategy has been decided upon and undertaken by the parties and their respective counseL") . Following AGLIC's reversal of its decision to deny coverage to Denbury, and while the various lawsuits against Denbury were pending, counsel for the excess carriers entered into a Joint Defense Agreement. This agreement and the correspondence related thereto are protected by the attorney-client and work product privileges. The allied-litigant privilege is an exception to the rule that disclosure of privileged information to third parties waives the privi1ege. 42 In re XL Specialty Ins., 373 S.W.3d at 50. This Court should not limit the pending action requirement to this adversary proceeding. Otherwise counsel for allied counsel would be placed in the position of having to file a lawsuit 40 PIs.' Memo. In Support of Mot. to Compel at 25. 41 See Ironshore's Am. Privilege Log attached hereto as Exhibit 1. 42 In In re XL Specialty, 373 S.W.3d at 50,52, the Texas Supreme Court stated that although the privilege defined in TEX.R.EvID. 503(b)(l)(C) has been called many things by the courts - the "joint-client" privilege, the "joint- defense" privilege, and the "common-interest" privilege - it is most accurately described as the "allied-litigant privilege." 34 against Denbury first without having the privilege protection of communications with allied counsel as to the underlying facts and potential strengths and weaknesses of any actions. Indeed, actions relative to this lawsuit were pending. On October 14, 2014, Denbury filed its first lawsuit against Ironshore and the other Excess Carriers in this matter in Denbury Resources Inc., et al. v. Ironshore Specialty Insurance Co., et ai., Cause No. 2014-59947, 157th Judicial District Court of Harris County, Texas. 43 In its memorandum in support of its motion to compel, Denbury requests sanctions against Ironshore. 44 However, pursuant to Judge Randy Wilson's court procedures, "[s]anctions should not be requested unless the opponent has violated a previous order." No such order pertaining the relevant discovery issues in this matter has been entered. Accordingly, a request for sanctions is not appropriate. Further, as detailed above, Ironshore is substantially justified in raising its tailored objections and privileges to Denbury's overbroad, irrelevant discovery requests that are not narrowly tailored to seek the discovery of non-privileged documents. N. Ironshore's Objections to Certain Corporate Representative Deposition Topics Listed in Denbury's Deposition Notices for Ironshore and FARA Should be Sustained Ironshore incorporates fully herein its objections stated in its Motion for Protective Order to Plaintiffs' Deposition of Sanford Oster as the Designated Corporate Representative of Ironshore and in its Motion for Protective Order to Plaintiffs' Deposition of the Designated Corporate Representative of FARA, attached hereto as Exhibits 5 and 6, respectively. For the 43 A copy of the docket sheet, Denbury's Petition and civil process request for Denbury Resources Inc., et al. v. Ironshore Specialty Insurance Co., et at., Cause No. 2014-59947, in the 157th Iudicial District Court of Harris County, Texas is attached hereto as Exhibit 4, for the Court's ease of reference. 44 PIs.' Memo. In Support of Mot. Compel at 8. 35 reasons stated in Ironshore's motions for protective order, Ironshore's objections should be O. Denbury's Interrogatory Nos. 10 - 21 Exceed the Number of Interrogatories, Including Subparts, Allowed by the Texas Rules of Civil Procedure Denbury's Interrogatory Nos. 10 - 21 violate Rule 190 and 197 of the Texas Rules of Civil Procedure in that the number of interrogatories, including subparts, exceeds twenty-five (25), and this objection was asserted in response to these Interrogatories. 45 Rule 190.3 allows for twenty-five (25) interrogatories and then specifies "[e]ach discreet subpart of an interrogatory is considered a separate interrogatory." TEX.R.CIV.P. 190.3(b)(3). Including the subparts of Denbury's Interrogatories, Denbury has served more than twenty-five Interrogatories. Accordingly, Ironshore's objections to these Interrogatories should be sustained. WHEREFORE, PREMISES CONSIDERED, Defendant Ironshore Specialty Insurance Company requests that the Court sustain its objections, deny Plaintiffs' motion to compel, and provide such other and further relief to which Ironshore Specialty Insurance Company may be entitled. 45See Ironshore's Objections and Answers to DenbUly's First Set of Interrogatories attached as Ex. J to Pis.' Mot. to Compel. 36 Respectfully submitted, By: lsI James D. Johnson Mark C. Clemer Texas Bar No. 04372300 James D. "J.D." Johnson Texas Bar No. 24085918 Michelle Richard Texas Bar No. 24093037 Tenth Floor 1177 West Loop South Houston, Texas 77027-9007 Telephone: (713) 629-1580 Facsimile: (713) 629-5027 mc1emer@brownsims.com jjohnson @brownsims.com mrichard@brownsims.com and Randell E. Treadaway (admitted pro hac vice) LA Bar No. 01624 Brad D. Ferrand (admitted pro hac vice) LA Bar No. 29860 ZAUNBRECHER TREADAWAY, L.L.c. 406 N. Florida Street, Suite 2 Covington, Louisiana 70433-2907 Telephone: (985) 871-8787 Telefax: (985) 871-8788 randy@ztlalaw.com brad@ ztlalaw .com COUNSEL FOR DEFENDANT IRONSHORE SPECIALTY INSURANCE COMPANY 37 CERTIFICA TE OF SERVICE This will certify that a true and correct copy of the foregoing pleading has been sent to all counsel of record via U.S. mail and/or e-mail on this the 30th day of September 2015: Phillip D. Nizialek, T .A. Sarah E. Stogner Jacqueline M. Brettner CARVER, DARDEN, KORETZKY, TESSIER, FINN, BLOSSMAN & AREAUX, LLC 1100 Poydras St., Ste. 3100 New Orleans, LA 70163 Phone: (504) 585-3800 Fax: (504) 585-3801 nizia1ek@carverdarden.com stogner@carverdarden.com brettner@carverdarden.com Counsel for Plaintiffs Michael S. Knippen David Rock James M. Eastham Kimberly Hansen Petrina TRAUB, LIEBERMAN, STRAUS & SHREWSBERRY, LLP 303 W. Madison, Suite 1200 Chicago, illinois 60606 Phone: (312) 332-3900 Fax: (312) 332-3908 mknippen@traublieberman.com drock@traublieberman.com jeastham@traublieberman.com kpetrina@ traublieberman .com Counsel for Defendant Axis Surplus Insurance Company C. Henry Kollenberg Melinda M. Riseden CRAIN, CATON & JAMES, P.C. 1401 McKinney Street 17 th Floor, Five Houston Center Houston, Texas 77010 Phone: (713) 658-2323 Fax: (713) 658-1921 hkollenberg@craincaton.com mriseden@craincaton.com Counsel for Defendant Marsh USA, Inc. 38 Marc J . Wojciechowski WOJCIECHOWSKI & ASSOCIATES, P.C. 1747 Kuykendahl Road, Suite 200 Spring, Texas 77379 Phone: (281) 999-7774 Fax: (281) 999-1953 marc@wojolaw.com and Michael D. Mulvaney Christopher e. Frost Josh B. Baker MAYNARD, COOPER & GALE, P.e. 2400 Regions/Harbert Plaza 1901 Sixth Avenue North Birmingham, AL 35203 Fax: (205) 254-1999 mmulvaney@maynardcooper.com cfrost@maynardcooper.com jbaker@maynardcooper.com Counselfor Defendant Alterra Excess & Surplus Insurance Company lsi James D. Johnson James D. "J.D." Johnson 0'\ t') '+-< 0 0'\ t') N If") co If") N l:- 'D ;...; CertHled Document Number: 67258521 Cnds Daniel, DISTRICT CLERK KURIS C01JNT'l, TE){.A5 In accordance with Texas Government Code 406JH3 electronically transmitted authenticated documents are 'valid. If there is a question regarding the validity of this document and or seal please e-mail suppod@hcdistrictde.rk.com CAUSE NO. 2015-09546 DENBURY RESOURCES INC. and § IN THE DISTRICT COURT DENBURY ONSHORE, LLC § § Plaintiffs § VS. § 157th mDICIAL DISTRICT § IRONSHORE SPECIALTY INSURANCE § COMPANY, ALTERRA EXCESS & § SURPLUS INSURANCE COMPANY, § AXIS SURPLUS INSURANCE § HARRIS COUNTY, TEXAS COMPANY, and MARSH USA INC. § § Defendants § IRONSHORE SPECIALTY INSURANCE COMPANY'S AMENDED PRIVILEGE LOG COMES NOW, Defendant Ironshore Specialty Insurance Company (hereinafter "Ironshore" or "Defendant"), pursuant to Rule 193.3 of the Texas Rules of Civil Procedure, and submits the following Amended Privilege Log describing infonnation and/or material withheld from production; the date and a description of the material; and the privilege or privileges asserted: Item PARA BATES DATE Description of Document Privilege 0001 08/04115 FARA Invoice to Ironshore Irrelevant Atty. Client 2 0002 - 0018 06/30115 Correspondence from Defense Counsel to FARA Work Product Re: Invoices Atty. Client Irrelevant 3 0019 07/06/15, Correspondence between FARA & Ironshore Work Product 07/14115 Re: Invoices Atty. Client Irrelevant 4 0020 - 0024 06/24/15, Corresp. between Defense Counsel, FARA & Ironshore Work Product 07/06115, Re: FARA file; Defense Counsel Memorandum Atty. Client 07/14115 5 0047 - 0048 06/24115 Defense Counsel Litigation Budget to FARA & Ironshore Work Product Atty. Client Irrelevant EXHIBIT I I 6 0049 - 0050 06/24/15, Corresp. between Defense Counsel, FARA & Ironshore Work Product 07/14/15 Re: Litigation Budget Atty. Client Irrelevant 7 0051 - 0069 06/24/15 Legal Memorandum to FARA and Ironshore Work Product Atty. Client 8 0076 - 0184 Undated Legal Memorandum prepared by Defense Counsel Work Product· 9 0241 - 0242 06/24115, Corresp. between Defense Counsel, FARA & Ironshore Work Product 07/14/15 Re: File Materials; Legal Memorandum Atty. Client 10 0243 - 0249 06/16/15, Corresp. between Defense Counsel, FARA & lronshore Work Product 07/14/15 Re: Legal Memorandum Atty. Client 11 0255 - 0259 06/16/15 Legal Memorandum prepared by Defense Counsel Work Product 12 0260 - 0262 06/16/15 Corresp. from Defense Counsel to FARA & Ironshore Work Product Re: Legal Memorandum Atty. Client 13 0267- 0285 06/24/15 Legal Memorandum prepared by Defense Counsel Work Product Atty. Client 14 0308 - 0309 06/24/15 Defense Counsel Litigation Budget Work Product Atty. Client Irrelevant 15 0310 06/24/15 Corresp. from Defense Counsel to FARA & Ironshore Work Product Re: Exhibits attached to Legal Memorandum Atty. Client 16 0311 -0329 06/24/15 Legal Memorandum prepared by Defense Counsel Work Product Atty. Client 17 0336 -0444 Undated Legal Memorandum prepared by Defense Counsel Work Product 18 0501 - 0505 06/16/15, Corresp. from Defense Counsel to FARA & Ironshore Work Product 06/24115 Re: Legal Memorandum Atty. Client 19 0511 - 0515 06116115 Legal Memorandum prepared by Defense Counsel Work Product 20 0516 06/09/15 FARA Invoice to Ironshore Irrelevant N ,..... Atty. Client '+-; 0 21 0517 - 0520 05/04/15- Corresp. between Defense Counsel, FARA & Ironshore Work Product N 30 0685 - 0686 04/01115 Correspondence between Defense Counsel Work: Product Re: Case Strategy; Draft Pleadings 31 0694 - 0696 04/01115 Correspondence between Defense Counsel and lronshore Work Product Re: Case Strategy; Draft Pleadings Atty. Client 32 0704 - 0706 04/01115 Correspondence between Defense Counsel and lronshore Work Product Re: Case Strategy; Draft Pleadings Atty. Client 33 0707·0714 Undated Draft Pleadings prepared by Defense Counsel Work Product 34 0741- 0742 . 04/02115 Corresp. from Defense Counsel to FARA & Ironshore Work Product Re: Draft Pleadings Atty. Client 35 0751 - 0752 04/06/15 Corresp. from Defense Counsel to F ARA & Ironshore Work Product Re: Draft Pleadings; Defense Investigation Atty. Client 36 0753 - 0755 04/06115 Corresp. between Defense Counsel, FARA & lronshore Work Product Re: Draft Pleadings Atty. Client 37 0756 - 0768 Undated Draft Pleadings prepared by Defense Counsel Work Product 38 0769 - 0771 05/04/15 Corresp. from Defense Counsel to F ARA 8c, Ironshore WorkProduct Re: Legal Memorandum Atty. Client 39 0773- 0775 03/16115 Corresp. from Defense Counsel to FARA & Ironshore Work Product Re: Legal Memorandum Atty. Client N 40 0844 - 0847 10/21/14, Corresp. between Defense Counsel, FARA & lronshore Work Product '+-< 0 10/22114 Re: Claim Investigation Atty. Client M (J) 0/) c 8::I 3 u 0 0 '"0 (J) t;:l '-2 (J) u Irrelevant 44 0973 - 0974 03/10/15 Corresp. between Defense Counsel, FARA & lronshore Work Product Re: Draft Pleadings Atty. Client 45 0975 - 0980 Undated Draft Pleadings prepared by Defense Counsel Work Product 46 0985- 0986 03/10/15 FARA Invoice to Ironshore Irrelevant Atty. Client 47 0987 - 0989 02/27115, Corresp. between Defense Counsel, FARA & Ironshore Work Product 03/03115 Re: Case Pleadings Atty. Client 48 1058 - 1061 10/21114, Corresp. between Defense Counsel, FARA & Ironshore Work Product 10/22/14 Re: Claim Investigation Atty. Client 49 1062 - 1064 02/27/15, Corresp. between Defense Counsel, FARA & Ironshore Work Product 02/28/15 Re: Legal Memorandum . Atty. Client 50 1069 - 1070 03/06/15 Corresp. between Ironshore and FARA Work Product Re: Claim investigation 51 1071 03/05/15 Ironshore Claim Summary Work Product Atty. Client 52 1099 02/27/15 Proposed Reserves Irrelevant 53 1100 - 1106 02120/15 Corresp. from Defense Counsel to FARA & Ironshore Work Product Re: Legal Memorandum Atty. Client 54 1125 - 1126 02/11115 FARA Invoice to lronshore Irrelevant Atty. Client 55 1127 02/11115 Correspondence from Defense Counsel to FARA Work Product Re: Defense Counsel Invoice Atty. Client Irrelevant 56 1128 - 1139 02/09115 Defense Counsel Invoice to FARA Work Product Atty. Client Irrelevant 57 1140 01/12115 Correspondence from Defense Counsel to FARA Work Product Re: Invoice Atty. Client N Irrelevant 4-; 0 58 1141 - 1145 01/12115 Defense Counsel Invoice to FARA Work Product """ S 4 u 0 = 0 '"0 63 1163 - 1168 12/09114 Defense Counsel Invoice to FARA Work Product Atty. Client Irrelevant 64 1169 12/02114 FARA Invoice to Ironshore Irrelevant Atty. Client 65 1170 11117/14 Correspondence from Defense Counsel to FARA Work Product Re: Invoice Atty. Client Irrelevant 66 1171-1188 12/09114 Defense Counsel Invoice to FARA Work Product Atty. Client Irrelevant 67 1189 - 1191 11117114 FARA Invoice to lronshore Irrelevant Atty. Client 68 1192 - 1193 10/29/15 Corresp. from Defense Counsel to FARA & lronshore Work Product Re: Legal Memorandum Atty. Client 69 1208 - 1264 10106114 Claim Presentation by Defense Counsel to Ironshore Work Product Atty. Client 70 1279 10/23114 Corresp. from Defense Counsel to FARA & Ironshore Work Product Re: Information Request Atty. Clien~ 71 1295 - 1296 10/23/14 Corresp. from Defense Counsel to F ARA & Ironshore Work Product Re: Draft Legal Memorandum Atty. Client 72 1302 -1303 10/23/14 Draft Legal Memorandum by Defense Counsel Work Product 73 1304 - 1305 10114/14 Corresp. from Defense Counsel to FARA & Ironshore Work Product Re: Legal Memorandum Atty. Client 74 1314 10114/14 Corresp. from Defense Counsel to F ARA Work Product N Re: Invoice Atty. Client Irrelevant """'0 If) (\) 75 1315 - 1322 10114/14 Defense Counsel Invoice to FARA Work Product gp Atty. Client 0.. Irrelevant If) N If) 00 76 1323 09/fl114 Corresp. from Defense Counsel to FARA Work Product If) N Re: Invoice Atty. Client r-- \0 Irrelevant ;...; (\) ~ 77 1324 - 1337 09/10114 Defense Counsel Invoice to FARA Work Product S ;:; Atty. Client Z 1:: (\) S 5 ;:; () 0 Q "Cl (\) t;:;: ,'€ (\) u Irrelevant 78 1338 10/16114 Reserves Irrelevant 79 1339 - 1340 10/09/14 FARA Invoice to Ironshore Irrelevant Atty. Client 80 1347 -1374 09/22/14 Corresp. from Defense Counsel to FARA & Ironshore Work Product Re: Legal Memorandum Atty. Client 81 1375 -1377 08114114 Corresp ..betweenDefense Counsel, FARA & Ironshore ill> Work Product Re: Joint Defense Agreement; Legal Memorandum Atty. Client Joint Defense 82 1378 -1386 08/14/14 Draft of Legal Memorandum by Defense Counsel Work Product 83 1387 -1397 08114/14 Joint Defense Agreement Work Product Atty. Client Joint Defense Irrelevant 84 1398 -1399 09/08/14 FARA Invoice to Ironshore Irrelevant Atty. Client 85 1401 08112/14 Corresp. from Defense Counsel to F ARA & lronshore Work Product Re: Draft Legal Memorandum Atty. Client 86 1402 - 1409 Undated Draft Legal Memorandum by Defense Counsel Work Product 87 1410·- 1412 08/13/14, Corresp. between Defense Counsel, FARA & Ironshore Work Product 08/12114 Re: Joint Defense Agreement Atty. Clierit Joint Defense Irrelevant 88 1413 - 1420 08111114 Joint Defense Agreement Work Product Atty. Client Joint Defense Irrelevant 89 1421 08/12114 Corresp. from Defense Counsel to F ARA & Ironshore Work Product Re: Joint Defense Agreement Atty. Client Joint Defense Irrelevant N 90 1422 - 1429 08/11/14 Joint Defense Agreement Work Product '+-< 0 Atty: Client \0 S 6 = u 0 Q "0 95 1468 08/07/14 FARA Invoice to Ironshore Irrelevant Atty. Client 96 1469 - 1471 07/09114 Corresp. from Defense Counsel to FARA & Ironshore Work Product Re: Legal Memorandum Atty. Client 97 1472 07/15/14 Correspondence from Defense Counsel to FARA Work Product Re: Invoice Atty. Client Irrel~vant 98 1473 - 1484 07/15/14 Defense Counsel Invoice to FARA Work Product Atty. Client Irrelevant 99 1485 07/17/14 Reserves Irrelevant 100 1486 07/02/14 FARA Invoice to Ironshore Irrelevant Atty. Client 101 1764 06/10/14 Correspondence from Defense Counsel to FARA Work Product Re: Invoice Atty. Client Irrelevant 102 1765-1767 06/10/14 Defense Counsel Invoice to FARA Work Product Atty. Client Irrelevant 103 1768 05113/14 Correspondence from Defense Counsel to FARA Work Product Re: Invoice Atty. Client Irrelevant 104 1769 -1771 05/12114 Defense Counsel Invoice to FARA Work Product Atty. Client Irrelevant '+-< 0 105 1772 06/18/14 Reserves Irrelevant t- v ¢fJ oj 106 1773 06/06/14 FARA Invoice to Ironshore Irrelevant A... l(') N l(') 00 107 1778 -1780 03/11/14 FARA Invoice to Ironshore Irrelevant l(') N t- 1,0 ;.; 108 1781- 1782 12/12/13 Reserves Irrelevant v ,.0 S Z ..... ~ v S 7 ;:l u 0 Q ~ '"t;:::v .€ v u 109 1783 12111/13 FARA Invoice to Ironshore Irrelevant 110 2868 - 2869 08/08/13 FARA Invoice to Ironshore Irrelevant 113 3943 - 3948 06/16/15- Corresp. between Defense Counsel, FARA & lronshore Work Product 07/23115 Re: Draft Pleadings; Legal Memorandum; Budget Atty. Client 114 3949 - 3950 06/22115 Corresp. between Defense Counsel, FARA & Ironshore Work Product Re: Invoices Atty. Client Irrelevant i 115 3951 - 3952 06116/15 Corresp. between Defense Counsel, FARA & Ironshore Work Product Re: Legal Memorandum Atty. Client 116 3952 - 3959 OS/22/15- Corresp. between Defense Counsel, FARA & Ironshore Work Product 06/22/15 Re: Invoices; Reserves Atty. Client Irrelevant . 117 3954 - 3976 02/11115- Corresp. between Defense Counsel, FARA & Ironshore Work Product 05/29/15 Re: Legal Memorandum; Draft Pleadings and Corresp. Atty. Client 118 3967 - 3968 03/16/15 Corresponderice from Defense Counsel to FARA Work Product Re: Invoices Atty. Client . Irrelevant 119 3971 - 3972 02111115- Corresp. between Defense Counsel, FARA & Ironshore Work Product 03/06115 Re: Invoices Atty. Client Irrelevant 120 3976 - 3979 02/27/15 Correspondence between FARA and lronshore Irrelevant Re: Reserves 121 3979 - 4037 02/27/15- Corresp. between Defense Counsel, FARA & Ironshore Work Product 02/24/15 Re: Legal Memo; information request; draft corresp. Atty. Client N 122 3990 - 3991 01129/15 Correspondence between FARA and lronshore Irrelevant Re: Reserves '+-< 0 00 Q) 123 3988 - 3991 01129/15- Corresp. between Defense Counsel, FARA & lronshore Work Product bI) co 02/12115 Re: Invoices Atty. Client A. Irrelevant on N on 00 124 4012 -4013 10/16/14 Corresp. between Defense Counsel, FARA & Ironshore Work Product on N Re: Reserves; Invoices Atty. Client r-- Irrelevant \0 ;..; Q) ..0 125 4018 09/05/14 Corresp. from Defense Counsel to FARA & Ironshore Work Product S ;::l Atty. Client - Z .:: Q) S 8 ;::l u 0 ·0 "Cl Q) c;:: .f: Q) U Joint Defense Irrelevant 126 4026 - 4027 08/12/14 Corresp. between Defense Counsel, FARA & Ironshore Work Product ,: Atty. Client Irrelevant 127 4033 - 4034 07114114 FARA Note Re: Reserves Irrelevant 128 -4038-4039 06118/14 FARA Note Re: Reserves Irrelevant 129 4040 06/05/14 Corresp. from FARA to Defense Counsel & Ironshore Work Product Atty. Client 130 4042 - 4043 04/24/14 Corresp. between Defense Counsel, FARA & Ironshore Work Product Atty. Client 131 4044 02/11/14 FARA Note Re: Reserves Irrelevant 132 4049 - 4050 12/12/13 Correspondence between F ARA and Ironshore Irrelevant Re: Reserves 133 4053 11/14/13 FARA,Note Re: Reserves Irrelevant 134 4058 08/06/13 FARA Note Re: Reserves Irrelevant 135 4077 07/08/13 FARA Note Re: Reserves Irrelevant 136 4080 07/08113 FARA Note Re: Reserves Irrelevant 137 4084-6608 Ironshore Underwriting File Irrelevant Confidential, Proprietary, Trade Secrets Item IDA Description of Document Privilege 138 001 - 011 Joint Defense Agreement Work Product Joint Defense Irrelevant By: slRandell E. Treadaway Mark C. Clemer Texas Bar No. 04372300 James D. "J.D." Johnson Texas Bar No. 24085918 Michelle Richard Texas Bar No. 24093037 Tenth Floor 1177 West Loop South f\ Houston, Texas 77027-9007 Telephone: (713) 629-1580 Facsimile: (713) 629-5027 mclemer@brownsims.com jjohnson@brownsims.com mrichard@brownsims.com Randell E. Treadaway (admitted pro hac vice) LA BarNo. 01624 Brad D. Ferrand (admitted pro hac vice) LA Bar No. 29860 ZAUNBRECHER TREADAWAY,L.L.C. 406 N. Florida Street, Suite 2 Covington, Louisiana 70433-2907 Telephone: (985) 871-8787 Telefax: (985) 871-8788 randy@ztlalaw.com brad@ztlalaw.com COUNSEL FOR DEFENDANT IRONSHORE - N "o- SPECIALTY INSURANCE COMPANY o This will certify that a true and correct copy of the foregoing pleading has been sent to all counsel of record via e-mail on this the 25th day of September, 2015: Phillip D. Nizialek, T.A. Sar~h E. Stogner Jacqueline M. Brettner CARVER, DARDEN, KORETZKY, TESSIER, FINN, BLOSSMAN &AREAUX, LLC 1100 Poydras St., Ste. 3100 New Orleans, LA 70163 Phone: (504) 585-3800 Fax: (504) 585-3801 nizialek@carverdarden.com stogner@carverdarden.com brettner@carverdarden.com Counsel for Plaintiffs Michael S. Knippen K:imberly H. Petrina David Rock James M. Eastham TRAuB, LIEBERMAN, STRAUS & SHREWSBERRY, LLP 303 W. Madison, Suite 1200 Chicago, Illinois 60606 Phone: (312) 332-3900 Fax: (312) 332-3908 mknippen@traublieberman.com kpetrina@traublieberman.com drock@traublieberman.com ieastham@traublieberman.com Counsel for Defendant Axis Surplus Insurance Company C. Henry Kollenberg Melinda M. Riseden CRAIN, CATON & JAMES, P .C. 1401 McKinney Street 17th Floor, Five Houston Center Houston, Texas 77010 Phone: (713) 658-2323 Fax: (713) 658-1921 hkollenberg@craincaton.com mriseden@craincaton.com Counsel for Defendant Marsh USA, Inc. 11 Marc J. Wojciechowski WOJCI.ECHOWSKI & ASSOCIATES, P.C. 1747 Kuykendahl Road, Suite 200 Spring, Texas 77379 Phone: (281) 999-7774 Fax: (281) 999-1953 marc@wojolaw.com and Michael D. Mulvaney Christopher C. Frost Josh B. Baker MAYNARD, COOPER & GALE, P .C. 2400 RegionslHarbert Plaza 1901 Sixth Avenue North Birmingham, AL 35203 Fax: (205) 254-1999 mmulvaney@maynardcooper.com cfrost@maynardcooper.com i baker@maynardcooper.com \ Counsel for Defendant Alterra Excess & Surplus Insurance Company <...., 0 - N < l) 01) ro p... tn N tn co tn N t-- 'D ;..; 8~ 12 u 0 0 '"t;::: 'f! Certified Do cu.ment Number: 67258525 Chris Daniel, DISTRICT CLERK H~!\RRIS COUNn', TEXA.S In accorda.nce with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-:maiJ. support@.hcdistridderk.com CAUSE NO. 2015~09546 DENBURY RESOURCES INC. and § IN THE DISTRICT COURT DENBURY ONSHORE, LLC § § Plaintif.f~' § VS. § 151h JUDICIAL DISTRICT § IRONSHORE SPECIALTY INSURANCE § COMPANY, ALTERRA EXCESS & § SURPLUS INSURANCE COMPANY, § AXIS SURPLUS INSURANCE § HARRIS COUNTY, TEXAS COMPANY, and MARSH USA INC. § § Dejimdanls § BEFORE ME, on this day, personally came and appeared RANDELL E. TREADAWAY, who after being dltly swom by me on his Oath, stated the following: 1. My name is Randell E. Treadaway. I am over twenty~one (21.) years of age, of sound mind, and capable of making this AffIdavit. I have personal lmowledge of the facts stated in this Affidavit because I am counsel of record representing Ironshore Specialty Insurance Company ("Ironshore"), and said facts are true and correct. 2. I am a fotmding member of the law firm Zaunbrecher Treadaway, LLC, and a counsel of record, being admitted pro hac vice, for Defendant lronshore in Cause No. 20]5~09546; DenbUlJ} Resources Inc., et al. v. /rol1shore Specialty Insurance N Conijxmy, et aT.; in the., 157111 Judicial District Court of Harris County, Texas. 4-< 0 .., Q S ;:l u 0 '1::! I 4. I have reviewed and am familiar with the definitions of "client," "representative of client," "lawyer," "representative of lawyer," and "confidential" as defined ill Rule 503 of the Texas Rules of Evidence. Based on my review of the documents listed in l1'onshore's privilege logs, as supplemented and amended, all the documents and c(mespondence exchanged between Ironshore; FARA, the authorized claims administrator for lronsho1'e; and 11'on8ho1'e's attorneys, indicate a lawyer, or representative of lawyer engaging in confidential conummications with their client, 11'onsho1'e, or representative of l1'onshore regarding professional legal services, or a lawyer or representative of a lawyer rendering professional legal services 01' performing a requested task for Ironshore, or a representative of I!'Onshore, involving the rendering of legal services. 5. I have read this 'affidavit and it is true and correct to the best of my personal knowledge. ' SUBSCRIBED AND SWORN TO ME by Raml~9 E. ~Jl.Y-0n..this·.z5tlrday of September, 2015, to certify which witness my band alld,J1 , '(aI-sea .' lce. " My con1mission expires: 2 I, Chris Damei, District Clerk of Harris C ouniy, Texas certify that this is, a true and correct copy of the origiml record flied and or recorded in my office, electronically or hard copy, as it appears on this date. \v'itness my official hand and seal of afflict: this October 22. 2015 Certified Damment Number: 67258527 Chris Daniel, DISTRICT CLERK H.AJUilS COUNn", TL'{.A.S In accordance with Texas Gove:rnment Code 406JH3 electronically transmitted authenticated docu,menb are valid. H there is a question regarding the validity of this document and or seal please e-mail suppm:t@hcrust:ridderk.com DENBURY RESOURCES INC; rand § DENBURY ONSHORI;" LtC § § § vs. ~. 157th JUDICIALDISTRICr § lRQNSBoIU{ S~:Eo1AtrtlNSItAANCE ~, COMPANY,ALTERRA EXCESS & §, SIJlUttDS INSiIRANCE COMPANY, ~. l\XIS$URPLUS.lNStJRANCE . §' HARRlS.cOUNTY, TEXAS QOMPANY, Md:~lfUSA tNC.. § § Dejendants §~ Ali':FIDAvtr OF' LEE. '1. SUERIDAN STATE. OF NEWY0RK §~ §: QOUN'tY QFNEW YQ~ S' :BEFORE ME, the undersigned auth.ority; on this day persQn~ly app.e~red wh<:i beingdul;ys..worit by me! upofl:his Qath". testifledas"foll.ows; 1, '1\tiy,~l~ro~ 'is'L~~1.\ Sheng@,. .1 ;~I1l A:S'sfstant. Vl~t:~Pres.ia¢.ol of'.Specialty; Casualty Claim,s,at: IrQushoteSpecialfy Ins.'iJfatl¢eCptljpany (~'Ir()rtsl1.ore");, 1 am 'oYer tWehty~ .one. {2;1 ))'earsofage~,. of sound mind; !l1ldqt.h,yn~Js~colUpeteAt tPlUa:k~:t11is'iaffia~yjt. I havepersonalknowledgeof'the,,facts stated inAhisaffidavit~ 'andthey:~re tl)l¢ mil C(jrr~9t. 2. I havl'$"reviewedDenbury1s, :Second Set of' Requests For Frodueti91J:t,9 Ifqns)1qre Sp~dialty rtts~ral1ce CQIJlp~y,(tJ;cllldmtfR¢.qnests fot Ptolluctioil Nos. 7>, 8, 14, 15, N .<,..; '16 .M4'51; whiph. s:e.~k a~¢utti¢nt$fe14t¢d':. t.o Qf discusslftg;p61lution clean~l.lp 0 U:ni;i~r:ititlg,.Jotth~ E:netgyMal'k:et;I1nd,erwriting'fottheJtonshotePolicyat issl1eln . 0\ N '" 00 (li,scu~si118: how IrpnsliQte''Utlderwrifi:iS En¢tgyMat\;i;!t:insuratlce for the lasf5years., '" N I-- J:{v$PQncUIig tQtQ,~~~: :r.~qJl~St$s wJ1~tb~r Jbn>lJgh deposition, Jes'timOnYQf (lOClJ.mertt \0 pi:oquctfoi1~would. teqilitep:rovidirig prpprietary inf.ormation consisting 9f tra.ge' ;..; Q s u 0 ;:l I '"0 .J.An irts\Ii'an.ce cQnipany:s Competitive,advantagemaybepr~!l~(yeg. QY :it&tr49j;) Ii.¢Qt¢.ts 'r¢l~t~ toufid¢rwrltini, ~nd hs t1$kmanagement through:remsurance. 4. J :arir familiar with lronshore's clailU policies :and pp:)cedut~s~ invQlved in the lawsUif ;a:b(}'ve; lam famHiarwith Itoflshore' S pr~paration'anq l;lse pfth0sem.at~rl,a.ls~1:hos'e m~b(ri~lfJ, 'My~ h~~naeye.lQP¢d 10 provide . Ironshore 1s clients with q1aimshandli11g s.eryice~j toi(i'elJ,tjJYi'ind pr¢vent 11)sutM'¢¢'fr®d; 'to. 'iqentifyahrl prevent frivolous ,1itigatiofiJ to compete with other claims handlfug pro:vid,ers in: the insura11ce,jhdustty iil Teifas; across 'the United States of Americf\; and. :w othtft (;~untrie$()'Q.isUt.eof tb,e On\teq$tafe ofAmen¢iiand, to. fa¢ilita.te. fuehaiuiiingof1nsurance chtims. fairly IDId accurately, If th()~¢111ateti~s W¢t~qis¢l(jsea. h)'wtirig. Qr.~\y wotd of mouth to lronshore1,s competitors~ Ironshor~'s.c'(')l)1petitiveadvantage()v¢r oihermsufanoo PmiY 4~niin:i$b:~tQl;~ WQlud, be cI:Jlup·artfesJa:ajustlng 'fi$si:ahd . ofherthlr4 jeoparqiz~~Those materials ;are'the resultofJtonshore's .experienceih h~ndling T(:X~ll insur?!lce dalms)andsitljilat clahilsoutside Qt'Texas: .. l3UBSClUBED AAPSWORN BEpOREMEorr thi'sCJ~day of'September~ 2015, to cerli:rywhich witness my hal~4:1m4,;seal o'foffice. N "-< 0 N Q) Ol) t<:S p... 0\ N \r\ co \r\ N t-- '0 ;..; Q) ,.0 S ;::l Z 1:: 2 Q) S ;::l u 0 Q "0 Q) t;:i 0-e Q) u I, Chris Darnel, District Clerk of Hanis County, Texas certH'}: that this is a tmeand correct COp}~ of die original record filed and or recorded in my oftlce, electronically or hard copy, as it appears on this date. \"Jitness my official hand and seal of office this October 22. 2015 Certified Document Number: 67258529 Chris Daniel, DISTRICT CLERK HAllRIS COlJI'11T"if, TEX~S In accordance with Texas Government Code 406.013 eledronically transmitted authenticated docn.ments are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdist:rktderkcom Office of Harris County District Clerk - Chris Daniell Case (Cause) Details 201459947-7 Page 1 of 1 Chronological Print ~ ~ 201459947· DENBURV RESOURCES INC va. IRONSHORE SPECIALTV INSURANCE History All tiID.l ~) (Court 157) (non·ffnanelal) Summary Appeals Cost Statements Transfers Post Trial Writs Abstracts Parties Court Costs Judgments/Events Settings Services/Notices Court Registry Child Support Images * Note: ,Only non-confidential public civil/criminal documents are available to the Public. All non-confidential Civil Purchase Order documents are Imaged. In Family Cases. select non-confidential documents and all e-fillngs are available in 1!1f ( 0 documents) electronic format (not every document is available for electronic viewing and a document may be flied in the case that is not viewable electronically). In Criminal Cases, select non-confidential documents are available in PrintList ~ electronic format (not every document is available for electronic viewing and a document may be filed in the case that is not viewable electronically). If the case or Civil document you are looking for Is not aliailable and should be, please click here to notify Customer Service. You may print and save uncertified copies of documents from the preview window. Post Jdgm Date Pabes (WS6) I· --.----- http://www.hcdistrictc1erk.com/edocs/public/CaseDetails.aspx?Get=TMiLGbZliQ8IGWu... 9/3012015 Office of Harris County District Clerk - Chris Daniel Page 1 of3 HCDistrictclerk.com DENBURY RESOURCES INC VS. IRON SHORE 9/30/2015 SPECIALTY INSURANCE Cause: 201459947 CDI:7 Court: 157 APPEALS No Appeals found. COST STATMENTS No Cost Statments found. TRANSFERS No Transfers found. POST TRIAL WRITS No Post Trial Writs found. ABSTRACTS No Abstracts found. NOTICES No Notices found. SUMMARY CASE DETAILS COURT DETAILS File Date lOll 4/2014 Court 157th Case (Cause) Location Civil Intake 1st Floor Address 201 CAROLINE (Floor: 11) HOUSTON, TX 77002 Case (Cause) Status Active - Civil Phone:7133686230 Case (Cause) Type CONTRACT JudgeName RANDY WILSON NextlLast Setting Date N/A Court Type Civil Jury Fee Paid Date N/A ACTIVE P ARTlES Name Type Post .Attorney Jdgm DENBURY RESOURCES INC PLAINTIFF - CIVIL STOGNER, SARAH ELIZABETH DENBURY ONSHORE LLC PLAINTIFF - CIVIL STOGNER, SARAH ELIZABETH AXIS SURPLUS INSURANCE COMPANY DEFENDANT - CIVIL ~ IRONSHORE SPECIALTY INSURANCE COMPANY REGISTERED AGENT ,.!:l MAYBE SERVED BY SERVING Z § ONE STATE STREET PLAZA 7TH FLOOR, NEW YORK,NY 10004 5 § u o Q '"0 Q) ~ . .- http://www.hcdistrictc1erk.comledocs/public/CaseDetailsPrinting.aspx?Get=TMiLGbZliQ... 9/30/2015 '5 u Otlice ot Harris County District Clerk - Chris Daniel Page 20f3 INACTIVE PARTIES Name Type Post Attorney Jdgm IRONSHORE DEFENDANT - CIVIL SPECIALTY INSURANCE ALTERRA EXCESS DEFENDANT - CIVIL & SURPLUS INSURANCE COMPANY MARSH USA INC DEFENDANT - CIVIL JUDGMENTIEVENTS Date Description Order Post Pgs Volume Filing Person Signed Jdgm /Page Attorney Filing 2120/2015 ORDER OF PARTIAL NONSUIT 21?0/2015 SIGNED 1O/l 4/20 14 ORIGINAL PETITION o STOGNER, SARAH DENBURY ELIZABETH RESOURCES INC 10/1412014 ORIGINAL PETITION o STOGNER, SARAH DENBURY ONSHORE ELIZABETH LLC SETTINGS Date Court Post Docket Type Reason Results Comments Requesting Jdgm Party 3/30/2015 157 Another Docket DISMISS FOR WANT OF Re-Set 08:30AM PROSECU-MTN TO (TRCP 165A) 9/14/2015 157 Another Docket DISMISS FOR WANT OF 08:30AM PROSECU-MTN TO (TRCP 165A) SERVICES Type Status Instrument Person Requested Issued Served Returned Received Tracking Deliver To CITATION SERVICE ORIGINAL IRONSHORE 11117/2014 11118/2014 73078645 ATTORNEY (SECRETARY ISSUEDIIN PETITION SPECIALTY PICK-UP OF STAIE POSSESSION INSURANCE CORPORATE OF SERVING COMPANY NON- AGENCY MAYBE N RESIDENT M SERVED BY '+-< SERVING o M (]) E DOCUMENTS Number Document Post Date Pgs Jdgm 66430540 NOTICE OF INTENT TO DISMISS - NO ANSWER FILED 07/28/2015 2 65165510 Motion for Admission Pro Hac Vice 0412412015 4 .> 65165511 Exhibit 1 04/2412015 65165532 Philip D Nizialek's Motion In Support Of Jacqueline M Brettner's Motion For Admission 04/24/2015 2 Pro Hac Vice .> 65165534 Notice of Submission 0412412015 http://www.hcdistrictc1erk.com/edocs/public/CaseDetailsPrinting.aspx?Get=TMiLGbZliQ... 9/30/2015 Ulllce ot Hams County DIstrIct Clerk - Chris Daniel Page 3 of3 -> 65165533 Proposed Order 04/24/2015 64380798 Notice of Intent to Dismiss-No Answer Filed , 0212412015 2 / 64340786 ORDER OF PARTIAL NONSUIT SIGNED 02120/2015 .1 64315162 Plaintiffs Nonsuit Against Defendants 02/19/2015 2 64315163 Proposed Order on Plaintiffs' Nonsuit 02119/2015 63203944 Civil Process Request 11117/2014 2 62762828 Denbury Petition 10/14/2014 26 ·>62762837 Exhibit 1 10114/2014 ·>62762833 Exhibit 2 1011412014 5 ->62762834 Exhibit 3 1011412014 2 ->62762836 Exhibit 4 10114/2014 98 -> 62762835 Exhibit 5 1011412014 54 ·>62762830 Exhibit 6 10/1412014 2 ·>62762831 Exhibit 7 10114/2014 23 ·>62762832 Exhibit 8 1011412014 12 ·>62762829 Exhibit 9 10114/2014 34 o C') V') 00 V') (".l t-- \0 ~ ..0 ~ 5 § u o o "0 t;:i .~ http://www.hcdlstrictclerkcorn/edocs/public/CaseDetailsPrinting.aspx?Get=TMiLGbZliQ... 9/30/2015 u 11/17/20143:57:42 PM Chris Daniel - District Clerk Harris County C~PROCESSREQUEST I=n"",lr",," No. 3203836 Melissa Cox CASENUMBER: 2014-59947 CURRENT COURT: 157th District Court - Harris County TYPE OF INSTRUMENT TO BE SERVED (See Reverse For Types): Original Petition FILE DATE OF MOTION: October 17 2014 Month! Dayl Year SERVICE TO BE ISSUED ON (please List Exactly As The Name Appears In The Pleading To Be ServetD~ 1. NAME: Ironshore S edal Insurance Com an ~ ADDRESS: One State Street Plaza, 7th Floor, New York, New York 1 AGENT, (i!applicable): Texas Secretary of State, Corporations Section ~ ¢~ TYPE OF SERVICEIPROCESS·TO BE ISSUED (see reverse/or specific type): ---c-.---'t~~,.:------------ SERVICE BY (check one): ¢~ Qg ATTORNEY PICK-UP o 0 CONSTABLE CIVIL PROCESS SERVER - Authorized Person to Pick-up: ~ Phone: ________ Q o MAIL 0 CERTIFIED ~ o PUBLICATION: ~ Type of Publication: 0 COURTHOUSE DOOR, or rt??fJ o NEWSPAPEROFYOURC~: ____________________________ o OTHER, explain No service copies need~,,(fm Civil Intake ***************************************************~********************************************** **** . ~U . 2. NAME: _~ © ____________________~~~__________________________________~~__ ADDRESS: AGENT, (if applicable): ~ ~ TYPE OF SERVICEIPROCESS TO BE ISSUE~e reverse/or specific type): _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ SERVICE BY (check one): ~ oATTORNEYPICK-UP0"'dJ 0 CONSTABLE o CIVIL PROCESS SER~ - Authorized Person to Pick-up: _ _ _ _ _ _ _ __ Phone: _ _ _ _ __ o MAIL . . ¢~i(lj}o~~ CERTIFIED MAIL o PUBLICATION:c£~' Type OfPUbli~:: 0 COURTHOUSE DOOR, or .~!f;!> 0 NEWSPAPER OF YOUR CHOICE: _ _ _ _ _ _ _ _ _ _ _ _ __ [] OTHER,~n----------------------------__------____----__--~------___ ATTORNEY (ORATI'ORNEY'S AGENT) REQUESTING SERVICE: NAME: E. Stogner Sarah TEXAS BAR NO.IID NO. _2_4_0_9_1_1_3_9_ _ _ _ __ MAILlNGADDRESS: 1100 Poydras Street, Suite 3100, New Orleans, Louisiana 70163 PHONE NUMBER: 504 585-3845 FAX NUMBER: 504 585-3801 area code phone number area code fax number EMAIL ADDRESS:stogner@carverdarden.com Page 1 of2 INSTRU1y1ENTS TO BE SERVED: PROCESS mES; (Fill In Instrument Sequence Number, i.e. 1st, 2nd, etc.) NON WRIT: ORIGINAL PETITION CITATION AMENDED PEmION ALIAS CITATION SUPPLEMENTAL PETITION PLURIES CITATION SECRETARY TATE CITATION COMMISSI OF INSURANCE COUNTERCLAIM HIGHW SSIONER ;~~O~::;:ATION AMENDED COUNTERCLAIM SUPPLEMENTAL COUNTERCLAIM CROSS-ACTION: ~F . AMENDED CROSS-ACTION ~CEPT (SHOW CAUSE) SUPPLEMENTAL CROSS-ACTION 'VKULE 106 SERVICE THIRD-PARTY PEmION: ¢~ (~ SUBPOENA ~ AMENDED THIRD-PARTY PETITION SUPPLEMENTAL THIRD~PARTY PETITION d'¢J .wBlIS.; ATTACHMENT (pROPERTY) INTERVENTION: ¢~ ATACHMENT (WITNESS) AMENDED INTERVENTION SUPPLEMENTAL INTERVENTION (/ ATTACHMENT (PERSON) INTERPLEADER AMENDED INTERPLEADER ~ CERTIORARI SUPPLEMENTAL INTERPLEADER ~ EXECUTION .~~ EXECUTION AND ORDER OF SALE ~ GARNISHMENT BEFORE JUDGMENT INJUNCTION ~ GARNISHMENT AFTER JUDGMENT MOTION TO MODIFY ~ HABEAS CORPUS SHOW CAUSE ORDER tV INJUNCTION TEMPORARY RESTRA1NINGO~ TEMPORARY RESTRAINING ORDER ~ PROTECTIVE ORDER (FAMILY CODE) PROTECTIVE ORDER (CIVIL CODE) © B~LOFDffiCOVER~ _ ~~ ORDER TO: ____~ ___________________ POSSESSION (PERSON) (specify) POSSESSION (pROPERTY) MOTION TO: (specify) SCIRE FACIAS SEQUESTRATION SUPERSEDEAS Page 2 of2 I'"1T'tTf1'flO 1) ..... :" ... ...1 Of'lfnO 10/14/20143:42:35 PM Chris Daniel- District Clerk Harris County Envelope No. 2828115 DDDODDDD DO []JI]DD By: Nelson Cuero Filed: 10/14/20143:42:35 PM CAUSE NO. _ _ _ _ __ DENBURY RESOURCES INC. and IN THE DISTRICT COURT DENBURY ONSHORE, LLC Plaintiffs, I HARRIS C~TY, TEXAS v. ~. IRONSHORE SPECIALTY INSURANCE (j COMPANY, ALTERRA EXCESS & ~ICIAL DISTRICT SURPLUS INSURANCE COMPANY, AXlSSURPLUSINSURANCE ~ .o@ COMPANY, AND MARSH USA INC. Defendants o~ ~ WI DENBURY'S PE~ON o~ Denbury Resources Inc. and Denbury o,~e, LLC (','Denbury") bring this petition for breach of contract, declaratory judgment, sw.~ry penalties, and bad faith against Defendants 'rtf Ironshore Specialty Insurance Comp~"Ironshore"), Alterra Excess & Surplus Insurance ~O Company ("Alterra"), Axis S~ Insurance Company ("Axis"); and for negligence, misrepresentation, breach of ~act, and breach of fiduciary duty against Defendant Marsh USA Inc. ("Marsh"). U!fJ ~ I. PARTIES o;f1~ 1. Denbn-r~~sources ~~~ Inc. is a Delaware corporation with its principal place of business . i~O, Texas. 2. Denbury Onshore, LLC is a wholly-owned subsidiary of Denbury Resources Inc. Page 10f26 3. Defendant Ironshore Specialty Insurance Company is upon reasonable information and belief a surplus lines company, an Arizona corporation with its principal place of business in N ew York, New York. 4. Defendant Alterra Excess & Surplus Insurance Company is upon reasonable information and belief a surplus lines company, a Delaware c~tion with its principal place of business in Glen Allen, Virginia. (:} . ~ 5. Defendant Axis Surplus Insurance Company is upon ~able information and belief a surplus lines carrier, a Geqrgia corporation ~~princiPal place of business in Alpharetta, Georgia: <> ~ ~ , 6. Defendant Marsh USA Inc. is upon reasoJinformation and belief a Delaware . Q company with its principal place of ~ess in New York, New York, and is a wholly-owned subsidiary of Marsh~ a Delaware company with its principal place of business in New York, New • • which is a wholly-owned subsidiary of Marsh & Mclennan Companies, " , a r e corporation with it. principal place of business in New York, New York.O . ~DECLARATORY JUDGMENT rg~ . . 7. This suit is, ~Qrt, a claim for declaratory judgment pursuant to Tex. Civ. Prac. & !f?& Rem. Cg~"37.004. N # III. JURISDICTION AND VENUE ~~ourt has jurisdiction over this matter as it relates to insurance policies issued to M "'0" 00 8. S ;::l u 0 0 "0 Code § 15.002 (a) (1) and (a) (4), because a substantial part of the events or omissions giving rise to the claims occurred in Harris County, Texas. N.FACTUALBACKGROUND 10. The Delhi Field in northeastern Louisiana includes lands in F;a~RiChland and ~CW Madison Parishes. Prospectors first discovered oil and gas ~ in the mid-1940s. ~ ~hy Oil Corporation,. Vanous operators, including Sun Oil Company and~~AJ! extensively developed the field shortly after it~oVery. . During its early development and production, operators drille discovery. "~ ~ 11. In the late 1950s the operators unit~e field, creating the 13,636 acre Holt-Bryant wa~ated to facilitate Delhi Field production from the Unit(the "Unit"). The Unit Tuscaloosa and Paluxy f~ru;, which have an average producing reservoir depth of 3,250 feet. After u~ation, various operators conducted drilling operations into those fonnations ~o-acre spacing.' .' . 12. In 2006 De~(J Onshore, LLC ("Onshore") acquired a substantial interest in the Unit ang k.,~e the Unit's. operator. ~~u.... After the acquisition, Onshore began planning devel~€mt of the Unit using the Enhanced Oil Recovery ("EOR") technique of £ dioxide (C0 2) injection to produce oil from the Unit's partially depleted reservoirs. 13. Onshore is a wholly-owned subsidiary of Denbury Resources Inc. (hereinafter sometimes collectively "Denbury"). Page 30f26 14. C02 injection is used to revitalize oil and gas production from reservoirs which have been depleted by primary and secondary production techniques. The injection of CO2 both lowers the viscosity of the oil in the reservoir and re-pressurizes the producing formation, allowing production of hydrocarbons left behind from earlier production operations. Denbury produces the oil either thr~ugh existing ~s (sometimes ,p,rfJ referred to as "legacy" wells) which Denbury has reworked t~e suitable for use ~. as production wells, or through newly-drilled production ~ 15. Defendant Marsh became Denbury's contract ri~~~agement consultant and domestic retail insurance broker in 1999. . AJ.'~ ~ times material to this matter, Denbury relied upon Marsh and its prof~xpertise in risk management and Q insurance to understand Denbury's un~EOR operations, and to consult with and assist Denbury in the procureme~ specialized oil and gas insurance to shift Denbury's operational well CO~I, pollution clean-up and other liability risks to ~ insurers. .~. 16. Beginning in Decemb~09 Denbury started developing the Unit in phases, with each phase takin~OximatelY a year to bring into production, In 2013, after uneventfully~Qing its first 3 Phases into production and conducting four years of Unit op~r~~, Denbury began bringing Phase 4 (a/k/a Test Site 1) online. N C') , The Delhi Incident J e;..., ~une 13, 2013, one of Denbury's employees, while making a routine, scheduled 0 0 17. S :=I u 0 Q ~ actual site of the release, however, he believed he detected the smell of odorized gas; therefore, he was not able to visually confirm the release or its location. 18. The area where the employee detected the release is near several underground natural gas pipelines owned and operated by ANR Pipeline Company (he~fter "ANR"). ~if!» The pipelines are part of TransCanada's network of pipelines a~s North America. ~ 19. After investigation, it was determined that the flow was ~ from Denbury's Test Site 1 operations. , q~ 20. Denbury mobilized its response team to inve§t~ and control the release, and ~ cleanup the resultant pollution and cont~ Denbury notified Marsh to place Denbury's well control and liability insu~ on notice of the incident. ~ 21. Denbury's incident response team ~ped and implemented a multi-faceted plan to deal with the release. The. focused on reporting the incident to relevant governmental agencieS"ing public safety tlrrough air monitoring and evacuations wherenec~, developing efforts to control the source of the flow, and containment and r~~ of released fluids. O~· . 22. With regar~ environmental protection, Denbury contractors conducted air monito~ the area, and hired contractors to build containment levees at key locati~ound the crater in an effort to control the spread of'fluids from the crater. ...... ...... ~ry also hired contractors to remove fluids from the crater and containment areas using vacuum trucks. These operations were conducted at recovery pads constructed by Denbury a safe distance from the crater, and continued throughout the event. Page 5 of26 23. As soon as field conditions permitted, Denbury identified the potential source wells. Denbury developed plans to re-enter each of the suspect wells so as to definitively identify the release well, and control the uncontrolled flow. From June 14, 2013 to approximately July 5,2013, Denbury attempted to re-enter the suspect wells. While . planning and executing the re-entries, Denbury continued to work ~llution clean- up. . ~ U~ . 24. Over the course of the incident four separate craters f o r The costs associated with bringing under control the out of control wetJ~ not at issue in this case; however, all pollution clean-up costs and relatedo~-party claims are at issue. Pollution Related to 25. The area environmentally impacted ~~ result of this incident is located in a ~~ bottomland hardwood forest that g_und along the Big Creek stream that flows through the Unit. See Impact. attached as Exhibit 1. Several sloughs naturally drain water from adj as;en~across the Delhi Field into Big Creek. 26. After discovery of the~se of pollutants and contaminants at the surface, Denbury hired contractors t(?/~ate the equipm~~t and provide personnel used in the clean-up ©~ operations. ~genbury's instruction, contractors immediately began constructing dams, co'~ent berms, and culverts to contain the fluids. Denbury personnel J:~ N recov~ fluids from the sloughs using vacuum trucks. The recovered fluids were ~ rr, . '+-< ~d 0 N ..-< in rented frac tanks for temporary storage. S ;::l u 0 Q '"0 the sloughs and Big Creek during the cleanup efforts. They also conducted air monitoring at multiple locations throughout the area. 29. Beginning in late June 2013, Denbury used vacuum trucks, marsh-operable excavators and bulldozers with vacuum units, as well as leaf ~rs and wash ~r@ pumps, to remove fluids and solids from all affected areas. ~erous technicians ~ took part in the efforts. Denbury also drilled freShwater~ which provided water with which to flush containment areas, and pre~~e back-up of solids and containment overflow. The freshwater wells ¢~ also used to wash areas to ~ minimize adverse impacts to wildlife and fl~~ Q . 30. Denbury also had to construct a water di~sion structure to prevent natural drainage ~~ from adjacent property Calk/a sheet~ from flowing into the affected area. 31. Denbury hired anenvironmen~conSUlting flrm to perform a Natural Resource Damage Assessment, as ~ by law, and installed groundwater monitoring wells to monitor the MiSSiSS@~l1uvial aquifer, as required by the Louisiana Department of EnVirOnmental~. 32. Representati~Q~9m state and federal regulatory agencies regularly visited the inCid~~~enbury took all actions required by law during tlre response. 33. From~~ 14,2013 until October 2014, Denbury spent approximately $57.8 million i~'1ution response and clean-up costs related to the June 13th incident. 34. Denbury continues to incur costs associated with monitoring fresh water aquifers for contamination. It is unknown if Denbury will be required to conduct additional clean-up of any freshwater aquifers. Page 7 of26 Th.ird-Party Claims ANR Pipeline 35. As discussed above, mUltiple craters fonned along the ANR Pipeline right-of-way. These large craters fanned in several places along the right:.of-way. The ANR pipeiines are buried approximately 15 feet underground; therefOr~ fonnation of the craters left the pipelines unsupported and exposed to flUi~ from the event. ~ The pipelines suffered ~amage. ~J;} 36. As a result of damage to the pipelines which ocCUrr~ing the incident, ANR and Denbury entered into several confidential <>a~ments for the removal and ~ replacement of certain damaged sections OR~NR pipelines. Denbury paid ANR Q . for its costs to cut, cap, replace and J:~ir the pipelines. The Agreements were ~~ entered into with the knowledge ~onsent of American Guarantee & Liability Insurance Company ("Zurich"), ~~ury' s umbrella carrier. 37. As a result of damage to Wtelines which occurred during the incident, ANR aIso claims to have lost ~fS that would have been collected by the continued transmission of na~gas cg~ through the pipelines. These losses are a direct result of the blOWOUt.~Ury has notified the Defendants of this pending claim. 38. Den~#aid ANR for the pipeline damage, and will attempt to resolve the tariff N <') claimg "-' 0 "i" ~~ Loutre Land Lawsuit ~ A.. 39. Loutre Land and Timber ("Loutre") sued Denbury for damages sustained to its 0 M tn 00 tn property adjacent to the Delhi Field. Denbury settled that lawsuit with the payment N r-- \0 ;..; S ;:l C,) 0 0 '"Cl consent of Zurich, Denbury's Umbrella carrier. Outstanding Third Party Claims 40. Denbury has paid and will continue to incur defense costs responding to a lawsuit filed by adjacent landowners in the case captioned Sunflower Cem~, Inc. et al v. ~ su~rrently pending in ; Denbury Onshore, LLC et ai, Docket No. C-43629A. That ~ Franklin Parish Louisiana, seeks money damages from~Ury for alleged third- party property damage sustained as a result of the po~. 41. Denbury has also received a demand from ~cal parishes for the damages allegedly sustained to parish roads dUri~~my' s pollution response efforts. Denbury is currently evaluating this cl~WhiCh if incurred would be a direct result of the property damage sustained d6the blowout. . . Denbury's 2013-z& Insurance Negotiations . 42. From approximately 199~ate 2013, Marsh acted as Denbmy's insurance broker and risk management~ultants. Denbury relied on Marsh to provide all of its insurance and riSk~~agement ©~ functions, including but not limited to selecting the proper insur~'Jtnes, terms and conditions, and policy limits necessary to protect Denbu~" ~{iff).msurabie operatlOns ~. .. .k rIS s. 43. Each~ during Marsh's tenure, Marsh would put on a renewal meeting with .~~ . ~ury to discuss Denbury's insurance needs for the upcoming insurance renewal, which renewal occurred on April 1st of the following year. 44. The renewal meeting for the insurance policies at issue in this case took place on or about October 25,2012 (the "2013 renewal meeting"). Page 9 of26 45. During the 2013 renewal meeting, Marsh personnel met with Denbury to learn about Denbury's upcoming operations during the 2013-2014 insurance year, provide ) infonnation on the state of the insurance market, and advise Denbury on the types and limits of insurance it should procure. 46. As a result of that 2013 renewal meeting, and based upon Marsh's ~mmendations, ~~ Denbury selected the umbrella insurance policies at issue in thl~ceeding. . ~ 47. As a consequence of the counsel provided in its mee~With Marsh, Denbury reasonably believed it had purchased insurance frO~ndants to cover losses such as those Denbury experienced in the Delhi'Incid~~ ~ 48. Marsh failed to advise Denbury that the ~rovisiom; that the umbrella policy underwriters have cited in denying anQL~failing to provide coverage for the Delhi ~ incident could potentially preclude 6¥age for events Denbury intended to insure. . Denbury's Risk Manageme~d Broker Agreement With Marsh 49. On April 19, 2013, D~band Marsh executed a brokerage/risk management agreement (the "2013 @'1nanagement Agreement"), effective April 1, 2013, a copy of which is attach~xhibit 2 and incorporated h"", for all purposes. 50. On or abo~Qril 26, 2012, Denbury and Marsh executed a brokerage/risk' manag:~~greement (the "2012 risk management Agreement"), effective April 1, N M 2012 ~ ~antivelY identical to the 2013 agreement, effective April 1, 2012. A copy . ''0 \0 S ::l u 0 0 "0 insurance, including the umbrella policies at issue in this case. 52. Under the Agreements,Marsh's insurance placement obligations included, but were not limited to: 1) advising Denbury in assessing risks Denbury may want to insure; 2) developing insurance specifications that Marsh would submit~ insurers; 3) ' potentla recommendmg . l'msurers; '4) so1'" lCltmg quotes fom r 'mS~8; (r~5) . , on negotlatmg ~ .. Denbury's behalf with insurers; 6) assisting Denbury ~evaluating the options . ~v received from insurers; 7) reviewing policies and e~ments for conformity with agreed terms and coverages; and 8) providing . cOJ'~e ~ summaries. 53. Under the Agreements, Marsh's claimS-~bligatiOnS included, but were not limited to: 1) evaluating coverage on all. ~rsh-placed policies; 2) assisting Denbury . ' . ~ in the development of claim ~ment strategies; 3) assisting Denbury in negotiations with its insurers; ~4) assisting Denbury with litigation m~agement . Issues th I,d' at 'Impact c aim s~~ ents. 54. The disclaimer and li~on of liability clause of the risk management Agreement provides: ©~ ~~ Marsh d~t speak for any insurer, is not bound to utilize any particular insuret ~is not authorized to make binding commitments on behalf of any !> i~er, except under special circumstances which Marsh shall en~~r to make known to you. Marsh shall not be responsible for the s~cy of any insurer or its ability or willingness to pay claims, return ~miums or other financial obligations. Marsh does not guarantee or ~ake any representation or warranty that insurance can be placed on terms acceptable to you. Marsh will not take any action to replace your insurers unless you instruct Marsh to do so. You acknowledge that, in performing Services, Marsh and affiliates are not acting as a fiduciary for you, except to the extent required by applicable law, Any reports or advice provided by Marsh should not be relied upon as accounting, legal, regulatory or tax advice. In all instances, Marsh recommends that you seek your own Page 11 of26 advice on such matters from professional accounting, legal, regulatory and tax advisors. ' 55. Denbury was required by the Agreements to provide Marsh with 'accurate information and review all policy documents. Denbury did so, and was therefore justified in " relying on Marsh's expertise to analyze Denbury's potential risks,~ct the proper lines of insurance, select the proper terms and conditions, an~view the actual forms, terms, and conditions contained in the policies to enstlk.Denbury's risks were adequately covered by the policies issued. 01 o~~ 56. Denbury provided Marsh with all information ri~ed by Marsh throughout the _ 0 ~ 2013 renewal process. Upon reasonable info~lon and belief, Marsh would take . ~ , the information Denbury supplied and c~ insurance applications on behalf of oC0 Denbury, which it would then SUbm~ariOUS insurers to quote and bind coverage whi~h Denbury intended to cov~9rational risks of loss, including but not limited to the very risks which result~he Delhi Incident. . 0 ~ The Primar men~iaI General Liabili , ~ 57. At all times materia~e, Denbury had in force a commercial general liability policy, No. 9242578-~'CGL" policy) with effective dates of April I, 2013 to Aprill, 2014, whtc~)rovides coverage to Denbury for certain first party and third party expen~ecl to the terms and conditions of that CGL policy. A copy oflhe CGL N M g """0 ~iS attached as Exhibit 4 and fully incorporated herein. 00 (\) b1l ro 58. Denbury, relying on the guidance of Marsh USA, Inc., its risk management A.. 0 M consultants and broker, purchased the CGL policy that was issued by Zurich tn 00 tn ,N t- American Insurance Company, and paid $407,811.00 in premiums. \0 ;...; (\) ~ S;:::$ Page 12 of26 Z +-> ~ (\) S ;:::$ u 0 Q '"Cl (\) t;:i 'f (\) u 59. The CGL policy, under Coverage 1, provides coverage for "those sums that the insured becomes obligated to pay as damages because of 'bodily injury' or 'property damage' to which this insurance applies." 60. The main body of the CGL policy contains an "absolute" pollution exclusion under ~2(f); however, the "Time Element Pollution Liability End~ent" ("CGL ~ pollution endorsement") replaces the policy's ~2(f) exclusion ~ provides coverage ~ for "bodily injury" or "property damage" caused by a "po~n incident" that meets ~ the following requirements: iv. The "polluti~ !~~~" must be reported to us in writing, with~n [90 days] fro~~~ate of commencement. .. and v. Any "clai~cause of "bodily. injury" or "property damage" caused b~ "pollution incident" must be reported to us in writing as soo~ipracticable, and in no event any later than three (3) yea~r the policy has expired ... 61. The CGLQ~tion endorsement is subject to numerous exclusions, including an eXc1us~~r a "pollution incident" arising out of a "well out of control," which is N M ©) "-< 0 ~ as "an uncontrolled and continuous flow of gas, oil or other substances from 0\ 0 M 62. Denbury's loss from the June 13,2013 Delhi incident was caused by an uncontrolled tr) 00 tr) N t- and continuous flow of gas, oil and other substances from several of its "oil or gas '";..; S ;::$ u 0 CI "0 not contesting that denial at this time. The Umbrella Policy 63. At all times material here, Denbury had in force a commercial umbrella liability policy, No. AUC 924673-00 (the "Umbrella" policy) with effectiv~es of April 1, ~(f!j) 2013 to April 1, 2014 which, subject to its terms and conditionOovides to Denbury i ~ coverage in excess of and in addition to the CGL POliC~ certain first party and ~ third party expenses. A copy of the umbrella po~ attached as Exhibit 5 and if; OfM+ed incorporated herein for all purposes. Q ~ 64. Denbury, relying on the guidance the umbrella policy and paid $600,000in deposit premiums subject ~~ditional premiums being paid following a '0~ post expiry audit. . a· . 65. ~two different types of coverage: Coverage A - The umbrella policy provides excess follow form liah~£anCe, and Coverage B - umbrella liability insurance. Denbury is entitled to ~age under Coverage B for the Delhi Incident. 66. Coverage A provi~~cess coverage when the underlying CGL policy is exhausted; however, th~M no coverage under A here, because the CGL underwriters have . Q '!(9) . denied c~age and the well control policy IS not listed or scheduled as an N r'l unde~ policy to the umbrella policy. ""'0 0 N § u 0 0 "<:! covered by this insurance but only if the injury damage or occurrence arises out of your business, takes place during the policy period of this policy and is caused by an occurrence happening anywhere. We will pay such damages in excess of the Retained Limit specified in IteIll~. of the Declarations or the amount payable by other insurance, w~ver is greater. - ~~ Coverage B.does not apply to any loss, claim or sUit~or . h insurance is afforded under underlying insurance or would have b <> forded except for the exhaustion of the Limits of Insurance of unde g insurance. , ' . . <>~ 68, Because Zurich claims coverage is excluded by t~::::>~L policy and Denbury is not <>~ contesting that denial at this time, and the w~ntrol policy is not an underlying tt~ policy, any pollution losses incurred by D~ry as a result of the Delhi incident are <>~ recoverable under Coverage B of t~~brel1a policy subject to resolution of any "other insurance" issues. ~U 69. "Property damage" is defmed~ger the umbrella policy as: <>.~ . a. Physical injury tJ:L~gible property, including aU resulting loss of use of that propert(:}\11'such loss of use shall be deemed to occur at the time of the p~ical injury that caused it; or .~ b. Loss of~1tangible property that is not physically injured. All such ~oss ~~e deemed to occur at the time of the occurrence that caused It. <> 'iJij} - ((~ . 70. EXclu~l::';.6. in the main body of th~ umbrella policy is an "absolute" pollution N r<) © 4-< 0 ~on, which is deleted and replaced by the "Blended Pollution Endorsement" ,..... N := S Page 15 of26 Z -+-' s:< S := u 0 0 "0 (1) Is instantaneous and demonstrable as having first commenced at a specific time and day during the policy period of this policy; of any insured; (3) Is first discovered by any insured within . Thirty (30) * (2) Is accidental and neither expected nor intended from the standpoint ~~ f its first commencement; and ~ (4) Is reported to us by you no later than Ninety' ~ days following the first discovery by any insured. ",j; 71. As of this fIling, Denbury has incurred apprOXi@y $91.6 million in costs for ,,~ cleanup and related property damage as a resul~the Delhi incident, of which $76.4 million has already been paid by Denbury. Qrt& ,,~ 72. This incident was accidental and neit~pected nor intended by Denbury. 73. P~ by Denbury of the $1 million retained limit On September 29, 2014, after under Coverage B of the um~~ Policy, DenbuJY submitted a final proof of loss to . Zurich for payment l1n~ rr:t",. . e Umbrella policy. ...... A Copy of that proof of loss is attached as Exhibit 6.Jw.d fully incorporated herein. ~ 74. On October ~14, Denbury received from Zurich a $25 million payment exhausting ~mbrella policy limits. N ~r(j THE UPPER LAYER EXCESS POLICmS M ©) '<-< 0 75. ~imes material here, Denbury had in force a commercial excess liability policy N N (1) issued by Defendant Ironshore Specialty Insurance Company, No. 000988602 (the ~ 0., 0 M "Ironshore" policy) with effective dates of April 1, 2013 to April 1, 2014. The II> 00 II> N t-- Ironshore Policy provides $25 million follow-form coverage excess of Denbury's 'C> ;...; (1) ,.0 S ::l Page 16 of26 Z ~ (1) S ::l u 0 0 r J "0 (1) 1.C .€ (1) u Umbrella policy limits for total cumulative limits of $51 million. A copy of the Ironshore policy is attached as Exhibit 7 and fully incorporated herein. 76. At all times material here, Denbury had in force a commercial excess liability policy issued by Defendant Alterra Excess & Surplus Insurance Company, No. MAX6XL0000443 (the "Alterra" policy) with effectiv~ dates of~il 1, 2013 to Aprill, 2014. The Alterra policy provides $25 million f01104 co~erage excess ~ of Ironshore's policy limits, up to a cumulative limit of ~i1lion. A copy of the . . ~ Alterra policy is attached as Exhibit 9 and fully inco~d herein. 77. At all times material here, Denbury had in forcl(, ~ercial excess liability policy ~ iSSUed~y Defendant Axis Surplus Insur~~ompany, No. EAU766369/0112013 (the "Axis" policy) with effective dates,~prill, 2013 to April 1,2014. The Axis .~ policy provides $25 million f01l0~ coverage excess of Alterra's policy limits, up to a cumulative limit of $l.llion. A copy of the Axis policy is attached as inCO~~herein. ' Exhibit 9 and fully . 78. On October 14, 2014, (~ury submitted its proof of loss to Ironshore, Alterra, and Axis, and . demandR~ent ~ of the full limit of liability of each of those Policies as indemnity f~Ynbury's covered pollution and contamination clean-up costs, and or[@) related t~~arty claims. N M 79. As 0 # filing, Ironshore, Alterra, or Axis policies (referred to collectively as the "-' ~ . '~ess" policies) have either denied coverage for, 0 M N or failed to pay, Denbury the (!.) ~ 0.. amounts owed under the respective Excess policies. 0 C'") S ::l u 0 0 '"0 (!.) ~ .€ (!.) u V. REQUEST FOR DECLARATORY JUDGMENT 80. Denbury re-alleges, re-avers, and incorporates each of the foregoing paragraphs into ,this section of its Demand. 81. Denbury has fulfilled all conditions precedent to coverage under the Excess policies, and requests a declaratory judgment that Underwriters must inde~ Denbury for ~ .F~ , all costs and expenses, not recoverable under the well contro~hcy, and excess of ~ the underlying policies that Denbury incurred in respondi~",G the pollution resulting ,~ from Delhi incident. Q~ VI. BREACH OF CONTRACT - rpSS POLICY 82. Denbury re-alleges, re-avers, and incOrpo~h of fue foregoing paragraphs into this 'section of its Demand. <> 0 " ~ 83. Pursuant to the'ter.msand conditio~he umbrella policy, the Excess carriers have an obligation to indemnify De~ for the costs it incurred as a result of pollution and related third-party ClWaused by fue Dethi incident up to fue full Policy limits excess of theunderlYi~icies. " 84. Denbury is a prop~ to sue for breach of contract. ' (F~ , 85. Denbury has~etf6nned all of its contractual obligations under the Excess policies. 86. There ate~~pp1icable policy provisions, conditions or exclusions which preclude or N r') limit I/lfoverage available to Denbury for these costs, or which mitigate the Excess "+-< 0 .~~ , " S :::l u 0 Q '"0 Excess policies, Denbury has been forced to incur extensive costs for property damage incurred in the Delhi Field, including pollution clean-up costs and costs to repair and replace the ANR pipelines and parish roads. Denbury continues to sustain damages as a result of Excess Carriers' vvrongful refusal to fully in~fy it for the costs incurred to date. U~ ~ VII. LATE PAYMENT OF CLAI~ 88. Denbury re-alleges, re-avers, and incorporates each~ foregoing paragraphs into this section ofits Demand. ¢ ~ ~ 89. Excess carriers have both failed to timel~ Denbury of their respective claim rejections andlor to timely pay Denb~'s claims under Texas fusurance Code ~ ~ Chapter 542. ~ 90. amoun~enbUry is entitled to eighteen percent (18%) per In addition to its claim annum of the amount or,~~aims, as well as attorney fees as provided in Texas ~ Insurance Code Chapt~2. 91. Denbury ~~ges, re-avers, and incorporates each of the foregoing paragraphs into this selfl!of its Demand N M © . "-' 0 92. ~y is a person as defined by Texas fusurance Code § 541.002(2). >n N
0 M 541.002(2). >n 00 >n N t- 1.0 ;..;
S ;::l u 0 0 "0
control, COL, and umbrella policies in violation of Texas Insurance Code Chapter 541, including but not limited to § 541.051. 95. Excess carriers and Marsh have engaged in unfair or deceptive insurance practices that violated § 541.060, and these acts have caused actual damages~enbury in an amount to be proven at trial. ' U~(@ ~ 96. If the Court fmds no coverage under Excess policies, De~~ has a cause of action , ~J und~r the Texas Insurance Code, including for~r or deceptive ins~ance practices, to the extent Excess carriers and/or M:~ misrepresented material policy ~ provisions in the CGL, Umbrella, and E~olicies, as well as the benefils or advantages promised by the policies,<>i~uding misrepresenting the scope and/or , ~ existence of coverage under these ~. 97. Excess carriers and Marsh eng~ in unconscionable conduct by selling insurance ·· WIt. h amb'19uOUS po1lCles Frlif~111 usory coverage. o IX. BAD FAITH 98. Denbury re-alleg~vers, and incorporates each of the foregoing paragraphs into this section~~emand. , ' , 99. Excess fs~rs bound the Excess policies, which created insurance contracts between N M "-' D~and each Excess carrier and established a duty of good faith and fair dealing. ~ant to the terms and conditions of the Excess policies, the Excess carriers are 0 \0 N 100. Q) gp 0.. required to pay Denbury's claim for costs incurred responding to property damage 0 M trl 00 trl from the Delhi incident. N t-- \0 ;..; Q) .0 S Page 20 of26 Z= 1:: Q) a = u 0 0 "0 Q) t;:::i 'f! Q) u 101. The Excess carriers failed to reasonably investigate. Denbury' s .claims for coverage under their respective policies before wrongfully denying coverage .. 102. The Excess carriers knew or should have known that coverage of Denbury's claim under each policy is reasonably clear, but have still denied and/or delayed payment. 103. The Excess carriers have breached their duty of good faith and fa~aling because ~ they failed to reasonably investigate Denbury's claim before ~ng coverage, and ~ because they refused and continue to refuse to pay Denbur~&{]alid claims. . . ~~~ 104. There is no reasonable basis for the Excess CarrierS~als to pay Denbury's entire claim; the Excess carriers have failed an4, ~sed to perform an adequate ~ investigation, and/or the Excess carriers ~~or fairly dealt in good faith with Q . Denbury. <> 0 ~ 105. The Excess carriers' refusals to p~recommended and valid claim are the direct and proximate cause of harm ~enbUry, which has resulted in damages In an· (©l amount to be proven at tr~~ 106. Denbury has incurred ~ges as a result of the Excess qarriers' bad faith, including but not limited to~~ased ©~ business expen~es, loss of business opportunities, and other conse~Yl economic damages to be proven at the trial of this matter. <>~,fjjj} . I.~RSH'S NEGLIGENCE, BREACH OF CONTRACT, ~. & VIOLATION OF STATUTORY DUTIES 107. ~ re~alleges, re-avers, and incorporates each of the foregoing paragraphs into this section of its Demand. Page 21 of26 108. Marsh, as Denbury's insurance broker and risk management consultant, owed a duty to use reasonable diligence in attempting to place the requested insurance and to inform Denbury if it was unable to do so. 109. Denbury reasonably relied on Marsh's promise to procure the requested insurance, which was selected by Denbury based on Marsh's expertise in placi~omprehensive . insurance coverage for oil and gas operators. . . U~~ ~ 110. Denbury reasonably relied on Marsh's 'representation~ts detriment, that the insurance policies recommended, and ultimately Pl~y Marsh, insured Denbury against the risks that caused the losses incurred ij"~he Delhi incident. , ~~ 111. Denbury also relied on Marsh to review av~~ policies and advise Denbury on the terms included in those policies. UpQ~asonable information and belief, Marsh ~ misrepresented to,Denbury the te@ncluded in the CGL, Umbrella, and Excess policies at issue he~e. . ~ 112. Marsh, while ""ting on b r f Denbury in compiling its application for insurance, failed to explain the ar@~tion or the terms of coverage being applied for. lB. Over Denbury's ~ year relationship with Marsh, Denbury relied on Marsh to perform its ~Qanagement functions, including but not limited to negotiating with the "";~rectIY when both acquiring pOlicies as well as handling c)aims that arose~g the relevant policy period. 114. ~'1is liable to Denbury for its failure to procure the proper insurance policies with adequate coverage for Denbury's operations, including the Delhi incident. Marsh: a. failed to properly procure insurance for Denbury; Page 22 of26 b. failed to act as a reasonable and prudent broker would have under the same or similar circumstances; c. failed to ensure that Denbury would have proper insurance coverage afforded for a pollution liability loss arising out of its operations; d. allowed the policy coverage requested by Denbury, and which ~ury intended /?'~ to Cover losses arising out of an incident such as the Delhi ~ent, to differ from ~ those proposed and explained to Denbury during the f!/Iral discussions without advising Denbury; " \ ~,f!j; e. failed to disclose that the CGL~ Umbrella, ~xcess policies may not include ~ . covemge for Denbury's operations in ~ field; f. failed to properly explain the te~ ~d conditions of the CGL, Umbrella, and ~/~ Excess insurance policies; ~ g. failed to provide the stand~f care required of an insurance broker and risk ~(f72» ' management consulta~~er the terms of the Agreements and applicable law; h. failed to advise, ex~, or disclose the coverages within the CGL, Umbrella, and Excess pOlici~~ i. failed to ~Qde insurance coverage for Denbury's operations; J. d~o~. f:al'1e(j Investigate and understand th e operatIOns . and Insurance . nee ds 0f ~. ~@Ury; ~ailed to fully and accurately fill out the insurance application and convey to the insurers the necessary information to protect the needs of Denbury; Page 23 of26 I 1. failed to maintain information provided to Denbury in such a way as to be able to use that infonnation to accurately present Denbury to insurers in soliciting coverage; m. failed to use information in their possession to select proper insurance for Denbury; ~ n. failing to know or understand that certain provision(s) ~ ~e CGL, Umbrella, ~ andior Excess policies excluded coverage for Denbur~erations, and failing to disclose to Denbury the impact of those provis~ a reasonable and prudent insurance broker and risk management consw~ould have; and ~ be~~OVerage under the CGL, Umbrella, o. failing to disclose to Denbury that it . Q andior Excess policies to beambi~l&or illusory. . §&. 115. Marsh is liable to Denbury for bre~the risk management Agreements. 116. Marsh is liable to Denbury for b~h of the fiduciary duty created by the confidential relationship between Dewand Marsh in which Denbury was guided by the judgment and advice ~arsh, and Denbury was justified in placing confidence in the belief that Mar~~uld act in Denbury's best interest. ~. ~0 XI. ATTORNEYS' FEES 117. Denb,r~qreges, re-avers, and incorporates each of the foregoing paragraphs into ~ . this s n of its Demand. ~ . 118. ~dition to the damages set forth above, Denbury seeks from Excess carriers and Marsh recovery of all costs and attorneys' fees incurred in the defense of this action and the prosecution of this Demand pursuant to relevant Texas statutes. Page 24 of26 XII. PRAYER WHEREFORE, Denbury demands a trial by jury and requests that the Court render judgment as follows: 1. That pursuant to the insuring conditions of the Excess policies, the Court declare that Defendants have an obligation to indemnify Denbury for its costs in~ed in property ~ damage as a result ofthe Delhi incident covered under the Exc~olicies. ~ 2. That Excess Carriers breached their duties to indemni:~ury under the Excess policies' terms for costs incurred in property damag~result of the Delhi incident covered under the Excess policies. (~ o~ 3. That the Court award Denbury all actual and~imate damages by Excess carriers' (J). bad faith breach of the Excess policitt,s~'1 all statutory penalties consistent with . .~ Texas law. . ~ 4. That Excess Carriers have faile~imelY investigate and pay the claims under Texas Insurance Code Chapter s~?!tJ;®; .~ . 5. That Marsh breached ~dUCiary duty to Denbury, breached the risk management Agreements, and n~entlY performed its insurance brokerage and risk management ©J~ duties owed ~~bury. 6. That ~~ers and Marsh have engaged in unfair or deceptive trade practices under~as Insurance Code Chapter 541. 7. ~~he Court award Denbury its costs and attorneys' fees incurred in the prosecution of this Demand. 8. That the Court grant to Denbury any and all other relief, at law or in equity, to which it is entitled. 'Page 25 of 26 Respectfully submitted, PmLrP~l·~50) SARAH E. STOGNER (#24091139) / JACQUELINE M. BRETTNER (pend~ro hac vice) CARVER, DARDEN, KORETZKY, TE~R, FINN, BLOSSMAN & AREAUX,~ 1100 POYDRAS ST., sui. 31 odQ'" NEW ORLEANS, LA 70163 ~ TELEPHONE: (504)585j£3 FACSIMILE: (504) 585- 19 EMAIL: NIZIALEK<>RDARDEN.COM VERDARDEN.COM BRE CARVERDARDEN.COM 'ATTORNE~ DENBURY RESOURCES INC, AND DENB~NSHORE, LLC \ o~ . ~ PLEASE WITHHOLD SERVICE AT Tm~ 4830-3378-4095, v. 1~0757-9934, v. 2 ®>~ .~ W .~ ©~ (} ~ o{1~ ~y ~ ~ Page 26of26 I. Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and coned copy of the original record filed and or recorded in my office, electronically or hard copy, as i.t appears on this date. V¥'ttness my official hand and seal of oft1ce this October 22.2015 Certified Document Number: 672:58530 Chris Daniel, DISTRICT CLERK H.i\lUUS GOUNTI, IEX;\S In acc:{}rda.nee with Tex.as Government Code 406JH3 eledronically transmitkid authenticated documents are valid. If there is. a question regarding the validity of this, document and or seal plea.s:e e-:ma.iJ. support@.hcdistrktderk.com 9/18/20164:56:50 PM Chris Daniel - District Clerk Harris County Envelope No. 7002115 By: KATINA WILLIAMS Flied: 9/18/20154:56:50 PM CAUSE NO. 2015 09546 w DENBURY RESOURCES INC. and § IN THE DISTRICT COURT DENBURY ONSHORE, LLC § § Plaintiffs ! § VS. § 157th JUDICIAL DISTRICT § IRONSHORE SPECIALTY INSURANCE § COMPANY, ALTERRA EXCESS & § SURPLUS INSURANCE COMPANY, § AXIS SURPLUS INSURANCE § HARRIS COUNTY, TEXAS COMPANY, and MARSH USA INC. § § Defendants § IRONSHORE SPECIALTV INSURANCE COMPANY'S MOTION FOR PROTECTIVE ORDER AND OBJECTIONS TO PLAINTIFFS' NOTICE OF ORAL AND . , ! VIDEOTAPED DEPOSITION AND REQUEST FOR DOCUMENTS OF SANFORD OSTER AS THE DESIGNATED CORPORATE REPRESENTATIVE(S) OF IRONSHORE SPECIALTY INSURANCE COMPANY TO THE HONORABLE JUDGE OF THIS COURT: COMES NOW, Defendant, Ironshore Specialty Insurance Company (hereinafter "Defendant" or "Ironshore"), appearing by and through the assistance of undersigned counsel of record, and files this Motion for Protective Order and Objections to Plaintiffs' Notice of Oral and Videotaped Deposition and Request for Documents of Sanford Oster as the Designated Corporate Representative(s) of Ironshore Specialty Insurance Company and in support thereof will show unto the Court the following: I. This is an insurance coverage dispute arising out of a well blowout that occurred in northeastern Louisiana on or about June 13,2013. In their current live pleading, Plaintiffs Denbury Resources Inc. and Denbury Onshore, LLC (hereinafter "Plaintiffs" or "Denbury") assert they selected umbrella insurance policies, based on insurance broker Marsh USA, Inc. 's ( recommendations, to cover such losses as those Denbury experienced as a result of the well blowout in northeastern Louisiana, known as the Delhi Incident. Plaintiffs seek a declaratory judgment that Ironshore, Alterra Excess & Surplus Insurance Company, and AXIS Surplus Insurance Company must indemnify Denbury for costs and expenses, not recoverable under the well control policy, and in excess of the underlying policies that Denbury incurred in responding to the pollution resulting from the Delhi Incident. Plaintiffs also assert claims for breach of contract, Texas Insurance Code violations and bad faith. On September 2, 2015, Plaintiffs noticed the oral and videotaped deposition of the corporate representative of Ironshore, previously identified Sanford Oster, for the agreed upon date and time of October 20, 2015 at 9:00 a.m. at the law offices of Pillsbury Winthrop Shaw Pittman, LLP, 1540 Broadway Avenue, New York, New York 10036. A copy of the Notice of Oral and Videotaped Deposition and Request for Documents of Sanford Oster as the Designated Corporate Representative(s) of Ironshore Specialty Insurance Company is attached hereto as Exhibit "A". The parties have agreed toa date, time and location; however, the parties are unable to agree to the scope of the deposition. Counsel for Ironshore and Denbury have in good faith attempted to resolve this matter by correspondence as well as personal discussions, but are unable to resolve all of the issues. Ironshore's counsel presented Denbury's counsel with draft objections to certain examination topics out of the 110 served topics on September 10, 2015, and counsel held a telephonic conference on September 15, 2015 in an attempt to resolve specific issues and objections to certain topics. Ironshore now files this Motion for Protective Order and Objections regarding those examination topics that could not be resolved. 2 n. Ironshore objects to Examination Topic Numbers 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14,15,21,22,23,24,25,26,27,28,29,34,36,37,38,39, 40, 41, 43, 61, 74, 77, 78, 81, 82,83, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, and 110 listed in Denbury's deposition notice attached hereto as Exhibit "A" on the following grounds: RESPONSE: Ironshore objects to this topic on the grounds that it is overbroad and not limited in scope to the issues made the basis of this lawsuit. Inmshore further objects pursuant to Rule 199.2 of the Texas Rules of Civil Procedure as the topic does not describe with reasonable particularity the matter on which examination is requested. RESPONSE: Irom;hore objects to this topic on the grounds that it is overbroad and not limited in scope to the issues made the basis of this lawsuit. Ironshore further objects pursuant to Rule 199.2 of the Texas Rules of Civil Procedure as the topic does not describe with reasonable particularity the matter on which examination is requested. RESPONSE: Ironshore objects to this topic on the grounds that it is overbroad and not limited in scope to the issues made the basis of this lawsuit. Ironshore further objects pursuant to Rule 199.2 of the Texas Rules of Civil Procedure as the topic does not describe with reasonable particularity the matter on which examination is requested. 4. The Delhi Incident. RESPONSE: Ironshore objects to this topic pursuant to Rule 199.2 of the Texas Rules of Civil Procedure as it does not describe with reasonable particularity the matter on which examination is requested. RESPONSE: Ironshore objects to this topic pursuant to Rule 199.2 of the Texas Rules of Civil Procedure as it does not describe with reasonable particularity the matter on which examination is requested. 3 6. Reserves under the Policies. RESPONSE: lronshore objects to this topic on the grounds that it seeks information that is not relevant to this lawsuit and not reasonably calculated to lead to the discovery of admissible evidence. Further, the topic is overbroad and, pursuant to Rule 199.2 of the Texas Rules of Civil Procedure, it does not describe with reasonable particul~lrity the matter on which examination is requested. RESPONSE: Ironshore objects to this topic on the grounds that it is overbroad and pursuant to Rule 199.2 of the Texas Rules of Civil Procedure as it does not describe with reasonable particularity the matter on which examination is requested. 8. The case Aspen Ins. UK, Ltd. v. Dune Energy, Inc., 400 Fed. Appx. 960 (5th Cir. 2010). RESPONSE: Ironshore objects to this topic on the grounds that it is overly broad and exceeds the scope of discovery as it cans for a legal conclusion from a corporate representative concerning case law. 9. The case Pioneer Exploration, LLC v. Steadfast Ins. Co., 2013 WL 3557541 (w.n. La. 2013). RESPONSE: Ironshore objects to this topic on the grounds that it is overly broad and exceeds the scope of discovery as it calls for a legal conclusion from a corporate representative concerning case law. 10. The case Pioneer Exploration, L.L.C. v. Steadfast Ins. Co., 767 F.3d 503 (5th Cir. 2014). RESPONSE: Ironshore objects to this topic on the grounds that it is overly broad and exceeds the scope of discovery as it calls for a legal conclusion from a corporate representative concerning case law. II. Ironshore's application of the Aspen Ins. UK, Ltd. v. Dune Energy, Inc., 400 Fed. Appx. 960 (5th Cir. 2010) decision to its liability policies. V) C') RESPONSE: Ironshore objects to this topic on the grounds that it is overly broad '- 0 and exceeds the scope of discovery as it calls for a legal conclusion from a corporate "1- S ;::! u 0 0 '"0 13. Ironshore's application ofthe Pioneer Exploration, L.L.c. v. Steadfast bis. Co., 767 F.3d 503 (5th Cir. 2014) decision to its liability policies. RESPONSE: Ironshore objects to this topic on the grounds that it is overly broad and exceeds the scope of discovery as it calls for a legal conclusion from a corporate representative concerning case law and its application to policies not at issue in the present lawsuit. Therefore, this topic is not relevant to the subject matter at hand. RESPONSE: Ironshore objects to this topic pursuant to Rule 199.2 of the Texas Rules of Civil Procedure as it does not describe with reasonable particularity the matter on which examination is requested. Ironshore further objects because this examination topic seeks information , that is protected by the joint defense privilege. 15. Ironshore's Communications with Denbury's Insurers. RESPONSE: Ironshore objects because this examination topic seeks information that is protected by the joint defense privilege. 21. All Documents exchanged between Ironshore and any Person related to Denbury. RESPONSE: Ironshore objects to this topic on the grounds that it is overbroad and pursuant to Rule 199.2 of the Texas Rules of Civil Procedure as it does not describe with reasonable particularity the matter on which examination is requested. Ironshore further objects because this examination topic seeks information that is protected by the attorney-client and work product privileges and the joint defense privilege. 22. All Documents exchanged between Ironshore and any Person related to Denbury's Claim. RESPONSE: Ironshore objects to this topic on the grounds that it is overbroad and pursuant to Rule 199.2 of the Texas Rules of Civil Procedure as it does not describe with reasonable particularity the matter on which examination is requested. Ironshore further objects because this examination topic seeks information that is protected by the attorney-client and work product privileges and the joint defense privilege. 23. All Documents exchanged between Ironshore and any Person related to the Delhi fucident. 5 RESPONSE: Ironshore objects to this topic pursuant to Rule 199.2 of the Texas Rules of Civil Procedure as it does not describe with reasonable particularity the matter on which examination is requested. Ironshore further objects because this examination topic seeks information that is protected by the attorney-client and work product privileges and the joint defense privilege. 24. All Documents exchanged betwee~ Ironshore and any Person related to the Policies. RESPONSE: Ironshore objects to this topic on the grounds that it is overbroad and pursuant to Rule 199.2 of the Texas Rules of Civil Procedure as it does not describe with reasonable particularity the matter on which· examination is requested. Ironshore further objects because this examination topic seeks information that is protected by the attorney-client and work product privileges and the joint defense privilege. 25. All Documents exchanged between Ironshore and any Person related to the Litigation. RESPONSE: Ironshore objects to this topic pursuant to Rule 199.2 of the Texas Rules of Civil Procedure as it does not describe with reasonable particularity the matter on which examination is requested. Ironshore further objects because this examination topic seeks information that is protected by the attorney~client and work product privileges and the joint defense privilege. RESPONSE: Ironshore objects to this topic on the grounds that it is overbroad and pursuant to Rule 199.2 of the Texas Rules of Civil Procedure as the topic does not describe with reasonable particularity the matter on which examination is requested. Ironshore further objects that this examination topic is not limited to the coverage issues in this lawsuit particular to Denbury~s claims for coverage under the Ironshore policy at issue and therefore seeks information that is not relevant and not reasonably calculated to lead to the discovery of admissible evidence. RESPONSE: Ironshore objects to this topic on the grounds that it is overbroad and pursuant to Rule 199.2 of the Texas Rules of Civil Procedure as it does not describe with reasonable particularity the matter on which examination is requested. Ironshore further objects that this examination topic is not limited to the coverage issues in this lawsuit particular to Denbury's claims for coverage under the Ironshore policy at issue and therefore seeks information that is not relevant and not reasonably calculated to lead to the discovery of admissible evidence. 6 RESPONSE: Ironshore objects to this topic on the grounds that it is overbroad and pursuant to Rule 199.2 of the Texas Rules of Civil Procedure as it does not describe with reasonable particularity the matter on which examination is requested. Ironshore further objects that this examination topic is not limited to the coverage issues in this lawsuit particular to Denbury's claims for coverage under the Ironshore policy at issue and therefore seeks information that is not relevant and not reasonably calculated to lead to the discovery of admissible evidence. 29. Ironshore's Underwriting of the Ironshore Policy fonns. RESPONSE: Ironshore objects to this topic on the grounds that it is overbroad and pursuant to Rule 199.2 of the Texas Rules of Civil Procedure as it does not describe with reasonable particularity the matter on which examination is requested. Ironshore further objects that this examination topic is not limited to the coverage issues in this lawsuit particular to Denbury's claims for coverage under the Ironshore policy at issue and therefore seeks information that is not relevant and not reasonably calculated to lead to the discovery of admissible evidence. 34. Ironshore's Adjustment of Claims under its liability policies. RESPONSE: Ironshore objects that this examination topic is not limited to the coverage issues in this lawsuit particular to Denbury's claims for coverage under the Ironshore policy at issue and therefore seeks information that is not relevant and not reasonably calculated to lead to the discovery of admissible evidence. RESPONSE: Ironshore objects to this topic on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to the discovery of admissible evidence. RESPONSE: Ironshore objects to this topic on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to the discovery of admissible evidence. RESPONSE: Ironshore objects to this topic on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to the discovery of admissible evidence. 39. Ironshore's selection of Claims Adjusters. 7 RESPONSE: Ironshore objects to this topic on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to the discovery of admissible evidence. RESPONSE: Ironshore objects to this topic on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to the discovery of admissible evidence. 41. lronshore' s selection of Claims Adjusters for Denbury's Claim. RESPONSE: Ironshore objects to this topic on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to the discovery of admissible evidence. RESPONSE: Ironshore objects to this topic on the grounds that it is overbroad and not limited in scope to the issues made the basis of this lawsuit. Ironshore further objects pursuant to Rule 199.2 of the Texas Rules of Civil Procedure as the topic does not describe with reasonable particularity the matter on which ~xamination is requested. 61. Ironshore's Adjustment of On-Lease costs claimed by other Energy Market policyholders against Other Liability Policies. ' RESPONSE: Ironshore objects to this topic on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to the discovery of admissible evidence. 74. All Documents Denbury produced in support of Denbury' s Claim. RESPONSE: Ironshore objects to this topic on the grounds that it is overbroad and pursuant to Rule 199.2 of the Texas Rules of Civil Procedure as it does not describe with reasonable particularity the matter on which examination is requested. 77. Ironshore's Communications with any Person regarding Denbury' s Claim. RESPONSE: Ironshore objects because this examination topic seeks information that is protected by the attorney-client privilege and the joint defense privilege. 78. Ironshore's Communications with any Person regarding the Delhi Incident. 8 RESPONSE: Ironshore objects because this examination topic seeks information that is protected by the attorney-dient privilege and the joint defense privilege. RESPONSE: Ironshore objects to this topic on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to the discovery of admissible evidence. 82. Ironshore's marketing of the Ironshore Policy forms to the Energy Market. RESPONSE: Ironshore objects to this topic on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to the discovery of admissible evidence. This topic is tantamount to a fishing expedition, which is expressly prohibited by the Texas Rules of Civil Procedure. RESPONSE: Ironshore objects to this topic on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to the discovery of admissible evidence. 86. Ironshore's reporting of complaints under Tex. Ins. Code Sec. 542.006 et seq. over the last five years. RESPONSE: Ironshore objects to this topic on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to the discovery of admissible evidence. This topic is tantamount to a fishing . expedition, which is expressly prohibited by the Texas Rules of Civil Procedure. 87. Ironshore's compliance with Texas Ins. Code Sec. 542.005 - 542.012 over the last five years. RESPONSE: Ironshore objects to this topic on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to the discovery of admissible evidence. This topic is tantamount to a fishing tn M expedition, which is expressly prohibited by the Texas Rules of Civil Procedure. '+-< 0 0\ § u 0 Q '"0 RESPONSE: Ironshore objects to this topic on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to the discovery of admissible evidence. This topic is tantamount to a fishing expedition, which is expressly prohibited by the Texas Rules of Civil Procedure, 90. All petitions filed by Ironshore in any Texas state or federal court against an Energy Market policyholder within the last five years. RESPONSE: Ironshore objects to this topic on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to the discovery of admissible evidence, This topic is tantamount to a fishing expedition, which is expressly prohibited by the Texas Rules of Civil Procedure. 91. AU petitions filed against Ironshore in any Louisiana state or federal court by an Energy Market policyholder within the last five years. RESPONSE: Ironshore objects to this topic on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to the discovery of admissible evidence. This topic is tantamount to a fishing expedition, which is expressly prohibited by the Texas Rules of Civil Procedure. 92. All petitions filed by Ironshore in any Louisiana state or federal court against an Energy Market policyholder within the last five years. RESPONSE: Ironshore objects to this topic on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to the discovery of admissible evidence. This topic is tantamount to a fishing expedition, which is expressly prohibited by the Texas Rules of Civil Procedure. RESPONSE: Ironshore objects to this topic on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to the discovery of admissible evi~ence. 94. lronshore's premium invoices to Denbury. RESPONSE: Ironshore objects to this topic on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to the discovery of admissible evidence. 10 95. Ironshore's payments to any Person related to the Policies. RESPONSE: Ironshore objects to this topic on the grounds that it concerns matters irrelevant to the subject matter of the pending action and seeks testimony that is not reasonably calculated to lead to the discovery of admissible evidence. bonshore further objects because this examination topic seeks information that is protected by the attorney-client privilege. 96. Any agreements between Ironshore and any Person related to Denbury's Claim. RESPONSE: Ironshore objects to this topic on the grounds that it concerns matters irrelevant to the subject matter of the pending action and seeks testimony that is not reasonably calculated to lead to the discovery of admissible evidence. Ironshore further objects because this examination topic seeks information that is protected by the attorney~client privilege and the joint defense privilege. 97. Any agreements between Ironshore and any Person related to the Litigation. RESPONSE: Ironshore objects to this topic on the grounds that it concerns matters irrelevant to the subject matter of the pending action and seeks testimony that is not reasonably calculated to lead to the discovery of admissible evidence. Ironshore further objects because this examination topic seeks information that is protected by the attorney-client privilege and the joint defense privilege. 98. Any agreements between Ironshore and any Person related to the Delhi Incident. RESPONSE: Ironshore objects to this topiC on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably cal.culated to lead to the discovery of admissible evidence. Ironshore further objects because this examination topic seeks information that is protected by the attorney-client privilege and the joint defense privilege. 99. Any insurance policy that may defend or indemnify Ironshore in the Litgation. RESPONSE: Ironshore objects to this topic on the grounds that the information V) sought is not relevant to the subject matter at hand, nor is it reasonably calculated M to lead to the discovery of admissible evidence. Subject to and without waiving the "'0"'" foregoing objections, Defendant will provide a witness to testify as to this topic. (!) gp 110. All Documents responsive to each and every written discovery request Denbury has el-. - M V) co served on Ironshore in this Litigation. V) C'1 RESPONSE: lronshore objects to the extent this topics seeks testimony as to t-- '-0 documents that have been objected to and not produced in response to written ;...; (!) discovery requests from Denbury. ~ S ;::I Z 11 ..... $:1 (!) S ;::I u 0 0 '"CI (!) <;:: O€ (!) u Ironshore also objects to the folloWing Examination Topics as redundant and constituting harassment: 85. Ironshore's obligations as an Insurer under Texas law. 101. Ironshore's performance of its obligations as an insurer under Texas law. 102. Ironshore's performance of its obligations to Denbury. See Ex. A, p. 16-17. These topics are repetitive and should be combined and/or withdrawn. Ironshore further objects to Request for Documents No.4. contained within Denbury's deposition notice: "All Documents responsive to Denbury's First and Second Sets of Requests for Production served on May 18,2015 and August 5,2015." See Ex. A, p. 12. Ironshore objects to the production of any document that was objected to and not produced in response to a request for production of documents. Ironshore served its Responses and Objections to Denbury's First Set of Requests for Production on July 17, 2015 and to Denbury's Second Set of Requests for Production on September 4, 2015. Accordingly, this request for documents is duplicative and harassing. III. Under Texas Rules of Civil Procedure 192.6(b), the Court can issue a protective order in the interest of justice "to protect the movant from undue burden, harassment, [and] annoyance."l If necessary, the Court can order that "the requested discovery not be sought.,,2 Rule 176.7 also requires the Court to protect Ironshore's corporate representative from any undue burden or hardship that its proposed deposition would cause. 3 The Court may prohibit the party seeking I Tex. R. Civ. P. 192.6(b). 2 Tex. R. Civ. P. 192.6(b)(1). 3 Tex. R. Civ. P. 176.7. 12 discovery from proceeding with the request, limit the extent or subject of the request, or otherwise set the terms and conditions under which the party may proceed. 4 Plaintiffs' deposition notice includes 110 topics that range from Denbury's operations to lronshore's underwriting and claims adjusting of other insurance policies and claims wholly unrelated to the present lawsuit. As identified above, certain areas of Plaintiffs' inquiry are objectionable for several reasons. Ironshore objects to the above noted examination topics and moves that the Court strike the objectionable topics from the notice. WHEREFORE, PREMISES CONSIDERED, Defendant, Ironshore Specialty Insurance Company prays that this Motion for Protective Order and Objections to Plaintiffs' Notice of Oral and Videotaped Deposition and Request for Documents of Sanford Oster as the Designated Corporate Representative(s) of Ironshore Specialty Insurance Company in all things be granted, that Ironshore's objections to Plaintiffs' proposed Examination Topics be sustained, that Plaintiffs be ordered to not inquire into these subject matters, and Defendant requests all other relief to which it may be entitled. By: lsi James D. Johnson Mark C. Clemer Texas Bar No. 04372300 James D. "J.D." Johnson Texas Bar No. 24085918 Michelle Richard Texas Bar No. 24093037 Tenth Floor 1177 West Loop South 4 Tex. R. Civ. P. 192.6(b). 13 Houston. Texas 77027 ~9007 Telephone: (713) 629-1580 Facsimile: (713) 629-5027 mclemer@brownsims.com jj ohnson@brownsims.com mrichard@brownsims.com and Randell E. Treadaway (admitted pro hac vice) LA Bar No. 01624 Brad D. Ferrand (admitted pro hac vice) LA Bar No. 29860 ZAUNBRECHER TREADAWAY, L.L.C. 406 N. Florida Street, Suite 2 Covington, Louisiana 70433·2907 Telephone: (985) 871-8787 Telefax: (985) 871-8788 randy@ztlalaw.com brad@ztlalaw.com COUNSEL FOR DEFENDANT IRONSHORE SPECIALTY INSURANCE COMPANY CERTIFICATE OF CONFERENCE This will certifY that counsel for Ironshore and counsel for Denbury have discussed, by telephone, limiting the topics for this deposition. To date, no agreement has been reached on all of the aforementioned issues, so the matter is presented to the Court. /s/ James D. Johnson James D. "lD." Johnson If) M '+-< 0 """
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This will certify that a true and correct copy of the foregoing pleading has been sent to all counsel ofrecord via u.s. regular mail andlor e-mail on this the 18th day of September 2015: Phillip D. Nizialek, T.A. Sarah E. Stogner Jacqueline M. Brettner CARVER, DARDEN, KORETZKY, TESSIER, FINN, BLOSSMAN & AREAUX, LLC 1100 Poydras St., Ste. 3100 New Orleans, LA 70163 Phone: (504) 585-3800 Fax: (504) 585-3801 nizialek@carverdarden.com stogner@carverdarden.com brettner@carverdarden.com Counselfor Plaintiffs Michael S. Knippen David Rock James M. Eastham TRAUB, LIEBERMAN, STRAUS & SHREWSBERRY, LLP 303 W. Madison, Suite 1200 Chicago, Illinois 60606 Phone: (312) 332-3900 Fax: (312) 332-3908 mknippen@traublieberman.com drock@traublieberman.com jeastham@traublieberman.com Counselfor Defendant Axis Surplus Insurance Company C. Henry Kollenberg Melinda M. Riseden CRAIN, CATON & JAMES, P.C. 1401 McKinney Street 17th Floor, Five Houston Center Houston, Texas 77010 Phone: (713) 658-2323 Fax: (713) 658-1921 hkollenberg@craincaton.com mriseden@craincaton.com Counsel for Defendant Marsh USA, Inc. 15 Marc J. Wojciechowski WOJCIECHOWSKl & ASSOCIATES, P.C. 1747 Kuykendahl Road, Suite 200 Spring, Texas 77379 Phone: (281) 999-7774 Fax: (281) 999-1953 marc@wojolaw.com and Michael D. Mulvaney Christopher C. Frost Josh B. Baker MAYNARD, COOPER & GALE, P.C. 2400 Regions/Harbert Plaza 1901 Sixth Avenue North Birmingham, AL 35203 Fax: (205) 254-1999 mmulvaney@maynardcooper.com cfrost@maynardcooper.com jbaker@maynardcooper.com Counselfor Defendant Alterra Excess & Surplus Insurance Company t.n <') """0 \0 Q) bI) 0:1 ~ ,..... <') t.n 00 t.n N t-- \0 ;.; Q) S ::;:! z...... 16 ~ Q) S ::;:! u 0 Q '".€ Q) t;:l Q) u CAUSE NO, 2015 09546 e DENBURY RESOURCES INC. and IN THE DISTRICT COURT DENBURY ONSHORE, LLC Plaintiffs, ~SCOUNTY,TEXAS . v. IRONSHORESPECIALTYINSURANCE COMPANY,ALTERRAEXCESS & 1571h JUDICIAL DISTRICT SURPLUS INSURANCE COMPANY, AXIS SURPLUS INSURANCE COMPANY, AND MARSH USA INC, NOTICE OF ORAL AND VIDEOTAPED DEPOSITION AND REQUEST FOR DOCUMENTS OF ~ANFORD OSTER AS THE DESIGNATED CORPORATE REPRESENTATIVE(S) OF IRONSHORE . SPECIALTY INSURANCE. COMPANY TO: Ironshore Specialty Insurance Company through its attorneys of record, Mark C. Clemer . James D. Johnson \. Brown Sims. P.C. 1177 West Loop South Tenth Floor Houston, texas 77027 -And- ,., Randell E. Treadaway Brad D. Ferrand Michelle O'Daniels Zaunbrecher Treadaway, LLC 406 N. Florida Street, Suite 2 Covington, Louisiana 70443 1. PLEASE TAKE NOTICE that, pursuant to Texas Rule of Civil Procedure 199.2(b)(1) and EXHIBIT 199.2(b)(5). Denhury,Resources Inc. and Denbury Onshore, LLC, will take the oral and videotaped deposition of the Mr. Sanford Oster as the designated Corporate Representative of Ironshore Specialty Insurance Company ("Ironshore"), on October 20, 2015, commencing at 9:00 a.m. at the law offices of Pillsbury Winthrop Shaw Pittman, LLP, 1540 Broadway Avenue, New York, New York 10036, by agreement ofthe parties. II. ' Ironsl:tore's designee(s) is further directed to produce responsive documents to the requests listed in Exhibit 't,4 $' within thirty (30) days of service of this notice. m. The deposition will continue from day to day until completed, N. the deposition will be recorded stenographically and on videotape. The stenographic and video recordings will be conducted by Kay E. Donelly & Associates. PIP' ',NIZIALEK, T.A. (#15045250) SARAH E. STOGNER (#24091139) JACQUELINE M. BREnNER (pro hac vice) Carver, Darden, Koretzky, Tessier, Finn, ' Blossman, & Areaux, L.L.C. 1100 Poydras Street, Suite 3100 New Orleans, Louisiana 70163 Telephone: (504) 58~-3800 Facsimile: (504) 585~3801 Email: nizialek@carverdarden.com stogner@carverdarden.com brettner@carverdarden.com Counsei for Plaintiffs Page 2. oflS i CERTIFICATE OF SERVICE Deposition of Corporate Representative(s) of Ironshore Specialty fusurance Company has been served on the following; Mr. Randell E. Treadaway Mr. Christopher C. Prost Mr. Michael Knippen Ms. Michelle Q'Daniels Mr. Michael Mulvaney Mr. David Rock Mr. Brad D. Ferrand Mr. JoshuaB. Baker Mr. James M. Eastham Zaunbrecher Treadaway, LLC Maynard, Cooper, Gale Traub Lieberman Straus & 406 N. Florida Street, Suite 2 1901 Sixth Avenue, Suite 2400 . Shrewsbe1'ry, LLP Covi.ngton, LA 70433 Birmingham, AL 35203 303 West Madison St., 8te. 1200 randy@ztlalaw.com cfrost@maynardcooper.com Chicago, IL 60606 modJegal@gmail.com mmulvaney@mayndardcooper.com mknippen@traublieberman.com brad@ztlalaw.com . ibaker@maynardcooper.com jeastham@traublieberman.com dl'ock@traublieberman.com Mr. Mark C. Cl~mer Ms. Mindy Riseden Mr. Marc J. Wojciechowski Mr. James Johnson Mr. Henry Kollenberg .Wojciechowski & Associates. Pc Brown Sims Crain, Caton & James 17447 Kuykendahl Rd. Ste. 200 1177 West Loop South, 10th Floor Five Houston Center Spring, Texas 77379 Houston, Texas 77027 . 1401 McKinney Street, Suite 1700 marc@wojolaw.com niclemer@brownsims.com Houston, TX 77010 jjohnson@brownsims.com mriseden@craincaton.com hkollenberg@craincaton.com via U.S. Mail and/or electronic service on September 2, 2015 at or before 5:00 p.m., and the electronic transmission was reported as complete. Page 3 oftS EXIDBIT "A:' 1. You are requested to produce aU documents electron.ically. Pursuant to Rule 196.4, You are requested to produce electronic dats responsive to these Requests in tiff or pdf searchable format, including e~n;tail. ( 2. Answer each request for documents separately by listing the documents and jncluding in each response information that identifies the document and its bates 3. For a document that no longer' exists or cannot be located, identify the document, state how and when it passed out of existence or could no longer be located, and the reasons for the disappearance. Also, identify each person having knowledge about the disposition or loss of the document, and identify any other document evidencing the lost document's existence or any facts about the lost document. a. When identifying the document, you must state the following: i. The nature of the document (e.g. letter, handwritten note). supplement, or other addition or change. iv. ,The identities of the author, signer of the document, and person on on M 4-< 0 whose behalf or at whose request or direction the document was 0 N ~ prepared or delivered. 0... - M on 00 b. When identifying the Person, you must state the following: on N r-. i. The full name; \0 ;...; S ;:::I u 0 Q "Cl iii. . The present or last known office address and telephone number. iv. The present occupation, job title, employer, and employer's 4. If You claim ail or part· of any responsive document or communication is privileged, then You are requested to provide the appropriate information regarding such assertion of privilege, as set forth ~n Tex. R. Civ. P. § 193.3. n. Definitions . a. "Ironshore," "You" and "Your", as used herein, shan refer to Ironshore Specialty Insurance Company and shall include, without limitation, any and all of its parents, subsidiaries, h. "Marsh" shall refer to Marsh USA, Inc. and shall include, without limitation, any and all of its parents, subsidiaries, employees, agents, broker, and attorneys. c. "Zurich" shall refer to Zurich American Insurance Company and shall include, without limitation, any and all of its parents, subsidia~ies, employees, Underwriters, Adjusters, agents and attorneys. d. "AGLIe" shall refer to American Guarantee & Liability Insurance Comp~ny and shall include, without limitation, .any and ail of its parents, subsidiaries, employees, e. "Alterra" shaH refer to Alterra Excess & Surplus Insurance Company and shall include, without limitation, any and all of its parents, subsidiaries, employees, Underwriters, Page 5 ofl8 . f. "Axis" shall refer to Axis Surplus Insurance Company and shall include, without limitation, any and all of its parents, subsidiaries, employees, Upderwriters, Adjusters, agents a,nd g. "Denbury" shall refer to Denbury Resources Inc; and Denbury Onshore; LLC, or any.other Denbury entity for which Marsh procured insurance. h. "FARA" shall refer to FARA Insurance Services, and shall include, without limitation, ~my and all of its parents, subsidiaries, employees, Underwriters, Adjusters, agents and . i. "COL Policy" shall refer to the commercial general liability policy number 9242578-00, issued to Denbury by Zurich American Insurance Company, with the effective dates of Aprill, 2013 to Aprill, 2014. j. "Umbrella Policy" shall refer to policy number AUC 924673-00, issued to Denbury by AGLIe, with effective dates of April 1, 2013 to April 1, 2014. k. "Ironshore Policy" shall refer to policy number 000988602, issued to Denbury by Ironshore, with the effective dates of Aprill, 2013 to April 1, 2014. 1. "Alterra Policy" shaH refer to policy number MAX6XL0000443, issued to Denbury Alterra, with the effective dates of April 1, 2013 to Aprill, 2014. m. "Axis Policy" shall refer to policy number EAU766369/01l20 13 , issued to Denbury by Axis, with the effective dates of April 1, 2013 to Aprill, 2014. n. ,"Policies" shail collectively refer to the. CGL Policy, the Umbrella Policy, the Ironshore Policy, the Alterra Policy and the Axis Policy, as defined above, and shall include any and aU policy registers; policy logs, schedules, forms, and endorsements. Page 6 of18 o. "Other Insurance~' shall mean any other insurance policy issued to Denbury other than. the Policies. p. . "Litigation" shall mean Denbury Resources Inc. et al v. Ironshore Specialty Ins. Co., et ai. Case. No. 2015~09546 currently pending in the 157th Judicial District Court in Harris q."Delhi Incident" shall mean the control of wen and' pollution incident commencing on or about June 13,2013 in the Delhi Field Unit located in the state of Louisiana. r. "Denhury's Claim" shall mean all.insurance claims, notices, demands for defense, indemnity, or any other claim for insurance coverage related to the Delhi Incident. s. "Blended Pollution Endorsement" shall refer to endorsements bearing the fonn number U-UMB-200-A CW (7/99) andlor fonn number U-EXS-200-A-CW (4/99) that were 1. "Insurers" shall collectively refer to Zurich American Insurance Company, ,/ American Guarantee & Liability Insurance Company, Ironshore Specialty Insurance Company; Alterra Excess & Surplus Insurance Company, and Axis Surplus Insurance Company. u. "Underwriting" or "Underwrites" shall meap. the process of determining the acceptability of a particular submission for insurance through evaluation and analysis of the nature and extent of the risk presented, and of detennining the amount, price, and conditions under which the submission is acceptable. Underwriting and Underwrites shall further mean the process of drafting an insurance policy to cover the accepted submission.. v. "Submission" shall mean a proposal for insurance, including but not limited to an Page 7 of18 w. "Adjusting" or "Adjustll or "Adjustment" shall mean administration, handling, evaluation, analysi~, investigation, review, quantification, interpretation, verification, expert consultation, negotiation, or assessment of coverage, damages, quantum, exclusions, warranties, or conditions related to any Claim by any Person, including but not limited to third party x. "On-Lease" shall refer to any surface location covered by a mineral lease where an y. "Claim" shaH mean demand to recover, under a policy of insurance, for loss that· may come within the coverage provided by that policy, including but not limited to demands for defense, demands for indemnity, or any other request for insurance coverage under any insurance policy. "Claim" shall also refer tothe meaning of "claim" contemplated by Texas Insurance Code z. "Claims Adjuster" shall mean any Person who performs Adjusting of a Claim, and includes Your employees and the employees of any third parties performing Adj~sting of a· aa, "Reserve" shall mean an estimate of the value of a Claim or group of Claims not yet paid, including but not limited to an estimate of the amount for which a particular Claim will bb. "Reinsurance" shall mean a transaction in which one party. the "reinsurer." in consideration of a premium paid to it, agrees to indemnify another party, the "reinsured," for part or all of the liability assumed by the reinsured under a policy of insurance that it has' issued. cc. "Energy Market" shall mean Your policyholders or potential policyholders engaged in oil, gas, and petroleum exploration and production operations. Page 8 of18 dd. "Good Faith and Fair D~aling" shall mean the duties imposed by Texas Insurance ee. "Original Proof of Loss" shall refer to Denbury's October 14, 2014 correspondence addressed to Ironshore's attorney, Randell E. Treadaway, and all accompanying· attachments thereto including Denbury's Sworn Proof of Loss to AGLIC executed September 29, 2014, Zurich's October 6, 2014 correspondence to Denbury tendering payment of its $25 million policy limits, and Denbury's Sworn Proof of Loss to Ironshore executed October 14,2014. ff. . "Roberts Litigation" shan refer to the lawsuit captioned Sunflower Cemetery, Inc., et ai. v. Denbury Onshore, LLe, et al., identified with Civil Action N9. 4~629A. pending in the. 5th Judicial District Court for the Parish of Franklin, Louisiana. gg. "Voluntary Payment Clause" shall refer to the provision in Ironshore's Policy that states "The Insured shall not, except at its own expense, settle any claim or suit or incur any defense costs for any an amount to which this Policy applies without the Insurer's written hh. "Updated Proef of Less" shall refer to. Denbury's' February 27, 2015 correspondence addressed to Ironsho.re's attorney, Randell E. Tre.adaway, and all accompanying attachments thereto including Denbury's updated Sworn Proof of Less to. Iro.nshore executed February 27, 2015. ii.· "Owned, Rented, or Occupied Exclusion" shall refer to the pro.vision within t~e Blended Pollution Endorsement of the Umbrella Policy stating "Clean up, removal, containment, I . treatment, detoxification or neutralization of "pollutants n existing at, or under or within the boundaries of any premist}s, site or location owned, rented or occupied by any insured." Page 9 oflS jj. "ANR" shall refer ~o ANR Pipeline Company, and shall include, without limitation, any and all of its parents, subsidiaries, employees, agents and attorneys. kk. "ANR Initial Costs Settlement" shall refer to the Agreement between ANR and Denbury dated December 11,2013 and identified as DRI-SD-5525-5534. 11. "ANR Cut and Cap Settlement" shall refer to th~ Agreement between ANR and Denbury dated September 25.,2013 and identified as DRI-SD-5535~5545. mm. "ANR Tariff Settlement" shall refer to shall referto the Agreement between ANR I and Denbury dated February 9, 2015 and identified as DRI-SD-5717-5726. nn. "Loutre Land Settlement" shall refer to the Agreement be!Ween Loutre Land and j Timber Company and Denburydated June 3, 2014 and identified as DRI-SD-5593-5612. 00. "Impacted Areas" shall refer to any premises, site or location with any discharge, dispersal, seepage, migration, release or escape of any man-made or naturally occurring solid, liquid, gaseous or thermal irritant or contaminant, including but not limited to: smoke; vapor; pp. "Communications" shall mean the transmission, sending, and/or receipt of information of any kind by andlor through any means, whether face-to-face or otherwise, including, but not limited to, speech, writings, language (machine, foreign, or otherwise), or recording. qq. "Document" means all written, typed, or printed matter and all electronic, magnetic, digital, or other records or documentation of any kind or description in your actual possession, custody, or control, including those in the possession, custody, or control of any and aU present or former directors, officers, employees, consultants, accountants, attorneys, or other agents, whether or not prepared by you. "Document" includes, but is not limited to, the Page 10 of18 following: Communications,. policies, schedules, calendars, spreadsheets, letters, reports, charts, diagrams, correspondence, memoranda, notes, rvcords, minutes, contracts, agreements, records or notations of telephone or personal conversations or conferences, interoffice communications, intraoffice communications, e-mail, voicemail, microfilm, bulletins, circulars, pamphlets, photographs, faxes, invoices, recordings, computer printouts, drafts, resumes, logs, and worksheets. . IT. "Electronic" or "magnetic" data means electronic or digital information that is stored in.a medium from which it.can be retrieved and examined. The term refers to the original· (or identical duplicate when the original is not available) and any other copies of the data that may have attached comments, notes, marks, or highlighting of any kind. Electroni~ or magnetic data includes, but is not limited, to, the following: computer programs; operating systems; computer activity logs; programming notes or instructions·; e-mail receipts, messages, .or transmissions; output reSUlting from the use of any software program, including word-processing documents, spreadsheets, database files, charts, graphs, and outlines;. metadata; PIF and PDF files; ,batch files; deleted files; temporary files; Internet- or web-browser-generated information stored in textual, graphical, or audio fonnat, including history files, caches, and cookies; and any miscellaneous files or file fragments. Electronic or magnetic data includes any items stored on magnetic, optical, digital, or other electtonicMstorage media, such as hard drives, floppy disks,· CD-ROMs, DVDs, tapes, smart cards,integrated-circuit cards (e.g., 81M cards), removable media (e.g., Zip drives, thumb drive), microfiche, or punched cards. Electronic or magnetic data also includes the file, folder, tabs, containers, and labels attached to or associated with any Page 11 of18 ss. "E-maU" or "Electronic Mail" shall mean any method of electronic messaging) including any text message and instant-messaging method or ~ervice. tt. The term "each" includes the word "every" and "every>! includes the word "each." , uu. The term "and" includes the word "or" and "or" includes the word "and." vv. The term "including" shall be construed as broadly as possible and shall mean ww. "Person" shall mean any natural person, corporation, firm, association, partnership, joint venture, proprietorship, governmental body, governmental agency, or any other organization, business, or legal entity, and all predecessors or successors in interest. xx. The phrase "related to or discussing," as used herein, shall mean all information and an facts and/or Documents that directly, indirectly orin any other way support, negate, bear upon, touch upon, incorporate, affect, include, pertain to, and/or are otherwise connected with the 1. Acopy of deponent's current resume or curriculum vitae; 2. A copy of deponent's current driver's license or government-issued photo identification; 3. A copy of each and every document reviewed in preparation for Your testimony at the scheduled deposition; I).nd 4. All Documents responsive to Denbury's First and Second Sets of Requests for Production served on May 18, 2015 and August 5, 2015; and 5. All Documents responsive to the Examination Topics listed below. Page 12 of18 3. The risks presented by Denbury's operations. 8. The caseAspen Ins. UK., Ltd. v. Dune Energy, Inc., 400 Fed. Appx. 960 (5th Cir. 2010). 9. The case Pioneer Exploration, LLC v. Steadfast Ins. Co., 2013 WL 3557541 (W.D. La. 2013). ) 10. The case Pioneer Exploration, L.L.c. v. Steadfast Ins. Co., 767 FJd 503 (5th Cir. 2014). ll. Ironshore's application of the Aspen Ins. UK., Ltd. v. Dune Energy, Inc., 400 Fed. Appx. 960 (5th Cir. 2010) decision to its liability policies. 12. Ironshore's application of the Pioneer Exploration, LLC v. Steadfast Ins. Co., 2013 WL 3557541 (W.D. La. 2013) decision to its liability policies. 13. Ironshore's application ofthe Pioneer Exploration, L.L.C. v. Steadfast Ins. Co., 767 F.3d 503 (5th Cir. 2014) decision to its liability policies. 15. Ironshore' ~ Communications with Denbury's Insurers. 16. Ironshore's review of any Adjustment of Denbury's Claim. V) 19. Ironshore's relationship with Denbury. M '+-< 0 0\ 20. Ironshore's Communications with Denbury. N S ::l u 0 0 "0 25. All Documents exchanged between Ironshore and any Person related to the Litigation. 29. Ironshore's Underwriting of the Ironshore Policy forms. 30. Ironshore's understanding of AGLIC's Underwriting ofilieUmbrellaPolicy. 31. All Communications ,between Ironshore and AGLIC regarding AGUe's Underwriting of the Umbrella Policy 32. Ironshore's understanding of Blended Pollution Endorsement Form U-UMB-200-A CW (7/99). 33. Ironshore's understanding of Blended Pollution Endorsement Form U-EXS-200~A-CW (4/99). 34. Ironshore's Adjustment of Claims under its liability policies. '+-< 0 0 41. Ironshore's selection of Claims Adjusters for DenburY's Claim. C') .-< C') S ;:l u 0 0 '"0 46." Denhury's Updated Proof of Loss. 47. Ironshore's evaluation ofDenbuty's Original Proof of Loss. 48. Ironshore's evaluation of Denbury's Updated Proof of Los!!. 51. Ironshore's decision to deny Denbury defense and indemnity for the Roberts Litigation. 53. Ironshore's evaluation ofllie ANR Initial Costs Settlement. 54. Ironshore's detennination that AGUe's payment of the ANR Initial Costs Settlement does not erode the limits ofthe Umbrella Policy. "55. The ANR Cut and Cap Settlement. 56. Ironshore's evaluation ofllie ANR Cut and Cap Settlement. 57. Ironshore's detennination that AGUC's payment of the ANR Cut and Cap Settlement does not erode the limits of the Umbrella Policy. 60. .Ironshore's decision to deny coverage for the ANR Tariff Settlement. 61. Ironshoie's Adjustment of On-Lease costs claimed by other E~ergy Market policyholders against Other liabilitY Policies. " V) M 4-< 62. Ironshore's Adjustment of On-Lease costs in Denbury's Claim. 0 ""' Y) I)) 63. All Documents relied upon by Ironshore in its Adjustment of Denbury's Claim. M :' ~ 64. All Persons consulted by Ironshore in its Adjustment of Denbury's Claim. f "\ , ) The Loutre Land Settlement. . ) I 65. 66. Ironshore's evaluation of the Loutn~ Land Settlement. " Page 15 of is I, Chris Damel, District Clerk ofHanis County, Texas ce1tify that this is a tme and con-ect copy of the original record :f:dedand or recorded in my office, electronically or hard copy, as it appears OIl this date. VlJ.tness my official hand and seal of office this October 22.2015 Certified Docmnent Number: 67258531 Chris Daniel, DISTRICT CLERK H..A.XRIS COUNIT, TEX~ In ::u::c,ordance with Texas Govenu:llent Code 406.013 electronically transmitted authenticated documents are vaid. H there is a question regarding the validity of this document and or seal please e-cmail support@hcdisb'ictclerkcom 9/18/20154:49:41 PM Chris Daniel - District Clerk Harris County Envelope No. 7001862 By: KATINA WilLIAMS Filed: 9/18/20154:49:41 PM DENBURY RESOURCES INC. and § IN THE DISTRlCT COURT DENBURY ONSHORE, LLC § § Plaintiffs § VS. § 1571h JUDICIAL DISTRICT § JRONSHORE SPECIALTY INSURANCE § COMPANY, ALTERRAEXCESS & § SURPLUS INSURANCE COMPANY, § AXIS SURPLUS INSURANCE § HARRIS COUNTY, TEXAS COMPANY, and MARSH USA INC. § § Defendants § IRONSHORE SPECIALTY INSURANCE COMPANY'S MOTION FOR PROTECTIVE ORDER AND OBJECTIONS TO PLAINTIFFS' NOTICE OF ORAL AND VIDEOTAPED DEPOSITION AND REQUEST FOR DOCUMENTS OF THE \ DESIGNATED CORPORATE REPRESENTATlVE(S) OF F.A. RICHARD & ASSOCIATES, INC. ("FARA") TO THE HONORABLE JUDGE OF THIS COURT: COMES NOW, Defendant, Ironshore Specialty Insurance Company (hereinafter "Defendant" or "Ironshore"), appearing by and through the assistance of undersigned counsel of record, and files this Motion for Protective Order and Objections to Plaintiffs' Notice of Oral and Videotaped Deposition and Request for Documents of the Designated Corporate Representative(s) ofF.A. Richard & Associates, Inc. ("FARA") and in support thereof will show unto the Court the following: This is an insurance coverage dispute arising out of a weI! blowout that occurred in northeastern Louisiana on or about June 13, 2013. In their current live pleading, Plaintiffs Denbury Resources Inc. and Denbury Onshore, LLC (hereinafter "Plaintiffs" or "Denbury") assert they selected umbrella insurance policies, based on insurance broker Marsh USA, Inc.'s EXHIBIT recommendations, to cover such losses as those Denbury experienced as a result of the well blowout in northeastern Louisiana, known as the Delhi Incident. Plaintiffs seek a declaratory judgment that Ironshore, Alterra Excess & Surplus Insurance Company, and AXIS Surplus Insurance Company must indemnify Denbury for costs and expenses, not recoverable under the well control policy, and in excess of the underlying policies that Denbury incurred in responding to the pollution resulting from the Delhi Incident. Plaintiffs also assert claims for breach of On September 3, 2015, Plaintiffs noticed the oral and videotaped deposition of the corporate representative of F.A. Richard & Associates, Inc. ("FARA") for the agreed upon date and time of October 21, 2015 at 1:00 p.m. at the law offices of Pillsbury Winthrop Shaw Pittman, LLP, 1540 Broadway Avenue, New York, New York 10036. A copy of the Notice of Oral and Videotaped Deposition and Request for Documents of the Designated Corporate Representative( s) ofF.A. Richard & Associates, Inc. ("FARA") is attached hereto as Exhibit "A". The parties have agreed to a date, time and location; however, the parties are unable to agree to the scope of the deposition. Counsel for Ironshore and Denbury have in good faith attempted to resolve this matter by correspondence as well as personal discussions, but are unable to resolve all of the issues. Ironshore's counsel presented Denbury's counsel with draft objections to certain examination topics out of the 154 served topics on September 10, 2015, and counsel held a telephonic conference on September 15, 2015 in an attempt to resolve specific issues and objections to certain topics. Ironshore now files this Motion for Protective Order and Objections regarding those examination topics that could not be resolved. 2 II. Ironshore objects to Examination Topic Numbers 1,2,3,4,5,6,7,8,9,10,11,12,13,14, 15,16, 17, 1~28,2~30,31,32,33,34,35,36,37,38,39,40,44,46,48,50,51,52,53,54,55, 56,57,58,59,81,84,100,101,102,103,107,108,114,115,116, 117,118,119,120,121,122, 123, 124, 125, 126,127, 128, 129, 130, 131, 132, 133,134, 135, 136, 137, 138, and 154 listed in Denbury's deposition notice attached hereto as Exhibit "A" on the following grounds: RESPONSE: Ironshore objects to tbis topic on the grounds that it is overbroad and not limited in scope to the issues made the basis of this lawsuit. Ironshore further objects pursuant to Rule 199.2 of the Texas Rules of Civil Procedure as the topic does not describe with reasonable particularity the matter on which examination is requested. RESPONSE: Ironshore objects to this topic on the grounds that it is overbroad and not limited in scope to the issues made the basis of this lawsuit. Inmshore further objects pursuant to Rule 199.2 of the Texas Rules of Civil Procedure as the topic does not describe with reasonable particularity the matter on which examination is requested. RESPONSE: Ironshore objects to this topic on the grounds that it is overbroad and not limited in scope to the issues made the basis of this lawsuit. Ironshore further objects pursuant to Rule 199.2 of the Texas Rules of Civil Procedure as the topic does not describe with reasonable particularity the matter on which examination is requested. RESPONSE: Ironshore objects to this topic pursuant to Rule 199.2 ofthe Texas Rules of Civil Procedure as it does not describe with reasonable particularity the matter on which examination is requested. 3 RESPONSE: Ironshore objects to this topic pursuant to Rule 199.2 of the Texas Rules of Civil Procedure as it does not describe with reasonable particularity the matter on which examination is requested. RESPONSE: lronshore objects to this topic on the grounds that it seeks information that is not relevant to this lawsuit and not reasonably calculated to lead to the discovery of admissible evidence. Further, the topic is overbroad and, pursuant to Rule 199.2 of the Texas Rules of Civil Procedure, it does not describe with reasonable particularity the matter on which examination is requested. RESPONSE: Ironshore objects to this topic on the grounds that it is overbroad and pursuant to Rule 199.2 of the Texas Rules of Civil Procedure as it does not describe with reasonable particularity the matter on which examination is requested. 8. The case Aspen Ins. UK, Ltd. v. Dune Energy, Inc., 400 Fed. Appx. 960 (5 th Cir. 2010). RESPONSE: Ironshore objects to this topic on the grounds that it is overly broad and exceeds the scope of discovery as it calls for a legal conclusion from a corporate representative concerning case law. 9. The case Pioneer Exploration, LLC v. Steadfast Ins. Co., 2013 WL 3557541 (W.D. La. 2013). RESPONSE: Ironshore objects to this topic on the grounds that it is overly broad and exceeds the scope of discovery as it calls for a legal conclusion from a corporate representative concerning case law. 10. The case Pioneer Exploration, L.L.c. v. Steadfast Ins. Co., 767 F.3d 503 (5 th Cif. 2014). RESPONSE: Ironshore objects to this topic on the grounds that it is overly broad and exceeds the scope of discovery as it calls for a legal conclusion from a corporate representative concerning case law. 11. FARA's application of the Aspen Ins. UK, Ltd. v. Dune Energy, Inc., 400 Fed. Appx. 960 (5 th Cir. 2010) decision to the Ironshore Policy. RESPONSE: Ironshore objects to this topic on the grounds that it is overly broad and exceeds the scope of discovery as it cans for a legal conclusion from a corporate representa!ive concerning case law. 12. FARA's application of the Aspen Ins. UK, Ltd. v. Dune Energy, Inc., 400 Fed. Appx. 960 (5 th Cir. 2010) decision to Other Liability Policies. 4 RESPONSE: Ironshore objects to this topic on the grounds that it is overly broad and exceeds the scope of discovery as it calls for a legal conclusion from a corporate representative concerning case law and its application to policies not at issue in the present lawsuit. Therefore, this topic is not relevant to the subject matter at hand. 13. FARA's application of the Pioneer Exploration, LLC v. Steadfast Ins. Co., 2013 WL 3557541 (W.D. La. 2013) decision to the Ironshore Policy. RESPONSE: Ironshore objects to this topic on the grounds that it is overly broad and exceeds the scope of discovery as it calls for 11 legal conclusion from a corporate representative concerning case law. 14. FARA's application of the Pioneer Exploration, LLC v. Steadfast Ins. Co., 2013 WL 3557541 (W.D. La. 2013) decision to Other Liability Policies. RESPONSE: Ironshore objects to this topic on the grounds that it is overly broad and exceeds the scope of discovery as it calls for a legal conclusion from a corporate representative concerning case law and its application to policies not at issue in the present lawsuit. Therefore, this topic is not relevant to the subject matter at hand. 15. FARA's application of the Pioneer Exploration, L.L. C. v. Steadfast Ins. Co., 767 F.3d 503 (5 th Cir. 2014) decision to the Ironshore Policy. RESPONSE: Ironshore objects to this topic on the grounds that it is overly broad and exceeds the scope of discovery as it calls for a legal conclusion from a corporate representative concerning case law. 16. FARA's application of the Pioneer Exploration, L.L.c. v. Steadfast Ins. Co., 767 F.3d 503 (5 th Cir. 2014) decision to the Other Liability Policies. RESPONSE: Ironshore objects to this topic on the grounds that it is overly broad and exceeds the scope of discovery as it caUs for a legal conclusion from a corporate representative concerning case law and its application to policies not at issue in the present lawsuit. Therefore, this topic is not relevant to the subject matter at hand. RESPONSE: Ironshore objects to this topic pursuant to Rule 199.2 of the Texas Rules of Civil Procedure as it does not describe with reasonable particularity the matter on which examination is requested. Ironshore further objects because this examination topic seeks information that is protected by the joint defense privilege. RESPONSE: Ironshore objects because this examination topic seeks information that is protected by the joint defense privilege. 5 28. All Documents exchanged between Ironshore and any Person related to Denbury. RESPONSE: Ironshore objects to this topic on the grounds that it is overbroad and pursuant to Rule 199.2 of the Texas Rules of Civil Procedure as it does not describe with reasonable particularity the matter on which examination is requested. Ironshore furfher objects because this examination topic seeks information that is protected by the attorney-client and work product privileges and the joint defense privilege. 29. All Documents exchanged between Ironshore and any Person related to Denbury's Claim. RESPONSE: Ironshore objects to this topic on the grounds that it is overbroad and pursuant to Rule 199.2 of the Texas Rules of Civil Procedure as it does not describe with reasonable particularity the matter on which examination is requested. Inmshore further objects because this examination topic seeks information that is protected by the attorney-client and work product privileges and the joint defense privilege. 30. All Documents exchanged between Ironshore and any Person related to the Delhi Incident. RESPONSE: Ironshore objects to this topic on the grounds that it is overbroad and pursuant to Rule 199.2 of the Texas Rules of Civil Procedure as it does not describe with reasonable particularity the matter on which examination is requested. Ironshore further objects because this examination topic seeks information that is protected by the attorney-client and work product privileges and the joint defense privilege. 31. All Documents exchanged between lronshore and any Person related to the Policies. RESPONSE: Ironshore objects to this topic on the grounds that it is overbroad and pursuant to Rule 199.2 of the Texas Rules of Civil Procedure as it does not describe with reasonable particularity the matter on which examination is requested. Ironshore further objects because this examination topic seeks information that is protected by the attorney-client and work product privileges and the joint defense privilege. 7 32. All Documents exchanged between Ironshore and any Person related to the Litigation. '- 0 \0 RESPONSE: Ironshore objects to this topic on the grounds that it is overbroad and (1) 01) ('j pursuant to Rule 199.2 of the Texas Rules of Civil Procedure as it does not describe 0... with reasonable particularity the matter on which examination is requested. N r<) Ironshore further objects because this examination topic seeks information that is on protected by the attorney-client and work product privileges and the joint defense 00 on N privilege. r-- \0 ;..; (1) ~ E :::s 6 ;z: ..- c(1) E :::s u 0 0 "0 (1) t;:: 't (1) u 33. All Documents exchanged between FARA and any Person related to Denbury. RESPONSE: Ironshore objects to this topic on the grounds that it is overbroad and pursuant to Rule 199.2 of the Texas Rules of Civil Procedure as it does not describe with reasonable particularity the matter on which examination is requested. Ironshore further objects because this examination topic seeks information that is protected by the attorney-client and work product privileges and the joint defense privilege. 34. All Documents exchanged between FARA and any Person related to Denbury's Claim. RESPONSE: Ironshore objects to this topic on the grounds that it is overbroad and pursuant to Rule 199.2 of the Texas Rules of Civil Procedure as it does not describe with reasonable particularity the matter on which examination is requested. Ironshore further objects because this examination topic seeks information that is protected by the attorney-client and work product privileges and the joint defense privilege. 35. All Documents exchanged between FARA and any Person related to the Delhi Incident. RESPONSE: Ironshore objects to this topic on the grounds that it is overbroad and pursuant to Rule 199.2 of the Texas Rules of Civil Procedure as it does not describe with reasonable particularity the matter on which examination is requested. Ironshore further objects because this examination topic seeks information that is protected by the attorney-client and work product privileges and the joint defense privilege. 36. All Documents exchanged between FARA and any Person related to the Policies. RESPONSE: Ironshore objects to this topiC on the grounds that it is overbroad and pursuant to Rule 199.2 of the Texas Rules of Civil Procedure as it does not describe with reasonable particularity the matter on which examination is requested. Ironshorefurther objects because this examination topic seeks information that is protected by the attorney-client and work product privileges and the joint defense privilege. 37. All Documents exchanged between FARA and any Person related to the Litigation. 4- c..- RESPONSE: Ironshore objects to this topic on the grounds that it is overbroad and o r-. pursuant to Rule 199.2 of the Texas Rules of Civil Procedure as it does not describe ;::l u 0 0 "d RESPONSE: Ironshore objects to this topic on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to the discovery of admissible evidence. 39. Ironshore's understanding of Blended Pollution Endorsement Form U-UMB-200-A CW (7/99), RESPONSE: Ironshore objects to this topic on the grounds that it calls for speculation from FARA's corporate representatIve on Ironshore's understanding of an endorsement. 40. Ironshore's understanding of Blended Pollution Endorsement Form U-EXS-200-A-CW (4/99). RESPONSE: Ironshore objects to this topic on the grounds that it calls for speculation from FARA's corporate representative on Ironshore's understanding of an endorsement. Ironshore also objects to this topic on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to the discovery of admissible evidence. This Blended Pollution Endorsement Form U-EXS-200-A-CW (4/99) is not contained in the contrOlling underlying policy. The correct form is Blended Pollution Endorsement Form U- UMB-200-A CW (7/99). 44. Ironshore's direction of the Adjustment of Claims under its liability policies, RESPONSE: Ironshore objects that this examination topic is not limited to the coverage issues in this lawsuit particular to Denbury's claims for coverage under the Ironshore policy at issue and therefore seeks information that is not relevant and not reasonably calculated to lead to the discovery of admissible evidence. 46. Ironshore's Adjustment of Claims under its liability policies. RESPONSE: Ironshore objects that this examination topic is not limited to the coverage issues in this lawsuit particular to Denbury's claims for coverage under the '1" Ironshore policy at issue and therefore seeks information that is not relevant and not '"'- 0 reasonably calculated to lead to the discovery of admissible evidence. 00 v bJ) ro 48. FARA's Adjustment of Claims under Other Liability Policies. 0.. N r<) RESPONSE: Ironshore objects that this examination topic is not limited to the on 00 coverage issues in this lawsuit particular to Denbury's claims for coverage under the on N t-- Ironshore policy at issue and therefore seeks information that is not relevant and not \0 l..: reasonably calculated to lead to the discovery of admissible evidence. v .!::J E ;:l ;Z 8 ..... .: v E ;:l u 0 Q "0 v t;:: 'f: v U 50. Ironshore' s review of any Submission for the Policies. RESPONSE: Ironshore objects to this topic on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to the discovery of admissible evidence. RESPONSE: Ironshore objects to this topic on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to the discovery of admissible evidence. RESPONSE: Ironshore objects to this topic on the grounds that it calls for speculation from FARA's corporate representative on Ironshore's reinsurance. Ironshore also objects to this topic on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving the foregoing objections, after conducting a reasonable investigation no employee of F ARA is familiar with this topic. RESPONSE: Ironshore objects to this topic on the grounds that it calls for speculation from FARA's corporate representative on Ironshore's reinsurance. Ironshore objects to this topic on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving the foregoing objections, after conducting a reasonable investigation no employee of FARA is familiar with this topic. RESPONSE: . Ironshore objects to this topic on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to the discovery of admissible evidence. RESPONSE: Ironshore objects to this topic on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to ·the discovery of admissible evidence. 56. Iron~hore's selection of Claims Adjusters for Denbury's Claim. 9 RESPONSE: Ironshore objects to this topic on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to the discovery Qf admissible evidence. RESPONSE: Ironshore objects to this topic on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to the discovery of admissible evidence. RESPONSE: Ironshore objects to this topic on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to the discovery of admissible evidence. 59. FARA's selection of Claims Adjusters for Denbury's Claim. RESPONSE: Ironshore objects to this topic on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to the discovery of admissible evidence. 81. FARA's Adjustment of On-Lease costs claimed by other Energy Market policyholders against Other Liability Policies. RESPONSE: Ironshore objects to this topic on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to the discovery of admissible evidence. 84. All Persons consulted by FARA in its Adjustment of Denbury's Claim. RESPONSE: Ironshore objects because this examination topic seeks information that is protected by the attorney-client and work product privileges. Subject to and without waiving the foregoing objections, Defendant will provide a witness to testify as to non-privileged information pertaining to this topic. 100. Ironshore's Communications with any Person regarding Denbury's Claim. RESPONSE: Ironshore objects because this examination topic seeks information that is protected by the attorney-client privilege and the joint defense privilege. SUbject to and without waiving the foregoing objections, Defendant will provide a witness to testify as to non-privileged information pertaining to this topic. 101. Ironshore's Communications with any Person regarding the Delhi Incident. 10 RESPONSE: Ironshore objects because this examination topic seeks information that is protected by the attorney-client privilege and the joint defense privilege. Subject to and without waiving the foregoing objections, Defendant will provide a witness to testify as to non-privileged information pertaining to this topic. 102. FARA's Communicat,ions with any Person regarding Denbury's Claim. RESPONSE: Ironshore objects because this examination topic seeks information that is protected by the attorney-client privilege and the joint defense privilege. Subject to and without waiving the foregoing objections, Defendant will provide a witness to testify as to non-privileged information pertaining to this topic. 103. FARA's Communications with any Person regarding the Delhi Incident. RESPONSE: Ironshore objects because this examination topic seeks information that is protected by the attorney-client privilege and the jOint defense privilege. Subject to and without waiving the foregoing objections, Defendant will provide a witness to testify as to non-privileged information pertaining to this topic. 107. Ironshore's ReselVes for Denbury's Claim. RESPONSE: Ironshore objects to this topic on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to the discovery of admissible evidence. 108. Ironshore's marketing of the Ironshore Policy forms to the Energy Market. RESPONSE: Ironshore objects to this topic on the grounds that the information sought is not relevant to tbe subject matter at hand, nor is it reasonably calculated to lead to the discovery of admissible evidence. RESPONSE: Ironshore objects to this topic on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to the discovery of admissible evidence. -- RESPONSE: Ironshore objects to this topic on the grounds that the information sought is not relevant to the subject matter at band, nor is it reasonably calculated to lead to the discovery of admissible evidence. 116. Ironshore's reporting of complaints under Tex. Ins. Code Sec. 542.006 et seq. over the last five years. 11 RESPONSE: Ironshore objects to this topic on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to the discovery of admissible evidence. This topic is tantamount to a fishing expedition, which is expressly prohibited by the Texas Rules of Civil Procedure. 117. Ironshore's compliance with Texas Ins. Code Sec. 542.005 - 542.012 over the last five years. RESPONSE: Ironshore objects to this topic on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to the discovery of admissible evidence. This topic is tantamount to a fishing expedition, which is expressly prohibited by the Texas Rules of Civil Procedure. 118. All complaints filed against Ironshore under Texas Ins. Code Sec. 542.005 over the last five years. RESPONSE: Ironshore objects to this topic on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to the discovery of admissible evidence. This topic is tantamount to a fishing expedition, which is expressly prohibited by the Texas Rules of Civil Procedure. 119. All complaints filed against other insurers under Texas Ins. Code Sec. 542.005 relating to or discussing FARA's Adjustment of a Claim over the last five years. RESPONSE: Ironshore objects to this topic on the groundS that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to the discovery of admissible evidence. This topic is tantamount to a fishing expedition, which is expressly prohibited by the Texas Rules of Civil Procedure. 120. All petitions filed against Ironshore in any Texas state offederal court by an Energy Market policyholder within the last five years. RESPONSE: Ironshore objects to this topic on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to the discovery of admissible evidence. This topic is tantamount to a fishing expedition, which is expressly prohibited by the Texas Rules of Civil Procedure. "T '+- 12l. All petitions filed by Ironshore in any Texas state or federal court against an Energy Market N 0 policyholder within the last five years. E ~ u 0 0 "0 RESPONSE: Ironshore objects to this topic on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to the discovery of admissible evidence. This topic is tantamount to a fishing expedition, which is expressly prohibited by the Texas Rules of Civil Procedure. 123. All petitions fIled by Ironshore in any Louisiana state or federal court against an Energy Market policyholder within the last five years. RESPONSE: Ironshore objects to this topic on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to the discovery of admissible evidence. This topic is tantamount to a fishing expedition, which is expressly prohibited by the Texas Rules of Civil Procedure. 124. All petitions filed against FARA in any Texas state or federal court by an Energy Market policyholder within the last five years. RESPONSE: Ironshore objects to this topic on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to the discovery of admissible evidence. This topic is tantamount to a fishing expedition, which is expressly prohibited by the Texas Rules of Civil Procedure. 125. All petitions flIed against FARA in any Louisiana state or federal court by an Energy Market policyholder within the last five years. RESPONSE: Ironshore objects to this topic on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to the discovery of admissible evidence. This topic is tantamount to a fishing expedition, which is expressly prohibited by the Texas Rules of Civil Procedure. 126. Ironshore's payments to FARA. RESPONSE: Ironshore objects to this topic on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to the discovery of admissible evidence. 127. FARA's invoices to Ironshore. RESPONSE: Ironshore objects to this topic on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to the discovery of admissible evidence. 128. Ironshore's payments to any Person related to the Policies. 13 ...- s:: Cl) E ::l U o Cl "0 Cl) 1.;: 'f: Cl) U RESPONSE: Ironshore objects to this topic on the grounds that it concerns matters irrelevant to the subject matter of the pending action and seeks testimony that is not reasonably calculated to lead to the discovery of admissible evidence. Ironshore further objects because this examination topic seeks information that is protected by the attorney-client privilege. 129. PARA's payments from any Person related to the Policies. RESPONSE: Ironshore objects to this topic on the grounds that it concerns matters irrelevant to the subject matter of the pending action and seeks testimony that is not reasonably calculated to lead to the discovery of admissible evidence. Ironshore further objects because this examination topic seeks information that is protected by the attorney-client privilege. 130. PARA's payments to any Person related to the Policies. RESPONSE: Ironshore objects to this topic on the grounds that it concerns matters irrelevant to the subject matter of the pending action and seeks testimony that is not reasonably calculated to lead to the discovery of admissible evidence. Ironshore further objects because this examination topic seeks information that is protected by the attorney-cHent privilege. 131. Any agreements between Ironshore and any Person related to Denbury's Claim. RESPONSE: Ironshore objects to this topic on the grounds that it concerns matters irrelevant to the subject matter of the pending action and seeks testimony that is not reasonably calculated to lead to the discovery of admissible evidence. Ironshore further objects because this examination topic seeks information that is protected by the attorney-client privilege and the joint defense privilege. 132. Any agreements between Ironshore and any Person related to the Litigation. RESPONSE: Ironshore objects to this topic on the grounds that it concerns matters irrelevant to the subject matter of the pending action and seeks testimony that is not reasonably calculated to lead to the discovery of admissible evidence. Ironshore further objects because this examination topic seeks information that is protected by .,. the attorney-client privilege and the jOint defense privilege . <.;... .,. 0 133 . Any agreements between Ironshore and any Person related to the Delhi Incident. (l) OJ) ro RESPONSE: Ironshore objects to this topic on the grounds that it concerns matters 0. irrelevant to the subject matter of the pending action and seeks testimony that is not 01 reasonably calculated to lead to the discovery of admissible evidence. Ironshore r') tr) 00 tr) further objects because this examination topic seeks information that is protected by 01 t"- the attorney-dient privilege and the joint defense privilege. '-0 ;..: (l) ..D E ::l :z 14 ...- ::: (l) E ::l U 0 0 "0 (l) t;::: 'f: (l) u 134. Any insurance policy that may defend or indemnify Ironshore in the Litigation. RESPONSE: Ironshore objects to this topic on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving the foregoing objections, after conducting a reasonable investigation no employee of FARA is familiar with this topic. 135. Any agreements between FARA and any Person related to Denbury's Claim . . RESPONSE: Ironshore objects to this topic on the grounds that it concerns matters irrelevant to the subject matter of the pending action and seeks testimony thatis not reasonably calculated to lead to the discovery of admissible evidence. Ironshore further objects because this examination topic seeks information that is protected by the attorney-dient privilege and the joint defense privilege. 136. Any agreements between FARA and any Person related to the Litigation. RESPONSE: Ironshore objects to this topic on the grounds that it concerns matters irrelevant to the subject matter of the pending action and seeks testimony that is not reasonably calculated to lead to the discovery of admissible evidence. Ironshore further objects because this examination topic seeks information that is protected by the attorney-client privilege and the joint defense privilege. 137. Any agreements between FARA and any Person related to the Delhi Incident. RESPONSE: Ironshore objects to this topic on the grounds that it concerns matters irrelevant to the subject matter of the pending action and seeks testimony that is not reasonably calculated to lead to the discovery of admissible evidence. Ironshore further objects because this examination topic seeks information that is protected by the attorney-client privilege and the joint defense privilege. 138. Any insurance policy that may defend or indemnify FARA in the Litigation. RESPONSE: Ironshore objects to this topic on the grounds that the information sought is not relevant to the subject matter at hand, nor is it reasonably calculated to lead to the discovery of admissible evidence. FARA is not a party to this lawsuit. "1' <.;- 0 tn 154. All Documents responsive to each and every written discovery request Denbury has served 112. Ironshore's obligations as an Insurer under Texas law. 113. FARA's duties under Texas law. 140. Ironshore's obligations under Texas law. 141. Ironshore's performance of its obligations to Denbury. See Ex. A., p. 18-19. These topics are repetitive and should be combined andlor withdrawn. Ironshore further objects to Request for Documents No.4. contained within Denbury's deposition notice: "AU Documents res.ponsive to Denbury's First and Second Sets of Requests for Production served on May 18,2015 and August 5, 2015." See Ex. A, p. 12. Ironshore objects to the production of any document that was objected to and not produced in response to a request for production of documents. Ironshore served its Responses and Objections to Denbury's First Set of Requests for Production on July 17, 2015 and to Denbury's Second Set of Requests for Production on September 4, 2015. Accordingly, this request for documents is duplicative and m. Under Texas Rules of Civil Procedure 192.6(b), the Court can issue a protective order in the interest of justice "to protect the movant from undue burden, harassment, [and] annoyance."] If necessary, the Court can order that "the requested discovery not be sought."2 Rule 176.7 also requires the Court to protect Ironshore's corporate representative from any undue burden or hardship that its proposed deposition would cause. 3 The Court may prohibit the party seeking 1 Tex. R. Civ. P. 192.6(b). 2 Tex. R. Civ. P. 192.6(b)(1). 3 Tex. R. Civ. P. 176.7. 16 discovery from proceeding with the request, limit the extent or subject of the request, or otherwise set the terms and conditions under which the party may proceed. 4 Plaintiffs' deposition notice includes 154 topics that range from policy reserves and Denbury's operations to petitions filed against FARA and FARA's invoices to Ironshore. As identified above, certain areas of Plaintiffs' inquiry are objectionable for several reasons. Ironshore objects to the above noted examination topics and moves that the Court strike the objectionable topics from the notice. WHEREFORE, PREMISES CONSIDERED, Defendant, Ironshore Specialty Insurance Company prays that this Motion for Protective Order and Objections to Plaintiffs' Notice of Oral and Videotaped Deposition and Request for Documents of the Designated Corporate Representative(s) of F.A. Richard & Associates, Inc. ("F ARA") in all things be granted, that Ironshore's objections to Plaintiffs' proposed Examination Topics be sustained, that Plaintiffs be ordered to not inquire into these subject matters, and Defendant requests all other relief to which it may be entitled. By: /s/ James D. Johnson Mark C. Clemer Texas Bar No. 04372300 James D. "J.D." Johnson Texas BarNo. 24085918 Michelle Richard Texas BarNo. 24093037 N <") Tenth Floor If) 00 If) 1177 West Loop South N r--- Houston, Texas 77027-9007 \0 ;...: Randell E. Treadaway (admitted pro hac vice) LA Bar No. 01624 Brad D. Ferrand (admitted pro hac vice) LA Bar No. 29860 ZAUNBRECHER TREADAWAY, L.L.C. 406 N. Florida Street, Suite 2 Covington, Louisiana 70433-2907 Telephone: (985) 871-8787 Telefax: (985) 871-8788 randy@ztlalaw.com brad@ztlalaw.com COUNSEL FOR DEFENDANT IRONSHORE SPECIALTY INSURANCE COMPANY This will certify that counsel for Ironshore and counsel for Denbury have discussed, by telephone, limiting the topics for this deposition. To date, no agreement has been reached on all of the aforementioned issues, so the matter is presented to the Court. "T '+-< 0 00
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This will certify that a true and correct copy of the foregoing pleading has been sent to all counsel of record via U.S. regular mail and/or e-mail on this the 18th day of September 2015: Phillip D. Nizialek, T.A. Sarah E. Stogner Jacqueline M. Brettner CARVER, DARDEN, KORETZKY, TESSIER, FINN, BLOSSMAN & AREAUX, LLC 1100 Poydras St., Ste. 3100 New Orleans, LA 70163 Phone: (504) 585-3800 Fax: (504) 585-3801 nizialek@carverdarden.com stogner@carverdarden.com brettner@carverdarden.com Counsel for Plaintiffs Michael S. Knippen David Rock James M. Eastham TRAUB, LIEBERMAN, STRAUS & SHREWSBERRY, LLP 303 W. Madison, Suite 1200 Chicago, Illinois 60606 Phone: (312) 332-3900 Fax: (312) 332-3908 mknippen@traublieberman.com drock@traublieberman.com jeastham@traublieberman.com Counsel for Defendant Axis Surplus Insurance Company C. Henry Kollenberg Melinda M. Riseden CRAIN, CATON & JAMES, P.c. 1401 McKinney Street 17th Floor, Five Houston Center Houston, Texas 77010 Phone: (713) 658-2323 Fax: (713) 658-1921 hkollenberg@craincaton.com mriseden@craincaton.com Counsel for Defendant Marsh USA, Inc. 19 Marc J. Wojciechowski WOJCIECHOWSKI &ASSOCIATES,P.C. 1747 Kuykendahl Road, Suite 200 Spring, Texas 77379 Phone: (281) 999-7774 Fax: (281) 999-1953 marc@wojolaw.com and Michael D. Mulvaney Christopher C. Frost Josh B. Baker MAYNARD, COOPER & GALE, P.C. 2400 Regions/Harbert Plaza 1901 Sixth Avenue North Birmingham, AL 35203 Fax: (205) 254-1999 mmulvaney@maynardcooper.com cfrost@maynardcooper.com jbaker@maynardcooper.com Counsel for Defendant Alterra Excess & Surplus Insurance Company /s/ James D. Johnson James D. "J.D." Johnson 4" '- 0 0 N (l) CfJ «:j 0.. N C<) V) 00 V) N r- \0 i..: (l) .D E ;:! ;z: 20 ...., s::: (l) E ;:! u 0 Q "0 (l) t.;: 'E (l) u CAUSE NO. 2015-09546 DENBURY RESOURCES INC. and IN THE DISTRICT COURT DENBURY ONSHORE, LLC Plaintiffs, ~SCOUNTY,TEXAS v. mONSHORE SPECIALTY INSURANCE COMPANY, ALTERRA EXCESS & 157tb JUmCIAL DISTRICT SURPLUS INSURANCE COMPANY, AJaSSURPLUSINSURANCE COMPANY, AND MARSH USA INC. NOTICE OF ORAL AND VIDEOTAPED DEPOSITION AND REQUEST FOR DOCUMENTS OF THE DESIGNATED CORPORATE REPRESENTATIVE(S) OF F.A. RICHARD & ASSOCIATES, INC. ("FARA") TO: FA. Richard & Associates,Inc. through its attorneys of record, Mark C. Clemer James D. Johnson Brown Sims, P.C. 1177 West Loop South Tenth Floor Houston, Texas 77027 -And- Randell E. Treadaway' Brad D. Ferrand Michelle O'Daniels Zaunbrecher Treadaway, LLC 406 N: Florida Street~ Suite 2 Covington, Louisiana 70443 1. PLEASE TAKE NOTICE that, pursuant to Texas Rule of Civil Procedure 199.2(b)(1) and 199.2(b)(5), Denbury Resources Inc. and Denbury Onshore, LLC, will take the oral and videotaped EXHIBIT ,- deposition of the designated. Corporate Representative of FA Richard & AssoCiates, Inc. (''PARA''), on October 21, 2015, commencing at 1:00 p.m. at the law offices of Pillsbury Winthrop Shaw Pittman, LLP, 1540 Broadway Avenue, New York, New York 10036, by agreement of the parties. n. PARA's designee(s) is further directed to produce responsive documents to the requests listed in Exhibit (:4" within thirty (30) days of service of this notice. m. The deposition will continue from day to day until completed. IV. The deposition will be recorded stenographically and on videotape. The stenographic and video recordings will be conducted by Kay E. Donelly & Associates. P I P . NIZIALEK, T.A. (#15045250) SARAH E. STOGNER (#24091139) JACQUELINE M. BRE'ffNER (pro hac vice) Carver, Darden, Koretzky, Tessier, Finn, Blossman, & Areaux, L.L.C. 1100 Poydras Street, Suite 3100 New Orleans, Louisiana 70163 Telephone: (504) 585-3800 Facsimile: (504) 585-3801 Email: nizialek@carverdarden.com stogner@carverdarden.com brettner@carverdarden.com Counsel for Plaintiffs Page 2 of20 ....- s:: <1) E ;::l u o o -0 <1) t;::: '-2 <1) u CERTIFICATE OF SERVICE 'I HEREBY CERTIFY that a copy of the Denbury's Notice of Oral and Videotaped Deposition of Corporate Representative(s) of F.A. Richard & Associates, Inc. has been served on Mr. Randell E. Treadaway Mr. Chrjstopher C. Frost Mr'. Michael Knippen Ms. Michelle O'Daniels Mr. Michael Mulvaney Mr. David Rock Mr. Brad D. Ferrand Mr. Joshua B. Baker Mr. James M. Eastham Zaunbrecher Treadaway, LLC Maynard, Cooper, Gale Traub Lieberman Straus & 406 N. Florida Street, Suite 2 1901 Sixth Avenue, Suite 2400 Shl'ewsbeny, LLP Covington, LA 70433 Birmingham, AL 35203 303 West Madison St., 8te. 1200 randy@ztlalaw.com cfrost@maynardcooper.com Chicago, IL 60606 modlegal@gmail.com mmulvaney@mayndardcooper.com mknippen@traubliebenllan.com brad@ztlalaw.com jbaker@maynardcooper.com jeastham@traublieberman.com drock@traublieberman.com Mr. Mark C. Clemer Ms. Mindy Riseden Mr. Marc J. Wojciechowski Mr. James Johnson Mr. Henry Kollenberg Wojciechowski & Associates, PC Brown Sims Crain, Caton & James 17447 Kuykendahl Rd. Ste. 200 1177 West Loop South, 10th Floor Five Houston Center Spring, Texas 77379 HoustOll, Texas 77027 " 1401 McKinney Street, Suite 1700 marc@wojolaw.com mclemer@browl1sims.com Houston, TX 77010 iiohnson@brownsims.com mriseden@craincatoll.com hkolJenberg@craincaton.com via U.S. Mail andlor electronic service on September 3, 2015 at or before 5:00 p.m., and the PHILlP D. NIZIALEK Page 3 of20 ..... ::: E ;j u o CI "0 1. You are requested to produce all documents electronically. Pursuant to Rule 196.4, You are requested to produce electronic data responsive to these Requests in 2. Answer each request for documents separately by listing the documents and including in each response information that identifies the document and its bates 3. For a document that no longer exists or cannot be located, identify the document, .. state how and when it passed out of existence or could no longer be located, and the reasons for the disappearance. Also, identify each person having knowledge about the disposition or loss of the document, and identify any other document evidencing the lost document's existence or any facts about the lost document. a. When identifying the document, you must state the following: 1. The nature of the document (e.g. letter, handwritten note). 1Il. The date of the document and the date of each addendum, iv. The identities of the author, signer of the document, and person on whose behalf or at whose requestor direction the document was prepared or delivered. b. When identifying the Person, you must state the following: Page 4 of20 ii. The present or last known residential address and telephone iii. The present or last known office address and telephone number. iv. The present occupation, job title, employer, and employer's 4. If You claim all or part of any responsive document or communication is privileged, then You are requested to provide the appropriate information regarding such assertion of privilege, as'setforth in Tex. R. Civ. P. § 193.3. n. Definitions a. "FARA," "You" and "Your", as used herein, shall refer to F.A. Richard & Associates, Inc. and shall include, without limitation, any and all of its parents, subsidiaries, employees, Underwriters, Adjusters, agents and attorneys: b. "Marsh" shall refer to Marsh USA, Inc. and shall include, without limitation, any and all of its parents, subsidiaries, employees, agents, broker, and attorneys. c. "Zurich" shall refer to Zurich American Insurance Company and shall include, without limitation, any and all of its parents, subsidiaries, employees, Underwriters, Adjusters, d. ,~'AGLIC" shall refer to American Guarantee & Liability Insurance Company and shall include, without limitation, any and all of its parents, subsidiaries, employees, e. "Alterra" shall'refer to Alterra Excess & Surplus Insurance Company and shall include, without limitation, any and all of its parents, subsidiaries, employees, Underwriters, Adjusters, agents and attorneys .. Page 5 of20 f. "Axis" shall refer to Axis Surplus Insurance Company and shall include, without limitation, any and all of its parents, subsidiaries, employees, Underwriters, Adjusters, agents and g. "Denbury" shall refer to Denbury Resources Inc, and Denbury Onshore, LLC, or " . any other Denbury entity for which Marsh procured insurance. h, "Ironshore" shall refer to Ironshore Specialty Insurance Company, and shall include, without limitation, any and all of its parents, subsidiaries, employees, Underwriters, i. "COL Policy" shall refer to the commercial general liability policy number 9242578-00, issued to Denbury by Zurich American Insurance Company, with the effective dates of April 1, 2013 to April 1, 2014. Denburyby AGLIC, with effective dates of April 1, 2013 to Aprill, 2014. k. "Ironshore Policy" shall refer to policy number 000988602, issued to Denbury by Ironshore, with the effective dates of April 1, 2013 to Aprill, 2014. 1. "Alterra Policy" shall refer to policy number MAX6XL0000443, issued to Denbury Alterra, with the effective dates of April 1. 2013 to April 1, 2014. m. . "Axis Policy" shall refer to· policy number EAU766369fOlf2013, issued to Denbury by Axis, with the effective dates of April 1, 2013 to April 1, 2014. n. "Policies" shall collectively refer to the CGL Policy, the Umbrella Policy, the Ironshore Policy, the Altena Policy and the Axis Policy, as defined above, and shall include any and all policy registers, policy logs, schedules, forms, and endorsements. Page 60f20 \ o. "Other Insurance" shall mean any other insurance policy issued to Denbury other p. "Litigation" shall mean Denbury Resources Inc. et al v. Ironshore Specialty Ins. Co., et ai. Case No. 2015-09546 currently pending in the 157th Judicial District Court in Harris q. "Delhi Incident" shall mean the control of well and pollution incident commencing on or about June 13,2013 in the Delhi Field Unit located in the state of Louisiana. r. "Denbury's Claim" shall mean all insurance claims, notices, demands for defense, indemnity, or any other claim for insurance coverage related to the Delhi Incident. s. "Blended Pollution Endorsement" shall refe!; to endorsements bearing the form number U-UMB-200-A CW (7/99) andlor form number U-EXS-200-A-CW'(4/99) that were included in .and made a part of the Umbrella Policy. t. "Insurers" shall collectively refer to Zurich American Insurance Company, American Guarantee & Liability Insurance Company, Ironshore Specialty Insurance Company, Alterra Excess & Surplus Insurance Company, and Axis Surplus Insurance Company. u. "Underwriting" or "Underwrites" shall mean the process of determining the acceptability of a particular submission for insurance through evaluation and analysis of the nature and extent of the risk presented, and of determining the amount, price, and conditions under which the submission is acceptable. Underwriting and Underwrites shall further mean the process of drafting an insurance policy to cover the accepted submission. v. "Submission" shall mean a proposal for insurance, including but not limited to an Page 7 of 20 w. "Adjusting" or "Adjustll or "Adjustment" shall mean administration, handling, evaluation, analysis, investigation, review, quantification, interpretation, verification, expert consultation, negotiation, or assessment of coverage, damages, quantum, exclusions, warranties, or conditions related to any Claim by any Person, including but not limited to third party \ administrators. \ x. "On-Lease" shan refer to any surface location covered by a mineral lease where an Energy Market policyholder is a lessee. / y. "Claim" shall mean demand to recover, under a policy of insurance, for loss that may come within the coverage provided by that policy, including but not limited to demands for defense, demands for indemnity, or any other request for insurance coverage under any insurance policy. "Claim" shall also refer tothe meaning of "claim'~ contemplated by Texas 1nsurance Code z. "Claims Adjuster" shall mean any Person who performs Adjusting of a Claim, and includes Your employees and the employees of any third parties performing Adjusting of a aa. "Reserve" shall mean an estimate of the value of a Claim or group of Claims not yet paid, including but not limited to an estimate of the amount for which a particular Claim will bb. "Reinsurance" shall mean a transaction in whi.ch one party, the "reinsurer," in consideration of a premium paid to it, agrees to indemnify another party, the "reinsured," for part or all of the liability assumed by the reinsured under a policy of insurance that it has issued. cc.· "Energy Market" . shall mean Your policyholders or potential policyholders engaged in oil, gas, and petroleum exploration and production operations. PageS of20 dd. "Good Faith and Fair Dealing" shall mean the duties imposed by Texas Insurance ee. "Original Proof of Loss" shall refer to Denbury's October 14, 2014 correspondence addressed to Ironsh~re'8 attorney, RandellE. Treadaway, and all accompanying' attachments thereto including Denbury'8 Sworn Proof ofL08s to AGLIC executed September 29, ·2014, Zurich's October 6, 2014 correspondence to Denbury tendering payment ofits $25 million , policy limits, and Denbury's Sworn Proof of L08s to Ironshore executed October 14,2014. ff. "Roberts Litigation" shall refer to the lawsuit captioned Sunflower Cemetery, Inc., et ai. v. Denbury Onshore, LLC, et al., identified with Civil Action No. 43629A, pending in the 5th Judicial District Court for the Parish of Franklin, Louisiana. gg. "Voluntary Payment Clause" shall refer to the provision inJronshore's Policy that states "The Insured shall not, except at its own expense, settle any claim or suit or incur any defense costs for any an amount to which this Policy applies without the Insurer's written hh. "Updated Proof of Loss" shall refer to Denbury's February 27, 2015 correspondence addressed to Ironshore's attorney, RandellE. Treadaway, and all accompanying attachments thereto incluqing Denbury's updated Sworn Proof of Loss to Ironshore'executed February 27,2015. ii. "Owned, Rented, or Occupied Exclusion" shall refer to the proyision within the < Blended Pollution Endorsement ofthe Umbrella Policy stating "Clean up, removal, containment, treatment, detoxification or neutralization; of "pollutants" existing at, or under or within the boundaries of any premises, site or location owned, rented or occupied by any insured." Page 9 of20 jj. "ANR" shall· refer to ANR· Pipeline Company, and shall include, without limitation, any and all of its parents, subsidiaries, employees, agents and attorneys. kk. "ANR. Initial Costs Settlement" shall refer to the Agreement between ANR and Denbury dated December 11, 2013 and identified as DRl-SD-552S-5534. n. "ANR Cut and Cap Settlement" shall refer to the Agreement between ANR and Denbury dated September 25, 2013 ~nd identified as DRl-SD-5535-5545. mm. ~'ANR Tariff Settlement" shall refer to shall refer to the Agreement between ANR and Denbury dated February 9, 2015 and identified as DRl-SD-5717-5726. nn. "Loutre Land Settlement" shall refer to the Agreement between Loutre Land and Timber Company and Denbury dated June 3, 2014 and identified as DRl-SD-5593-5612. 00. "Impacted Areas" shall refer to any premises, site or location with any discharge, dispersal, seepage, migration, release or escape of any man-made or naturally occurring solid, liquid, gaseous or thermal irritant or contaminant, including but not limited to: smoke; vapor; pp. "Communications" shall mean the transmission, sending, and/or receipt of information of any kind by and/or through any means, whether face-to-face or otherwise, including, but not limited to, speech, writings, language (machine, foreign, or otherwise), or qq. "Document" means all written, typed, or printed matter and all electronic, magnetic, digital, or other records or documentation of any ,kind or description in your actual i possession, custody, or control, including those in the possession, custody, or control of any and all present or former dIrectors, officers, employees, consultants, accountants, attorneys, or other agents, whether or not prepared by you. "Document" includes, but is not limited to, the Page 10 of20 following: Communications, policies, schedules, calendars, spreadsheets, letters, reports, charts, diagrams, correspondence, memoranda, notes, records, minutes, contracts, agreements, records or notations of telephone or personal conversations or conferences, interoffice communications, intraoffice communications, e-mail, voicemail, microfilm, bulletins, circulars, pamphlets, photographs, faxes, invoices, recordings, computer printouts, drafts, resumes, logs, and rr. "Electronic" or "magnetic" data means electronic or digital information that is stored in a medium from which it can be retrieved and examined. The term refers to the original (or identical duplicate when the original is not available) and any other copies of the data that may have attached comments, notes, marks, or highlighting of any kind. Electronic or magnetic data includes, but is not limited to, the following: computer programs; operating systems; computer activity logs; programming notes or instructions;· e-mail receipts, messages, or transmissions; output resulting from the use of any software program, including word-processing documents, spreadsheets, database files, charts, graphs, and outlines; metadata; PIP and PDP files; batch files; deleted files; temporary files; Internet- or web-browser-generated information stored in textual, graphical, or audio format, including history files, caches, and cookies; and any miscellaneous files or file fragments. Electronic or magnetic data includes any items stored on magnetic, optical, digital, or other electronic-storage media, such as hard drives, floppy disks, CD-ROMs, DVDs, tapes, smart cards, integrated-circuit cards (e.g., 8IM cards),.removable media (e.g., Zip drives, thumb drive), microfiche, or punched cards. Electronic or magnetic data also includes the file, folder, tabs, containers, and labels attached to or associated with any Page 11 of20 ss. "E~mail" or "Electronic Mail" shall mean any method of electronic messaging, including any text message and instant-messaging method or service. tt. The term "each" includes the word "every" and "every;' includes the word "each." uu. The term "and" includes the word "or" and "or" includes the word "and." vv. The term "including" shall be construed as broadly as possible and shall mean ww. "Person" shall ~ean any natural person, co~poration,. firm, association, partn({rship, joint venture, proprietorship, governmental body, governmental agency, or any other organization, business, or legal entity, and all predecessors or successors in interest. xx. The phrase "related to or discussing,>' as used herein, shall mean all information and all facts andlor Documents that directly, indirectly or in any other way support, negate, bear upon, touch upon, incorporate, affect, include, pertain to, andlor are otherwise connected with the 1. A copy of deponent's current resume or curriculum vitae; 2. A copy of deponent's current Qriver's license or government-issued photo identification; 3.' A copy of each and every document reviewed in preparation for Your testimony at the scheduled deposition; 4. All Documents responsive to Denbury's First and Second Sets of Requests for Production served on May 18, 2015 and August 5, 2015; and 5. All Documents related to or discussing the Examination Topics listed below. Page 12 of20 ". 8. The case Aspen Ins. UK, Ltd. v. Dune Energy, Inc., 400 Fed. Appx. 960 (5th Cir. 2010). 9. The case Pioneer Exploration, LLC v. Steadfast Ins. Co., 2013 WL 3557541 (W.D. La. 2013). 10. The case Pioneer Exploration, L.I.e. v. Steadfast Ins. Co., 767 FJd 503 (5th Cir. 2014). 11. FARA's application of the Aspen Ins. UK, Ltd. v. Dune Energy, Inc., 400 Fed. Appx. 960 (5th Cir. 2010) decision to the Ironshore Policy. 12. FARA's application of the Aspen Ins. UK, Ltd. v. Dune Energy, Inc., 400 Fed. Appx. 960 (5th Cir. 2010) decision to Other Liability Policies. 13. FARA's application of the Pioneer Exploration, LLC v. Steadfast Ins. Co., 2013 WL 3557541 (W.D. La. 2013) decision to the Ironshore Policy. 14. FARA's application of the Pioneer Exploration, LLC v. Steadfast Ins. Co., 2013 WL 3557541 (W.D. La. 2013) decision to Other Liability Policies. 15. FARA's application of the Pioneer Exploration, L.L.e. v. Steadfast Ins. Co., 767 FJd 503 (Sth Cir. 2014) decision to the Ironshore Policy. 16. FARA's application of the Pioneer Exploration, L.L.C. v. Steadfast Ins. Co., 767 FJd 503 (5th Cir. 2014) decision to the Other Liability Policies. 19. FARA' s review of any Adjustment of Denbury' s Claim. Page 13 of20 23. FARA's Communications with Marsh. 28. .All Documents exchanged between Ironshore and any Person related to Denbury. 29. All Documents exchanged between Ironshore and any Person related to Denbury's Claim. 30. All Documents exchanged between Ironshore and any Person related to the Delhi Incident. 31. All Documents exchanged between Ironshore and any Person related to the Policies. 32. All Documents exchanged between Ironshore and any Person related to the Litigation. 33. All Documents exchanged between FARA and any Person related to Denbury. 34. All Documents exchanged between FARA and any Person related to Denbury's Claim. 35. . All Documents exchanged between FARA and any Person related to the Delhi Incident. 36. . All Documents exchanged between FARA and any Person related to the Policies. 37. All Documents exchanged between FARA and any Person related to the Litigation. 38. FARA's communications with Ironshore regarding the Underwriting of theUmbreUa Policy. 39. Ironshore's understanding of Blended Pollution Endorsement Form U~UMB-200-A CW (7/99). 'T '-+- 0 'T 40. Ironshore's understanding of Blended Pollution Endorsement Form U-EXS-200-A~CW (") N 41. FARA's understanding of AGUC's Underwriting of the Umbrella Policy. c') 44. Ironshore's direction of the Adjustment of Claims under its liability policies. 45. Ironshore's direction of the Adjustment of Denbury's Claim. 46. Ironshore's Adjustment of Claims under its liability policies. 48. FARA's Adjustment of Claims under Other Liability Policies. 56. Ironshore's selection of Claims Adjusters for Denbury's Claim. 59. FARA's selection of Claims Adjusters for Denbury's Claim. 60. Ironshore's denial of Denbury's Claim. " N 63. Denbury's Original Proof of Loss. C'") lrI 00 lrI N 64. Denbury's Updated Proof of Loss. r-- \0 L: Q) 65. Ironshore's evaluation of Denbury's Original Proof of Loss. ..0 E ;::l Z +-' Page 150[20 t:: Q) E ;::l U· 0 a -0 Q) t;:: 'f: Q) u Ironshore's evaluation of Denbury's Updated Proof ofLos8. FARA's evaluation of Denbury's Original Proof ofL088. FARA's evaluation of Denbury's Updated Proof of Los8. The Roberts Litigation. Ironshore's evaluation of the Roberts Litigation. Ironshore's decision to deny Denbury defense and indemnity for the Roberts Litigation. The ANR Initial Costs Settlement. Ironshore's evaluation of the ANR Initial Costs Settlement. Ironshore's determination that AGUC's payment of the ANR Initial Costs Settlement does not erode the limits of the Umbrella Policy. The ANR Cut and Cap Settlement. Ironshore's evaluation of the ANR Cut and Cap Settlement. Ironshore's determination that AGUC's payment of the ANR Cut and Cap Settlement does not erode the limits of the Umbrella Policy. The ANR Tariff Settlement. \ Ironshore's evaluation of the ANR Tariff Settlement. Ironshore's decision to deny coverage for the ANR Tariff Settlement. PARA's Adjustment of On-Lease costs claimed by other Energy Market policyholders against Other Liability Policies. PARA's Adjustment of On-Lease costs in Denbury's Claim. All Documents relied upon by FARA in its Adjustment of Denbury' s Claim. AU Persons consulted by FARA in its Adjustment of Denbury' s Claim. The Loutre Land Settlement. Ironshore's evaluation ofthe Loutre Land Settlement. Page 16 of20 87. Ironshore's detennination that AGLIC's payment of the Loutre Land Settlement does not erode the limits of Umbrella Policy. 90. Ironshore's notice of AGUC's tender of the policy limits of the Umbrella Policy. 91. The costs Denbury incurred as a result of the Delhi Incident. 92. Ironshore's efforts to communicate with AGUe regarding Denbury's Claim. 93. Ironshore's efforts to communicate with AGUC regarding the Delhi Incident. 94. FARA's efforts to communicate with AGUC regarding Denbury's Claim. 95. FARA's efforts to communicate with AGUC regarding the Delhi Incident. 96. All Documents Denbury produced in support of Denbury's Claim. 99. FARA's understanding of the status of Denbury's Claim against the Policies. 100. Ironshore's Communications with any Person regardil1g Denbury's Claim. 101. Ironshore's Communications with any Person regarding the Delhi Incident. 102. FARA' s Communications with any Person regarding Denbury's Claim. 103. FARA's Communications with any Person regarding the Delhi Incident. 104. Ironshore's affirmative defenses in this Litigation. 105. Ironshore's objections and responses to discovery requests in this Litigation. 106. Factual bases for all FARA objections and responses to this Notice. 107. Ironshore's Reserves for Denbury's Claim. 108. Ironshore's marketing ofthe Ironshore Policy forms to the Energy Market. 109. Ironshore's documentation of Claims. Page 17 of20 +-' .:: (l) § u o Cl '"0 (l) t;:: 'f: (l) U ,.,., 110. FARA' s documentation of Claims. 112. Ironshore's obligations as an Insurer under Texas law. 113. FARA's duties under Texas law. 114. Texas requirements for thirduparty administrators. 116. Ironshore's reporting of complaints under Tex. Ins. Code Sec. 542.006 et seq. over the last five years. 117. Ironshore's compliance with Texas Ins. Code Sec. 542.005 - 542.012 over the last five years. 118. All complaints filed against Ironshore under Texas Ins. Code Sec. 542.005 over the last ~ve years. 119. All complaints filed against other insurers under Texas Ins. Code Sec. 542.005 relating to· or discussing FARA's Adjustment of a Claim over the last five years. 120. AU petitions filed against Ironshore in any Texas state or federal court by an Energy Market policyholder within the last five years. 121. All petitions filed by Ironshore in any Texas state or federal court against an Energy . Market policyholder within the last five years. 122. All petitions filed against Ironshore in any Louisiana state or federal court by an Energy Market policyholder within the last five years. 123. All petitions filed by Ironshore in any Louisiana state or federal court against an Energy Market policyholder within the last five years. 124. All petitions filed against PARA in any Texas state or federal court by an Energy Market· policyholder within the last five years. 125. All petitions filed against PARA in any Louisiana state or federal court by an Energy Market policyholder within the last five years. +-' Page 18 of20 s::: E ;:I u o Cl "0 128. Ironshore's payments to any Person related to the Policies. 129. FARA's payments from any Person related to the Policies. 130. FARA's payments to any Person related to the Policies. 131. Any agreements between Ironshore and any Person related to Denbury's Claim. 132. Any agreements between Ironshore and any Person related to the Litigation. 133. Any agreements between Ironshore and any Person related to the Delhi Incident 134. Any insurance policy th~t may defend or indemnify Ironshore in the Litigation. 135. Any agreements between FARA and any Person related to Denbury's Claim. 136. Any agreements between FARA and any Person related to the Litigation. 137. Any agreements betweenFARA and any Person related to the Delhi Incident. 138. Any insurance policy that may defend or indemnify FARA in the Litigation. 140. Ironshore's performance of its obligations as an insurer under Texas law. 141. Ironshore's performance ofits obligations to Denbury. 144. The identity of all Ironshore employees with knowledge of the IronshorePolicy. 145 . The identity of all Ironshore employees with knowledge of Denbury' s Claim. .- 146. The identity of all Ironshore employees with knowledge of the Delhi Incident. """0 ~ 0\ (") 152.. Denbury's written discovery requests in this Litigation . . 153. Ironshore's initial disclosures in this Litigation. 154. All Documents responsive to each and every written discovery request Denbury has served on Ironshore in this Litigation. Page 20 of 20 CAUSE NO. 2015-09546 DENBURY RESOURCES INC. and § IN THE DISTRICT COURT DENBURY ONSHORE, LLC § § Plaintiffs § VS. § 157 th JUDICIAL DISTRICT § IRON SHORE SPECIALTY INSURANCE § COMPANY, ALTERRA EXCESS & § SURPLUS INSURANCE COMPANY, § AXIS SURPLUS INSURANCE § HARRIS COUNTY, TEXAS COMPANY, and MARSH USA INC. § § Defendants § On this day the Court considered the Defendant Ironshore Specialty Insurance Company's Motion for Protective Order and Objections regarding Plaintiffs' Notice of Oral and Videotaped Deposition and Request for Documents of the Designated Corporate Representative(s) ofF.A. Richard & Associates, Inc. ("FARA"), and the Court after considering the motion, the pleadings on file, arguments of counsel and other matters agrees with the request and GRANTS the motion. IT IS THEREFORE ORDERED that the following examination topics are stricken from Plaintiffs' proposed list of deposition topics for FARA' s designated corporate representative(s): _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Signed and Ordered entered this _ _ day of _ _ _ _ _ _ _ _, 2015. DISTRICT JUDGE RANDY WILSON I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and cmrect COP)' of the original record filed and or recorded in my office, electronically or hard cop')", as it appears on this date. i.}./itness my official hand and seal of oftice this October 22. 2015 Certified Document Number: 67258532 Chris Daniel, DISTRICT CLERK H.URIS COIT.;,;n", TL'{.4;.S In' accordance with Texas Government Code 406.013 electronically transmitted authenticated docnments are llalid. If there is a qnestion regarding the ,-alidity of this document and or seal please e-mail snpport@hcdistrictderk.com. CAUSE NO. 2015-09546 DENBURY RESOURCES INC. and § IN THE DISTRlCT COURT DENBURY ONSHORE, LLC § § Plaintiffs § VS. § 157th JUDICIAL DISTRlCT § IRONSHORE SPECIALTY INSURANCE § COMPANY, ALTERRA EXCESS & § SURPLUS INSURANCE COMPANY, § AXIS SURPLUS INSURANCE § HARRIS COUNTY, TEXAS COMPANY, and MARSH USA INC. § § Defendants § AFFIDAVITS IN SUPPORT OF DEFENDANT IRONSHORE SPECIALTY INSURANCE COMPANY'S OBJECTIONS AND PRIVILEGES To: Plaintiffs, Denbury Resources Inc. and Denbury Onshore, LLC, by and through their attorneys of record, Philip D. Nizialek, Sarah E. Stogner, and Jacqueliqe M. Brettner, CARVER, DARDEN, KORETZKY, TESSIER, FINN, BLOSSMAN & AREAUX, LLC, 1100 Poydras Street, Suite 3100, New Orleans, LA 70163. COMES NOW, Defendant lronshore Specialty Insurance Company and serves its Affidavits in Support of its Objections and Privileges to Plaintiffs' discovery requests. Attached hereto are the affidavits of Lee Sheridan and Randell E. Treadaway to be used as evidentiary support to Defendant Ironshore' s Specialty Insurance Company's asserted and raised objections and privileges to Plaintiffs' discovery requests and all other purposes. 00 4-< o [Signature block on next page] EXHIBIT 1- ------- Respectfully submitted, By: IslRandell E. Treadawawy Mark C. Clemer Texas BarNo. 04372300 James D. "lD." Johnson Texas Bar No. 24085918 Michelle Richard Texas Bar No. 24093037 Tenth Floor 1177 West Loop South Houston, Texas 77027-9007 Telephone: (713) 629-1580 Facsimile: (713) 629-5027 mc1emer@brownsims.com jjohnson@brownsims.com mrichard@brownsims.com and Randell E. Treadaway (admitted pro hac vice) LA BarNo. 01624 Brad D. Ferrand (admitted pro hac vice) LA Bar No. 29860 ZAUNBRECHER TREADAWAY, L.L.C. 406 N. Florida Street, Suite 2 Covington, Louisiana 70433-2907 Telephone: (985) 871-8787 Telefax: (985) 871-8788 randy@ztlalaw.com brad@ztlalaw.com COUNSEL FOR DEFENDANT IRON SHORE SPECIALTY INSURANCE COMPANY CERTIFICATE OF SERVICE This will certify that a true and correct copy of the foregoing pleading has been sent to all counsel of record via e-mail on this the 25th day of September 2015: Phillip D. Nizialek, T.A. Sarah E. Stogner Jacqueline M. Brettner CARVER, DARDEN, KORETZKY, TESSIER, FINN, BLOSSMAN & AREAUX, LLC 1100 Poydras St., Ste. 3100 New Orleans, LA 70163 Phone: (504) 585-3800 Fax: (504) 585-3801 nizialek@carverdarden.com stogner@carverdarden.com brettner@carverdarden.com Counsel for Plaintiffs Michael S. Knippen David Rock James M. Eastham Kimberly Hansen Petrina TRAUB, LIEBERMAN, STRAUS & SHREWSBERRY, LLP 303 W. Madison, Suite 1200 Chicago, Illinois 60606 Phone: (312) 332-3900 Fax: (312) 332-3908 mknippen@traublieberman.com drock@traublieberman.com jeastham@traublieberman.com kpetrina@traublieberman.com Counsel for Defendant Axis Surplus Insurance Company C. Henry Kollenberg Melinda M. Riseden CRAIN, CATON & JAMES, P.C. 1401 McKinney Street 17th Floor, Five Houston Center Houston, Texas 77010 Phone: (713) 658-2323 Fax: (713) 658-1921 hko llenberg@craincaton.com mriseden@craincaton.com Counsel for Defendant Marsh USA, Inc. Marc J. Wojciechowski WOJCIECHOWSKI & ASSOCIATES, P.C. 1747 Kuykendahl Road, Suite 200 Spring, Texas 77379 Phone: (281) 999-7774 Fax: (281) 999-1953 marc@wojolaw.com and Michael D. Mulvaney Christopher C. Frost Josh B. Baker MAYNARD, COOPER & GALE, P .C. 2400 RegionslHarbert Plaza 1901 Sixth Avenue North Birmingham, AL 35203 Fax: (205) 254-1999 mmulvaney@maynardcooper.com cfrost@maynardcooper.com jbaker@maynardcooper.com Counsel for Defendant Alterra Excess & Surplus Insurance Company IslRandell E. Treadaway Randell E. Treadaway -= (!) S :::l U o o ""0 (!) t;:::: '-2 (!) u CAUSE NO. 2015'-09546 DENBURY RESOURCES INn ,ai1d § IN THE DISTRICT COURT DENBURY ONSHORE, LLC § § plaintiffs § VS. § 15ih JUDICIAL DISTRICT § IRONSHORE Sl?BCIALTY rnSURANCE § COMPANY, ALTERRA EXCESS & § StJRPLJ]S INSURANCE COMPANY, § AXIS SURPLUS INSURANCE § HARRIS COUNTY, TEXAS COMPANY, ap.qMMSH USA INC. § § Defendants § .AFFIDAVIT OF LEET. SHERIDAN STATE OF NEW YORK § § COUNTY OFNEW YORK § BEFORE MEt the undersigned authority, on this day personally appeared LEE T. SHERIDAN who being duty sWonl by me, lipo1i.hisoath, testified as follows: 1.My'nalll~js LeeT. Shetid'an, lam A:ssistilIlt Vice-President of SpeCialty Casualty Claims at Irol1shore Specialty In1)l'lrance Company ("Ironshore''): I am ovei' tWenty:.. one (21 )yearsof age, of sound mind, andotherwiseoompetent to make this affidavit. I have petsonal knowledge of the Jiids stated in this affidavit,and theyary true llllCl correct. 2. 1 have. reviewed Denhury's Second Set of Requests For Production to I}:onshore Specialty Insurance Comp~y,ihc1udihgReq'Qests fot Production NO's. 7,8, 14, 15, 00 '+- 16iWd51, whi¢h 1)'eek d9cumehts related to or discussirtgpollution dean-up 0 UnderwritingJorthe Energy Market; Underwriting for the ItonshoreP6licy at issue in . '" E ::l U 0 a "0 3. Atilils)Jtance cornpanY'scompetitive advantage may be preserved byitstrade secrets related to underwriting and its risk management through reinsurance. 4. lain fainiliar with lronshore's claim policies and prqcedures involved in the lawsuit above; I luh faffiili FURTHER-THE AfFL<\NTSAYEtH.NOT. . SUB$CRlBED AND SWORN BEFORE ME on thisO}~day of September, 2015, to certifY which witness my hand and seal of office. co '+- 0 \0 (]) b!J c f'") f'") '" CO '" N r-- \0 ;..; (]) ..0 E ;::l ;Z; ...- 2 ::: (]) E ;::l 0 u 0 r ~ "'0 (]) t;: '-2 (]) u CAUSE NO. 2015·09546 DENBURY RESOURCES INC. and § IN THE DISTRICT COURT DENBURY ONSHORE, LLC § § Plail1t(f/~' § VS. § 157lh JUDICIAL DISTRICT § IRONSHORE SPECIALTY INSURANCE § COMPANY, ALTERRA EXCESS & § SURPLUS INSURANCE COMPANY, § AXIS SURPLUS INSURANCE § HARRlS COUNTY, TEXAS COMPANY, and MARSH USA INC. § § Defenckmts § AFFIDA VIT OF RANDELL E. TREADAWAY BEFORE ME, on this day, personally came and appeared RANDELL E. TREADAWAY, who after being dtlly sworn by me on his Oath, stated the following: 1. My name is Randell E. Treadaway. I am over twenty-one (21) years of age, of sound mind, and capable of making this Affidavit. I have personal knowledge of the facts stated in this Affidavit because I am counsel of record representing Ironshore Specialty Insurance Company ("Ironshore"), and said facts are true and correct. 2. r am a founding member of the law firm Zaunbrecher Treadaway, LLC, and a counsel of record, being admitted pro hac vice, for Defendant Ironshore in Cause No. 2015-09546; DenbwJI Resources Inc., e/ al. v. ll'Ol1shore Specia[ty Insurance Conijxl11Y, el al.; in the 157'h Judicial District Court of Harris County, Texas. 00 "- .., 0 t-- ,j. III response to Plaintiffs' written discovery, Defendant Irol1shore issued a (l) 01) e<:l Privilege Log, a Supplemental Privilege Log and an Amended Privilege Log 0... identifying several items it believes to be protected as work product under Texas (") (") Rule of Civil Procedure 192.5 and as attorney-client privilege under Texas Rules if) 00 if) of Evidence 503. Ironshol'e believes the items to constitute work product because N t-- they contain information regarding material prepared by or mental impressions of \.0 ;...: counsel for Ironshore developed in anticipation of litigation by or for Ironshore; (l) ..0 F.A. Richard & Associates, Inc. ("FARA"), which is Ironshore's Third-Party E ::l ;z: ...., c(l) E ::l u 0 0 "0 (l) !;:::: '-2(l) u Admininstrator; or counsel for lronshore, and they contain mental impressions, opinions, conclusions andlor legal theories. 4. I have reviewed and am familiar with the definitions of "client," "representative of client," "lawyer," "representative of lawyer," and "confidential" as defined in Rule 503 of the Texas Rules of Evidence. Based on my review of the documents listed in Ironshore's privilege logs, as supplemented and amended, all the doclU11ents and correspondence exchanged between Ironshore; FARA, the authorized claims administrator for lronshore; and Ironshore's attorneys, indicate a lawyer, or representative of lavvyer engaging in confidential communications with their client, Ironshore, or representative of lronshore regarding professional legal services, or a lawyer or representative of a lawyer rendering professional legal services or performing a requested task for lronshore, or a representative of lronshore, involving the rendering of Jegal services. 5. I have read this affidavit and it is true and correct to the best of my persona! knowledge. SUBSCRIBED AND SWORN TO ME by Rand~9 E. Trea~~)y~y--on··this-25tlrclay of September, 2015, to certify which witness my hand anq",Q' ~J·als~· ffice. My c0111mission expires: 2 1, Chris Daniel, District Clerk of Hauls County, Texas certi:fy that this is a true and con.-ect copy of the origin.al record filed a.nd or recorded in ill)' office, electronically or hard COP)', as it appears on this date_ \\:l.tness my official hand and seal of oftlce this October ~L 2015 Certified Document Number: 67258533 Chris Daniel, DISTRICT CLERK H.4.RRIS COIT.'XTI', TEX'\S In acconl:mce with Texas Government Code 406.013 electronically transmitted authenticated documents are'l.-atid. H there is a question regarding the .'alidity of this document and or seal please e-mail support@hcdistrictclerk.com. CARVER. DARDEN; K.ORETZKY, TESSIER, FINN, BLOSSMAN & AREAUX LLC PIlILlP D. NIZIALEK (504) 585·3820 nizinlek(ij)cnrvl!rdnrden.coll) November 11, 2014 Via Federal Express Mr. Randell E. Treadaway, Esq. Zaunbrecher Treadaway; L.L.C. 406 N. Florida Street, Suite 2 Covington, Louisiana 70433 randy@ztlalaw.com Re: Your File No.: 14· 114/RET Delhi Field Blowout; Pollution and contamination excess claim Date ofL088: June 13,2013 Carrier: Ironshore Specialty Insurance Company Insured: Denbury Resources hlC. 1ron8hore Policy No.: 00988602 Dear Randy: Thanks for your letter of October 23,2014. Denbury appreciates your acknowledgment of the Proof of Loss submitted in support of its $25 miJIjon excess pollution liability claim against Ironshore. You cOITectly state in your letter that Denbury did not provide, with this Proof of Loss, an itemization of the costs .Denbury incurred for clean-up and related pollution costs in connection with the blowout of the Sun 220-2 well for which Denbury seeks payment under the lronshore Policy. That being said, Denbury has provided you, and all the upper layer excess carriers, with detailed documentation of its costs incuned and claimed under not only the Ironshore Policy, but those policies which sit above Ironshore's Policy in Denbury's excess liability tower. On July 7, 2014, Denbury provided Iro11shore, and its other extess carriers, with detailed spreadsheets summarizing all oftlle costs Denbury claims for clean-up oftlle pollution event arising out of the blowout. Attached to those spreadsheets were all of the invoices and proof of payment for each vendor paid by Denbury during the course of the clean-up operations. Denbury believes no further itemization ofthe costs it incuned and is claiming under the lronshore Policy is needed to substantiate its policy limit claim. EXHIBIT ENERGY CENTRE· 110 TELEI'110N I • NEW ORLEANS. LA 70163 (5U4) 585·3801 rI CARVER, DARDEN, November 11, 2014 KORETZKY, TESSIER,FINN, Page 2 BLOSSMAN & AREAUX LLC We note, in reviewing your request for additional documents, that many of the areas into which you inquire touch upon a separation of Denbury's damages between so-called "on lease" and "offlease" clean-up and related pollution liability costs, To be clear, Denbury is not making a distinction in its claim against lronshore for "on lease" and "off lease" costs. Rather, Denbury is making claim against Iron shore for all of the costs Denbury incurred in cleaning up the pollution from the 220-2 blowout, and for resolving the claims of third parties. That being said, Denbury is aware of the recent ruling of the United States Fifth Circuit Court of Appeals in the Pioneer v. Steadfast matter. As we pointed out in our meeting with you and representatives of the other excess caniers, Denbury believes that both the Fifth Circuit and District Court opinions are incorrect Erie guesses of Texas law with regard to the issue of whether the Zurich umbrella policy provides coverage to Denbury for pollution costs incurred on property it does 110t occupy within its mineral leases. For example, the recent Fifth Circuit opinion fails to even acknowledge the fact that it is interpreting an exclusion in the policy at issue. Under Texas law, exclusionary language is to be strictly constmed, and in favor of coverage, The Fifth Circuit's holding that the use of the word "occupied" in an exclusion precludes coverage for vast expanses of land over which an insured only has a "light to occupy" flies in the face of Texas insurance jurisprudence interpreting exclusionary language, Moreover, at least one of the calTiers which is cUlTently providing oilfield operator pollution liability coverage under similar tenTIS and conditions to that as were found in the Zurich policy has modified its policies to repudiate the Pioneer and Aspen decisions, The Fifth Circuit Court of Appeals did not have before it evidence of the intent of the parties to these insuring agreements. Denbury believes that such evidence of intent will be very persuasive to Texas courts deciding this issue. In a nutshell, to Denbury, the "on lease" versus "off lease" distinction of damages is immaterial for the claim it is making against Ironshore. To the extent that distinction does become material at some point in the future, Denbury expects Ironshore to follow the Jead of Zmich in its detem1inution of "off lease" clean-up costs, In this regard, Denbury did not, during the clean-up, develop separate AFEs or any other cost accounting basis for segregating clean-up oflands on the lease or off the lease and on the right-of-way. That distinction was immaterial to Denbury in its efforts to fulfill its obligations to deal with the pollution that. arose from the event. Thus, there is no practical way for Denbury to provide you with the documents requested in requests 9, 11, 12, 13 and 14. '1" f') We now address each of your fifty-two requests for documents individually: VI 00 VI N [--' \0 L Attached as DRI-SD-3609-5007, ;...: Cl) ..0 E 2. See response to 1. :::l Z C Cl) E :::l () o Q "2 li: 'f: Cl) U CARVER, DARDEN, November 11, 2014 KORETZKY, TESSIER, FINN, Page 3 BLOSSMAN & AREAUX LLC 3. Denbury has the capability, and regularly does, create new maps of its active fields, such as the Delhi Field. However, it has previously produced a map depicting the Holt-Bryant Unit in the Delhi Field. It is impracticable to produce "any and all Unit maps, field maps, site maps or other maps" since there are likely hundreds currently in Denbury's possession with new maps created regularly. 5. All aerial photos which Denbury will release to Ironshore have been produced. 7. See various FC&E documents within Final LDNR Compliance Order Response Letter and Attac1unents, as DRI-SD-l 093-2989. 10. Denbury is not making claim for the blowout of the only relief well drilled during the incident, the 228-9 well. Denbury is making claim for pollution costs related to the 228-9 in excess of the Well Control Policy'S limits of liability, \vhieh were included in Denbury's earlier production. 20. See objection discussed above in letter. CARVER, DARDEN, November 11,2014 l(ORETZKY, TESSIER, FINN, Page 4 BLOSS MAN & AREAux LtC 22. Denbury has previously produced all infonnation it believes is relevant to suppOli its claims under the Policy. AGLIC has approved and paid these claims. 31. Denbury has previously produced all infollnation it believes is relevant to support its claims under the Policy. AGLIe has approved and paid these claims. 41. See response to 40. CARVER, DARDEN, November 11,2014 KORETlKY, TESSlER, F1NN, Page 5 BLOSSMAN & AREAUX LLC 42. All documents and infonnation provided to AGLIe have previously been produced to 1ronshore. 44. Please see attached initial denial letter (DRI-SD-5224 - 5236) and withdrawal of denial letter (DRI-SD-5237 - 5240). 45. Denbury has previously produced all documents, invoices, or other writings that it believes support and/or itemizes the sums claimed under the proof of loss submitted October 14, 2014. 49. Attached is a copy of the Proof of Loss submitted to Alterra (DRI-SD-5241 - 5242), as weH as a copy of leases (DRI-SD-3609-5007) requested by Altena after Denbury's initial production. All other documents and infonnation provided to Alterra have previously been produced to lronshore. PDN/daj Enclosures cc: Jack Strother Sarah Stogner Jackie Brettner 4830-6560-5920, v. 2 I, Chris Daniel, District Clerk of Hanis County, Texas certif"3: that this is a true and COlTect copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. \\'itness m)' official hand and seal of office this October 22. 2015 Certified Document Number: 67258534 Chris Daniel, DISTRICT CLERK H.~JUS COUNTY, TEX.'\S In ;;u:cQrdanc,e ,vitI! Texas Goye:mment Code 406.013 electronically transmitted authenticated documents are ;.-alid. If there is a question regarding the validity of this document and or seal please e-mail!support@hcdistrictderk.com 9/30/20154:24:00 PM Chris Daniel - District Cieri< Harris County Envelope No: 7174347 By: COOPER, USA L Filed: 9/30/2015 4:24:00 PM CAUSE NO. 2015-09546 DENBURY RESOURCES INC. and § IN THE DISTRICT COURT DENBURY ONSHORE. LLC § § Plaintiffs § VS. § 157[h JUDICIAL DISTRICT § IRONSHORE SPECIALTY INSURANCE § COMPANY, ALTERRA EXCESS & § SURPLUS INSURANCE COMPANY, § AXIS SURPLUS INSURANCE § HARRIS COUNTY. TEXAS COMPANY, and MARSH USA INC. § § Defendants § ORDER DENYING PLAINTIFFS' MOnON TO COMPEL On this day the Court considered the Plaintiffs Denbury Resources Inc. and Denbury Onshore, LLC's Motion for Rule 193.4(a) Hearing and Motion to Compel Complete Discovery Responses, and the Court after considering the motion, the pleadings on file, arguments of counsel and other matters is of the opinion that the motion should be DENIED. IT IS THEREFORE ORDERED that Defendant Ironshore Specialty Insurance Company's objections to Plaintiffs' Interrogatory Numbers L 2, 4. 5, 7, 9, 10. 12, 13,21, 29, 30 and 31 are sustained. IT IS FURTHER ORDERED that Defendant Ironshore Specialty Insurance Company's N '-+-< o objections to Plaintiffs' First Set of Requests for Production Numbers 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12,13,14,15,16,17, 18, 19,20,22,23,25,26,27,28,29,30,31,32,33,34,35,36,37,38,39, 40,41,42,43,44,46,48,49,50,52,53,57,58,59,60 and 61 are sustained. IT IS FURTHER ORDERED that Defendant Ironshore Specialty Insurance Company's objections to Plaintiffs' Second Set of Requests for Production Numbers 3, 4, 5, 6,7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17,18,19,20,21, 22, 23, 24,25, 26,27.28,29,30,31, 32,33.34.35,36, 37,38,39,40,41,42,43,44,45,46,47,48,49,50,51.52.53,54.55.56,58,59.60,61.62,63. 64,65,66.67,68,69, and 70 are sustained. IT IS FURTHER ORDERED that Defendant Ironshore Specialty Insurance Company's objections to Plaintiffs' First Set of Requests for Admissions Numbers 3, 4, 5. 6. 7. 8. 9. 10, 11, 13, 17,20,21,22,24,25,26,27,28,29,30,45,46,50,52 and 54 are sustained. IT IS FURTHER ORDERED that the following examination topics are stricken from Plaintiffs' proposed list of deposition topics for FARA's designated corporate representative(s): 1,2,3,4,5,6,7,8,9,10,11,12,13,14,15,16,17,18,28,29, 30.31. 32. 33, 34, 35, 36, 37,38, 39,40,44,46,48,50,51, 52, 53, 54, 55, 56. 57. 58, 59,81, 84, 100. 101, 102, 103. 107, 108, 114,115,116,117,118,119,120,121. 122,123,124,125,126.127.128.129.130,131,132, 133, 134, 135, 136, 137, 138, and 154. IT IS FURTHER ORDERED that the following examination topics are stricken from Plaintiffs' proposed list of deposition topics for Ironshore's designated corporate representative(s): 1,2,3,4,5,6, 7, 8, 9, 10, 1 L 12, 13, 14, 15,21, 22. 23. 24, 25, 26, 27, 28, 29. 34,36,37,38,39,40,41,43,61,74,77,78,81,82,83, 86,87, 88, 89,90,91,92,93.94,95,96, 97,98,99, and 110. IT IS SO ORDERED, this _ _ day of _ _ _ _ _ _ _ _ , 2015. DISTRICT JUDGE RANDY WILSON I, Chris Daniel, District Clerk of Hanis County, Texas certify that this is a true and conect copy of the Oliginal record filed and or recorded in my office, electronically or hard copy, as it appears on this date_ \\i.t:ness my official hand and seal of oHice this October 22_ 2015 Certified Document Number: 67258Yi5 Chris Daniel, DISTRICT CLERK Hi\.RRIS eOIT'·in', TEX.'\S In ;u:cm"d:mce with Tn3.s GOl'ernment Code 406.013 electronically transmitted auJhenti.cated documents are yalid. H there is a question regarding tbe ,-alidity of thi.. document and or seal please e-mail support@hcdistrictderk.comI. SUMMARY OF ARGUMENT
II. BACKGROUND FACTS
III. SCOPE OF DISCOVERY
IV. ARGUMENT AND AUTHORITIES
A. Denbury is Not Entitled to an Unredacted Complete Copy of the Claim File
C. lronshore's Reserve Information is not Discoverable or Admissible
D. Denbury's Request to Compel Reinsurance Information Should be Denied
F. Denbury is Not Entitled to Ironshore's Investigation Materials
M. Denbury's Request for Sanctions is Unjustified and Improper
III 3623 07/08113 FARA Invoice to Ironshore Irrelevant
VIII. TEXAS ~CE CODE & UNFAIR OR DECEPTIVE TRADE V PRACTICES
3. The risks presented by Denbury's operations.
14. Ironshore's relationship with Denbury's Insurers.
26. Ironshore's Underwriting.
36. Ironshore's review of any Submission for the Policies.
37. Ironshore's Reinsurance of Energy Market risks.
38. Ironshore's Reinsurance of the Ironshore Policy.
40. Ironshore's training of Claims Adjusters.
43. FARA.
81. Ironshore's Reserves for Denbury's Claim.
83. Ironshore's documentation of Claims.
93. Denbury; s payments of premium to Ironshore.
I HEREBY CERTIFY that a copy of the Denbury's Notice of Oral and Videotaped
14. Ironshore's relationship with Denbury's Insurers.
18. Ironshore's Communications with Marsh.
27. Ironshore'~ Underwriting of Denbury.
28. Ironshore's Underwriting for the Energy Market..
35. Ironshore's Adjustment ()fDenbury's Claim.
36. Ironshore's review of any Submission for the Policies.
39. Ironshore's selection of Claims Adjusters.
45. Denbury's Original Proof of Loss.
50. Ironshore's evaluation of the Roberts Litigation.
59. Ironshore's evaluation of the ANR Tariff Settlement.
17. PARA's relationship with Denbury's Insurers.
18. FARA's Communications with Denbury's Insurers.
51. FARA's review of any Submission for the Policies.
52. Ironshore's Reinsurance of Energy Market risks.
53. Ironshore's Reinsurance of the Ironshore Policy.
54. Ironshore's selection of Claims Adjusters.
55. Ironshore's training of Claims Adjusters.
57. FARA's selection of Claims Adjusters.
58. FARA's training of Claims Adjusters.
I. The full name.
J. "Umbrella Policy" shall refer to policy number AVC 924673·00, issued to
5. The Policies ..
17. FARA's relationship with Denbury's Insurers.
20. Ironshorels relationship with Marsh.
21. Ironshore's Communications with Marsh.
22. FARA' s relationship with Marsh.
26. FARA's relationship with Denbury.
47. Ironshore's Adjustment of Denbury's Claim.
50. Ironshore's review of any Submission for the Policies.
53. Ironshore's Reinsurance ofthelronshore Policy.
55. Ironshore's training of Glaims Adjusters.
58. FARA' s training of Claims Adjusters.
89. Ironshore's notice ofDenbury's Claim.
97. Ironshore's requests for infonnation to Denbury.
98. FARA's requests for information to Denbury.
4. All currently known have previously been produced.
6. See response to 5.
8. See objection discussed above in letter and response 5.
9. See objection discussed above in letter.
11. See response to 10.
12. See objection discussed above in letter.
13. See objection discussed ahove in letter.
14. See objection discussed above in letter.
15. See response to 3.
16. See objection discussed above in letter.
17. See response to 3.
18. See responses to 3 and 5.
19. See objection discussed above In1etter.
21. See responses to 3 and 5, and 22.
23. See response to 22.
24. See response to 22.
25. See response to 22.
26. See response to 22.
27. See response to 22.
28. See response to 22.
29. See objection discussed above in letter.
30. See objection discussed above in letter.
32. See response to 31.
33. See response to 31.
34. See response to 31.
35. See response to 31.
36. See response to 31.
37. See response to 31.
38. See demand from parishes previously produced.
39. See response to 38.
40. See lawsuit filed against Denbury previously produced.
43. See response to 42.
46. See objection discussed above in letter and response to 45.
47. See objection discussed above in letter.
48. See objection discussed above in letter.
50. See response to 49.
51. See objection discussed above in Jetter and response to 49.
52. See objection discussed above in letter and response to 49.
Related
Cite This Page — Counsel Stack
in Re Denbury Resources, Inc. and Denbury Onshore, LLC, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-denbury-resources-inc-and-denbury-onshore-llc-texapp-2015.