4 UNITED STATES DISTRICT COURT 5 FOR THE WESTERN DISTRICT OF WASHINGTON 6 AT SEATTLE
7 ANGELA SANTIAGO, 8 CASE NO. 2:22-cv-01370-RSL Plaintiff, 9 v. 10 ORDER GRANTING IN PART GEICO ADVANTAGE INSURANCE DEFENDANT’S MOTION FOR 11 COMPANY, PROTECTIVE ORDER 12 Defendant. 13
15 This matter comes before the Court on “GEICO’s Motion for Protective Order.” 16 Dkt. # 16. Plaintiff alleges that she was injured in a car accident caused by the negligence 17 of Latisha Allen. Plaintiff filed a lawsuit against Allen in July 2021. Allen was insured by 18 GEICO General Insurance Company (“GEICO General”) for the minimum liability policy 19 20 limit of $25,000. GEICO General defended the lawsuit on Allen’s behalf, and plaintiff put 21 her own insurer, defendant GEICO Advantage Insurance Company, on notice that she may 22 be making a claim under her underinsured motorists (“UIM”) coverage as a result of the 23 accident and her resulting injuries. Defendant did not intervene in the lawsuit against 24 25 26
ORDER GRANTING IN PART DEFENDANT’S MOTION FOR PROTECTIVE ORDER - 1 1 Allen, and plaintiff was awarded $101,142.08 in damages. GEICO General paid plaintiff 2 its policy limit of $25,000. 3 On May 9, 2022, plaintiff requested that defendant pay the remaining damages to 4 5 which she was entitled under her UIM coverage. It did not do so, and plaintiff filed this 6 lawsuit against defendant on or about August 30, 2022. Plaintiff alleges that defendant 7 denied coverage without conducting a reasonable investigation, failed to make a good faith 8 effort to settle a claim in which liability was reasonably clear, compelled its insured to 9 10 initiate litigation to recover amounts due, failed to provide an explanation for its coverage 11 determination, and otherwise violated the terms of the insurance contract and 12 Washington’s insurance regulations. 13 In February 2023, plaintiff served requests for production seeking, inter alia, 14 15 employee performance records for ten GEICO employees (RFP No. 4) and GEICO 16 training materials involving the designation “TCR” (RFP Nos. 6-8). Plaintiff also served a 17 third-party subpoena on GEICO General for production of Allen’s claim file and the 18 reserve information for that claim. Defendant objected, asserting that only one of the 19 identified employees “substantially handled Plaintiff’s UIM claim,” that the TCR manuals 20 21 were not relevant because “[t]he TCR Department did not handle, adjust, or do anything 22 substantial with the evaluation and adjustment of Plaintiff’s UIM claim,” and that plaintiff 23 was entitled only to that which “is “traditionally disclosed in a 3rd party claims file, photos, 24 estimates, and medical records.” Dkt. # 17-1 at 22, 25, and 41. Defendant instructed 25 26
ORDER GRANTING IN PART DEFENDANT’S MOTION FOR PROTECTIVE ORDER - 2 1 GEICO General to not disclose any documents in response to plaintiff’s subpoena. Dkt. 2 # 10 at 2. GEICO General neither objected nor responded to the subpoena. 3 A. Employee Performance Records 4 5 Plaintiff seeks the “employee performance records” for ten “GEICO claims 6 personnel involved in the investigation of plaintiff’s insurance claim.” Dkt. # 18 at 8. She 7 argues that the records will illuminate the employees’ experience and training in the 8 investigation of claims, but it is unclear how that information bears on what the individuals 9 10 did with regards to plaintiff’s UIM claim or whether that conduct violated the terms of the 11 insurance contract or Washington’s insurance regulations. Based on the existing record, 12 there is no reason to suspect that the employees’ performance evaluations, training records, 13 or personnel records are relevant to plaintiffs’ claims or, given their wholly speculative 14 15 importance, that the production is proportional to the needs of the case. See Fed. R. Civ. P. 16 26(b)(1). Moreover, the information sought in RFP No. 4 is personal to specific GEICO 17 employees and is presumably not widely known. Schreib v. Am. Family Mut. Ins. Co., No. 18 2:14-cv-00165-JLR, Dkt. # 41 at 10 (W.D. Wash. Oct. 14, 2014). Disclosure may serve to 19 embarrass, annoy, and harass these employees, and the risk of such harms outweighs any 20 21 potential, unstated benefit of the proposed discovery. As was the case in Schreib, plaintiff 22 may be able to narrow her discovery requests or otherwise establish the relevance of the 23 material sought in the future (see No. 2:14-cv-00165-JLR, Dkt. # 54 at 14), but at this 24 point, defendant has shown good cause for a protective order. 25 26
ORDER GRANTING IN PART DEFENDANT’S MOTION FOR PROTECTIVE ORDER - 3 1 B. TCR Manuals 2 Plaintiff requested a number of training manuals, most of which defendant has 3 agreed to produce. Defendant objects to the production of manuals with “TCR” in the title, 4 5 however, asserting that “GEICO’s TCR department did not handle Plaintiff’s UIM 6 claims.” Dkt. # 16 at 9. There is no evidence supporting this assertion or plaintiff’s 7 counter-assertion that her attorney “is not aware of any such ‘department’; only that TCR2 8 is an employee designation describing a bodily injury claims adjuster (as opposed to a 9 10 TCR1 liability claims adjuster who investigates liability and coverage).” Dkt. # 18 at 9. 11 Without information regarding the nature, scope, and purpose of these manuals, it is 12 impossible to determine their relevance to plaintiff’s claims. Even if the Court were to 13 assume that some of the GEICO employees who touched plaintiff’s UIM claim had TCR- 14 15 related training, plaintiff has not explained how the contents of that training will illuminate 16 what the employees did in this case or whether that conduct violated the terms of the 17 insurance contract or Washington’s insurance regulations. Defendant has shown good 18 cause for a protective order. 19 C. Allen Claim File 20 21 Defendant argues that when an insurer investigates a third-party claim against its 22 insured – in this case, plaintiff’s claim against GEICO General’s insured, Latisha Allen – 23 the investigation is undertaken with the understanding that litigation will likely occur if the 24 claim is denied and the resulting documents and tangible things are therefore protected by 25 26
ORDER GRANTING IN PART DEFENDANT’S MOTION FOR PROTECTIVE ORDER - 4 1 the work product doctrine pursuant to Federal Rule Civil Procedure 26(b)(3).1 GEICO also 2 argues that Allen’s statements to her insurer are confidential under Washington law and 3 that the reserve information plaintiff seeks is irrelevant. Plaintiff asserts that any objections 4 5 to the subpoena, including those based on a privilege, have been waived because GEICO 6 General failed to respond, that defendant’s claim of work product protection failed to 7 comply with the governing rules, and that GEICO General’s investigation of plaintiff’s 8 claim is highly relevant because defendant chose to rely on that investigation when 9 10 denying plaintiff’s claim for UIM benefits. 11 “As a general rule, a party lacks standing under Fed. R. Civ. P. 45(c)(3) to challenge 12 a subpoena issued to a nonparty unless the party claims a personal right or privilege with 13 respect to the documents requested in the subpoena.” Erickson v. Microaire Surgical 14 15 Instruments LLC, No. C08-5745BHS, 2010 WL 1881946, at *2 (W.D. Wash. May 6, 16 2010). See also Chevron Corp. v. Donziger, No. 12-MC-80237 CRB (NC), 2013 WL 17 4536808, at *4-5 (N.D. Cal. Aug. 22, 2013) (holding that a party has standing only to the 18 extent of their personal stake in the information sought).
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4 UNITED STATES DISTRICT COURT 5 FOR THE WESTERN DISTRICT OF WASHINGTON 6 AT SEATTLE
7 ANGELA SANTIAGO, 8 CASE NO. 2:22-cv-01370-RSL Plaintiff, 9 v. 10 ORDER GRANTING IN PART GEICO ADVANTAGE INSURANCE DEFENDANT’S MOTION FOR 11 COMPANY, PROTECTIVE ORDER 12 Defendant. 13
15 This matter comes before the Court on “GEICO’s Motion for Protective Order.” 16 Dkt. # 16. Plaintiff alleges that she was injured in a car accident caused by the negligence 17 of Latisha Allen. Plaintiff filed a lawsuit against Allen in July 2021. Allen was insured by 18 GEICO General Insurance Company (“GEICO General”) for the minimum liability policy 19 20 limit of $25,000. GEICO General defended the lawsuit on Allen’s behalf, and plaintiff put 21 her own insurer, defendant GEICO Advantage Insurance Company, on notice that she may 22 be making a claim under her underinsured motorists (“UIM”) coverage as a result of the 23 accident and her resulting injuries. Defendant did not intervene in the lawsuit against 24 25 26
ORDER GRANTING IN PART DEFENDANT’S MOTION FOR PROTECTIVE ORDER - 1 1 Allen, and plaintiff was awarded $101,142.08 in damages. GEICO General paid plaintiff 2 its policy limit of $25,000. 3 On May 9, 2022, plaintiff requested that defendant pay the remaining damages to 4 5 which she was entitled under her UIM coverage. It did not do so, and plaintiff filed this 6 lawsuit against defendant on or about August 30, 2022. Plaintiff alleges that defendant 7 denied coverage without conducting a reasonable investigation, failed to make a good faith 8 effort to settle a claim in which liability was reasonably clear, compelled its insured to 9 10 initiate litigation to recover amounts due, failed to provide an explanation for its coverage 11 determination, and otherwise violated the terms of the insurance contract and 12 Washington’s insurance regulations. 13 In February 2023, plaintiff served requests for production seeking, inter alia, 14 15 employee performance records for ten GEICO employees (RFP No. 4) and GEICO 16 training materials involving the designation “TCR” (RFP Nos. 6-8). Plaintiff also served a 17 third-party subpoena on GEICO General for production of Allen’s claim file and the 18 reserve information for that claim. Defendant objected, asserting that only one of the 19 identified employees “substantially handled Plaintiff’s UIM claim,” that the TCR manuals 20 21 were not relevant because “[t]he TCR Department did not handle, adjust, or do anything 22 substantial with the evaluation and adjustment of Plaintiff’s UIM claim,” and that plaintiff 23 was entitled only to that which “is “traditionally disclosed in a 3rd party claims file, photos, 24 estimates, and medical records.” Dkt. # 17-1 at 22, 25, and 41. Defendant instructed 25 26
ORDER GRANTING IN PART DEFENDANT’S MOTION FOR PROTECTIVE ORDER - 2 1 GEICO General to not disclose any documents in response to plaintiff’s subpoena. Dkt. 2 # 10 at 2. GEICO General neither objected nor responded to the subpoena. 3 A. Employee Performance Records 4 5 Plaintiff seeks the “employee performance records” for ten “GEICO claims 6 personnel involved in the investigation of plaintiff’s insurance claim.” Dkt. # 18 at 8. She 7 argues that the records will illuminate the employees’ experience and training in the 8 investigation of claims, but it is unclear how that information bears on what the individuals 9 10 did with regards to plaintiff’s UIM claim or whether that conduct violated the terms of the 11 insurance contract or Washington’s insurance regulations. Based on the existing record, 12 there is no reason to suspect that the employees’ performance evaluations, training records, 13 or personnel records are relevant to plaintiffs’ claims or, given their wholly speculative 14 15 importance, that the production is proportional to the needs of the case. See Fed. R. Civ. P. 16 26(b)(1). Moreover, the information sought in RFP No. 4 is personal to specific GEICO 17 employees and is presumably not widely known. Schreib v. Am. Family Mut. Ins. Co., No. 18 2:14-cv-00165-JLR, Dkt. # 41 at 10 (W.D. Wash. Oct. 14, 2014). Disclosure may serve to 19 embarrass, annoy, and harass these employees, and the risk of such harms outweighs any 20 21 potential, unstated benefit of the proposed discovery. As was the case in Schreib, plaintiff 22 may be able to narrow her discovery requests or otherwise establish the relevance of the 23 material sought in the future (see No. 2:14-cv-00165-JLR, Dkt. # 54 at 14), but at this 24 point, defendant has shown good cause for a protective order. 25 26
ORDER GRANTING IN PART DEFENDANT’S MOTION FOR PROTECTIVE ORDER - 3 1 B. TCR Manuals 2 Plaintiff requested a number of training manuals, most of which defendant has 3 agreed to produce. Defendant objects to the production of manuals with “TCR” in the title, 4 5 however, asserting that “GEICO’s TCR department did not handle Plaintiff’s UIM 6 claims.” Dkt. # 16 at 9. There is no evidence supporting this assertion or plaintiff’s 7 counter-assertion that her attorney “is not aware of any such ‘department’; only that TCR2 8 is an employee designation describing a bodily injury claims adjuster (as opposed to a 9 10 TCR1 liability claims adjuster who investigates liability and coverage).” Dkt. # 18 at 9. 11 Without information regarding the nature, scope, and purpose of these manuals, it is 12 impossible to determine their relevance to plaintiff’s claims. Even if the Court were to 13 assume that some of the GEICO employees who touched plaintiff’s UIM claim had TCR- 14 15 related training, plaintiff has not explained how the contents of that training will illuminate 16 what the employees did in this case or whether that conduct violated the terms of the 17 insurance contract or Washington’s insurance regulations. Defendant has shown good 18 cause for a protective order. 19 C. Allen Claim File 20 21 Defendant argues that when an insurer investigates a third-party claim against its 22 insured – in this case, plaintiff’s claim against GEICO General’s insured, Latisha Allen – 23 the investigation is undertaken with the understanding that litigation will likely occur if the 24 claim is denied and the resulting documents and tangible things are therefore protected by 25 26
ORDER GRANTING IN PART DEFENDANT’S MOTION FOR PROTECTIVE ORDER - 4 1 the work product doctrine pursuant to Federal Rule Civil Procedure 26(b)(3).1 GEICO also 2 argues that Allen’s statements to her insurer are confidential under Washington law and 3 that the reserve information plaintiff seeks is irrelevant. Plaintiff asserts that any objections 4 5 to the subpoena, including those based on a privilege, have been waived because GEICO 6 General failed to respond, that defendant’s claim of work product protection failed to 7 comply with the governing rules, and that GEICO General’s investigation of plaintiff’s 8 claim is highly relevant because defendant chose to rely on that investigation when 9 10 denying plaintiff’s claim for UIM benefits. 11 “As a general rule, a party lacks standing under Fed. R. Civ. P. 45(c)(3) to challenge 12 a subpoena issued to a nonparty unless the party claims a personal right or privilege with 13 respect to the documents requested in the subpoena.” Erickson v. Microaire Surgical 14 15 Instruments LLC, No. C08-5745BHS, 2010 WL 1881946, at *2 (W.D. Wash. May 6, 16 2010). See also Chevron Corp. v. Donziger, No. 12-MC-80237 CRB (NC), 2013 WL 17 4536808, at *4-5 (N.D. Cal. Aug. 22, 2013) (holding that a party has standing only to the 18 extent of their personal stake in the information sought). A party does not, for example, 19 have standing to object to a subpoena served on a nonparty on the grounds of undue 20 21 22 1 Although defendant mentions the attorney-client privilege in the introductory sections of its motion and in a 23 section heading, only the work product doctrine is discussed in relationship to the Allen claims file. The work product doctrine, as opposed to the attorney-client privilege, is a procedural immunity governed by Federal Rule of Civil 24 Procedure 26(b)(3). Johnson v. Allstate Ins. Co., No. C11-0927RSM, 2012 WL 707160, at *1 (W.D. Wash. Mar. 5, 2012). Therefore, although Washington law would apply to claims of attorney-client privilege, federal law applies to 25 claims of work product protection. Barge v. State Farm Mut. Auto. Ins. Co., No. C16-0249JLR, 2016 WL 6601643, at *5 (W.D. Wash. Nov. 8, 2016). 26
ORDER GRANTING IN PART DEFENDANT’S MOTION FOR PROTECTIVE ORDER - 5 1 burden or to assert a privilege that it does not hold. Erickson, 2010 WL 1881946, at *2; 2 Diamond State Ins. Co. v. Rebel Oil Co., Inc., 157 F.R.D. 691, 695 (D. Nev. 1994). Any 3 claim of privilege over or confidentiality of the claim file plaintiff seeks belongs to GEICO 4 5 General or its insured, Latisha Allen. Defendant has not identified any interest, right, or 6 privilege it has in the information requested. Defendant therefore lacks standing to 7 challenge the subpoena, and its objections are overruled on that ground. 8
9 10 For all of the foregoing reasons, defendant’s motion for protective order is 11 GRANTED in part and DENIED in part. Defendant need not supplement its responses to 12 RFP Nos. 4, 6, 7, or 8, but its objections to a third-party subpoena issued to a separate 13 entity are overruled. Defendant shall immediately notify GEICO General of the Court’s 14 15 decision. See Dkt. # 10 at ¶ 3. 16 17 Dated this 21st day of April, 2023. 18 19 Robert S. Lasnik 20 United States District Judge 21 22 23 24 25 26
ORDER GRANTING IN PART DEFENDANT’S MOTION FOR PROTECTIVE ORDER - 6