Seabron v. American Family Mutual Insurance

862 F. Supp. 2d 1149, 2012 U.S. Dist. LEXIS 41451, 2012 WL 1020648

• Court: District Court, D. Colorado
• Decided: March 27, 2012
• Docket: Civil Action No. 11-cv-01096-WJM-KMT
• Status: Published

Opinion

ORDER

KATHLEEN M. TAFOYA, United States Magistrate Judge.

This matter is before the court pursuant to “Plaintiffs’ Motion to Compel Complete Putative Class Files & Documents” [Doc. No. 61] (“Mot.”) filed September 16, 2011. Defendants filed their response on October 7, 2011 [Doc. No. 75] (“Resp.”) and Plaintiffs filed their reply on October 21, 2011 [Doc. No. 80] (“Reply”). The Court heard argument on the motion on October 31, 2011 and November 4, 2011. (Minutes, [Doc. Nos. 88 and 98]; Transcript of October 31, 2011 [Doc. No. 127]; Transcript of November 4, 2011 [Doc. No. 126].) Supplemental filings were allowed and submitted by both sides on November 11, 2011. (Plaintiffs’ Supplement [Doc. No. 99] (“Supp. Mot.”) and Defendants’ Supplement [Doc. No. 100](“Supp. Resp.”).) The matter is ripe for review and ruling.

Further, “Plaintiffs’ Motion for Ruling on Pending Items and Extension of Time for Filing Motion for Class Certification” [Doc. No. 142] was filed on March 8, 2012 and Defendants’ response to that Motion [Doc. No. 145] was filed on March 15, 2012. Pending a ruling, the court stayed the looming deadline for filing class certification motions. That Motion is now granted and the deadline for filing class certification motions is reset to July 10, 2012.

Background

This case involves allegations that Defendants have adopted practices in their handling of uninsured motorisVunder-insured motorist (“UM/UIM”) claims submitted by their policyholders which are designed to under-compensate and delay payment to their insureds for claimed losses. Defendants deny the allegations. The five named plaintiffs seek to represent a class of persons who allegedly have been victims of the bad faith practices alleged by Plaintiffs. Discovery is currently in the class certification phase pending Plaintiffs’ presentation to the court seeking to certify a class action pursuant to Fed.R.Civ.P. 23. To that end, Plaintiffs have brought their Motion seeking complete case files maintained by Defendants for each of the putative class members via a Request for Production of Documents. (See Mot., Ex. 6, “Defendants’ Responses to Plaintiffs’ First Set of Requests for Production of Documents”, RFP No. 2 at 5.) Defendants have interposed a number of objections to the relevant Request. Further, Plaintiffs have also sought release of so-called “reserve” or claim valuation information as to all the putative class members and their files, including the named plaintiffs, and have requested that the information provided in response to the subject Request for Production of Documents be electronically-submitted in native format.

Plaintiffs’ Request for Production No. 2 reads

Request for Production No. 2: Please identify and produce all documents and communications relating to and/or mentioning any and all UM/UIM claims made by persons within the State of Colorado under automobile insurance policies issued by you with dates of loss between May 4, 2006 and May 4, 2011 including, but not limited to, the complete “claim file” and “legal file” for each claim.

(Id.) Defendants object to the following: a date limitation beginning in May 4, 2006 instead of May 4, 2008; producing privileged information that may be contained in the files; producing between 1200 and 1600 files as overly burdensome; producing medical or other private documents which may violate privacy rights of non-parties; and producing information which is unrelated to class discovery. In spite of their objections, Defendants have agreed to produce ten randomly chosen claim files in .tif format that meet the description set forth by Plaintiffs (but only from May 4, 2008) if they are able to obtain consent from their insureds and upon redaction of personal identifying information. Defendants do not agree to production of any document in native format and do not agree to provide privileged information or information pertaining to “reserves” or “settlement authority.” (Id. at 6-14.)

I. Production of Claim Files

The universe of claim files arguably responsive to RFP No. 2 is between 1600 (Plaintiffs’ estimate) and 1172 (Defendants’ estimate). Presumably this difference is accounted for by the two year disagreement over the start date for production. Defendants argue, “American Family estimates that the time required to gather each claim file for production is between 2 and 6 hours. (Alsup Decl. ¶ 3 (attached as Exhibit 12).).” (Resp. at 5.) Defendants claim that legal files “take even longer to produce than the claims files, because privileged matter in them needs to be produced.” (Id.) Defendants estimate the burden of producing all files demanded by Plaintiffs “would be between over 5,000 hours to over 15,000 hours of work.” (Id.)

Plaintiffs argue they need the claim files to establish the elements of a class action case, namely: numerosity, commonality, typicality and adequacy of the named plaintiffs as representatives of the class. Fed.R.Civ.P. 23. The Supreme Court instructs, “[t]he Rule’s four requirementsnumerosity, commonality, typicality, and adequate representation — effectively limit the class claims to those fairly encompassed by the named plaintiffs claims.” Wal-Mart Stores, Inc. v. Dukes, — U.S. -, 131 S.Ct. 2541, 2550, 180 L.Ed.2d 374 (2011) (internal citations omitted).

Class discovery “should be sufficiently broad that the plaintiffs have a fair and realistic opportunity to obtain evidence which will meet the requirements of Rule 23, yet not so broad that the discovery efforts present an undue burden to the defendant.” Montano v. Chao, 07-cv00735-CMA-KMT, 2008 WL 5377745, at *3 (D.Colo. Dec. 19, 2008). The scope of evidence subject to discovery under the federal rules is broad:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense-including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.

Fed.R.Civ.P. 26(b)(1).

The court may, however, forbid the disclosure or discovery, specify terms for the disclosure or discovery, forbid inquiry into certain matters, or limit the scope of disclosure or discovery to certain matters to protect a party from undue burden and expense. Fed.R.Civ.P. 26(c)(1).

This court concludes that Defendants have met their burden to show “that responding to the discovery requests at issue would be unduly burdensome” as the request is currently postured. Onesource Commercial Property Services, Inc. v. City and County of Denver, Case No. 10-cv-02273-WJM-KLM, 2011 WL 2632894, *2 (D.Colo. July 6, 2011) (citing Klesch & Co. v. Liberty Media Corp., 217 F.R.D. 517, 524 (D.Colo.2003)). As is oft said, discovery, by its very nature, is inherently burdensome to some extent. The question, however, is whether the particular discovery sought is unduly burdensome. Given that this case is in the pre-class certification stage of discovery, production of all the claims files and legal files of the uncertified putative class members, whether from 2006 or 2008, would be an unwarranted burden on Defendants.

That said, however, this court agrees that the claim and legal files requested by Plaintiffs may contain information relevant to various class certification inquiries. First, as to numerosity, Plaintiffs allege that referring claims to either the medical services department or the claims legal department was part of Defendants’ alleged scheme to deny or delay the appropriate payment of benefits to Defendants’ insureds. (See Third Amended Complaint [Doc. No. 47] at ¶¶ 59-62, 69, 71-78.) Therefore, to determine the possible number of potential putative class members, it is necessary to determine what proportion, out of the total of UM/UIM claims presented in Colorado during the relevant time period, were actually referred to medical services or claims legal, or both.

Further, to obtain class certification, it will be necessary for Plaintiffs to show typicality — whether the named plaintiffs’ claims arise from the same course of events and involve legal issues similar to those of each putative class member. Virtually the only way to do this would be to have at least a representative sampling of the course of claim handling for random potential class members, including those who were not referred to medical services or claims legal. Since all the named plaintiffs, by definition, are claimants whose claims were referred to claims legal, Plaintiffs have sole possession of the claims where a lawsuit was not brought during the course of the claim’s adjustment. A representative sampling of claims and claims legal files would also be helpful to determine commonality — identifying common questions to which there is a need for common proof, rather than individual proof. This prong, of course, could be addressed among the named plaintiffs and extrapolated to the putative class; however, such a course would not be as accurate as examining a sufficient number of files as to constitute a true representative sample of the group as a whole.

Requiring Defendants to produce a representative sample of claims and claims legal files in response to RFP No. 2 will satisfy both Plaintiffs’ needs concerning their class action certification burden and Defendants’ legitimate concern over massive document production of third-party information at a stage of the case where class certification is far from inevitable.

A Time Period of the Sample

Plaintiffs bring claims for statutory and common law bad faith and abuse of process, which are subject to two-year statute of limitations periods, and violation of the Colorado Consumer Protection Act (CCPA), which is governed by a three-year statute of limitations period. See C.R.S. §§ 13-80-102(l)(a) (bad faith, abuse of process); 6-1-115 (CCPA). Defendant asserts that the time period should not be longer than three years prior to the filing of the instant lawsuit. Plaintiffs argue that the statute of limitations on a claim for insurance bad faith does not begin to run until the insured knows or should know of the injury and the cause of the injury, and therefore often does not accrue until the very end of a claim for contractual benefits. (Reply at 3-4.) They argue, “[t]hus, where the five (5) year statute of for UM7UIM claims set forth in C.R.S. § 13-80-107.5 applies, a claim for bad faith may not even begin to accrue until nearly 5 years after the accident.” (Id. at 4.)

As noted, the discovery rules in federal court are very broad. Without deciding the applicable statute of limitations on any claim, this court finds that applying the longer term to the applicable discovery request is prudent and advisable to ensure Plaintiffs the widest accessibility of documents. In close cases, the balance must be struck in favor of allowing the broader discovery. Silva v. Basin Western, Inc., 47 P.3d 1184, 1188 (Colo.2002). Whether such evidence will ultimately be admissible will be determined at a later date. Therefore, in determining the list of potential putative class members, the operative start date for assessing whether the claim falls within the Request for Production No. 2 shall be May 4, 2006.

B. Representative Sample Size

The court notes that there is scant authority regarding the appropriate size of any sample of the claim and legal files in the class action discovery context, except for implicit approval of the methodology. (See Manual for Complex Litigation, Fourth, § 21.14 (2009).) Defendants proposed to produce ten randomly selected files for the sample, citing as authority Transamerican Refining Corp. v. Dravo Corp., 139 F.R.D. 619, 621 (S.D.Tex.1991).¹ (Resp. at 6.) In Transamerican, the court, without any specific findings or analysis concerning appropriate sample size, simply ordered, “the defendants shall identify and serve 50 absent class members [out of a total class membership of 6,000] with the interrogatories attached to their motion.” Id. at 622. This represented a sample size of less than one percent of the class. In Transamerican, however, the discovery forming the sample was to be obtained from the putative class members themselves. In the case at bar, however, the information sought is about putative class members; no discovery or other information has been requested from the selected class members. In their supplemental filing, Defendants revised their request with respect to sample size to embrace a slightly larger sample of 1-2% of the total putative class. (Supp. Resp. at 5) Since the putative class size, given the findings of the court in Section A, supra, is approximately 1600 members, if the exact formulation of Transamerican were followed (.0083%), the sample would be 13 files; one percent of the total would represent 16 files and two percent would represent 32 files.

Plaintiffs propose that any sample of putative class members’ claims and/or legal files should be set at 25%² Twenty-five percent of 1600 would be a sample size of 400 files. Plaintiffs do not cite any authority for this percentage so the court concludes it is simply proposed as being somehow ‘equitable,’ largely as the court apparently did in Tmnsamerican. Plaintiffs, however, add an additional wrinkle by proposing that the random sample be comprised of one-third files referred to Medical Services and one third files referred or assigned to claims legal. (Supp. Mot. at 4.) Plaintiffs do not specify where the remaining third would come from, so it is left for the court to guess that it could be files referred to both or neither Medical Services and/or claims legal. This request strikes the court as being singularly nonrandom and therefore not representative of the putative class members as a whole.

The court finds that given the time burden placed upon Defendants and the stage of the litigation, a sample size of ten percent would adequately provide Plaintiffs with a sufficient sample to address the issues outlined herein concerning class certification, and would not place an unreasonable burden upon Defendants to produce. Ten percent of the putative class files will be approximately 160 claims.

Therefore, Defendants shall be required to select a sample of claims files using the following method:

1. Identify all UWUIM claims made by persons within the State of Colorado under automobile insurance policies issued by Defendants with dates of loss between May 4, 2006 and May 4, 2011. Eliminate from that list the claims associated with the named plaintiffs in this action. Assign every identified claim a unique identifying number.

2. Organize the list in the same manner it is organized in Defendants’ regular course of business, whether by case number, alphabetically, or other. Defendants shall be prepared to describe how the master list was organized at the inception of compilation of the list.

3. Randomly select a beginning number between one and nine. This can be done by blind draw (use of a hat is optional). The first file to be included in the random sample shall be the number drawn by blind draw. Thereafter, every tenth claim shall be selected for inclusion in the sample. Claims should continue to be drawn until the list is exhausted. If the random draw results in fewer than 160 claims, explanation should be provided (e.g., the total sample size was 1427, therefore only 142 claims were drawn.)

4. As to each claim drawn for inclusion determine whether there is a claim file, a medical services file and/or a legal file. As to each uniquely numbered claim drawn, all files must be produced except for authorized redactions as stated in this order.

5. As to all files to be produced under the unique claim number assigned for purposes of this discovery sample, claimant’s personal identifying information shall be removed and all documents marked “confidential” pursuant to the Protective Order in this ease.

6. As to all files to be produced under the unique claim number assigned for purposes of this discovery sample, documents protected by privilege shall be removed or redacted and a privilege log created.

7. As to all documents to be produced under the unique claim number assigned for purposes of this discovery sample, documents shall be produced in .tif or .pdf format as has been customary for document production between the parties.

C. Permissible Redactions, including Reserve Information

This case involves claims of an insured against his own insurance company, usually known as a first party claim.³ The purpose of uninsured motorist coverage is to compensate insureds for loss caused by negligent and financially irresponsible motorists outside the control of either the insured or his own insurance carrier. Parsons ex rel. Parsons v. Allstate Ins. Co., 165 P.3d 809, 814 (Colo.App.2006); Kral v. Am. Hardware Mut. Ins. Co., 784 P.2d 759 (Colo.1989). In this context, if the insured suffers a loss in an accident, the insurer must pay the insured, up to the limits of the policy, whatever losses the insured proves the insured is legally entitled to recover from the uninsured motorist. Id. Uninsured or underinsured motorist coverage is not triggered unless an insured is legally entitled to recover damages from the operator of an uninsured or under-insured automobile. Colo.Rev.Stat. § 10-4-609(1)(a); Parsons, 165 P.3d at 814.

First party claims are uniquely different from third party claims because an insurer has a legal obligation to deal with an insured fairly and in good faith. Farmers Group, Inc. v. Trimble, 691 P.2d 1138 (Colo.1984).

[T]he duty of good faith derives from the relationship of an insured claimant to the provider of benefits. This relationship, arising from the underlying insurance or compensation obligation ... permeates all of the dealings between the parties.

Travelers Ins. Co. v. Savio, 706 P.2d 1258, 1268 (Colo.1985). By obtaining insurance, an insured seeks to obtain some measure of financial security and protection against calamity, rather than to secure commercial advantage. Farmers Group, 691 P.2d at 1141. The duty results in a “quasi-fiduciary relationship” between insured and insurer. Id. The duty of good faith continues as long as the insurer-insured relationship exists. Bucholtz v. Safeco Ins. Co., 773 P.2d 590, 592 (Colo.App.1988) (noting that such a duty can have limited abatement during an arbitration period); Parsons, 165 P.3d at 815. Therefore, the court rejects Defendants’ argument that insured and insurer are in a purely adversarial relationship when a claim is made for UM/UIM benefits. (See Supp. Resp. at 2.)

A bad faith insurance claim in Colorado “is the affirmative act of the insurer in unreasonably refusing to pay a claim and failing to act in good faith ... that forms the basis for liability in tort.” Farmers Group, 691 P.2d at 1142. For an insured to prevail on a bad faith breach of contract claim against his own insurance company, “the insured must establish the insurer acted unreasonably and with knowledge or reckless disregard of its unreasonableness.” Parsons, 165 P.3d at 815 (citing Dale v. Guar. Nat’l Ins. Co., 948 P.2d 545, 551 (Colo.1997)). “The determination of whether an insurer has breached its duties to an insured in bad faith is one of reasonableness under the circumstances.” Id. (citing Surdyka v. DeWitt, 784 P.2d 819, 822 (Colo.App.1989)). The issue before the court for ultimate resolution in this case then, is to the extent any insured’s valid claim was denied, reduced or delayed, whether a reasonable insurer under the circumstances would have denied or reduced or delayed payment of the claim. Id.; see also Pham v. State Farm Mut. Auto. Ins. Co., 70 P.3d 567, 572-73 (Colo.App.2003).

“Modern statutes, including Colorado statutes, require insurers to maintain reserves to assure the insurer’s ability to satisfy its potential obligations under its policies.” Silva, 47 P.3d at 1189. This is true of all claims, both first party and third party. Reserves not only estimate the amount necessary to provide for the payment of all losses and claims for which an insurer may be liable, but also “reflect all potential claim expenses and any claims the insurer undertakes to defend since the insurer will have claim handling expenses, including attorney fees and court costs.” Id.

“Settlement authority generally refers to an agent’s ability to accept an offer of settlement that binds the principal up to and including a certain amount of money.” Id. “Statutory requirements, limitations in the evaluation, and bargaining tactics limit the usefulness of reserves and settlement authority as valuations of a claim.” Id., at 1190. Therefore, while reserves and settlement authority have some relationship to an insurer’s estimation of liability, neither reflects an admission by the insurance company of a claim’s worth. North River Insurance Company v. Greater New York Mutual Insurance Company, 872 F.Supp. 1411, 1412 (E.D.Pa.1995); Silva, 47 P.3d at 1190.

Colorado courts treat the insured’s right to obtain discovery of the insurer’s reserves or settlement authority differently in a first-party bad faith case than in a third-party bad faith case. Silva, 47 P.3d at 1192 (“The scope of discovery of insurance information should therefore be broader in a first-party claim between an insured party and his insurer than in a third-party personal injury claim. Consequently, courts have been more likely to find reserves and settlement authority discoverable in claims between an insured and his or her insurer, such as a bad faith claim or declaratory judgment action, than in third-party claims.”). See also Bishelli v. State Farm Mut. Auto. Ins. Co., Case No. 07-CV-00385-WYD-ME H, 2008 WL 280850 at *2 (D.Colo. Jan. 31, 2008) (“The case for discoverability is much stronger when a bad faith claim is alleged and when the parties involved in a lawsuit are insured and insurer.”) Allowing a plaintiff to overcome an insurer’s work product privilege may be particularly appropriate in an action for bad faith, in light of the insurer’s virtual monopoly over the evidence required to support such an action. Id.; see also Henderlong v. Allstate Ins. Co., Case No. 08-cv-01377-CMA-MEH, 2009 WL 82493 at *2 (D.Colo. Jan. 13, 2009). In Turner v. State Farm Mut. Auto. Ins. Co., Case No. 09-cv-1926-CMA-KLM, 2010 WL 3239270 (D.Colo. 2010) , the District of Colorado specifically stated:

State Farm’s counsel claimed that this information [value of claims] was privileged based on Silva v. Basin Western, 47 P.3d 1184, 1193 (Colo.2002). However, Silva is inapplicable to this case. In Silva, the Colorado Supreme Court found that evidence of an insurance company’s reserves and settlement authority is not discoverable in a third-party action against an insurance company. Id. The present case is a first-party action against an insurance company and, therefore, this information is likely discoverable. See id. (“The scope of discovery has thus been traditionally broader in first-party disputes between an insured party and his or her insurer. Reserves have been correspondingly more likely to be found discoverable in such actions.” (citation omitted)).

Id. at *3 n. 4 (unpublished; emphasis added).

Evidence of the reserves and settlement authority in this case and over the life of the claim — particularly if the claim was referred to medical services or claims legal — would provide evidence of whether Defendants’ conduct was reasonable or unreasonable and/or in good faith or bad faith. Again, the point is not to determine what the proper value of the claim actually was, as would be the thrust of a third party action; in a bad faith case, the evidence of reserves and settlement authority is directed at whether or not the insurer’s actions toward its insureds were reasonable.

Therefore, the court finds that evidence of reserves and settlement authority, or other “values” applied to the claim in monetary terms, are discoverable in a case like this and Defendants may not redact such information from the claims and legal files produced pursuant to this Order. For the same reasons, information about reserves and settlement authority, or other “values” applied to the named plaintiffs claims in monetary terms, that was redacted in the named plaintiffs’ claim and legal files previously produced shall be provided. Pages which were redacted prior to transmission to Plaintiffs, therefore, should be replaced with those numbers left intact.

However, the court finds that Plaintiff have made no showing sufficient to overcome claims of work product or attorney/client privilege in other contexts; consequently, that information should be redacted in the claims, medical and legal files produced in accordance with this Order. Information redacted on the basis of privilege should be reflected on a privilege log consistent with previous orders and the Protective Order entered in this case.

D. Privacy Issues

Defendants have stated that the claims, medical and legal files of its insureds who made UM/UIM claims during the relevant time period contain personal medical and other information. (Resp. at 8.) Defendants state the files may be protected by Title 15 U.S.C. §§ 6801(a), and 6802. (Resp. at 8.) Plaintiffs’ counter that Title 15 U.S.C. § 6802(e)(8) exempts “documents that are required to be produced in connection with a civil court proceeding from any of the Act’s proceedings.” (Reply at 3.) Defendants do not dispute this statement in their supplemental filing and, in fact, do not address the privacy concerns previously invoked with respect to production of any claims or legal files at all. (See Supp. Resp.) This may well be a result of the fact that the court entered a Protective Order on November 3, 2011, which will protect sensitive information contained in the files produced pursuant to this Order. So the record is complete, however, the court has reviewed the previous arguments advanced by Defendants.

Title 15 U.S.C. § 6802(e)(8) provides

(e) General exceptions

Subsections (a) and (b) of this section shall not prohibit the disclosure of nonpublic personal information — ...

(8) to comply with Federal, State, or local laws, rules, and other applicable legal requirements; to comply with a properly authorized civil, criminal, or regulatory investigation or subpoena or summons by Federal, State, or local authorities; or to respond to judicial process or government regulatory authorities having jurisdiction over the financial institution for examination, compliance, or other purposes as authorized by law.

Id. It appears to the court that this subsection of the Gramm-Leach-Bliley Act permits Defendants to legally comply with production if ordered to do so by this court. Further, as to non-parties’ Colorado (not federal) physician-patient privilege, disclosure is permitted so long as the court and a party to the proceeding protect the privilege. Stauffer v. Karabin, 30 Colo. App. 357, 492 P.2d 862, 865 (1971). Further, “[cjourts routinely deny defendants the standing to assert a third party’s right, including the physician-patient privilege.” People v. Palomo, 31 P.3d 879, 885 (Colo. 2001) (collecting cases.)

As set forth infra, each claim meeting the criteria of RFP No. 2 shall be assigned a unique numerical identifier and the claimant’s personal identifying information will be redacted from the file(s) prior to production.⁴ (Supp. Mot. at 4.) All of the uniquely numbered claims and legal files drawn for production would then be marked “Confidential” and produced pursuant to the Protective Order [Doc. No. 93]. This method of production should pacify any privacy concerns, but still allow Plaintiffs access to information relevant to class certification.

E. Format

Documents produced pursuant to one party’s request for production of documents are subject to the tenants of Fed. R.Civ.P. 34. As to the responsibilities of the requesting party, Rule 34 provides:

(a) In General. A party may serve on any other party a request within the scope of Rule 26(b):

(1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party’s possession, custody, or control:

(A) any designated documents or electronically stored information — including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations — stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or

Fed.R.Civ.P. 34(a)(1)(A). As to responding parties, the Rule provides:

(D) Responding to a Request for Production of Electronically Stored Information. The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form — or if no form was specified in the request — the party must state the form or forms it intends to use.

(E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:

(i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;

(ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and

(in) A party need not produce the same electronically stored information in more than one form.

Fed.R.Civ.P. 34(b)(2)(D)-(E)(iii).

The rule does not require a party to produce electronically stored information in the form it which it is ordinarily maintained, as long as it is produced in a reasonably usable form. Advisory Comments Notes to Fed.R.Civ.P. 34(b), 2006 Amendment. The Advisory notes go on, however

But the option to produce in a reasonably usable form does not mean that a responding party is free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation.

Id.

The Scheduling Order entered in this case [Doc. No. 44] provides:

The parties shall use a unified exhibit numbering system. Documents produced by either party shall be bates labeled. Consistent with this Court’s Practice Standards, counsel will make good faith efforts to minimize voluminous evidence. Counsel will use electronic means to serve discovery in an effort to reduce discovery or litigation costs.

[Doc. No. 44 at 12.] With respect to electronic discovery, the parties disagreed even early in the case and stated

Plaintiffs anticipate that there are large amounts of relevant data kept electronically, including financial analyses, audits, structuring and organizational methods. Plaintiffs assert the Sonoma Principles should be adopted, and that Documents, including Writings as that term is defined in Fed.R.Evid. 1001, should be produced in native form.

American Family disagrees that ESI will be a significant source of discovery for this set of four individual insurance claim handling disputes. However, it is preserving all potentially relevant ESI. American Family anticipates producing discoverable ESI in an electronic format with the goal of limiting associated discovery costs and delays. The parties are continuing to meet and confer concerning ESI protocols to attempt to reach agreement on specific ESI protocols. American Family does not believe producing documents in native form is efficient or cost-effective, as it would eliminate the ability to bates-stamp documents, which both parties agree is necessary, and would make it impossible to stamp documents “Confidential”, electronically or otherwise. American Family disagrees with the wholesale adoption of the Sedona Principles, which this Court has never held to be binding authority. American Family agreed to work with Plaintiffs’ counsel regarding the need for native files on an as-needed basis when production of particular files in bates-stamped .tif format would make the document more difficult to use.

Id. at 12-13.

The court concurs with Defendants that natively produced documents cannot usually be electronically Bates stamped, nor can they be electronically redacted or stamped for confidentiality pursuant to Protective Order. On the other hand, native production allows the opposing side to view meta-data contained in the document which is not available in a .tif or .pdf document. The Sedona Principles, Second Edition (2007), Cmt. 12:a and 12.b.

There are two primary considerations in choosing the form of production: (1) the need for, or probative value of both apparent and metadata; and (2) the extent to which the production of metadata will enhance the functional utility of the electronic information produced and allow the parties to conduct a more cost-effective and efficient review. These considerations should be weighed against the negative aspects associated with each format.

Id. at 190. “In current practice, many parties, local rules and courts have endorsed the use of image production formats, principally the Tagged Image File Format (TIFF) and Adobe Portable Document Format (PDF).” Id.

Plaintiffs have submitted the Declaration of Matthew W. Blake in support of their request that claim files be produced by Defendants in native format. (Mot., Ex. 17.) Mr. Blake states that the native format being used by Defendants is a database application called ICS Suite by Insurance Claims Solutions (“ICS”). Id. at 3. Mr. Blake opines that Defendants have run a limited search of their database to produce the discovery documents. Mr. Blake states that notations on the upper left corner of each claim file stating “Note(s) have been individually selected” suggest that the documents produced are not the true universe of each claim file. Id. ¶ 10. Mr. Blake does not advise, however, how producing a sorted report from a database in native format versus in .tif format after the record is retrieved would resolve this issue. He merely calls the production method objectionable on the basis the records are not produced exactly how they are maintained in the regular course of business. Id. ¶ 11. This, of course, is not the requirement of the Rule — the document can be produced as they are maintained in the usual course of business OR in a reasonably useable form. Production in .tif format is a reasonably usable form, hence its current wide usage in discovery, and Plaintiffs have presented no evidence to suggest otherwise in this case.

Mr. Blake concludes that production by Defendants in .tif format has “made the discovery of these documents unduly burdensome for Plaintiffs,” without elucidating on even one fact supporting that conclusion. Id. Plaintiff does not further elaborate on its request that the claim files be produced in native format in any of the supplemental pleadings nor in its Reply. Plaintiff has given the court no indication of any value to be obtained from metadata in the documents it seeks.

Since the parties agreed on the need for electronic Bates numbering and both parties have heretofore produced documents in .tif or .pdf formats on both side, the court see no useful purpose for suddenly switching to unnumbered native format at this.stage. Therefore, the court will not require production in native format.

It is therefore ORDERED

1. “Plaintiffs’ Motion to Compel Complete Putative Class Files & Documents” [Doc. No. 61] is GRANTED IN PART and DENIED IN PART consistent with this order. Defendants shall produce to Plaintiffs the sample claim, medical and legal files as discussed herein on or before April 26, 2012.

2. “Plaintiffs’ Motion for Ruling on Pending Items and Extension of Time for Filing Motion for Class Certification” [Doc. No. 142] is GRANTED. The deadline for Plaintiff to file a Motion for Class Certification is extended to July 10, 2012.

This matter is before the court pursuant to “Defendants’ Motion for Clarification/ Reconsideration of Court’s March 27 Order and Request for Expedited Consideration” [Doc. No. 151] (“Reconsideration Motion”) filed April 2, 2012, 2012 WL 1090323, and on “Plaintiffs’ Motion for Extension of Time/Clarification Regarding Dates for Discovery Cut Off and Class Certification” [Doc. No. 175] filed June 14, 2012. Plaintiffs filed a response to Defendants’ Reconsideration Motion [Doc. No. 155] to which Defendants replied on April 11, 2012 [Doc. No. 157].¹

On April 30, 2012, 2012 WL 1520156, District Judge William J. Martinez issued his Order granting in part and denying in part Defendants’ Motion for Summary Judgment (“SJ Order”).² [Doc. No. 165.] Since the SJ Order appeared to impact the composition of claimants who might qualify as potential class members thereby affecting issues raised in the Reconsideration Motion, this court asked for supplemental briefing addressing that issue and staying compliance with its March 27, 2012 Order (“Claim File Order”). (See Doc. No. 166, hereinafter referenced as “Stay Order.”) The parties filed supplemental briefs on May 11, 2012. [See Doc. Nos. 170 and 171.]

As noted by this court in the Stay Order,

The [Reconsideration] motion seeks clarification on three basic issues: 1) whether the sample of claim files to be produced by Defendants pursuant to this court’s March 27, 2012 Order should include non-putative-class members, i.e. persons whose Colorado UM/UIM claims were not referred to Medical Services and/or Claims Legal and, if the sample should include UM/UIM claimants whose claims were not so referred, whether the percentage size of the sample is reasonable given the far greater size of the universe of claimants from which the sample will be drawn; 2) whether settlement authority and reserve information in the sample files can be withheld in active, pending claims; and, 3) whether information post-dating the filing of this lawsuit is required.

Stay Order at 1-2.

A. Universe of Claim Files

1. Limitation to Putative Class Files

Plaintiffs’ original Motion seeking production of claim and legal files for UM/ UIM claimants was captioned, “Plaintiffs’ Motion to Compel Complete Putative Class Files & Documents.” [Doc. No. 61] In spite of the caption, which inserted the term “putative class,” Plaintiffs sought enforcement of their Request for Production of Documents (“RFP”) No. 2, which reads

Request for Production No. 2: Please identify and produce all documents and communications relating to and/or mentioning any and all UM/UIM claims made by persons within the State of Colorado under automobile insurance policies issued by you with dates of loss between May 4, 2006 and May 4, 2011 including, but not limited to, the complete “claim file” and “legal file” for each claim.

(Mot. to Compel [Doc. No. 61], Ex. 6, “Defendants’ Responses to Plaintiffs’ First Set of Requests for Production of Documents.”) Defendants objected to RFP No. 2 in its entirety, (id.) however offered a compromise sampling of ten claim files concerning putative class members to be produced under particularized conditions. One of Defendants’ original objections to RFP No. 2 was that it called for files not involving putative class members. (Id.) After Plaintiffs filed their Motion to Compel, Defendants objected to Plaintiffs’ Motion in the following respects: the date limitation beginning in May 4, 2006 instead of May 4, 2008; producing privileged information contained in the requested files; producing claim files for the entire putative class would be overly burdensome; producing medical or other private documents might violate privacy rights of non-parties; and producing information unrelated to class certification was inappropriate at this stage of the discovery. [Doc. No. 75.] Notably, Defendants did not repeat their objection that Plaintiffs were seeking files pertaining to non-putative class members. It now appears to the court that Defendants believed the universe of claim files at issue in the Motion to Compel had been voluntarily limited by the plaintiffs to putative class members only. The court, however, missed that nuance and considered RFP No. 2 as written to be the crux of the discovery dispute.

Defendants, based on their interpretation of the effect of Plaintiffs’ motion language, asserted that the universe of files at issue was approximately 1600. Plaintiffs reaffirmed their request for files of putative class members only in their Reply and did not challenge the 1600 figure as deficient. Clearly, between the Motion, Response and Reply, in spite of Plaintiffs hollow argument now that their motion was “imprecise in off-handed references to “putative class” claim files in their motion to compel,” the parties all believed that the issue involved only “putative class” member files. The court was the only participant in the dispute still adhering to the language of the original request requiring production of all UM/UIM files.

As explained by the Defendants in the Reconsideration Motion, the actual universe of files responsive to RFP No. 2 (all UM/UIM claims originating during the relevant period) was significantly higher than what either Plaintiffs or Defendants considered to be potential putative class members — i.e., those UM/UIM claims made during the relevant time period which were “referred either to Medical Services or Claims Legal.”³ (Reconsideration Motion at 2, ¶ 1, 3.)⁴

The Plaintiffs further limited their definition of the putative class in the Second Amended Complaint by specifically excluding

(1) any person who submitted a claim to Defendant for personal injuries under his or her uninsured/underinsured motorist coverage which was the subject of any lawsuit or arbitration demand filed by said person diming the Class Period and in which a final judgment or award was entered; and (2) all present officers, directors, employees and agents of Defendant.

Second Am. Compl. at ¶ 96.

In the Claim File Order, this court ordered a sampling from the universe of claims identified in RFP No. 2 and provided reason and justification for so doing. While the court continues to believe that such an approach would be appropriate and useful in the context of class certification, it is beyond cavil that the Motion to Compel filed by the Plaintiffs requested only putative class member files as defined in the Second Amended Complaint. The defendants reasonably relied on the Plaintiffs’ motion as conceding Defendants’ original objection to RFP No. 2 concerning production of files “about persons who are not class members.” (Reconsideration Motion at 3.) Therefore, the court, upon reconsideration, now holds that the motion to compel sought only files of putative class members and therefore any sampling of files ordered by the court should be based upon the universe of files associated with only putative class members.

2. Effect of SJ Order on Membership in Putative Class

In the SJ Order, District Judge Martinez found that the release signed by former named plaintiff Valerie Jenkins precluded her participation as a plaintiff in this action. The court found that Valerie Jenkins’s release

“fully and forever” released “all” claims “of whatever kind or nature” she now has “or may hereafter have” against American Family “under the terms of’ the policy, “on account of bodily injury sustained” from the accident at issue. The very broad language that Ms. Jenkins was releasing “all” claims “of whatever kind or nature” she may have against American Family strongly suggests that the proper interpretation of the release is that it applies to the claims she brings in this action. This is particularly the' ease given that there is no countervailing language in the release which evinces an intent by the parties to carve out or except one or more types of claims from inclusion within the very broad, and very clear, “all claims” language of the release.

SJ Order at 13. Judge Martinez upheld the validity of the release signed by Jenkins and dismissed all of Jenkins’ claims. Since the release at issue was a so-called, “standard” release used by the Defendants at that time when closing out its claims by payment to the insured, the dismissal of plaintiff Jenkins’ claims on that basis significantly changes the potential class. The class, if certified, will now exclude those persons whose first-party claims arising between May 4, 2006 and May 4, 2011 have been paid by Defendants pursuant to a form of release similar to that used for Ms. Jenkins’ claims (hereinafter referred to as a “Jenkins Release”).⁵

Considering the totality of Plaintiffs’ Second Amended Complaint, the Motion to Compel as limited to the putative class members’ files and the SJ Order, Defendants now argue that the potential class has been narrowed to include only Colorado UM/UIM claimants insured by American Family with dates of loss between May 4, 2006 to May 4, 2011 who have not settled with American Family and executed a Jenkins Release and whose claims files were referred to Medical Services or Claims Legal or both during the class period and who have not received a final judgment following litigation or arbitration. Id. at 5-6. Defendants have stated that approximately 200 claims meeting this definition are pending in Claims Legal, and approximately 33 claims meeting the definition have been referred to Medical Services. Id. (See also Defendants’ Status Report [Doc. No. 172].)

The court agrees with Defendants as to the make-up of the universe of potential files at issue in the Motion to Compel as it was drafted and then later modified by the SJ Order. The court disagrees, however, that “all” the claim files at issue necessarily are ‘active cases.’ There is some evidence and argument that occasionally claims were and are settled using a nonstandard release or no release, thus making it incumbent upon the Defendants to thoroughly review all UM/UIM claims made during the relevant time period to determine which claims specifically meet the newly established criteria for inclusion in the putative class.

3. Documents Created Subsequent to May 4, 2011.

This matter was removed to federal court on April 25, 2011. [Doc. No. 1, Amended Notice of Removal]-. The Amended Complaint [Doc. No. 11] was filed on May 4, 2011. The parties are engaged in class certification discovery only at this time. This court has and will continue to allow production of a sampling of the putative class members’ claims files in order to facilitate Plaintiffs’ ability to determine whether the case meets the requirements of Fed.R.Civ.P. 23(a) to obtain certification of a class, specifically the requirements of numerosity, commonality, typicality and that the named plaintiffs can fairly and adequately represent the class. The court concludes that the sample size allowed in Section B, infra, together with the files of the named plaintiffs, is an adequate representation of the universe of potential class members to allow the Plaintiffs to make such a showing if, in their estimation, the evidence supports certification. Given the purpose for which this discovery is being allowed, there is no reason to believe that providing additional claim files arising subsequent, to the date of filing of the lawsuit would help Plaintiffs with the required showing to support then-motion for class certification. However, should class certification be granted, the “end date” of May 4, 2011 would certainly be revisited during the merits phase of discovery.

B. Sample Parameters

As noted in the previous Order, there is scant authority suggesting the appropriate size of any sample of the claim and legal files in the class action discovery context, except for implicit approval of sampling in general. (See Manual for Complex' Litigation, Fourth, § 21.14 (2009).)' Defendants have estimated that the time required to gather each file associated with a claim and prepare it for production is between 2 and 6 hours. (Resp. to Mot. to Compel, [Doc. No. 75], Ex. 12, Alsup Decl. at ¶ 3.) Therefore, Defendants would be required to expend between 466 and 1,398 hours producing the files and documents associated with approximately 233 claims which are potentially contained in the putative class. On the other hand, Plaintiffs carry the burden of convincing the District Court that the claimants in the putative class are united by sufficient numerosity, commonality, and typicality to be considered as a group and additionally to prove that the named plaintiffs can fairly and adequately represent the class. The court continues to believe that a sample of files would strike an appropriate balance between the burden of production on the defendants and the plaintiffs’ need to examine some files of potential class members to prove their certification contentions.

Plaintiffs initially argued against the use of a random sample for production of potential class member files, but suggested alternatively, that if the court was inclined to allow discovery only on a sample basis, the sample size should be no less than 25%. (Plaintiffs’ Supp. Mot. [Doc. No. 99] at 4.) Based on the fact that the universe of claims is significantly smaller than originally thought, the court agrees that a more significant percentage of claims should be examined to ensure that the sample is truly representative. See, Tagatz v. Marquette University, 861 F.2d 1040, 1045 (7th Cir.1988) (a larger sample is more reliable than a smaller one); Chichilnisky v. Trustees of Columbia University, No. 91 Civ. 4617(MJL), 1994 WL 88247, *2 (S.D.N.Y. 1994) (same). Further, statistical evidence is “only helpful when the plaintiff faithfully compares one apple to another without being clouded by thoughts of Apple Pie ala Mode or Apple iPods.” E.E.O.C. v. Brinker Intern. Payroll Co., L.P., No. 05-C-1063, 2007 WL 775584, *9 (E.D.Wis. March 9, 2007) quoting Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 492 (7th Cir.2007).

Therefore, the court concludes that a sample of fifty claims within the narrowed group of potential class members will be adequate to allow Plaintiffs the opportunity to prepare for their class certification arguments while not significantly overburdening the Defendants in preparation of the discovery at this stage.

Therefore, Defendants shall be required to select a sample of fifty claims and compile for production all files associated with those claims using the following method:

1. Identify all UM/UIM claims made by persons within the State of Colorado under automobile insurance policies issued by Defendants with dates of loss between May 4, 2006 and May 4, 2011 wherein the claims, at some point, were referred to either Medical Services or Claims Legal or both.

2. Eliminate from that list the claims associated with the named plaintiffs in this action and any claim which was the subject of any lawsuit or arbitration demand filed by claimant during the Class Period and in which a final judgment or award was entered.

3. Eliminate from the list compiled in No. 1 and 2, all claims where the claimant has settled with Defendants and executed a “standard” release of claims similar to that executed by former named plaintiff Valerie Jenkins which was the subject of Judge Martinez’s SJ Order. Create and maintain a list of the eliminated claim files for potential future inspection.

4. Assign every remaining identified claim a unique identifying number.

5. Utilize a random process, for instance a computer software program designed to pull random numbers from a list, to select fifty claims from the total claims identified in No. 4. Document the method of random production for potential future inspection.

6. Subject to compliance with the remaining aspects of this Order, compile and produce to the Plaintiffs all files, documents, spreadsheets and other data or documents associated with each of the fifty claims on or before July 27, 2012.

C. Permissible Redactions

This case involves claims of an insured against his own insurance company, usually known as a first-party claim.⁶ The purpose of uninsured motorist coverage is to compensate insureds for loss caused by negligent and financially irresponsible motorists outside the control of either the insured or his own insurance carrier. Parsons ex rel. Parsons v. Allstate Ins. Co., 165 P.3d 809, 814 (Colo.App.2006); Krai v. Am. Hardware Mut. Ins. Co., 784 P.2d 759 (Colo.1989). In this context, if the insured suffers a loss in an accident, his own insurer must pay the insured, up to the limits of the policy, all the losses to which the insured would be legally entitled from the uninsured motorist but for his lack of adequate insurance. Id. As noted in the court’s original Claim File Order, first-party claims are uniquely different from third-party claims because an insurer has a legal obligation to deal with its own insured fairly and in good faith, often removing adversarial posturing. Farmers Group, Inc. v. Trimble, 691 P.2d 1138 (Colo.1984).

In the Claim File Order this court originally found that evidence of the reserves and settlement authority contained in the sample claim files would likely lead to admissible evidence of whether Defendants’ conduct was reasonable or unreasonable and/or in good faith or bad faith. It cannot be seriously disputed, however, that such evidence is directed at the “merits” of the Plaintiffs’ claims more than to satisfying the requirements of a Rule 23 class certification motion. Since the defendants would ultimately be required to reveal this information during merits discovery, the court held, as an expedient, that the information should not be specifically redacted prior to the sample file production during class certification discovery.

The universe of claims, however, has undergone a fundamental character shift as a result of the SJ Order. As currently structured, the putative class claims are highly likely to consist primarily of open, active claims, most of which are currently being litigated. Given the fundamental difference in the make up of the claims, the pragmatism of allowing the Plaintiffs to obtain what is essentially merits discovery at this early stage is now outweighed by the substantial prejudice that may enure to the Defendants by revealing an adjuster’s valuation of a claim in active cases which may not ultimately be part of a class action lawsuit. The court now finds and orders that for each file produced as part of the sample authorized by this Order, evidence of reserves and settlement authority, or other “values” applied to the claim in monetary terms, shall be redacted prior to production. For any and all redactions made pursuant to this Order, a privilege log shall be prepared and produced. Of course, this issue can and should be re-visited should the Plaintiffs emerge victorious from the class certification fray.

Consistent with and unchanged from the Claims File Order, the court finds that Plaintiffs have made no showing sufficient to overcome claims of work product or attorney/client privilege and such information may be redacted in the claims, medical and legal files produced in accordance with this Order. Information redacted on the basis of privilege should be reflected on a privilege log consistent with previous orders and the Protective Order entered in this case.

The court finds that the appropriate date range for inclusion in the universe of claims from which the sample files will be culled is May 4, 2006 through May 4, 2011.

1. “Defendants’ Motion for Clarification/Reconsideration of Court’s March 27 Order and Request for Expedited Consideration” [Doc. No. 151] is GRANTED to the extent consistent with this Order. Defendants shall produce to Plaintiffs the claim, medical and legal files associated with the fifty claim sample on or before July 27, 2012. All provisions of the March 27, 2012 Order [Doc. No. 147] not specifically addressed or modified herein remain valid, and

2. The stay previously imposed by the Stay Order [Doc. No. 166] is hereby LIFTED; and

3. “Plaintiffs’ Motion for Extension of Time/Clarification Regarding Dates for Discovery Cut off and Class Certification” [Doc. No. 175] is GRANTED in part as follows:

Class Discovery Deadline: 9/21/2012

Disclosure of Affirmative Experts with respect to Class Discovery: 8/3/2012

Disclosure of Rebuttal Experts with respect to Class Discovery: 8/31/2012

Deadline for Plaintiff to file a Motion for Class Certification is extended to October 5, 2012; and

4. The parties shall file a Notice and Status Report with this court within five days of any ruling regarding class certification, setting forth the parties’ position with respect to future scheduling needs; and

5. A Scheduling/Status Conference will be held on January 14, 2013 at 9:30 a.m.

1 . Defendants argue that no claim or legal files from putative class members should be produced; however in the spirit of compromise have proposed the limited production discussed herein.

2 . Plaintiffs argue against a random sample being produced and request the court order production of all files; alternatively, however, they submit that if the court is inclined to allow discovery only on a sample basis at this point, the sample size should be no less than 25%. (Supp. Mot. at 4.)

3 . A third party claim arises when a person damaged in an auto accident makes claims against the other driver's insurance company. The claimant and the insurance company have, therefore, a completely adversarial relationship.

4 . Such redaction would not necessarily limit Plaintiffs’ ability to later request that same personal identifying information should a class be certified and such information be otherwise discoverable.

1 . Plaintiffs also filed an Objection to this Court’s March 27, 2012 Order which is pending before the District Court. [Doc. No. 156, filed April 10, 2012.] Defendants filed a Response to that Objection on May 4, 2012 [Doc. No. 167] and Plaintiffs filed a Reply on May 18, 2012 [Doc. No. 173]. In reconsidering the March 27, 2012 Order, this court has considered the issues raised by parties in connection with the Objection as well as the briefing specific to the Reconsideration Motion.

2 . The Plaintiffs have filed a Motion for Reconsideration of the District Court's SJ Order which is currently pending before Judge Martinez. [Doc. No. 169.]

3 . Apparently the universe of files contained in RFP No. 2 is approximately 4,360. (Reply [Doc. No. 157] at 3.)

4 . The Second Amended Complaint defines "putative class members” as, "[a]ll residents of Colorado who, within the period of the applicable statute of limitations, (a) were or are insured by Defendant under automobile liability policies or motor vehicle liability policies containing uninsured motorist and/or underinsured motorist coverage; (b) have made claims to Defendant for personal injuries under their uninsured/underinsured motorist coverage; and (c) have had their claims submitted to Defendant's Medical Services department and/or whose claims were handled by Defendant’s Legal Services department.” (Second Am. Compl., [Doc. No. 38] at ¶ 96.)

5 . Defendants allege that "[m]ost claims with dates of loss between May 4, 2006 and May 4, 2011, have been paid by American Family, and settled with the exchange of a standard release.” (Supp. Br. of Defendants [Doc. No. 170] at 5.)

6 . A third party claim arises when a person damaged in an auto accident makes claims against the other driver’s insurance company. The claimant and the insurance company have, therefore, an adversarial relationship.