Simkins v. New York Life Insurance Company

• Court: District Court, W.D. Washington
• Decided: October 6, 2023
• Docket: 2:23-cv-00578
• Status: Unknown

Opinion

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4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 DIANE SIMKINS, an incapacitated person, CASE NO. 2:23-cv-578 8 by her guardian, Kristi Simkins, KRISTI SIMKINS and PATRIC ROGERS; and ORDER ON NEW YORK LIFE 9 CHRISTER PERSSON, INSURANCE’S MOTION FOR PROTECTIVE ORDER 10 Plaintiffs, 11 v. 12 NEW YORK LIFE INSURANCE COMPANY, 13 Defendant. 14

15 This matter comes before the Court on Defendant New York Life Insurance’s (“NYL”) 16 Motion for Protective Order Limiting The Scope of 30(b)(6) Depositions. Dkt. No. 27. The Court 17 has considered the papers filed in support of and opposition to the motion. Having reviewed the 18 relevant record, and finding oral argument unnecessary, the Court GRANTS in part and DENIES 19 in part NYL’s motion. 20 1. BACKGROUND 21 Plaintiffs bring causes of action against NYL arising out of a Long-Term Care policy 22 Diane Simkins purchased from the company. Dkt. No. 11. Plaintiffs have amended their 23 complaint once and have a pending motion to amend noted for consideration on October 6, 2023, 24 which subsumed an earlier motion to amend this Court had not yet ruled on. Dkt. Nos. 14, 29 at 1 10. Thus, the Court will treat the first amended complaint as the operative complaint for this 2 motion. See Dkt. No. 14. 3 Plaintiffs served NYL with a Rule 30(b)(6) deposition notice on June 16, 2023, an

4 Amended Notice of Videotaped Rule 30(b)(6) Deposition on June 29, 2023, and a second 5 amended Rule 30(b)(6) videotaped deposition notice on September 6, 2023. Dkt. Nos. 28-10, 28- 6 11, 28-12. NYL filed its Amended Objections on June 27, 2023, and its Second Amended 7 Objection on September 8, 2023. Dkt. Nos. 28-13, 28-14. The 30(b)(6) deposition was scheduled 8 for September 29, 2023. Dkt. No. 27 at 3. NYL moves for a protective order regarding 23 of 9 Plaintiffs’ proposed deposition topics. Dkt. No. 27. NYL represents that it waited until 10 September 21, 2023, to move for protective order in response to Plaintiffs’ request “that NYL 11 postpone the filing of this motion so as to conduct internal review and assessment . . .,” but that 12 “[t]o date, no explanation has been provided for the basis for the postponement.” Id. at 3. NYL

13 further represents that its many calls and emails to Plaintiffs have gone unanswered, but that 14 “[t]he parties continue to work collegially to reach resolution but not in time for the filing of this 15 motion.” Id. NYL requested that its motion be decided on an expedited basis, but it did not 16 request a truncated briefing schedule. Dkt. No. 27 at 1. NYL’s reply, filed September 29, 2023, 17 did not indicate whether the 30(b)(6) deposition went forward as planned. See Dkt. No. 35. 18 2. ANALYSIS 19 2.1. Legal Standard. 20 Under Fed. R. Civ. P. 30(b)(6), “a party may serve notice on an organization that 21 describes ‘with reasonable particularity the matters on which examination is requested.’” Boyer 22 v. Reed Smith, LLP, No. C12-5815 RJB, 2013 WL 5724046, at *2 (W.D. Wash. Oct. 21, 2013).

23 The designated person must testify ‘“to the matters known or reasonably available to the 24 organization.”’ Id. (citing Fed. R. Civ. P. 30(b)(6)). 1 “[O]nce the witness satisfies the minimum standard for serving as a designated witness, 2 the scope of the deposition is determined solely by relevance under Rule 26, that is, that the 3 evidence sought may lead to the discovery of admissible evidence.” Klopman-Baerselman v. Air

4 & Liquid Sys. Corp., No. 3:18-CV-05536-RJB, 2019 WL 5227332 (W.D. Wash. Oct. 16, 2019), 5 at *2 (internal quotation marks omitted) (cleaned up) (citing Detoy v. City and Cnty. of San 6 Francisco, 196 F.R.D. 362, 367 (N.D. Cal. 2000); see also EEOC v. Caesars Ent., Inc., 237 7 F.R.D. 428, 432 (D. Nev. 2006)). Even if relevant, however, a Rule 30(b)(6) notice may only ask 8 about topics that are proportional to the needs of the case and that describe the topics for 9 examination with a reasonable degree of particularity. Luken v. Christensen Grp. Inc., No. C16- 10 5214 RBL, 2018 WL 1994121, at *2 (W.D. Wash. Apr. 27, 2018). When it comes to 11 proportionality, courts consider six factors, including the importance of the issues at stake in the 12 action, the parties’ relative access to relevant information, the parties’ resources, and whether the

13 burden or expense of the proposed discovery outweighs its likely benefit. Fed. R. Civ. P. 14 26(b)(1). 15 And while Rule 26 is to be construed liberally, including to permit discovery of 16 information outside the pleadings, courts must limit the frequency or extent of discovery 17 otherwise allowed if they determine that: “(i) the discovery sought is unreasonably cumulative or 18 duplicative, or can be obtained from some other source that is more convenient, less 19 burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to 20 obtain the information by discovery in the action; or (iii) the proposed discovery is outside the 21 scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C). 22 “The Court may for good cause, issue an order to protect a party or person from

23 annoyance, embarrassment, oppression, or undue burden or expense, including . . . forbidding 24 inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters.” 1 Fed. R. Civ. P. 26(c)(1)(D). The party seeking a protective order carries a heavy burden of 2 showing why discovery should be denied. Klopman-Baerselman, 2019 WL 5227332, at *2- 3 (citing Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975)).

4 District courts have significant discretion in controlling discovery. Grund & Mobil 5 Verwaltungs AG v. Amazon.com, Inc., No. MC23-56RSL, 2023 WL 5533575, at *4 (W.D. Wash. 6 Aug. 28, 2023) (citing Fed. R. Civ. P. 26(b)(1)); Little v. City of Seattle, 863 F.2d 681, 685 (9th 7 Cir. 1988)). Likewise, District courts have broad discretion in determining relevancy for discovery 8 purposes. Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 635 (9th Cir. 2005). 9 2.2. The Court limits the date range of many of Plaintiffs’ proposed topics. 10 NYL objects to many of Plaintiffs’ proposed deposition topics as overly broad and 11 unduly burdensome to the extent that they are “not limited in temporal scope.” To be sure, there 12 is nothing inherently overbroad about discovery requests that span multiple years, but the Court

13 agrees as a general matter that Plaintiffs’ failure to limit the date range of certain deposition 14 topics unduly burdens NYL. This problem is easily cured, however, by narrowing the timeframe 15 of the proposed topics. NYL proposes limiting the relevant inquiry to “around” the time 16 Simkins’s policy lapsed, so around November 2018. See Dkt. Nos. 27 at 6; 28-6. While Plaintiffs 17 suggest that date she bought the policy, so about July 2008, is an appropriate limit. See Dkt. Nos. 18 31 at 12; 28-1. Neither party offers a convincing rationale for its proposal. And while Plaintiffs’ 19 expert, Elliott Flood, offered a bunch of background information and other context in his lengthy 20 declaration, he failed to discuss or justify any time limits. See Dkt. No. 32. Thus, the Court will 21 exercise its discretion to limit the scope of Plaintiffs’ requests to the relevant period of January 1, 22 2016—the time Plaintiffs allege as the onset of Simkins’s dementia symptoms and any cognitive

23 impairment that would have contributed to her lapsed policy—to present. See Dkt. No. 11 at 3. 24 1 Thus, NYL’s motion is granted in part and denied in part, and the topics below will be 2 limited to the period from January 1, 2016, to present: 3 • Topic 2. Your systems for creating and maintaining documents (including electronic information relating to claims) relating to insurance claims such as the claim of the 4 plaintiffs. 5 • Topic 3: Your systems for intraoffice communicating relating to claims, including email, Teams, Slack, or any other system. 6 • Topic 4: Your systems for disseminating policies, procedures, protocols, trainings, or other guidance or requirements to employees relating to claims handling. 7 • Topic 22: Any and all plans, policies, protocols, and procedures for saving money, 8 cutting costs, improving results or similar performance standards for the claims department, however described and whatever called. 9 • Topic 23: All strategies or other documents related to not “overpaying” claims, 10 however described and whatever called. 11 • Topic 24: All documents regarding bonuses, compensation, incentives or other 12 incentives given or paid to claims representatives, claims managers or their supervisors. 13 • Topic 37: All documents, metrics, analyses or other studies, including managerial 14 synopses thereof, assessing the cost savings to New York Life of failing to reinstate lapsed policies, applying conditions to reinstatement of lapsed policies. 15 • Topic 38: All metrics, measurements, analyses, including managerial synopses 16 thereof relating to the number of policies issued by New York [l]ife which lapse as a result of cognitive impairment. 17 NYL’s request for a protective order related to these proposed topics is denied in all other 18 respects. 19 2.3. The Court Grants in part and denies in part NYL’s motion. 20 The Court turns to NYL’s objections to Plaintiffs’ proposed deposition topics: 21 Topic 12: Your estimates of the damages related to the loss. 22 Plaintiffs argue that “[i]f NYL has no estimate it should say so,” and that Plaintiffs are 23 “entitled to know NYL’s position—if it has one—and not required to learn through bandying 24 1 witnesses.” Dkt. No. 31 at 13. This request is substantially vague. Plaintiffs do not explain what 2 “damages” or “loss” they are referring to in relation to their claims, and their response to NYL’s 3 “position” provides no clarity. See id. NYL’s motion is GRANTED on this topic and the Court

4 STRIKES Topic 12 from Plaintiffs’ Rule 30(b)(6) Notice. 5 Topic 13: All duties owed by insurers and their agents to the insured in long term care insurance cases. 6 Plaintiffs request that NYL designate a witness to testify about “all duties” owed by 7 apparently all insurers and their agents in apparently any “long term care insurance cases.” This 8 request is overbroad. Thus, NYL’s motion is GRANTED in-part. But NYL must respond to 9 Plaintiffs’ requests for its understanding of its duties as an insurer, including any policies it may 10 have to conform to those duties, owed to Simkins as its insured. Plaintiffs should avoid seeking 11 legal conclusions from NYL’s designated witness, including testimony about whether a 12 particular NYL policy or action was consistent with the law. See, e.g., Burton v. AbbVie, Inc., 13 No. 222CV05920FMOMAR, 2023 WL 4677024, at *5 (C.D. Cal. June 21, 2023) (“[L]egal 14 conclusions . . . should not form the basis for Rule 30(b)(6) deposition topics.”) (cleaned up) 15 (internal quotations omitted) (citing 3M Co. v. Kanbar, No. C06-01225 JW HRL, 2007 WL 16 1794936, at *2 (N.D. Cal. June 19, 2007)). 17 Topic 14: The obligation of your representatives to comply with WAC Regulations 18 and/or any other industry standards in long term care insurance claims.

19 NYL’s motion is GRANTED in-part consistent with this Court’s order on Topic 13. 20 Topic 16: All communications of any kind relating to the subject claim. 21 NYL moves for a protective order related to Topic 16 regarding “attorney/client privilege 22 and/or the work product doctrine.” NYL may raise this objection to specific questions or for 23 specific documents. NYL’s motion on Topic 16 is DENIED. 24 1 Topic 17: All bad faith cases or complaints involving long term care insurance claims lodged against in the State of Washington within the last ten years. 2 Plaintiffs state that other “bad faith cases are highly relevant to ours” because “[l]ooking 3 only at the public interest component of consumer protection cause of action, it is clear that the 4 conduct of the insurer must be evaluated by the jury.” Dkt. No. 31 at 14. Plaintiffs contend that 5 the same is true “of the judge evaluating injunctive relief claims.” Id. This request is overbroad 6 and the Court fails to grasp how other cases or complaints, not involving Simkins, are relevant 7 here. Plaintiffs’ contention that other cases will shine light on the public interest element of a 8 Consumer Protection Act cause of action is unconvincing. See, e.g., Indus. Indem. Co. of the Nw. 9 v. Kallevig, 792 P.2d 520, 529 (Wash. 1990) (discussing violations of Washington’s insurance 10 policies as per se unfair trade practices and violations of Washington’s Consumer Protection 11 Act). The same goes for Plaintiffs’ contention regarding injunctive relief under Consumer 12 Protection Act. NYL’s motion is GRANTED and the Court STRIKES Topic 17 from the Rule 13 30(b)(6) deposition notice. 14 Topic 18: The contents and location of the personnel files of Lisa Eufracio, Michael 15 Flanigan and Phillip Diskerud and any other person who worked on the subject claim. 16 The personnel files of NYL employees are irrelevant to Plaintiffs’ claims in the amended 17 complaint. NYL’s motion is GRANTED in-part for Topic 18, except that Plaintiffs may inquire, 18 generally, about NYL’s “goals, bonuses, and incentives, game plans” for any person who worked 19 on the subject claim. 20 Topic 21. Your interpretation and analysis of the coverages applicable to the subject 21 loss.

22 This request is substantially vague. Plaintiffs fail to meaningfully respond. NYL’s motion 23 is GRANTED and the Court STRIKES Topic 21 from the Rule 30(b)(6) deposition notice. 24 1 Topic 29. All claims against New York Life for failing to reinstate policies when lapsed occurs as a result of the cognitive deficits. 2 Plaintiffs do not respond to NYL’s objection to Topic 29. Topic 29, requesting “all 3 claims” against NYL is overbroad, substantially vague, and irrelevant. NYL’s motion is 4 GRANTED in-part. Plaintiffs may ask about information related to NYL’s failure to reinstate 5 Diane Simkins’s policy because of cognitive deficits. 6 Topic 30. All claims against New York Life for failing to reinstate a lapsed policy. 7 Topic 30, requesting “all claims” against NYL is overbroad, substantially vague, and 8 irrelevant. NYL’s motion is GRANTED in-part. Plaintiffs’ inquiry is limited to information 9 related to NYL’s failure to reinstate Diane Simkins’s lapsed policy. 10 Topic 31. All claims against New York Life for punitive damages where New York 11 Life has failed to properly pay benefits owed to any insured under a long-term care policy. 12 Topic 31, requesting “all claims” against NYL is overbroad, substantially vague, and 13 irrelevant. NYL’s motion is GRANTED. The Court STRIKES this topic from the Rule 30(b)(6) 14 Notice. 15 Topic 32. All claims against New York Life for punitive damages where New York 16 Life has failed to properly pay benefits owed to any insured under a long-term care policy. 17 Topic 32, requesting “all claims” against NYL is overbroad, substantially vague, and 18 irrelevant. NYL’s motion is GRANTED. The Court STRIKES this topic from the Rule 30(b)(6) 19 Notice. 20 Topic 33. All verdicts against New York Life for punitive damages for failing to 21 properly apply policy provisions.

22 Topic 33, requesting “all verdicts” against NYL is overly broad, substantially vague, and 23 irrelevant. NYL’s motion is GRANTED. The Court STRIKES this topic from the Rule 30(b)(6) 24 Notice. 1 Topic 34. All verdicts against New York Life for bad faith, consumer protection claims, consequential damages, punitive damages for failing to honor terms of its 2 insurance contracts within the last 15 years.

3 Topic 34, requesting “all verdicts” against NYL, including for the last 15 years, is overly 4 broad, substantially vague, and not relevant to Plaintiffs’ action. NYL’s motion is GRANTED. 5 The Court STRIKES this topic from the Rule 30(b)(6) Notice. 6 Topic 35. All market conduct analyses by any insurance regulator in any state regarding practices of New York Life or denying benefits, failure to reinstate, bad 7 faith, consumer protection or similar claims, however described.

8 Topic 35 is overbroad, substantially vague, and does not seek information relevant to 9 Plaintiffs’ claim. NYL’s motion is GRANTED. The Court STRIKES this topic from the Rule 10 30(b)(6) Notice. 11 Topic 39: All documents that relate to New York Life’s interpretation, construction, drafting, or understanding of the “Added Protection Against Lapse” provision. 12 NYL’s motion for Topic 39 is DENIED. NYL may raise specific objections to questions 13 or documents containing work production or attorney-client privileged information. 14 Topic 41: Certification that the defendant has produced all documents and other 15 ESI responsive to the Simkins family’s pending discovery requests.

16 NYL represents that it continues its efforts to produce documents in response to 17 Plaintiffs’ discovery requests. NYL’s motion for Topic 41 is GRANTED. 18 3. CONCLUSION 19 These disputes, particularly those relating to scope, could have been resolved between the 20 parties. The Court reminds the parties of their obligation to confer in good faith to resolve their 21 differences around discovery. 22 It is so ORDERED. 23 24 1 Dated this 6th day of October, 2023. 2 A 3 Jamal N. Whitehead United States District Judge 4

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