United States District Court, E.D. Wisconsin
STATE OF WISCONSIN LOCAL GOVERNMENT PROPERTY INSURANCE FUND, Plaintiff,
LEXINGTON INSURANCE COMPANY and THE CINCINNATI INSURANCE COMPANY, Defendants.
STADTMUELLER, U.S. DISTRICT JUDGE.
MOTION TO BIFURCATE
November 8, 2017, Defendant Lexington Insurance Company
(“Lexington”) filed a motion to bifurcate the
trial of this case, such that two separate trials would be
held for it and for Defendant The Cincinnati Insurance
Company. (Docket #187). Lexington makes its request pursuant
to Federal Rule of Civil Procedure 42(b), which permits the
bifurcation of a case for trial “[f]or convenience, to
avoid prejudice, or to expedite and economize.” The
Court declines to exercise its discretion as Lexington
requests. Houskins v. Sheahan, 549 F.3d 480, 495
(7th Cir. 2008) (“The ultimate decision to order a
separate trial under Rule 42(b) is at the court's
discretion and will be overturned only upon a clear showing
of abuse.”). Though the claims presented against each
defendant are separate, they stem from a common nucleus of
fact. Having separate trials would result in substantial
repetition of testimony and evidence. The Court cannot
countenance such waste in a matter that has already consumed
a great deal of taxpayer resources. Having another, later
trial would also impinge on the Court's prerogative to
conclude the matter expeditiously, as well as violate the
Court's prior admonition that no further extensions of
the trial date would be considered. (Docket #140).
MOTION TO COMPEL
August 29, 2017, Plaintiff State of Wisconsin Local
Government Property Fund (the “Fund”) filed a
motion to compel directed at certain discovery responses from
Defendant Lexington Insurance Company
(“Lexington”). As explained below, the motion
must be granted in part and denied in part. In light of the
rapidly approaching trial date, and thus the parties'
need for timely guidance on this matter, the Court's
order is brief and assumes complete familiarity with facts
and arguments addressed in the underlying motion papers. The
Court addresses each subject discovery request separately.
Preliminarily, the Court notes that it takes a broad view on
discoverability in accordance with the rules of procedure.
Fed.R.Civ.P. 26(b)(1). Issues of admissibility and ultimate
relevance can be decided at trial. This perspective colors
the Court's disposition below.
Four - Lexington has adequately identified a relatively small
portion of its claim file to respond to this request. That
this encompasses about 2, 000 pages is not surprising given
the size of the claim and the gravity of the issues at stake.
The Fund can learn all it wishes about Lexington's
investigation (or lack thereof) by examining the documents
Lexington has referenced. This accords with Federal Rule of
Civil Procedure 33(d), and is unlike Derson, where
the answering party referred to 33, 000 documents in
responding to an interrogatory. Derson Group, Ltd. v.
Right Mgmt. Consultants, Inc., 119 F.R.D. 396, 396 (N.D.
Ill. 1988). The motion to compel is denied as to
Five - As noted in the Court's summary judgment
order, Lexington has not stated what it believes the value of
the loss was from the July 6, 2013 fire. Certainly, if
Lexington has its own valuation of the loss, it should
provide that information. Even if a final figure was never
reached, any information Lexington has on the undisputed
amount of loss at the Courthouse is relevant to the
Fund's claims. The motion to compel is granted as to
Seven - Given the statements in the briefing, it is not
clear whether subsequent depositions have rendered this
request moot. If not, Lexington must provide a
straightforward answer to the interrogatory. The Fund is
entitled to use interrogatories to obtain discoverable
information, and Lexington does not argue that this
information is not discoverable. The motion to compel is
granted as to Interrogatory Seven.
Ten - Lexington is correct that the interrogatory does
not actually seek its internal standards and policies for
investigating claims. Likewise, the Fund is correct that
Lexington's response is inadequate with respect to
industry standards and practices. “Wisconsin law”
is not an insurance industry standard or practice “for
the investigation, evaluation, repair and/or replacement of
structures[.]” (Docket #143-2 at 8). Lexington must
appropriately identify the industry standards it used in
investigation of the Fund's claim. The motion to compel
is granted as to Interrogatory Ten.
Twelve, Thirteen, and Seventeen - A mere reference to
documents does not meaningfully respond to these requests.
The Fund is entitled to a prose response to its
interrogatories concerning the bases for certain of
Lexington's affirmative defenses. Though Lexington
complains of the burden in doing so, it chose to advance the
affirmative defenses. If it cannot identify the factual bases
of the defenses, the defenses should be withdrawn. Finally,
Lexington's reference to privilege is a non-starter;
every claim or defense in a case is (hopefully) developed in
consultation with a party's legal counsel. That does not
bring the factual and legal bases for the claims or defenses
within the confines of a privilege. The motion to compel is
granted as to Interrogatories Twelve, Thirteen, and
Six - Lexington's response on this point states only
that it produced “its internal claims handling policies
and standards in effect during the 2013 and 2014
time-period.” (Docket #149 at 9). This is not only less
than the full scope of the documents requested, but it also
fails to account for the year 2012 as well. Further, as noted
by the Fund, Lexington must produce entire, complete
documents, including the materials that may be
cross-referenced within. See (Docket #154 at 6)
(discussing lack of hyperlinked materials). The motion to
compel is granted as to Request for Production Six.
Seven, Ten, and Twelve - The documents providing
information on Lexington's reserves may lead to other
relevant and admissible evidence. Whether or not this is
admissible, and what the value of the evidence is (as
Lexington's brief mentions, reserves are largely an
accounting or business concern), does not render the