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Phoenix Life Insurance Co. v. Raider-Dennis Agency

April 30, 2010

PHOENIX LIFE INSURANCE COMPANY AND PHL VARIABLE INSURANCE COMPANY, PLAINTIFFS,
v.
RAIDER-DENNIS AGENCY, INC. AND LARRY S. COMPAGNA, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Mona K. Majzoub

DISTRICT JUDGE STEPHEN J. MURPHY, III

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART COUNTER-DEFENDANTS' MOTION TO COMPEL ANSWERS TO INTERROGATORIES AND PRODUCTION OF DOCUMENTS BY ROBERT ROSEN (DOCKET NO. 52)

This matter comes before the Court on Counter-Defendant Phoenix Life Insurance Company's Motion To Compel Answers To Interrogatories And Production Of Documents By Robert Rosen filed on November 19, 2009*fn1. (Docket no. 52). Counter-Plaintiff Robert Rosen filed a Response on December 3, 2009. (Docket no. 57). Counter-Defendant filed a Reply on December 10, 2009. (Docket no. 60). The parties filed a Joint Statement of Resolved and Unresolved Issues on December 23, 2009. (Docket no. 62). This matter was referred to the undersigned for decision pursuant to 28 U.S.C. § 636(b)(1)(A). (Docket no. 53). The matter being fully briefed, the Court dispenses with oral argument. (Docket no. 54). E.D. Mich. LR 7.1(f).

ANALYSIS

A. Request for Concurrence and Timeliness of Motion

On September 30, 2009 Counter-Defendant served its Second Set of Interrogatories And Third Set of Requests for Production Of Documents By Robert Rosen. (Docket no. 52-2). The discovery requests include thirteen Requests for Production and five Interrogatories. According to the parties' Joint Statement, Interrogatory Nos. 1 and 3-5 and Request for Production Nos. 1-10 remain unresolved.

Counter-Plaintiff argues that Counter-Defendant did not comply with Local Rule 7.1 in seeking concurrence prior to filing its motion and that Count-Defendant waived the discovery issues in the Motion to Compel because it was filed after the close of discovery. The Court agrees with Counter-Defendant that while the discovery deadline was October 30, 2009, the scheduling order does not speak directly to the deadline for discovery motions and the deadline for "all pretrial motions" was November 30, 2009. The Court finds that this motion is timely where it was filed 19 days after the close of discovery, prior to the pretrial motion deadline and less than three weeks after the deadline to respond to the discovery at issue.

Counter-Defendant's motion contains a certification that it sought concurrence in its motion in compliance with E.D. Mich. Local Rule 7.1 and Fed. R. Civ. P. 37(a)(1). Counter-Plaintiff alleges that Counter-Defendant's request for concurrence occurred by way of a voicemail message, and that the motion was filed within two hours of Counter-Defendant's counsel leaving the message. Counter-Defendant in its Reply argues that it had repeatedly tried to reach Counter-Plaintiff's counsel in the weeks prior to the motion (it is not clear whether it was for this or other issues) without success. In light of Counter-Defendant's Rule 7.1. statement appearing in its motion, the unsubstantiated finger-pointing between the parties, unsupported by affidavit or written correspondence and the matter being fully briefed, the interests of the Court and the parties in resolving the issues at bar are met by deciding Counter-Defendant's motion on its merits.

B. Interrogatories

The four interrogatories which remain at issue each ask Counter-Plaintiff to state, as of specific dates*fn2, his net worth, and to "identify and quantify each and every constituent asset and liability item or category, and identify each and every document, on which you rely to so state." (Docket no. 52-2). Despite Counter-Plaintiff's objections to the relevance of the interrogatories and as overly broad and unduly burdensome, Counter-Defendant has shown that the information is relevant to Counter-Plaintiff's alleged injury and whether the foreclosure of the insurance policy may have been the result of a failure to pay by Counter-Plaintiff, whether Counter-Plaintiff misrepresented his net worth on his application, relevant to whether there was a valid contract and/or whether the breach of contract was justifiable and issues of credibility. See Green Leaf Nursery, Inc. v. Kmart Corp., 485 F. Supp. 2d 815, 818 (E.D. Mich. 2007) (setting forth elements of a breach of contract claim under Michigan law); Tocco v. Argent Mortgage Co., 2007 WL 170855 *7 (E.D. Mich. Jan. 18, 2007) ("Fraudulent misrepresentations that induce a contract will void it."). Counter-Defendant has identified five instances in which Counter-Plaintiff or his broker has identified varying net worth totals. (Docket no. 52, 52-3, 52-4, 52-5, 52-6).

Counter-Plaintiff's argument that the variation in testimony is a result of the fluctuating market does not address the issue of net worth as to specific time periods. Each specific Interrogatory is limited to a relevant time frame, including Interrogatory No. 1 which seeks net worth as of January 1, 2005, only fifteen months prior to the March 27, 2006 Application for Life Insurance which contains a net worth representation and Interrogatory No. 5, seeking net worth as of January 1, 2009, when the latest representation of net worth was made at a deposition in July 2009. (Docket no. 52-3). The interrogatories seek information relevant to the claims and defenses in this matter or otherwise reasonably calculated to lead to the discovery of admissible evidence and the Court will order Counter-Plaintiff to answer the interrogatories in full. Fed. R. Civ. P. 26(b)(1). The Court recognizes that some of the information is sensitive financial information and Counter-Plaintiff may answer pursuant to the parties' January 12, 2009 Protective Order in place in this matter. (Docket no. 19).

C. Requests for Production

As with the Interrogatories, Counter-Defendant argues that the relevance of the Requests for Production remaining at issue goes to clarifying "the significantly disparate financial calculations thus far disclosed in this case." (Docket no. 52). Request for Production No. 1 seeks "all documents and other items contained in, concerning, or related to, any filings made with a taxing authority, including, but not limited to, the Internal Revenue Service, that you prepared, or had prepared, for the 2005, 2006, 2007 and 2008 tax years." (Docket no. 52-7). Counter-Plaintiff objected based on relevance. Tax returns are generally discoverable, but courts recognize that public policy dictates against unnecessary public disclosure of tax return information. Premium Serv. Corp. v. Sperry & Hutchinson Co., 511 F.2d 225, 229 (9th Cir. 1975). To prevent the unnecessary disclosure of that information courts require a showing of relevancy and that the material is not otherwise discoverable. See Credit Life Ins. Co. v. Uniworld Ins. Co., 94 F.R.D. 113, 121 (S.D. Ohio 1982).

The Court finds that the tax returns with schedules and worksheets are relevant to Counter-Plaintiff's net worth and financial condition which are relevant as set forth above with respect to the Interrogatories. The Court finds, however, that the request for all documents and items "contained in, concerning or related to" any filings is far too broad and is not limited to relevant information or reasonably calculated to lead to the discovery of admissible evidence and the burden of such an unlimited Request outweighs the likely benefit of the same. The Court will order Counter-Plaintiff to produce all tax returns for ...


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