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Keathley v. Grange Insurance Co. of Michigan

United States District Court, E.D. Michigan, Southern Division

January 19, 2017





         This matter comes before the Court on Plaintiff Timika Keathley's Motion for Sanctions and to Compel for Defendant's Failure to Produce Photographs Taken by its Claims Adjuster at Plaintiff's Home, and for Other Discovery Violations. (Docket no. 35.) Defendant Grange Insurance Company of Michigan responded to Plaintiff's Motion (docket no. 40), and Plaintiff replied to Defendant's Response (docket no. 41). The Motion has been referred to the undersigned for consideration. (Docket no. 37.) The Court has reviewed the pleadings and dispenses with oral argument pursuant to Eastern District of Michigan Local Rule 7.1(f)(2). The Court is now ready to rule pursuant to 28 U.S.C. § 636(b)(1)(A).

         I. BACKGROUND

         At all times relevant to this matter, Plaintiff owned a home in Belleville, Michigan, which was insured by a policy issued by Defendant. (Docket no. 1 ¶¶ 4-5.) Plaintiff alleges that on or about January 28, 2014, her home suffered water damage caused by frozen and broken pipes. (Id. ¶ 9.) According to Plaintiff, the insurance policy provided casualty coverage, personal property coverage, and loss of use/temporary housing and expense coverage for water damage resulting from broken or frozen pipes. (Id. ¶ 8.) Plaintiff purportedly submitted a claim to Defendant for loss of the premises, loss of personal property, and loss of use/temporary housing expenses on April 4, 2014. (Id. ¶ 10.) On May 28, 2014, Jason May, a claims adjuster employed by Defendant, allegedly conducted a fifteen-minute inspection of Plaintiff's home, during which Plaintiff claims that Mr. May took no photographs, [1] made no estimates for repairs, and took no samples or specimens of the broken pipes. (Id. ¶¶ 11-12.) Plaintiff asserts that Mr. May then approved payments for temporary housing or “Additional Living Expenses” (ALE) on or about June 30, 2014, but that Defendant failed to follow through with those payments and denied approval of ALE for Plaintiff's proposed temporary housing at a hotel. (Id. ¶ 13-14.)

         Defendant ultimately denied Plaintiff's insurance claim on the basis that no coverage existed under the policy because Plaintiff did not prove that the loss occurred; Plaintiff misrepresented information material to Defendant's investigation; the policy provided no coverage for a “Known Loss;” and Plaintiff failed to exhibit the damaged property to Defendant. (Id. ¶ 17; docket no. 36-7.) Plaintiff then initiated this action seeking damages for breach of contract regarding Defendant's alleged failure to conduct a complete inspection of Plaintiff's home, to provide temporary replacement housing to Plaintiff, and to pay the benefits due under the policy for the damages to and the loss of Plaintiff's real and personal property, as well as the loss of use expenses incurred by Plaintiff. (Docket no. 1 ¶¶ 24-26.)

         Plaintiff previously filed two motions to compel, on January 21, 2016, and February 22, 2016, respectively. (Docket nos. 8 and 16.) On June 30, 2016, the Court held a hearing on those motions and contemporaneously issued an order granting the motions in part and denying the motions in part. (Docket no. 43.) Plaintiff filed the instant Motion on June 3, 2016, prior to the aforementioned hearing, in which she moves (1) for sanctions, including an adverse jury instruction, related to Defendant's failure to produce the photographs taken by its claims adjuster, Jason May, during his May 28, 2014 inspection of Plaintiff's home that were “inexplicably” not produced during discovery; (2) to compel defense witnesses Jason May and Brian Maxwell to respond to deposition questions that they declined to answer on the basis of attorney-client privilege; (3) to compel the production of documents withheld by Defendant on the basis of attorney-client privilege; (4) to compel Defendant to produce for deposition a corporate representative with knowledge of the meaning of the acronym, “CLASSP, ” which was used by Defendant when it opened Plaintiff's claim on its computer system; (5) to compel the production of Jason May and Brian Maxwell's home addresses; and (6) for the attorneys' fees and costs that Plaintiff incurred in filing the instant Motion. (Docket no. 35.) Some of the issues Plaintiff raises in the instant Motion are identical or substantially similar to those raised in her previously-filed motions. The Court will address each of these issues herein.


         The scope of discovery under the Federal Rules of Civil Procedure is traditionally quite broad. Lewis v. ACB Bus. Servs., 135 F.3d 389, 402 (6th Cir. 1998). Parties may obtain discovery on any matter that is not privileged, is relevant to any party's claim or defense, and is proportional to the needs of the case. Fed.R.Civ.P. 26(b)(1). “Relevant evidence” is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed.R.Evid. 401. Information need not be admissible in evidence to be discoverable. Fed.R.Civ.P. 26(b)(1). But the scope of discovery is not unlimited. “District courts have discretion to limit the scope of discovery where the information sought is overly broad or would prove unduly burdensome to produce.” Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007).

         Rules 33 and 34 allow a party to serve interrogatories and requests for production of documents on an opposing party. Fed.R.Civ.P. 33, 34. A party receiving these types of discovery requests has thirty days to respond with answers or objections. Fed.R.Civ.P. 33(b)(2), 34(b)(2)(A). Rule 30 allows a party to conduct a deposition of any person without leave of court, subject to certain exceptions. Fed.R.Civ.P. 30(a)(1). If the party receiving discovery requests under Rules 33 or 34 fails to respond properly, or if the person whose deposition is sought under Rule 30 fails to properly comply with the rule, Rule 37 provides the party who sent the discovery or noticed the deposition the means to file a motion to compel. Fed.R.Civ.P. 37(a)(3)(B).

         If a court grants a Rule 37 motion to compel, or if discovery is received after a Rule 37 motion is filed, then the court must award reasonable expenses and attorney's fees to the successful party, unless the successful party did not confer in good faith before the motion, the opposing party's position was substantially justified, or other circumstances would make an award unjust. Fed.R.Civ.P. 37(a)(5)(A). Furthermore, Federal Rule of Civil Procedure 37(d) authorizes the Court to order sanctions if a party fails to answer interrogatories or respond to a request for production of documents. Rule 37(b) provides a list of sanctions the Court may order if a party fails to obey a discovery order, up to and including dismissal of that party's action or proceeding in whole or in part. Fed.R.Civ.P. 37(b)(2)(A).

         III. ANALYSIS

         1. The Photographs Taken by Jason May

         Plaintiff argues that Defendant should be sanctioned for failing to produce the photographs of Plaintiff's home taken by Defendant's claims adjuster, Jason May, that “inexplicably” were not produced during discovery. (Docket no. 35 at 1, 8-11, 16-19.) Notably, Plaintiff alleges in her Complaint that Jason May failed to take any photographs during his May 28, 2014 inspection of Plaintiff's home. However, Plaintiff learned through the March 2016 deposition testimony of Mr. May, Joe Tison (the contractor whom Plaintiff hired to perform water mitigation in her home), and Brian Maxwell (Mr. May's supervisor and Defendant's Property Manager), that Mr. May did take photographs during the inspection and uploaded them to Defendant's computer system. (Docket no. 1 ¶ 12; docket no. 35 at 8-11.) Plaintiff asserts that Defendant has not produced the photographs taken by Mr. May in discovery, and she speculates that the reason for Defendant's failure to produce is because the photographs have been either lost or destroyed. (Docket no. 35 at 9, 10, 11.) Plaintiff argues that Defendant should face sanctions ...

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