Here at the Insurance Commando Blog, we are aware that lawyers of the plaintiff’s bar often take defense counsel to task over litigation tactics, particularly for their responses to discovery requests. Lest the public believe that the plaintiff’s bar never engages in questionable discovery practice, we here present our Insurance Coverage Practice Group’s Hall of Shame of discovery requests. The below-enshrined items are Requests for Production and a Rule 30(b)(6) topic we have actually received from opposing counsel. Some of them regularly reappear in identical or similar form, from different sources, suggesting the existence of a trove full of goodies readily available to under-capable lawyers. Usually, these are served upon us as part of a “careening discovery tornado” (in the words of our colleague Vasu Addanki), which juggernauts through the legal landscape laying waste to reason and trying to suck up everything in its path. For space limitations, I have selected the bottom half dozen.
Here is one that has not appeared recently, as no judge has enforced the implied and unavoidable disabling of large numbers of the computers adjusters need to do their jobs:
“Please produce the computer hard drive for any person who worked on plaintiff’s claim.”
The lawyer propounding this one apparently thought he could pierce the attorney-client privilege by simply asking for the same documents again:
“Produce unredacted copies of documents previously produced in redacted form.”
Recently, this lawyer sought corporate representative testimony on a pattern jury instruction:
“Any and all efforts made by [insurer] to comply with WPI 320.02 related to [plaintiff’s] underinsured motorist claim.”
Here is one in the mindlessly overbroad category:
“Please produce an index of any and all standards, protocols and procedures in force and effect at defendant from January 1, 2008, through the present.”
So, how many fire drill procedures would a major American insurer have for all of its facilities? And finally, in the same category, but on a different level, two entries tied at the nadir for Number One; these were consecutively-placed Requests for Production from the same set:
“Please produce all banking, insurance, licensing or contracting records of [Insurer] or any of its predecessors or successors.”
“To the extent not otherwise provided, please produce all business records of [Insurer] or any of its predecessors or successors.”
Seriously? Even the June, 1993 toilet paper order for the Poughkeepsie claims office?
Your Humble Correspondent respectfully submits that the effort, expense and rancor of discovery practice could be markedly reduced if counsel would actually craft discovery requests tailored to the claims, facts and magnitude of each case. And, I close with our and our clients’ thanks to those in our loyal opposition who do so, instead of simply cribbing off some list serve.
