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Symons International Group, Inc. v. Continental Casualty Co.

United States District Court, S.D. Indiana, Indianapolis Division

March 20, 2015

SYMONS INTERNATIONAL GROUP, INC., BRADFORD T. WHITMORE, Plaintiffs,
v.
CONTINENTAL CASUALTY COMPANY, Defendant. CONTINENTAL CASUALTY COMPANY, 1911 CORP., SUPERIOR INSURANCE GROUP, Counter Claimants,
v.
SYMONS INTERNATIONAL GROUP, INC., BRADFORD T. WHITMORE, Counter Defendants. SUPERIOR INSURANCE GROUP, BRADFORD T. WHITMORE, Cross Claimants,
v.
BOSE MCKINNEY & EVANS LLP, CONTINENTAL CASUALTY COMPANY, BRADFORD T. WHITMORE, SUPERIOR INSURANCE GROUP, Cross Defendants. CONTINENTAL CASUALTY COMPANY, 1911 CORP., Third Party Plaintiffs,
v.
ALAN G SYMONS, G. GORDON SYMONS, GRANITE REINSURANCE COMPANY, LTD., GORAN CAPITAL, INC., SUPERIOR INSURANCE GROUP, BOSE MCKINNEY & EVANS LLP, ROBERT SYMONS, Third Party Defendants. Stephen Cleaver, Virginia Wright, Maroula Kyriacou, WILMINGTON TRUST COMPANY, SUPERIOR INSURANCE GROUP MANAGEMENT, INC., Garnishees.

ORDER ON THIRD PARTY DEFENDANT'S MOTION FOR PROTECTIVE ORDER AND THIRD PARTY PLAINTIFF'S MOTION TO COMPEL

MARK J. DINSMORE, Magistrate Judge.

This matter comes before the Court on Third Party Defendant Robert Symons's Motion for Protective Order Under Federal Rule of Civil Procedure 26(c), [Dkt. 651], and Third Party Plaintiff Continental Casualty Company's Motion to Compel Production. [Dkt. 657.] For the reasons that follow, the Court GRANTS the motion to compel and DENIES the motion for a protective order.

I. Background

On July 14, 2014, this Court entered a judgment in favor of Third Party Plaintiff Continental Casualty Company ("CCC" or "Plaintiff") and against Robert Symons ("Symons" or "Defendant"), as successor in interest of G. Gordon Symons, in the amount of $34, 258, 078.00 plus interest. [Dkt. 557 at 2.] Two weeks later, Symons appealed that judgment to the Seventh Circuit. [Dkt. 564.] Symons did not seek a stay of enforcement or post a bond, [ see Dkt. 656 at 4], and CCC was accordingly permitted to seek execution of the judgment while the appeal was pending. See Fed.R.Civ.P. 62. To that end, CCC filed a motion for proceedings supplemental, [Dkt. 576], which the Court granted in part and denied in part on December 5, 2014. [Dkt. 637.]

Pursuant to the Court's order, CCC served various discovery requests on Symons on December 8, 2014. [Dkt. 651 ¶ 3 (Symons's Mot. for Protective Order); Dkt. 656 at 4 (CCC's Mem. in Opp'n to Mot. for Protective Order).] CCC specifically asked Symons to appear and produce documents at the Chicago, Illinois office of CCC's counsel. [ Id. ¶ 3, 6] Symons did not respond to the requests. [Dkt. 656 at 4.]

At the same time, CCC sought to execute its judgment by pursuing certain of Symons's assets located in Canada. CCC thus filed a Statement of Claim in Ontario, Canada on November 20, 2014. [Dkt. 651-1 (Ex. A. to Symons's Mot. for Protective Order).] The claim identified Symons as a defendant and explained that CCC sought to enforce this Court's judgment against him. [ See id. ] It also noted that this Court's judgment "is a final decision of the Indiana Court, notwithstanding that an appeal is pending, since no bond has been posted in connection with the appeal." [ Id. ¶ 16.] Symons responded to the claim on January 16, 2015 and has actively opposed CCC's attempt to execute its judgment. [ See Dkt. 656-2 (Symons's Statement of Defenses).]

Also in Canada, CCC filed a motion seeking to compel the probate of G. Gordon Symons's will. [ See Dkt. 651-2 (CCC's Notice of Mot.).] The Canadian court granted CCC's request, but Symons has challenged that decision on the grounds that probate is premature while CCC's judgment is on appeal. [ See Dkt. 656-3 (Ex. C. to CCC's Mem. in Opp'n to Mot. for Protective Order).]

On January 26, 2015, Symons filed the currently pending motion for a protective order. [Dkt. 651.] He argues that it is improper for CCC to simultaneously attempt to enforce its judgment in both the United States and Canada. [ See id. ] He also notes that he is a Canadian resident and citizen, and he asserts that it would therefore be unduly burdensome to produce documents or sit for a deposition in Chicago or elsewhere in the U.S. [ See id. ]

On February 10, 2015, CCC responded to Symons's motion, [Dkt. 656], and two days later, it filed the currently pending motion to compel. [Dkt. 657.] CCC asserts that Symons has no basis for requesting a protective order and asks the Court to order production of all documents that CCC has requested within one week of the Court's order. [ See Dkts. 657 & 657-4.] The parties briefed the competing motions, and the Court now addresses the parties' arguments.

II. Discussion

Under Rule 26, a "court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense[.]" Fed.R.Civ.P. 26(c)(1). The party from whom discovery is sought bears the burden to show that such a protective order is warranted. See, e.g., Felling v. Knight, 211 F.R.D. 552, 554 (S.D. Ind. 2003) ("The party seeking a protective order has the burden to show good cause for it."). The Court must also consider whether limiting discovery is appropriate in light of factors such as "the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues." Fed.R.Civ.P. 26(b)(2)(C).

Under Rule 37, a "party may move for an order compelling disclosure or discovery." Fed.R.Civ.P. 37(a). The party resisting such a motion bears the burden to show that a particular discovery request is improper. Cunningham v. Smithkline Beecham, 255 F.R.D. 474, 478 (N.D. Ind. 2009). That party must show "with specificity" that the request is inappropriate. Id. General assertions of hardship or conclusory statements that the requested discovery is irrelevant or overly burdensome will not suffice. See id.; see also Schaap v. Executive Indus., Inc., 130 F.R.D. 384, 387 (N.D. Ill. 1990) (requiring the objecting party to "specify the nature of the burden and provide specific explanations" before limiting discovery).

Defendant in this case seeks a protective order and opposes Plaintiff's motion to compel, and Defendant accordingly bears the burden to show why the requested discovery is improper. In his attempts to meet this burden, Defendant advances essentially three arguments: First, he contends that CCC's efforts to execute its judgment in Canada divest this Court of the authority to oversee CCC's proceedings supplemental. [ See Dkt. 651 at 2-3, 10.] Second, he contends that Canadian law does not allow for execution of a judgment while an appeal is pending, such that CCC's purported choice to proceed under Canadian law prohibits execution of its judgment. [ See Dkt. 651 at 3.] Finally, he contends that requiring production of documents or the taking of a deposition in the United States would be unduly burdensome for a Canadian resident such as himself. [ See Dkt. 651 at 3-5.] The Court addresses the arguments in turn.

A. This Court's Authority

Defendant first argues that, by filing the above-described claims against Robert Symons in Canada, CCC "has prejudiced (waived) its right to seek such discovery through this Court." [Dkt. 651 ¶ 5.] In his reply in support of a protective order, Defendant clarifies that he is "not contesting this Court's personal jurisdiction over the deceased [G. Gordon Symons] or over [Robert Symons] as Executor." [Dkt. 659 at 2.] Nonetheless, both his original motion and his response to Plaintiff's motion to compel assert that "[t]o enforce any orders against Robert Symons, or otherwise compel his presence in Indiana or the production of documents in the United States, is an inappropriate collateral attack on the Canadian jurisdiction, process and law that CCC voluntarily chose to use." [Dkt. 651 ¶ 5; see also Dkt. 668 ¶ 11.] Thus, regardless of whether the argument is phrased in terms of "personal jurisdiction" or otherwise, Defendant apparently contends that this Court lacks authority to order discovery of the sort sought by CCC.

This argument is unpersuasive. First, Defendant has cited no case, statute, or rule of procedure indicating that a party seeking execution of a judgment may "waive" its right to execution in one jurisdiction by pursuing simultaneous execution in other jurisdictions. [ See Dkt. 651 ¶ 5; Dkt. 668 ¶ 11.] Because Defendant bears the burden to show that the discovery at issue is improper, see Cunningham, 255 F.R.D. at 478; Felling 211 F.R.D. ...


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