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

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

July 15, 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., PNC BANK Garnishee Defendant, Garnisheess.

ORDER ON MOTION TO COMPEL PRODUCTION AND IMPOSE SANCTIONS

MARK J. DINSMORE, Magistrate Judge.

This matter comes before the Court on Continental Casualty Company's Motion to Compel Production From and Impose Sanctions Against Counter Defendant Alan Symons. [Dkt. 700.] For the reasons stated below, the Court GRANTS IN PART and DENIES IN PART the motion.

I. Background

The background of the current dispute is set forth more fully in the Court's prior orders. In brief, this Court on July 14, 2014 entered an Amended Final Judgment in favor of Continental Casualty Company ("CCC") and against Counter-Defendants Alan G. Symons ("Symons"), Robert Symons (as successor in interest of G. Gordon Symons), IGF Holdings, Symons International Group, Goran Capital, Inc., and Granite Reinsurance Company, jointly and severally, in the amount of $34, 258, 078.00, plus prejudgment interest. [Dkt. 557.] Pursuant to Federal Rule of Civil Procedure 69, CCC thereafter moved for proceedings supplemental. [Dkt. 576.] CCC included with its motion a set of proposed document requests to be served on Alan Symons and the other Counter-Defendants, [Dkt. 576 at 5-6], and CCC requested that the Court authorize service of the requests. [ Id. at 3.]

The Court granted in part and denied in part CCC's motion. [Dkt. 637.] In so doing, the Court authorized the initiation of proceedings supplemental and authorized CCC to serve its document requests on Alan Symons. [ Id. at 8-9.] The Court also noted that, after service of the requests, "the usual discovery process [would] govern" the proceedings, such that any resulting discovery disputes would be decided in accordance with the applicable rules of civil procedure and the local rules of this Court. [ Id. ]

Pursuant to the Court's order, CCC served its document requests on Alan Symons and the other Counter-Defendants on December 8, 2014. [Dkt. 701 ΒΆ 3.] Symons, however, found many of the requests to be overly broad or unduly burdensome, and a lengthy dispute ensued over the proper scope of CCC's discovery. [ See Dkt. 701-2 (Ex. B to CCC's Motion).]

The dispute culminated in CCC's currently pending Motion to Compel Production From and Impose Sanctions Against Counter Defendant Alan Symons. [Dkt. 700.] CCC asks the Court to 1) compel production of documents responsive to its discovery requests and 2) order payment of CCC's expenses and fees pursuant to Federal Rule of Civil Procedure 37(a)(3)(A). [Dkt. 701 at 2.] In response, Symons contends that CCC's position is unwarranted because CCC's discovery requests are overly broad and unduly burdensome; and/or because he has already produced all information that is both reasonably available to him and that is responsive to CCC's requests. [Dkt. 714.] Symons also contends that an award of expenses and fees is unjustified because CCC has failed to seek the discovery at issue in good faith without court intervention and/or because his position in this dispute is substantially justified. [ Id. ]

The Court conducted a hearing on the matter on June 25, 2015, and the Court at that time invited supplemental briefing on certain issues. The parties have submitted their responses to the Court's request, [Dkts. 723 & 724], and the matter is now fully briefed.

II. Legal Standard

Discovery during proceedings supplemental is conducted in accordance with the same rules that govern pretrial discovery. See Fed.R.Civ.P. 69 ("In aid of the judgment or execution, the judgment creditor... may obtain discovery from any person-including the judgment debtor-as provided in these rules[.]"); see also Winforge, Inc. v. Coachmen Indus., Inc., No. 1:06-CV-619-SEB-WGH, 2011 WL 5844873, at *2 (S.D. Ind. Nov. 18, 2011) ("[U]nder normal proceedings supplemental to execution, after obtaining a judgment, the judgment creditor will serve the judgment debtor with discovery requests to determine what assets the judgment creditor may be able to collect on from the judgment debtor. According to Rule 69, these discovery requests are treated in the same manner as pretrial discovery requests.").

Rule 26, in turn, governs the scope of discovery. Under this rule, "[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party." Fed.R.Civ.P. 26(b)(1). Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence, and relevancy is "construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case." Chavez v. DaimlerChrysler Corp., 206 F.R.D. 615, 619 (S.D. Ind. 2002) (citations omitted); accord, e.g., Med. Assur. Co. v. Weinberger, 295 F.R.D. 176, 181 (N.D. Ind. 2013) (citing Fed.R.Civ.P. 26(b)(1)) (same).

Rule 37 allows a party to "move for an order compelling disclosure or discovery." Fed.R.Civ.P. 37(a). As is relevant to the current dispute, the moving party may specifically seek an order compelling production of documents responsive to the movant's requests for production. Fed R. Civ. P. 37(a)(3)(B). The party resisting such a motion bears the burden to show "with specificity" that the requests for production are improper. See, e.g., Cunningham v. Smithkline Beecham, 255 F.R.D. 474, 478 (N.D. Ind. 2009). General assertions of hardship or conclusory statements that the requested discovery is irrelevant will not suffice. See id.

If the non-movant resists the motion on the basis of undue burden, the non-movant must "adequately demonstrate the nature and extent of the claimed burden by making a specific showing as to how disclosure of the requested documents and information would be particularly burdensome." Bitler Inv. Venture II, LLC v. Marathon Ashland Petroleum LLC, No. 1:04-CV-477, 2007 WL 1164970, at *4 (N.D. Ind. Apr. 18, 2007). This typically requires affidavits or other evidence establishing the cost or time required to provide the requested information. See, e.g., Jenkins v. White Castle Mgmt. Co., No. 12 C 7273, 2014 WL 3809763, at *2 (N.D. Ill. Aug. 4, 2014) ("What is required is affirmative proof in the form of affidavits or record evidence."); Burton Mech. Contractors, Inc. v. Foreman, 148 F.R.D. 230, 233 (N.D. Ind. 1992) ("An objecting party must specifically establish the nature of any alleged burden, usually by affidavit or other reliable evidence.").

Rule 37 also provides for cost-shifting associated with a motion to compel. If the motion is granted, the Court "must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees." Fed.R.Civ.P. 37(a)(5)(A). The Court, however, shall not do so if "the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action;" if the non-movant's nondisclosure "was substantially justified;" or if "other circumstances make an award of expenses unjust." Id. A similar analysis applies if the motion is denied, see Fed.R.Civ.P. 37(a)(5)(B), and the Court has considerable discretion in awarding costs if the motion is granted in party and denied in part. See Fed. R. Civ. P 37(a)(5)(C).

III. Discussion

The discovery at issue in this case consists of thirteen requests for documents related to Symons' financial assets. [ See Dkt. 714-2.] Before responding to any of these requests, Symons interposed numerous general objections on the grounds that the requests sought information that was not relevant; was protected by the attorney-client or work-product privilege; or otherwise was not within the permissible scope of discovery. [ Id. at 1-4.] Such general objections do not establish "with specificity, " Cunningham, 255 F.R.D. at 478, that the requests at issue are improper, and such general objections are accordingly entitled to little if any weight. See, e.g., Novelty, Inc. v. Mountain View Mktg., Inc., 265 F.R.D. 370, 375 (S.D. Ind. 2009) ("[G]eneral objections' made without elaboration, whether placed in a separate section or repeated by ...


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