United States District Court, S.D. Indiana, Indianapolis Division
ELI LILLY AND COMPANY, et al. Plaintiffs,
ARCH INSURANCE COMPANY, et al. Defendants.
ORDER ON MOTION TO STRIKE AFFIDAVITS
J. McKINNEY, JUDGE.
Arch Insurance Company and Arch Specialty Insurance Company
(collectively, “Arch”), have moved to strike the
affidavits of Ian S. Pettman (“Pettman”) and Mike
Brown (“Brown”) (collectively, the “JLT
Affidavits”), which are attached to Plaintiffs',
Eli Lilly and Company and Eli Lilly do Brasil LTDA
(collectively, “Plaintiffs'”), Second Amended
Complaint. Dkt. No. 554. For the reasons stated herein, the
Court DENIES the Motion to Strike.
this is an insurance dispute that arises from claims against
Lilly do Brasil for alleged environmental contamination and
products liability injuries related to a plant formerly
operated by Lilly do Brasil (“underlying
actions”). Dkt. No. 289, Second Am. Compl. ¶¶
10-55. On October 7, 2015, Plaintiffs filed a Second Amended
Complaint and approximately 103 exhibits. Dkt. No. 289. Among
other things, the Second Amended Complaint alleges that
certain excess insurance policies should be reformed for
mutual mistake. Second Am. Compl. ¶¶ 99-175. In
support of this allegation, Plaintiffs submit the affidavits
of Pettman and Brown, who are employed by JLT Limited
(“JLT”), which Plaintiffs label “the
world-wide and lead broker” for the relevant excess
policies. Id. ¶¶ 106-08, 148; Dkt. Nos.
289-16 & 289-17. The JLT Affidavits first appeared,
however, as attachments to the Amended Complaint, which was
filed on January 27, 2015. Dkt. Nos. 211-10 & 211-11.
prior order on Arch's Motion to Compel dated September
27, 2016, the Court discussed discovery between Plaintiffs
and Arch regarding JLT documents. Dkt. No. 533. In that
Order, the Court concluded that documents that Plaintiffs had
previously withheld should be produced to Arch. Dkt. No. 533
at 11-12. The Court further stated that it was not
“completely convinced that Arch could not and should
not have sought this discovery directly from the JLT
entities.” Id. at 12. As a result, the Court
declined Arch's request for attorneys' fees
associated with that part of the Motion to Compel.
December 2, 2016, Arch filed the current motion to strike.
Arch asserts that the Court should strike the JLT Affidavits
pursuant to Rules 37(c)(1)(c) and 12(f) of the Federal Rules
of Civil Procedure because the more recently-produced
documents regarding JLT show that Plaintiffs took affirmative
steps to interfere with Arch's ability to obtain
discovery from JLT. Dkt. No. 556 at 1-2. For this, Arch
requests that the JLT Affidavits be struck. Further, Arch
argues that Plaintiffs, through certain agreements with JLT,
have enough control over JLT and its employee's
participation in this litigation, that Plaintiffs could have
easily obtained Pettman's and Brown's appearance for
a deposition. Id. at 7. Moreover, Arch contends that
by allowing Plaintiffs to submit the JLT Affidavits, the
individuals have submitted to this Court's jurisdiction
and “cannot, at this date, decide they are not
obligated to participate in these proceedings.”
Id. at 14-15. Arch believes that these are
additional reasons to strike the JLT Affidavits, but at the
very least the Court should require Plaintiffs to pay for
Arch's expenses to obtain Pettman's and Brown's
cooperation through the Hague Convention.
assert that Arch's motion fails both procedurally and
legally. First, Lilly states that Rule 37(c)(1)(C) does not
apply because since at least January 2015, Arch has had the
information it needed to identify Pettman and Brown. Further,
Arch cannot show any prejudice because, as the Court
previously decided, Arch could have and should have sought
discovery from JLT through traditional means before. Dkt. No.
568 at 6-8. Second, with respect to Rule 12(f), Plaintiffs
argue that a motion to strike is untimely under any generous
reading of the rule. Id. at 8-9. Third, Arch's
motion should have been brought in connection with its Motion
for Judgment on the Pleadings, which the Court converted to
one for summary judgment, pursuant to Southern District of
Indiana Local Rule 56(i). Id. at 9-10. Fourth,
Plaintiffs claim that none of the factual allegations of what
Arch perceives to be wrong-doing, such as the individual
releases, the stand-still agreement, the assertion of a
common-interest privilege, or the email exchange referencing
ways for JLT to avoid answering discovery requests from Arch,
support striking affidavits that Arch has known about for
nearly two years. Id. at 11-34.
any rubric, the Court must assess whether Plaintiffs actions
prejudiced Arch or evidence bad faith. See Volling v.
Antioch Rescue Squad, 999 F.Supp.2d 991, 1007 (N.D. Ill.
2013) (stating that matters to be struck from pleadings must
be, among other things, “clearly prejudicial”);
JFB Hart Coatings, Inc. v. AM Gen'l LLC, 764
F.Supp.2d 974 (N.D. Ill. 2011) (stating that sanctions under
the inherent authority of the court requires a display of
“fault, bad faith, or willfulness” (quoting
Greviskes v. Univ. Research Assoc., Inc., 417 F.3d
752, 758-59 (7th Cir. 2005)); Mintel Int'l
Group, Ltd. v. Neergheen, 636 F.Supp.2d 677 (N.D. Ill.
2009) (stating that sanctions for failure to disclose under
Rule 37(c)(1) requires a showing of harm to the opposing
party); Although the Court finds certain aspects of
Plaintiffs' relationship and correspondence with JLT
troubling, Arch has failed to evidence any prejudice or bad
faith that would require striking the JLT Affidavits. There
is no getting around the fact that Arch has known about the
JLT Affidavits since January 2015 when they were filed with
the Amended Complaint. The Court did stay certain discovery
between the parties during the ensuing two years; however,
that stay would not have prevented Arch from seeking third
party discovery from JLT. Further, in its Order on Arch's
Motion to Compel the Court previously alluded to the notion
that Arch should have and could have approached JLT for
discovery directly. Dkt. No. 533 at 11-12. Arch's
evidence in the current motion does not change that analysis.
reasons stated herein, the Court DENIES Defendants', Arch
Insurance Company and Arch Specialty Insurance Company,
Motion to Strike the Affidavits ...