United States District Court, S.D. Indiana, Indianapolis Division
ORDER ON MOTION TO COMPEL
J. MCKINNEY, JUDGE UNITED STATES DISTRICT COURT
matter comes before the Court on Defendants', Arch
Insurance Company and Arch Specialty Insurance Company
(collectively, “Arch”), Motion to Compel the
production of certain documents utilized by Mark Saltsgaver
(“Saltsgaver”) in preparation for his
depositions. Dkt. No. 710. For the reasons stated herein, the
Court GRANTS in part and DENIES in part
Arch's Motion to Compel.
this case involves an insurance dispute that arises from
claims against Eli Lilly do Brasil, Ltda. (“Lilly
Brasil”) for alleged environmental contamination and
products liability injuries related to a plant operated by in
Brazil. Dkt. No. 289, ¶¶ 10-55. In their Second
Amended Complaint, Plaintiffs, Eli Lilly and Company
(“Lilly U.S.”) and Lilly Brasil (collectively,
“Lilly”), assert that the liabilities of Lilly
Brasil, a wholly-owned subsidiary of Lilly U.S., are covered
by certain primary and excess insurance policies purchased by
Lilly U.S. Id. at ¶¶ 56-98. Lilly also
asserts that if Lilly Brasil is not expressly covered,
certain excess insurance policies should be reformed to allow
for such coverage based on the doctrine of mutual mistake.
Id. at ¶¶ 99-175.
of its discovery efforts, Arch submitted written requests to
Lilly on January 9, 2015. Dkt. No. 711 at 2; Dkt. No. 337,
Ex. 1, Ex. 2. In its requests, Arch sought to obtain from
Lilly (1) all documents pertaining to contamination or
alleged contamination at, near, or from the Brazilian plant
operated by Lilly Brasil; (2) all documents pertaining to
insurance coverage for contamination or the underlying
environmental claims, including all communications between
Lilly Brasil and any person, such as any insurer or insurance
broker; and (3) all documents pertaining to insurance
coverage for contamination or the underlying environmental
claims, including all communications between Lilly U.S. and
any person, such as any insurer or insurance broker.
March 23 and 24, 2017, Arch took depositions of Saltsgaver,
Lilly U.S.' Senior Advisor of Risk Management, in his
individual capacity and as a Federal Rule of Civil Procedure
30(b)(6) (“Rule 30(b)(6)”) representative for
Lilly. Dkt. No. 711 at 2; Dkt. No. 724, Ex. 4, ¶ 4.
While being deposed, Saltsgaver testified that he reviewed
certain documents in preparation for the depositions to
refresh his recollection of the significant events involved
in this action. Dkt. No. 711, Ex. 1 (“Saltsgaver
Tr.”), 23:2-13, 24:1-15, 68:1-71:2, 73:8-21.
Specifically, Saltsgaver stated that he reviewed notes he
took during prior meetings involving the coverage dispute at
issue, summaries he created in preparation for the
depositions, and other documents that Lilly's counsel
compiled for him to prepare him for the depositions (the
“Compiled Documents”). Id.
his depositions, Saltsgaver stated that he took notes at
nearly every meeting he had involving the coverage dispute.
Id. at 19:10-16. He indicated that he originally
took handwritten notes, but switched to taking only
electronic notes around 2010. Id. at 19:23-20:13.
Saltsgaver further testified that he reviewed his electronic
notes to help refresh his recollection on the topics to be
discussed at the depositions but did not review any
handwritten notes before the depositions. Id. at
23:3-13, 24:1-15, 25:1-12.
addition to reviewing his electronic notes, Saltsgaver
reviewed the Compiled Documents to refresh his recollection
and to help ensure that his testimony was accurate.
Id. at 68:1-69:17. All of the Compiled Documents had
been previously produced to Arch in discovery. Dkt. No. 724,
Ex. B, ¶ 7. Saltsgaver also prepared a summary of the
prevalent issues involved in this action to help him recall
facts and to testify accurately. Saltsgaver Tr., 69:18-70:5.
Saltsgaver indicated that he created several versions of his
summary, but only used the final and most up-to-date version
during the depositions. Id. at 70:6-72:4.
Arch's counsel requested at the depositions that Lilly
provide Arch with all of Saltsgaver's meeting notes,
summaries, and the Compiled Documents, Lilly's counsel
only provided Arch's counsel with the final version of
Saltsgaver's summary and other documents that Saltsgaver
brought with him to the depositions. Dkt. No. 711 at 6.
Lilly's counsel refused to produce any other documents to
Arch. Id. On March 30, 2017, Arch's counsel sent
a follow-up email to Lilly's counsel to request that
Lilly produce Saltgaver's notes as they were mentioned in
the depositions. Id.; Dkt. No. 711, Ex. 3.
Lilly's counsel responded to Arch's email on April 4,
2017, indicating that Saltsgaver did not rely upon the
requested notes and that the notes did not influence
Saltsgaver's testimony. Id.
April 6, 2017, Arch's counsel sent a letter to
Lilly's counsel, again requesting the production of all
of Saltsgaver's notes, summaries, and Compiled Documents.
Dkt. No. 711 at 7, Ex. 4. On May 5, 2017, in response to
Arch's letter, Lilly's counsel agreed to provide only
“non-privileged notes” while refusing to produce
Saltsgaver's summaries and the identities of the Compiled
Documents. Id. Arch's counsel responded to this
letter on May 11, 2017, and argued that all of the documents
Saltsgaver used to refresh his recollection in preparation
for his depositions were discoverable. Dkt. No. 711 at 7, Ex.
6. Arch's counsel further indicated that if Lilly was in
fact refusing to produce all of the documents Arch sought,
Arch intended to file a motion to compel. See Dkt.
No. 711, Ex. 6; Dkt. No. 737 at 3. On July 7, 2017,
Lilly's counsel sent Arch's counsel another letter,
rejecting Arch's reasoning that the documents at issue
were discoverable. Dkt. No. 711 at 7, Ex. 7. During a
follow-up telephonic conference on July 20, 2017, Lilly's
counsel indicated that it would provide a written response to
Arch's requests and a production of Saltsgaver's
non-privileged documents on either July 21 or July 24, 2017.
Dkt. No. 724 at 11-12; Dkt. No. 737 at 3-4.
afternoon of July 24, 2017, Arch filed the instant Motion to
Compel in order to obtain all of Saltsgaver's meeting
notes, summaries, and the Compiled Documents. Dkt. No. 710.
Arch argues that it is entitled to discovery of such
documents because they were used by Saltsgaver to refresh his
recollection for his depositions. See generally,
Dkt. No. 711. In the Motion to Compel, Arch relies heavily on
the test set forth in Sporck v. Peil, 759 F.2d 312
(3rd Cir. 1985), to assert that all of Saltsgaver's
meeting notes, summaries, and the Compiled Documents are
discoverable. Dkt. No. 711 at 9-11.
minutes after Arch filed its Motion to Compel, Lilly's
counsel sent another letter to Arch's counsel, stating
that Lilly would produce Saltsgaver's non-privileged
electronic and handwritten notes, as well as a privilege log,
by August 9, 2017. Dkt. No. 724 at 12; Dkt. No. 737 at 4. The
letter sent by Lilly's counsel further provided that
Lilly refused to produce any prior drafts of the summary used
by Saltsgaver during his deposition and refused to identify
any documents Lilly's counsel compiled to prepare
Saltsgaver for his depositions. Dkt. No. 737 at 4, Ex. 10.
August 7, 2017, Lilly produced Saltsgaver's
non-privileged notes, along with a privilege log, and filed
its Response in Opposition to Arch's Motion to Compel.
Dkt. No. 724. In its response, Lilly claims that Arch's
Motion to Compel was premature in light of Local Rule 37-1.
Id. at 10-13. Lilly further contends that the
documents Arch seeks to discover are protected by the work
product doctrine and that Arch failed to provide a sufficient
foundation to show that Saltsgaver's review of such
documents impacted his deposition testimony in order to
overcome the protections of the doctrine. Id. at
13-27. Lilly also asserts that the interests of justice are
not served by allowing Arch to discover these documents.
Id. at 27-34.