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Eli Lilly and Co. v. Arch Insurance Co.

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

September 1, 2017

ELI LILLY AND COMPANY, Plaintiffs,
v.
ARCH INSURANCE COMPANY, Defendants.

          ORDER ON MOTION TO COMPEL

          LARRY J. MCKINNEY, JUDGE UNITED STATES DISTRICT COURT

         This 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.

         I. BACKGROUND

         Generally, 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.

         As part 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. Id.

         On 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.

         During 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.

         In 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.

         Although 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.

         On 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.

         On the 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.

         Within 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.

         On 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.

         II. LO ...


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