Kumar v. Nationwide Mutual Insurance Company

Background

The case involves Nalini Kumar and Allen Singh’s allegations that Nationwide Mutual Insurance Company acted in bad faith. The discovery dispute concerned Nationwide’s responses to the plaintiffs’ requests for admissions and the plaintiffs’ effort to depose Julian Pardini, a lawyer Nationwide retained to work on their insurance claim beginning in October 2020.

The plaintiffs served two requests for admission seeking to clarify whether Nationwide intended to defend the insurance bad-faith claim by relying on advice of counsel. The court explained that asserting an advice-of-counsel defense generally waives attorney-client privilege as to communications and documents related to that advice.

Discovery Analysis

The court noted that requests for admission under Federal Rule of Civil Procedure 36 generally seek concessions about facts that are not substantially disputed. Rule 36 also permits requests concerning the application of law to fact or opinions. The court further explained that a contention interrogatory under Rule 33 may ask for an opinion or contention relating to facts or the application of law to facts.

The court stated that the case had been pending since June 2022 and that discovery had been open since at least November 2022. The parties had also exchanged documents in a prior related proceeding that was dismissed. Based on the time available to investigate the claim handling, the court concluded that it was not premature for Nationwide to determine whether it intended to rely on advice of counsel.

Ruling

The court granted the plaintiffs leave to submit one additional interrogatory asking whether Nationwide asserts an advice-of-counsel defense, if the plaintiffs had already served the maximum number of interrogatories permitted by Rule 33(a)(1). The opinion does not expressly state that the court compelled Nationwide to provide a further response to the requests for admission.

The court reminded the parties that, under Local Rule 37-1(a), it may impose sanctions, including reasonable expenses and attorney’s fees, for refusal or failure to meet and confer. It also stated that Federal Rule of Civil Procedure 26(c)(1)(B) permits cost-shifting to protect a party from undue discovery burden or expense, and that the court would consider shifting costs if discovery requests or objections abused the process and caused undue burden or expense.