Bryce Corporation v. XL Insurance America, Inc.

Background

Bryce Corporation sought an informal conference under Federal Rule of Civil Procedure 37.2 concerning its discovery disputes with XL Insurance America, Inc. The requested discovery included underwriting and claims-handling manuals, engagement agreements, document-retention policies, documents from J.S. Held and Sedgwick, reinsurance information, and documents concerning loss reserves.

XL opposed the request. It argued that the request was premature because fact discovery was still open and XL was continuing to search for and produce responsive documents. XL represented that it had already made supplemental productions and planned additional productions and a privilege log. XL also argued that documents held by J.S. Held and Sedgwick were outside its possession, custody, or control; that reinsurance information was not relevant; and that loss-reserve documents were protected attorney work product. The issue concerning loss-reserve documents was also pending in XL’s separate motion to strike or, alternatively, to prevent reliance on inadvertently disclosed information.

Court’s Directives

The court credited XL’s representation that it was reviewing additional documents, that its search covered responsive documents within its possession, custody, or control, and that the search was not limited to its underwriting or claims files.

The court ordered XL to provide Bryce, by December 1, 2023, a status update concerning the search for the underwriting and claims-handling manuals, engagement agreements, and document-retention policies. It also ordered XL to produce a privilege log by December 11, 2023, and to update that log as needed for later productions.

Regarding J.S. Held and Sedgwick, the court credited XL’s representation that it had neither the legal right nor the practical ability to access those entities’ files. The court stated that Bryce could seek those materials directly from either entity through subpoenas under Federal Rule of Civil Procedure 45.

Reinsurance Information

The court rejected XL’s relevance objection to reinsurance information. It found that reinsurance information could be relevant to Bryce’s allegation that XL acted in bad faith when adjusting and paying the claims because the information may reflect the insurer’s understanding of the risk it underwrote. To the extent the information concerned the underlying policy and related claims, the court directed XL to produce it unless XL had a basis for withholding or redacting it other than relevance. Confidential or proprietary information could be produced under the parties’ confidentiality agreement. XL was also ordered to provide an estimated production timeline by December 11, 2023.

Loss-Reserve Documents and Disposition

The court recognized that whether loss-reserve documents qualify as protected work product remained pending in XL’s separate motion. Until the court decided that issue, XL did not have to produce the loss-reserve documents and was directed to focus on its other discovery obligations.

In light of these directives, Judge Katherine Polk Failla denied Bryce’s Rule 37.2 conference request as moot and directed the Clerk of Court to terminate the pending motion at docket number 34. The order addressed discovery issues and did not decide the underlying insurance dispute.