I dedicated my posts these last few weeks to discussing how to obtain information on an insured’s prior claims or other insureds’ similar claims. There are a few other things that policyholders’ attorneys should keep in mind when seeking this kind of information through discovery in a bad faith case.
A few months ago in "Going through the Motions" Is Usually Not Enough to Compel Bad Faith Discovery From an Insurer, I referred to a plaintiff’s attorney who took extra time and patience in carefully preparing discovery requests. The attorney conducted legal research when planning his discovery and modeled his requests after the requests in another case — requests that had been found to be reasonable by a Court when challenged by the insurer. Similarly, when drafting discovery that seeks information on an insured’s prior claims or other insureds’ similar claims, very careful attention must be given to each request. If a plaintiff’s attorney is faced with an objection by the carrier that the discovery request is burdensome, that extra effort in drafting the requests can go a long way later.
[C]ounsel may mitigate the burdensome objection by requesting similar files for only a particular time period, within a particular jurisdiction, or files with reserves over a certain amount.
Discovery in Insurance Bad Faith Cases, Part II, Charles Miller, Insurance Law Center.
For example, limiting the time frame for the information sought will reflect that careful consideration was given to either a more recent time frame or to a time frame that has particular significance for the issues presented in the case at hand. It might also be appropriate to limit the types of claims files requested.
…[I]n a residential fire case the request may only be for claims arising out of residential fires under similar policies…
Discovery in Insurance Bad Faith Cases, Part II, Charles Miller, Insurance Law Center.
It is important to determine whether the insurer is consolidating certain categories of claims into groups. For example, a carrier might separate claims into environmental claims, construction defect claims or claims for the special investigations unit. If so, then it will be important to find out how those claims are categorized so that the request can be narrowed or broadened to include groups of claims that are similar to the one at hand. If a request is limited, the limitation must be carefully tailored to the type of information sought and the legal and factual issues that are important in the case.
I am not implying that all discovery requests should be limited in some fashion or that requests which do not include some sort of restriction are not reasonable. I am proposing that these types of adjustments to discovery requests might help a policyholder’s attorney overcome an objection that the request is burdensome. I am also suggesting that drafting specifically tailored discovery requests at the outset can help keep the parties focused on the legal and factual issues at hand and could possibly bolster credibility in the courtroom. Furthermore, putting this much thought into the manner in which requests are worded forces an attorney to think ahead and to give due consideration to all aspects and strategy of the case.
Please check in with me next week for another bad faith discussion.
