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Gardner v. Continental Casualty Co.

United States District Court, D. Connecticut

January 13, 2016



Joan Glazer Margolis U.S. Magistrate Judge

The factual and procedural history behind this litigation is set forth in considerable detail in this Magistrate Judge’s Recommended Ruling on Plaintiffs’ Motion for Preliminary Injunction, filed January 8, 2016 (Dkt. #148), familiarity with which is presumed.

On October 5, 2015, plaintiffs filed the pending Motion to Compel, with brief and exhibits in support (Dkts. ##122-23), [1] as to which defendant filed its brief in opposition three weeks later, under seal. (Dkts. ##129-31, 133).[2] On November 9, 2015, plaintiffs filed their brief in opposition. (Dkts. ##140-42, 150).[3]

This file has referred to this Magistrate Judge for all discovery by U.S. District Judge Janet Bond Arterton. (Dkts. ##124, 132).[4]


Two issues are raised in this discovery motion.


First, plaintiffs argue that they are entitled to defendant’s Individual Long Term Care Insurance Fifty-State Facility Guideline, instead of just the version provided by defendant’s third-party claims administrator, Long Term Care Group [“LTCG”], redacted to include information for Connecticut only. (Dkt. #123, at 7-13 & Exh. 4; Dkt. #131, at 6-7, 12-16; Dkt. #142, at 8-10).[5] As defendant appropriately point out, this case concerns the long-term care insurance coverage for five Connecticut residents for stays at Connecticut MRC’s. (Dkt. #131, at 12, citing Revised Second Amended Complaint (Dkt. #106), ¶ 12). Subsequent to the briefing for this motion, just last month, on December 9, 2015, Judge Arterton filed her Ruling Denying Motion to Amend (Dkt. #146), which denied plaintiffs’ motion to allege a nation-wide, rather than a Connecticut-wide, class. Moreover, plaintiffs surmise that this fifty-state document will be provided to them once a class is certified in Daluge v. Continental Cas. Co., No. 3:15-cv-297 (W.D. Wis.), which concerns the remaining forty-nine states outside of Connecticut. (Dkt. #142, at 8-9). If the instant lawsuit is limited to Connecticut, and plaintiffs are likely to obtain the document in the Daluge litigation, there is no need for production here.

Thus, plaintiffs’ motion is denied with respect to production of the unredacted Fifty-State Facility Guideline, for the reasons stated above, and for the other reasons raised by defendant.


Second, the parties disagree as to the scope of review by defense counsel of the documents responsive to the agreed-upon initial ESI search terms. As set forth in their briefs, after some negotiation, counsel agreed to a list of search terms from the e-mail of twenty-three custodians, which resulted in a return of approximately 38, 000 documents; after defendant reviewed these documents for relevancy and privilege, it produced 2, 214 pages, of which 274 pages consisted of copies of the complaints, with exhibits, filed in this lawsuit. (Dkt. #123, at 5-6, 13-16 & Exhs. 6, 8-10; Dkt. #131, at 5-6, 8-12 & Exh. E; Dkt. #142, at 2-8 & Exhs. 1-9). Plaintiffs argue that defendant “cherry-picked” these documents, “which results in an incomplete and inadequate production[, ]” and cites to four documents where they contend defendant has redacted or omitted “highly relevant” materials. (Dkt. #123, at 14-15 & Exhs. 6, 8-10). In contrast, defendant asserts that it “has provided plaintiffs with extensive discovery over the past [twenty-two] months[, ]” including 16, 800 pages of documents. (Dkt. #131, at 5). Defendant represents that it “spent significant resources reviewing the 38, 000 documents identified as the result of the search term process, ” and then specifies why the redactions in the four documents mentioned by plaintiffs are not relevant. (Id. at 6, 10-12).[6] Plaintiffs have responded that they do not accept defendant’s “just trust us” approach to relevancy, that “the entire exercise of agreeing on search terms was to avoid a prolonged and detailed debate over what ESI documents are ‘responsive’ to the discovery requests[, ]” that ESI production based on search term hits only “is a common discovery practice ordered by courts, ” and most significantly, documents provided by LTCG are far more comprehensive and informative than those provided by defendant, confirming that defendant’s “ESI production is woefully deficient.” (Dkt. #142, at 2-8 (emphasis omitted) & Exhs. 1-8).

This discovery issue is one that arises with consistency in cases with extensive ESI. See, e.g., Strauch v. Computer Sciences Corp., 14 CV 956 (JBA), 2015 WL 7548506 (D. Conn. Nov. 24, 2015). The position taken by plaintiffs is simply untenable - defendant is not obligated to turn over all 38, 000 documents, after a review eliminates some on the basis of privilege. (See Dkt. #142, Exh. 9). As every law school student and law school graduate knows, when performing a computer search on WESTLAW and/or LEXIS, not every case responsive to a search command will prove to be relevant to the legal issues for which the research was performed. Searching tens of thousands, and hundreds of thousands, of electronic documents is no different. The Court shares, however, plaintiffs’ legitimate concern that LTCG produced different, and obviously relevant, documents that were not provided by defendant itself.

Accordingly, counsel shall confer further regarding variations of two approaches discussed in the Strauch Ruling - “sampling and iterative refinement” or “quick peek protocol” - of the 38, 000 documents “hit” by the agreed upon search terms, and shall notify the Magistrate Judge, in writing, about their progress, or lack thereof, on or before February 12, 2016.[7] In the interim, on or before January 19, 2016, defendant shall forward to this Magistrate Judge’s Chambers the unredacted versions of Exhs. 6, 8, 9 and 10 to Dkt. #123, as well as the additional production for Exh. 10, [8] for her in camera review, to determine if defendant’s redactions were appropriate or overbroad with respect to those four documents.

Accordingly, plaintiff’s motion is granted in limited part to the extent set forth above, without prejudice to ...

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