United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Jeffrey T. Gilbert United States Magistrate Judge.
Baxter International, Inc. ("Baxter") has filed a
motion to compel Defendant AXA Versichemng ("AXA")
to produce certain communications between AXA and its
co-insurers and reinsurers. Plaintiffs Motion to Compel
Certain of AXA's Communications with Its Co-Insurers and
Reinsurers under the 1990 AXA Policy ("Baxter's
Motion to Compel"), [ECF Nos. 410, 414], For the reasons
stated below, Baxter's Motion [ECF Nos. 410, 414] is
granted in part and denied without prejudice in part.
lawsuit stems from the settlement of a multi-district
litigation ("MDL") involving product liability
lawsuits brought against Baxter and other drug companies
seeking damages for allegedly contaminated blood products.
See Beater Int'l, Inc. v. AXA Versichemng, 2014
WL 3583929 (N.D. Ill. July 18, 2014) for a thorough
discussion of the facts underlying both the MDL and this
case. Consistent with the parties' terminology, the Court
will refer to the MDL as "the Second Generation
Litigation." In this lawsuit, Baxter seeks
indemnification from AXA for the costs of defending and
settling HCV claims raised in the Second Generation
Litigation. Id. at *1. Baxter alleges AXA incurred
its duty to indemnify through an insurance policy issued in
1990 by a predecessor of AXA to a company that Baxter later
acquired. Id. The Court will call that insurance
policy "the 1990 Policy." Id. AXA is what
Baxter calls "the 'lead insurer' on the 1990
Policy." Baxter's Motion to Compel, [ECF No. 414],
at 1. But the insured risk is shared by others. There are
four co-insurers under the 1990 Policy. Id. And
there are one or more reinsurers of AXA's risk under the
1990 Policy. Id.
discovery in this case, Baxter served requests for production
on AXA that sought communications between AXA and its
co-insurers and reinsurers. Request for Production No. 27
seeks: "All documents reflecting communications between
AXA and reinsurers of the AXA Policy relating to claims made
under that policy, " Baxter International Inc.'s
First Set of Requests for Production of Documents Propounded
to Defendant AXA Versicherung AG, [ECF No. 414-2], at 8
(capitalization altered). Request for Production No. 31
seeks: "All documents reflecting communications between
AXA and one or more of its co-insurers relating to the AXA
Policy." Baxter International Inc.'s Second Set of
Requests for Production of Documents Propounded to Defendant
AXA Versicherung AG, [ECF No. 414-3], at 5 (capitalization
objected to producing any of the documents covered by these
two requests. Baxter's Motion to Compel, [ECF No. 414],
at 2-3. In late 2015, Baxter filed a motion to compel
documents sought by Request Nos. 27 and 31. [ECF Nos. 290,
291], Baxter limited its motion, though, to documents created
before Baxter filed the present lawsuit. Id. After
AXA told Baxter it did not have responsive pre-litigation
documents, Baxter suggested tabling the motion. [ECF No.
321], But the Court denied the motion without prejudice on
the ground that "the better approach is to deny [the
motion] outright based on the present record since the issues
will be presented somewhat differently in the future if any
of them need to be addressed at all." Id.
present motion to compel again asks that AX A be required to
produce documents covered by Request for Production Nos. 27
and 31. But Baxter now has limited these requests both
temporally and substantively. Baxter only seeks
post-litigation communications. Baxter's Motion to
Compel, [ECF No. 414], at 3. Also, Baxter only seeks two
types of post-litigation communications. The first is:
"AXA's notice(s) of the Second Generation Litigation
to its co-insurers and reinsurers under the 1990 Policy, and
the co-insurers'/reinsurers' response(s)."
Id. at 4; see also Id. at 11. The second
is: "Correspondence from AXA to its co-insurers and
reinsurers under the 1990 Policy in which AXA describes (a)
the coverage available to Baxter under the 1990 Policy for
its losses in the Second Generation [L]itigation or (b) any
agreement or understanding between Baxter/Immuno and
AXA/Colonia concerning coverage available under the 1990
Policy for HCV claims." Id. at 4; see also
Id. at 11. Baxter argues the relevance of the documents
it is now requesting AXA be ordered to produce only became
clear late in discovery. Id. at 1, 4. AXA objects to
producing any of these communications with its co-insurers
Federal Rule of Civil Procedure 37(a), when a party does not
respond properly to a discovery request, the party that
issued the request may file a motion to compel a proper
response. FED. R. Civ. P. 37(a); Vukadinovich v. Hanover
Cmty. Sch Corp., 2014 WL 667830, at *4 (N.D. Ind. Feb.
20, 2014). The court then must independently determine the
proper course of discovery. John Wiley & Sons, Ltd.
v. McDonnell Boehnen Hulbert & Berghoff LLP, 2013 WL
505252, at *2 (N.D. Ill. Feb. 12, 2013). When doing so, the
court has significant discretion. Gile v. United
Airlines, Inc., 95 F.3d 492, 496 (7th Cir. 1996).
Ultimately, the party objecting to discovery bears the burden
to show the requested discovery is improper. Deere v. Am.
Water Works Co., 306 F.R.D. 208, 215 (S.D. Ind.
2015); Dauska v. Green Bay Packaging Inc., 291
F.R.D. 251, 258 (E.D. Wis. 2013); JAB Distributors, LLC
v. London Luxury, LLC, 2010 WL 4008193, at *1 (N.D. Ill.
Oct. 13, 2010).
noted, AXA objects to producing the documents Baxter is
seeking. AXA argues the notices to its reinsurers of the
Second Generation Litigation are irrelevant to this case. AXA
also contends the work product doctrine protects all
correspondence between it and its co-insurers and reinsurers
describing either the coverage available, or agreements or
understandings regarding the coverage available. As a
fallback position, AXA asserts that, if the Court orders it
to produce any documents, AXA should be permitted to redact
the amount of its reserves and related information from which
the amount can be calculated because the reserve amounts are
irrelevant and are work product, and the production of that
information now, at the close of discovery and on the eve of
a scheduled mediation, would give Baxter a tactical advantage
to which it is not entitled after waiting years to request
the reinsurance documents. Finally, AXA briefly mentions, but
does not develop, arguments related to the undue burden
created by Baxter's request, Baxter's delay in filing
its Motion to Compel, and Baxter's failure to meet and
confer before filing its current Motion.
AXA's notices to its co-insurers and reinsurers may
contain relevant and discoverable information.
Rule of Civil Procedure 26(b) defines the general scope of
discovery. Hurt v. Vantlin, 2016 WL 3144992, at *1
(S.D. Ind. June 6, 2016), objections overruled, 2016
WL 3917138 (S.D. Ind. July 20, 2016) ("Federal Rule of
Civil Procedure 26(b)(1) sets the standard for the scope of
general discovery . . . ."). Under that provision, a
party "may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense
and proportional to the needs of the case." Fed.R.Civ.P.
to Baxter, AXA's notices to its co-insurers and
reinsurers are relevant to the present litigation for two
reasons. First, Baxter says the notices may contain
admissions by AXA about the scope of coverage under the 1990
Policy and its obligations to Baxter. Baxter's Reply in
Support of Its Motion to Compel Certain of AXA's
Communications with Its Co-Insurers and Reinsurers under the
1990 AXA Policy ("Baxter's Reply"), [ECF No.
430], at 8. Second, Baxter argues the notices could be
relevant to AXA's motive for denying coverage.
Baxter's Motion to Compel, [ECF No. 414], at 6. More
specifically, Baxter says AXA may be concerned about its
reinsurers asserting a late notice defense. Id. In
other words, Baxter's theory is that AXA may be fighting
Baxter's claim because it fears that it may have no