Case 2:07-cv-05069-SRD-JCW Document 38 Filed 05/27/2009 Page 1 of 3

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

STEVEN FRUGHT ET AL. CIVIL ACTION

VERSUS NO. 07-5069

STATE FARM FIRE & CASUALTY SECTION “K” (2)

INSURANCE COMPANY

ORDER ON MOTIONS

APPEARANCES: None (on the briefs)

MOTIONS: (1) Defendant’s Motion for Protective Order to Limit Plaintiffs’

Rule 30(b)(6) Deposition, Record Doc. No. 21
(2) Plaintiffs’ Motion to Compel and for Sanctions, Record Doc.
No. 27

O R D E R E D:

(1) : DENIED IN PART AND GRANTED IN PART, as provided herein. All of State
Farm’s objections to Topics Nos. 1, 2, 3, 4, 6 and 7 are overruled. Discovery concerning
these topics is highly relevant and clearly calculated to lead to the discovery of
admissible evidence. The topics are in no way vague or unduly burdensome. If State
Farm persists in the position taken in its motion papers that it has no knowledge
concerning Topics Nos. 3 and 4, despite the evidence presented by plaintiff to the
contrary, it should produce a corporate representative to say so under oath, so that the
witness may be impeached, if plaintiff can do so.
The motion is granted in limited part as to Topic No. 6, only in that this topic is
limited to the relationship between Worley and State Farm, if any, in connection with
claims arising from Hurricane Katrina. All other objections to this topic are overruled,
except the objection that confidential, proprietary or trade secret information may be the
subject of this testimony. As to such information, the following protective order applies:
State Farm may designate any confidential, proprietary or trade secret information
provided during the deposition in accordance with this order as confidential, and all such
testimony must be kept confidential and used only for purposes of this litigation and must
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not be disclosed to any one except parties to this litigation, the parties' counsel of record
and experts retained in connection with this litigation. All persons to whom such
information is disclosed must sign an affidavit that must be filed into the record, agreeing
to the terms of the protective order and submitting to the jurisdiction of this court for
enforcement of those terms. In all other respects, the motion is denied as to Topic No. 6.

(2) : GRANTED IN PART AND DENIED IN PART, as provided herein. As a

threshold matter, I note that the opposition memorandum submitted by State Farm
appears to have nothing to do with this motion. The opposition memorandum refers to
Requests for Production Nos. 9 and 10, but no such requests are at issue in the motion,
either by numerical designation or by content as described in State Farm’s opposition
memorandum. Rather, the motion seeks further responses to plaintiffs’ Requests for
Production Nos. 1, 3, 5, 6 and 7 of plaintiffs’ Third Request for Production.
The motion is granted as to Request for Production No. 1. All objections are
overruled. However, State Farm’s obligation in responding to this request is only to
produce those responsive materials that are within its possession, custody or control. It
cannot be compelled to produce materials which it certifies are not in its possession,
custody or control. If by the final sentence in its current response, State Farm means to
say that it has no responsive materials in its possession, custody or control, it must clearly
say so, without objection, in a new written response, signed pursuant to Fed. R. Civ. P.
26(g). If it has any such materials, they must be produced.
The motion is granted as to Request for Production No. 3, subject to the protective
order contained herein. The request seeks information that is relevant to the credibility
of the subject adjuster. All objections to this request are overruled, except the objection
that confidential, proprietary or trade secret information may be responsive to this
request. As to such materials, the same protective order imposed above as to Topic No.
6 in the Rule 30(b)(6) notice also applies to designated confidential, proprietary or trade
secret information produced by State Farm in response to this request. State Farm must
provide a new written response clearly stating, without objection, that all materials
responsive to this request are being produced, subject to the protective order contained
herein.
The motion is denied as to Request No. 5. This request is “unreasonably
cumulative or duplicative” of the materials sought in Request No. 3, and the motion is
therefore denied as to Request No. 5, pursuant to Fed. R. Civ. P. 26(b)(2)(C)(i).
The motion is granted as to Request No. 6, for the same reasons and subject to the
same conditions set forth above in connection with Requests Nos. 1 and 3.

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The motion is granted as to Request No. 7. All objections are overruled. State
Farm must provide a new written response to this request clearly stating either that all
responsive materials in its possession, custody or control are being produced or that it has
no responsive materials in its possession, custody or control.
IT IS FURTHER ORDERED that State Farm must make every effort to provide
plaintiff with all responsive materials required by this order, together with its new written
responses, prior to the scheduled Rule 30(b)(6) deposition, but in no event later than
within ten (10) days of entry of this order. Production of responsive materials required
by this order after the scheduled Rule 30(b)(6) deposition may result in an order
requiring that supplemental deposition testimony be provided.
The motion is denied insofar as it seeks an award of attorneys fees and costs. Fed.
R. Civ. P. 37(a)(5)(C) provides: “If the motion [to compel] is granted in part and denied
in part, the court may . . . apportion the reasonable expenses for the motion.” The motion
has been granted in part and denied in part. Plaintiffs’ argument that one or more of
defendant’s responses are “incredible” is not sufficient to establish that a sanctionable
violation of Rule 26(g) has occurred at this time. Under these circumstances, I find that
a just apportionment of fees and costs incurred in connection with this motion is that each
side should bear its own.

New Orleans, Louisiana, this 27th day of May, 2009.

JOSEPH C. WILKINSON, JR.

UNITED STATES MAGISTRATE JUDGE