Crucial First Step for Insureds: Establishing Nexus and Relevance.
Insureds often face an uphill battle in the discovery process due to a critical misstep – failing to articulate their requests’ nexus and relevance clearly. Many insureds make vague assertions about bias or a general need to show recidivist conduct for punitive damages, frequently directing their arguments toward obtaining other insured’s contact details or claim files. However, courts tend to view such unsupported arguments with skepticism, particularly given that contact details are generally unnecessary and perhaps best approached sequentially, if at all. This post explores more straightforward and abundant grounds for establishing nexus and relevance, which can effectively overcome an insurer’s specious objections when adequately tailored to the case-specific facts.
The analysis correlates bias requests with each of four primary claims—breach of contract, breach of the duty of good faith and fair dealing, unfair business practices, and punitive damages—and identifies eight principal relevancy grounds. By presenting a well-reasoned and fact-based argument connected to the Demer framework, insureds can significantly improve their chances of success in the discovery process.
Key cases discussed: Carma Developers (Cal.), Inc. v. Marathon Development California, Inc. (1992) 2 Cal.4th 342; Colonial Life & Accident Ins. Co. v. Superior (1982) 31 Cal.3d 785; Eastman v. Allstate Ins. Co. (S.D. Cal., Jul. 15, 2015) 2015 WL 4393287; Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747; Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713; and more found here.
Insurers’ Fourteen Specious Objections
Insurers interpose a multitude of objections to discovery requests in an effort to suppress any inquiry into expert bias. The objections are generally specious. This post explores the fourteen objections most often raised, including:
- the requests lack relevance
- the requests are overbroad
- the requests are unduly burdensome and oppressive
- the requests are disproportionate to the needs of the case
- the requests are nothing more than a fishing expedition
- the requests for other insureds’ claim files would necessitate “mini trials”
- the documents or information requested are subject to privacy rights of third-parties
- the documents or information requested are privileged
- the documents or information requested are outside the possession or control of the insurer
- the documents or information requested would result in prejudicial harm to the insurer
- the requests are untimely
- the documents or information requested are equally available through other sources
- the insured hasn’t shown undue hardship to support the requests
- the requests are subject to other boilerplate objections, such as vague and ambiguous
By presenting a well-reasoned and fact-based argument for how the Demer factors are relevant and how the pattern and practice evidence will be introduced at trial, insureds can significantly improve their chances of success in the discovery process.