Controlling the Scope of Deposition Discovery in Bad Faith and Punitive Damages Cases[dagger]

I.

INTRODUCTION

Recent decisions involving broad-based discovery of evidence, within the nexus of allegedly egregious defense administration and loosened privilege in bad faith suits, highlight the ne to actively guard depositions directed at those somebodys involved in the claims proces Usually identified beneath the rubric, "persons most knowledgeable," defense interchange of opinion must become well-versed in the pitfalls conjoined with depositions of such someones and vigorously defend against misuse of this proces with equal reason as to avoid unintentionally expanding the object of discovery.

II.

THE "PERSON greatest in quantity KNOWLEDGEABLE" DEPOSITION

Depositions of "person greatest in quantity knowledgeable," taken pursuant to Federal direction of Civil Procedure 30(b)(6),1 artificial position specific challenges to defense interchange of opinion Prior to the enactment of authority 30(b)(6), the Federal Rules distinguished between depositions of organizational officers, directors and managing agents, and those of other employee or representatives of an organization. solitary the first category of someones could be said to incarnate "knowledge of the organization," of the like kind that their depositions were admissible for any drift Under that classification, parties sometimes faced difficulties determining whether a particular witness was included within the category.2 F R CIV. P 30(b)(6) eliminated that difficulty, substituting instead a mechanism by the agency of which one party could supplication the deposition of a representative of another party who was "most knowledgeable" about a specified area of inquiry.3

Although mastery 30(b)(6) was enacted to address question at issues inherent in the earlier management this rule carries unique vexed questions of its own. For example, when the organizational party answers by designating a representative, that designee's testimony becomes binding on the organization as to the amplitude of the requested testimony.4 This limitation can be particularly problematic if the designee is not knowledgeable about the entreatyed areas of testimony or rejoins to questions outside the view of the notice. Other affects affecting Rule 30(b)(6) are the aim of the notice itself, requirements regarding witness designation and preparation, and questions outside the intention of the notice.

Given these potential pitfalls, defense interchange of opinion must be particularly vigilant when defending the 30(b)(6) deposition, taking care to guard against misuse of the proces while simultaneously utilizing defense strategies that are public to all depositions. Although the 30(b)(6) deposition brings with it special considerations, the ordinary strategies and techniques applicable to defending all depositions apply equally well. consultation must attend to all applicable lordships both formal and informal, in order to minimize the possibility that the court will ignore objections directed to the direction of opposing counsel. Similarly, consultation should adhere carefully to the judicial prescriptions and dominations articulated at the Rule 16 conversation - especially those regarding the court's predilections for deposition disputes.

III.

THE NEXUS REQUIREMENT AND WORK-PRODUCT PRIVILEGE

In State Farm Mutual Automobile Insurance Co v Campbell,5 the paramount Court held that evidence of a defendant's lawful out-of-state administration may be probative in determining the amount of punitive damages, in like manner long as the conduct had "a nexus to the specific harm undergoed by the plaintiff."6 A Pennsylvania district court later applied the nexus requirement to a entreaty for broad-based discovery in Saldi v Paul venerate Life Insurance Co.7 The federal court there determined that the nexus requirement was satisfied where the plaintiff neared evidence, in the form of bad faith litigation from other states, that the insurer had a practice or pattern of allegedly egregious guidance that was applied to the plaintiff. This prima facie showing of a pattern and practice of bad faith render free of accessed the door for additional discovery into the insurer's internal practices and policies. The court noted that it might have considered objections or assertions of privilege, smooth in the face of this prima facie showing, on the contrary that it did not do for a like reason because the objections raised involved general, rather than specific, assertions.

Likewise, when applying similar discovery provisions, the Florida highest Court in Allstate Indemnity Co v Ruiz,8 held that all documents pertaining to the underlying claim were discoverable, including those that would otherwise be countenanceed by the work-product doctrine. However, the court also noted that litigants who chose to bring coverage and bad faith claims simultaneously must wait for to be restricted from discovering work-product until the resolution of their coverage dispute.

These cases are instructive because they highlight the potential for broad-based discovery and the concomitant ne to assert specific objections and privileges.

IV.

MARKING THE BOUNDARIES

Delineating the boundaries of discovery is particularly important when dealing with issues of bad faith and punitive damages, as illustrated by dint of the risks identified in Campbell and Saldi. That being said, the "broad-based" discovery permitted in Saldi is not without limitations. In Saldi, the plaintiff had sturdy evidence of a pattern or practice of bad faith in the form of documents produc in other actions, including a happy claim in another jurisdiction. Beyond that, the Saldi opinion provides no indication of what evidence would appropriate the standard permitting such broad-based discovery. Consequently defense consultation should determine the extent of the evidence already in the plaintiffs' possession and challenge discovery based upon its sufficiency to meet the Saldi standard. Furthermore, while Ruiz raises the specter of discovering evidence normally overspreaded by the work-product and attorney-client privileges, defense interchange of opinion must be aware that similar discovery is not appropriate when bad faith and coverage actions are combined. a certain quantity of courts, for example, hold that like discovery is not permissible unles the defendant also deposits the advice of counsel at issue.9