Discovery

Utica Mutual Insurance Company (“Utica”) sued R&Q Reinsurance Company (“R&Q) in New York federal court for payment under reinsurance certificates R&Q issued to Utica covering umbrella policies Utica issued to its insured, Goulds Pumps, Inc. (“Goulds”) from 1979 to 1981. Some of the policies Utica issued to Goulds did not state the aggregate limits under the policies, but a settlement between Utica and Goulds in an earlier coverage dispute acknowledged that each of the primary policies at issue contained aggregate limits.

In connection with the reinsurance dispute, R&Q sought to compel the production of (1) documents concerning primary insurance policies issued by Utica to other insureds and correspondence reflecting the aggregate limits, and (2) deposition and hearing transcripts from a prior arbitration between Utica and R&Q.

The court declined to compel production of other insureds’ policies, noting that the aggregate limit issue had been litigated and resolved in prior litigation. However, it ordered that the transcripts be produced, but acknowledged that whether the testimony set forth in them would be admissible in the present Utica-R&Q dispute is a different issue. Utica Mut. Ins. Co. v. R & Q Reinsurance Co., Case No. 6:14-CV-00700 (USDC N.D.N.Y. June 2, 2015)

This post written by John A. Camp.

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In a dispute involving the expansion of the Panama Canal, a federal district court has denied an application for an order pursuant to 28 U.S.C. § 1782 to obtain discovery in aid of foreign litigation. The controversy concerned Grupo Unidos por el Canal, S.A.’s (GUPC’s) ex parte application to obtain discovery from an entity with whom the Autoridad del Canal de Panama (ACP) contracted to provide program management services in connection with the Panama Canal project. The contract between GUPC and ACP contains an arbitration clause which provides that any dispute arising from the Canal project be arbitrated in Miami, Florida, under the Rules of Arbitration of the International Chamber of Commerce.

GUPC, along with several co-claimants, commenced the arbitration proceeding against ACP. The Miami-based proceeding is alleged to be the “international tribunal” supporting GUPC’s Section 1782 request for documents. Several objections were made to that request, including (1) the Miami arbitration is a private commercial arbitration and not a “tribunal” within the ambit of Section 1782, (2) the Miami arbitration is not a “foreign or international” tribunal within the meaning of Section 1782 because the seat of the arbitration is in the United States, and (3) the proposed subpoena is unduly burdensome, intrusive, and an attempt to circumvent the contractual procedural and discovery limitations in the arbitration. The court found the proceeding was not a “tribunal” for purposes of Section 1782 and, therefore, found it unnecessary to consider whether the private, Miami-based arbitration was “international.” The court also found that even if the statutory requirements were met, Grupo would not be allowed discovery of 165 million documents that were physically located in Panama, noting that such discovery would be overly burdensome. Grupo’s ex parte application was denied. In re Grupo Unidos Por El Canal, S.A., No. 1:14-mc-00226 (USDC D. Colo. Apr. 17, 2015).

This post written by Renee Schimkat.

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A federal district court in Colorado has denied motions for a protective order filed by the insurers in a coverage litigation where Cantex, a third-party assignee to claims against the insurers, asserts causes of action for breach of contract and bad faith. The discovery dispute concerned the scope of Cantex’s Rule 30(b)(6) deposition designations which sought discovery into areas of reserve and reinsurance, claims handling, underwriting, and insurance contract interpretation. The court found that the 30(b)(6) deposition topics on reserve and reinsurance information were relevant when claims of bad faith were still pending. The court therefore denied the motion for a protective order as to those areas of discovery, but permitted the insurers to interpose objections based on privilege as they deem fit. The court further found that discovery seeking testimony relating to the (1) drafting, marketing, and underwriting of the policy, (2) handling of the claims made to the insurers, including the evaluation of the underlying litigation, and (3) interpretation of the insurance policies, was also relevant. The court denied the insurers’ motions for a protective order in their entirety. Phoenix Insurance Co. v. Cantex, Inc., No. 13-cv-00507 (USDC D. Colo. Apr. 14, 2015).

This post written by Renee Schimkat.

See our disclaimer.