Progressive Casualty Insurance v. Federal Deposit Insurance
Progressive Casualty Insurance v. Federal Deposit Insurance
Opinion of the Court
ORDER ON DEFENDANT FDIC’S MOTION FOR EARLY DISCOVERY
This matter is before the court on defendant Federal Deposit Insurance Corporation’s (“FDIC”) June 8, 2012 motion for early discovery under Federal Rule of Civil Procedure 26(d)(1) (Doc. No. 10). Plaintiff Progressive Casualty Insurance (Progressive) filed a response on June 25, 2012. (Doc. No. 16). On July 9, 2012, the court held a telephonic hearing on the motion. Matthew Dendinger and Guy Cook appeared on behalf of the plaintiff. Richard Kirschman and Andrew Reidy appeared on behalf of defendant FDIC. David Tank, Bill Miller, and Dan Hartnett appeared on behalf of the directors and officers defendants. The matter is now fully submitted.
I. RELEVANT FACTS
On April 25, 2012, Progressive filed a declaratory judgment action seeking a ruling that there is no coverage pursuant to a “Director’s & Officer’s/Company Liability Insurance Policy for Financial Institutions” for claims by the FDIC, as receiver of Vantus Bank. (Doc. No. 2). Since April 2011, Pro
Anticipating a summary judgment motion by Progressive before the scheduling conference in this case, FDIC seeks early discovery pursuant to Fed.R.Civ.P. 26(d)(1). Progressive argues the circumstances do not warrant early discovery under 26(d)(1) and it emphasizes the other available procedures to address FDIC’s concerns, such as a request to delay consideration of a dispositive motion pursuant to Fed.R.Civ.P. 56(d). In addition, Progressive has represented to FDIC that it will not file a dispositive motion before the parties’ Rule 26(f) conference.
II. DISCUSSION
Rule 26(d)(1) provides that “[a] party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order.” Courts apply either a “good cause” standard or a preliminary injunction standard to evaluate a request for early discovery under Fed.R.Civ.P. 26(d)(1). Monsanto Co. v. Woods, 250 F.R.D. 411, 413 (E.D.Mo. 2008). The Eighth Circuit has not expressly adopted either standard. Cook v. Williams, No. 4:09-CV-1375 CAS, 2009 WL 3246877, at *1 (E.D.Mo. Oct. 6, 2009). A majority of courts use the good cause standard, including other federal district courts within the Eighth Circuit. FDIC encourages the court to analyze the motion under the more permissive good cause standard, and Progressive responds to FDIC’s motion using this standard. The court will proceed under the good cause standard.
Under this standard, “the party requesting expedited discovery must show that the need for expedited discovery, in consideration of administration of justice, outweighs prejudice to [the] responding party.” Monsanto Co., 250 F.R.D. at 413. The court will examine the entirety of the record to date and the reasonableness of the request in light of surrounding circumstances. Merrill Lynch, Pierce, Fenner, & Smith, Inc. v. O’Connor, 194 F.R.D. 618, 624 (N.D.Ill. 2000). “Expedited discovery is not the norm.” Id. at 623. Good cause has been found where there is a dying witness, Cook, 2009 WL 3246877, at *1, or where a plaintiff needed to collect seed samples in a patent infringement action before the crop could be destroyed. Monsanto Co., 250 F.R.D. at 412. In both of these cases, the scope of the expedited discovery was very limited. See St. Louis Group, Inc. v. Metals and Additives Corp., 275 F.R.D. 236, 240 (S.D.Tex. 2011) (stating the subject matter of the discovery “should be narrowly tailored in scope.”); see also Bug Juice Brands, Inc. v. Great Lakes Bottling Co., No. 1:10-cv-229, 2010 WL 1418032, at *1 (W-D.Mich. April 6, 2010) (denying expedited discovery because plaintiffs broadly sought after any and all information necessary for them to establish their cause of action).
Here, defendant FDIC seeks early discovery relating to written or verbal representations by Progressive about the scope and operation of the policy coverage exclusions. FDIC does not allege these materials are at risk of destruction, nor does it demonstrate any other pressing need for this evidence. FDIC merely states that expedited discovery is necessary to defend against Progressive’s claims and states it needs this material prior to resisting Progressive’s anticipated (but not yet filed) motion for summary judgment.
Based on the foregoing, defendant FDIC’s motion for early discovery pursuant to Fed.R.Civ.P. 26(d)(1) (Doc. No. 10) is denied.
Reference
- Full Case Name
- PROGRESSIVE CASUALTY INSURANCE COMPANY v. FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver of Vantus Bank, Arlene T. Curry, Gary L. Evans, David M. Roederer, Barry E. Backhaus, Ronald A. Jorgenson, Charles D. Terlouw, Jon G. Cleghorn, Allen J. Johnson, Michael W. Dosland, and Michael S. Moderski
- Cited By
- 2 cases
- Status
- Published