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Bhasker v. Financial Indemnity Co.

United States District Court, D. New Mexico

October 3, 2018

HELEN BHASKER, on behalf of herself and all others similarly situated, Plaintiff,


          Jerry H. Ritter United States Magistrate Judge.

         This matter comes before the Court on Defendant's Motion for Protective Order. [Doc. 65');">65');">65');">65');">65');">65');">65');">65');">65');">65');">65');">65');">65');">65');">65');">65]. Having reviewed Plaintiff's Response [Doc. 70');">70');">70');">70] and Defendant's Reply [Doc. 72], the Court will grant the Motion in part and deny it in part, as further described herein.

         I) BACKGROUND

         Plaintiff, Helen Bhasker, was rear-ended by a third party while traveling eastbound on I-40 on June 24, 2015, and sustained bodily injuries and other damages as a result of the collision. [See Doc. 12 (First Amended Complaint), ¶¶ 11-12]. Plaintiff received the full extent of liability coverage carried by the tortfeasor ($25, 000.00), and turned to her own insurance carrier, Defendant Financial Indemnity Company, to recover underinsured motorist benefits. Id. at ¶¶ 17-19. The parties agree that Plaintiff's damages exceed $50, 000.00. [See Doc. 28, p. 3]. However, Plaintiff's insurance policy with Defendant only contained minimal underinsured motorist coverage of $25, 000.00 per person and $50, 000.00 per accident; therefore, Defendant denied her claim, reasoning that New Mexico is a “difference state.” [Doc. 64-4, p. 1]. Having received no value from the coverage she purchased from Defendant, Plaintiff claims that the underinsured motorist coverage she purchased from Defendant was, accordingly, illusory[1] under New Mexico law. [Doc. 12, ¶¶ 23 (citing Progressive Nw. Ins. Co. v. Weed Warrior Services, 2010-NMSC-050, ¶ 10), 32].

         Plaintiff filed her Class Action Complaint for Breach of Statutory, Common Law, and Contractual Duties in New Mexico state court on December 30, 2016. [See Doc. 1-1]. Defendant removed the case to this Court on February 24, 2017, citing the Class Action Fairness Act and diversity of the parties. [See Doc. 1 (citing 28 U.S.C. §§ 1332, 1441 and 1453)]. Plaintiff filed her First Amended Complaint on March 23, 2017. [Doc. 12 (hereafter “Complaint”)]. In her Complaint, Plaintiff alleges that Defendant “failed to act honestly and in good faith when it solicited and sold superfluous and illusory minimal limits underinsured motorist coverage to their insureds (in whole or in part) in violation of New Mexico law, and/or denied claims for the benefits of that coverage.” [Id., ¶ 1]. Plaintiff brings the following claims on her own behalf and on behalf of the putative class: negligence (Count I); violation of New Mexico's Unfair Trade Practices Act (Count II); violation of New Mexico's Unfair Insurance Practices Act (Count III); breach of contract (Count IV); breach of the covenant of good faith and fair dealing (Count V); and claims for declaratory and injunctive relief (Counts VI-VII). Plaintiff defines the putative class as follows:

All persons (and their heirs, executors, administrators, successors, and assigns) who, in the prior six years from the date of the filing of this complaint, were a policy holder and/or insured, of a Motor Vehicle Policy issued by defendant where that policy did not and does not provide underinsured coverage paid for by the policyholder, and sold and solicited by the defendant, due to the application of an offset as set forth in NMSA 66-5-301, otherwise known as the New Mexico offset law or being a “difference state”.

[Id., ¶ 54].

         The current dispute involves Defendant's Rule 30(b)(6) deponents: specifically, Plaintiff's nineteen proposed deposition topics for the witnesses. While Defendant indicates in its Motion and Reply that it will provide witnesses to discuss most of Plaintiff's topics, it asks the Court to limit those topics on a number of grounds and preclude questioning in certain areas. [See generally Doc. 65');">65');">65');">65');">65');">65');">65');">65');">65');">65');">65');">65');">65');">65');">65');">65]. Plaintiff opposes a protective order and asks that Defendant be compelled to provide testimony as initially requested. [Doc. 70');">70');">70');">70].


         Protective orders are governed by Federal Rule of Civil Procedure 26(c), which provides that “[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense[.]” Fed.R.Civ.P. 26(c)(1). The burden of showing good cause falls at all times on the party seeking protection. “‘Good cause' is established when it is specifically demonstrated that disclosure will cause a clearly defined and serious injury. Broad allegations of harm, unsubstantiated by specific examples, however, will not suffice.” Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995). If good cause is demonstrated, the Court is able to take a variety of actions in issuing a protective order, including:

(A) forbidding the disclosure or discovery;
(B) specifying the terms, including time and place or the allocation of expenses, for the disclosure or discovery;
(C) prescribing a discovery method other than the one selected by the party seeking discovery;
(D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters[.]

Id. at 26(c)(1)(A)-(D). If a protective order is denied, the Court may order the discovery that was sought to be precluded. Fed.R.Civ.P. 26(c)(2).

         Rule 30(b)(6) governs depositions of organizations, providing that “a party name as the deponent … [any] entity and must describe with reasonable particularity the matters for examination.” Fed.R.Civ.p. 36(b)(6). “The named organization must then designate … [witnesses]; and it may set out the matters on which each person designated will testify.” Id. “The persons designated must testify about information known or reasonably available to the organization.” Id. Thus, “[u]nder Rule 30(b)(6), when a party seeking to depose a corporation announces the subject matter of the proposed deposition, the corporation must produce someone familiar with that subject.” In Re: Santa Fe Natural Tobacco Company Marketing & Sales Practices and Products Liability Litigation, CIV 16-2695 JB/LF, 2018 WL 3972909, at *5 (D.N.M. Aug. 18, 2018) (cited authority omitted).

         Rule 26(b)(1) governs the scope of discovery, “[u]nless otherwise limited by ...

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