Litigants Must Meet & Confer to an Impasse Before Bringing Discovery Disputes to Court
Post 4889
PLAINTIFF ACTED INAPPROPRIATELY IN DISCOVERY DISPUTE
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In an insurance coverage action where Plaintiff alleged that Defendant breached its flood insurance policy by paying less than what Plaintiff asserts was the appropriate coverage amount under the policy, there was a dispute as a result of Plaintiff’s first set of interrogatories and first requests for production. On July 2, 2024, Plaintiff sought to initiate a Local Civil Rule 37 conference to discuss resolution of certain disputed items. The parties met on July 9, 2024. On July 26, 2024, Defendant sent Plaintiff a letter in response to the July 9, 2024, conference articulating Defendant’s position on certain discovery requests and agreeing to supplement its production where possible.
In Shane Collins v. American Bankers Insurance Company Of Florida, No. C23-1959-JCC, United States District Court, W.D. Washington, Seattle (August 29, 2024) the discovery dispute was resolved by the USDC finding the Plaintiff did not establish an impasse existed about the discovery discussions.
BACKGROUND
The record did not demonstrate an impasse, any subsequent conferral or attempt to confer, or any agreement in filing the Joint Submission.
DISCUSSION – Legal Standard
Parties may obtain discovery regarding any non privileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case. If requested discovery is withheld inappropriately or goes unanswered, the requesting party may move to compel such discovery. The Court also has broad discretion to decide whether to compel discovery.
A party filing a motion to compel under Local Rule 37 may do so unilaterally or jointly. The joint option follows an expedited procedure and affords parties the benefit of same day noting. Importantly, the parties must affirmatively agree to utilize the expedited procedure.
The motion must include a certification that the moving party has “in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to resolve the dispute without court action.” Fed.R.Civ.P. 37(a)(1).
A good faith effort to resolve discovery disputes requires an exchange of information until no additional progress is possible.
Plaintiff’s “Joint” Submission
Here, there is no indication that the parties agreed to file the LCR 37 Joint Submission. In fact, based on the record, it appears Plaintiff has entirely neglected the expedited procedure detailed in Local Rule 37 and proceeded without affirmative agreement from Defendant. Rather than share an initial draft with Defendant and allow Defendant seven days to insert its rebuttal, Plaintiff instead sent a final draft on July 31, 2024 and then only gave Defendant two days to respond.
Plaintiff ultimately filed the motion 12 days after it sent Defendant the “final” draft. However, the Court had no way of knowing if the parties agreed to or even complied with LCR 37’s procedural requirements in the meantime because the only record of discussion between the parties specifically regarding the motion is insignificant. Moreover, after receiving the purported final draft from Plaintiff, Defendant continued to question the need for a joint motion. The fact that Defendant questioned the need for a joint motion even after Plaintiff shared the purported final draft demonstrates the lack of agreement.
There is also no indication that the parties were at an impasse when Plaintiff filed the “joint” motion. Indeed, post-conference communications show that the parties agreed and expected that Defendant would continue to supplement its discovery responses. Ongoing discussions after an LCR 37 conference preclude a finding that no additional progress was possible. Defendant also provided Plaintiff with at least one supplemental production between the July 9, 2024, conference and the day Plaintiff filed the motion. The post-conference communications and supplemental production show the parties had not and have not reached an impasse justifying the Court’s intervention. As such, the Court concluded that the parties have not met the meet and confer certification requirements of Rule 37.
For the foregoing reasons, the Court denied the LCR 37 “Joint” Submission without prejudice.
ZALMA OPINION
Discovery in insurance disputes often bring about a lack of respect and cooperation between the parties. The courts, by rules like LCR 37, expect the litigants and their counsel to resolve their disputes – as much as possible – before seeking the assistance of the court. The parties submitted a discovery dispute to the court before they reached an impasse while meeting and conferring about the dispute. They failed to work together and the “Joint” submission was not joint and not submitted after the parties reached an impasse.
(c) 2024 Barry Zalma & ClaimSchool, Inc.
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The Professional Claims Handler
Post 5218
Read the full article at https://www.linkedin.com/pulse/zalma-philosophy-claims-handling-part-8-barry-zalma-esq-cfe-zdwsc, see the full video at https://rumble.com/v70zl4s-the-zalma-philosophy-of-claims-handling-part-8.html and at https://youtu.be/MIYcF71ffRQ, and at https://zalma.com/blog plus more than 5200 posts.
Claims Commandment X – Thou Shall Not Pretend to be a Lawyer
Some experienced and professional claims people know the law in their area of expertise better than most lawyers.
Adjusters should be adjusters and leave lawyering to lawyers. Similarly, lawyers should be lawyers and never try to be adjusters.
Claims Commandment XI – Thou Shall Empathize With the Claimant
Everyone presenting a claim is unhappy, disturbed, shocked, injured and needs help.
Empathy is identification with and understanding of another’s situation, feelings, and motives. It is the ability to understand another person’s circumstances, point of view, thoughts, and feelings....
HOW TO CREATE AN EXCELLENCE IN CLAIMS HANDLING PROGRAM
See the full video at https://rumble.com/v70wb2i-the-zalma-philosophy-of-claims-handling-part-6.html and at https://youtu.be/tL5nDKPEs40 and at https://zalma.com/blog plus more than 5200 posts.
Post 5217
This is a change from my normal blog postings. It is my attempt. in more than one post, to explain the need for professional claims representatives who comply with the basic custom and practice of the insurance industry.
An Excellence in Claims Handling program begins with a statement in the insurer’s claims manual or statement of professionalism that it is dedicated to providing excellence in claims handling to every insured who presents a claim.
The excellence in claims handling program should include, at a minimum:
A series of lectures supported by text materials explaining:
A definition of insurance.
How to read and understand an insurance policy.
How to interview an insured, witness, or claimant.
How to assist an insured in the insured’s obligation to ...
The Professional Claims Handler
Post 5216
Read the full article at https://www.linkedin.com/pulse/zalma-philosophy-claims-handling-part-5-barry-zalma-esq-cfe-jde8c, see the full video at https://rumble.com/v70q4x8-the-zalma-philosophy-of-claims-handling-part-5.html and at https://youtu.be/6b9tZQsEkB4, and at https://zalma.com/blog plus more than 5200 posts.
This is a change from my normal blog postings. It is my attempt. in more than one post, to explain the need for professional claims representatives who comply with the basic custom and practice of the insurance industry.
Standards to be a Professional Claims Adjuster
The Insurance claims professional should be a person who:
1. Can read and understand the insurance policies issued by the insurer.
2. Understands the promises made by the policy.
3. Understand their obligation, as an insurer’s claims staff, to fulfill the promises made.
4. Are competent investigators.
5. Have empathy and recognize the difference between empathy and sympathy.
6. ...
The Professional Claims Handler
Post 5219
Posted on October 31, 2025 by Barry Zalma
An Insurance claims professionals should be a person who:
Can read and understand the insurance policies issued by the insurer.
Understands the promises made by the policy.
Understand their obligation, as an insurer’s claims staff, to fulfill the promises made.
Are competent investigators.
Have empathy and recognize the difference between empathy and sympathy.
Understand medicine relating to traumatic injuries and are sufficiently versed in tort law to deal with lawyers as equals.
Understand how to repair damage to real and personal property and the value of the repairs or the property.
Understand how to negotiate a fair and reasonable settlement with the insured that is fair and reasonable to both the insured and the insurer.
How to Create Claims Professionals
To avoid fraudulent claims, claims of breach of contract, bad faith, punitive damages, unresolved losses, and to make a profit, insurers ...
The History Behind the Creation of a Claims Handling Expert
The Insurance Industry Needs to Implement Excellence in Claims Handling or Fail
Post 5210
This is a change from my normal blog postings. It is my attempt. in more than one post, to explain the need for professional claims representatives who comply with the basic custom and practice of the insurance industry. This statement of my philosophy on claims handling starts with my history as a claims adjuster, insurance defense and coverage lawyer and insurance claims handling expert.
My Training to be an Insurance Claims Adjuster
When I was discharged from the US Army in 1967 I was hired as an insurance adjuster trainee by a professional and well respected insurance company. The insurer took a chance on me because I had been an Army Intelligence Investigator for my three years in the military and could use that training and experience to be a basis to become a professional insurance adjuster.
I was initially sat at a desk reading a text-book on insurance ...
The History Behind the Creation of a Claims Handling Expert
The Insurance Industry Needs to Implement Excellence in Claims Handling or Fail
Post 5210
This is a change from my normal blog postings. It is my attempt. in more than one post, to explain the need for professional claims representatives who comply with the basic custom and practice of the insurance industry. This statement of my philosophy on claims handling starts with my history as a claims adjuster, insurance defense and coverage lawyer and insurance claims handling expert.
My Training to be an Insurance Claims Adjuster
When I was discharged from the US Army in 1967 I was hired as an insurance adjuster trainee by a professional and well respected insurance company. The insurer took a chance on me because I had been an Army Intelligence Investigator for my three years in the military and could use that training and experience to be a basis to become a professional insurance adjuster.
I was initially sat at a desk reading a text-book on insurance ...
