298 F.R.D. 417
N.D. Iowa2014Background
- FDIC-R, as receiver for Vantus Bank, sued former officers/directors and sought recovery for alleged losses after bank failure (2009–2010 timeline).
- Progressive issued a D&O liability policy to Vantus and disputes coverage, relying on Insured versus Insured, Investment Loss Carve Out, and related exclusions to deny FDIC-R's claims.
- This declaratory judgment action challenges whether Progressive must cover FDIC-R’s asserted losses arising from the bank officers' decisions.
- Two discovery motions were filed: (1) FDIC-R’s motion to compel production from Progressive’s privilege logs, and (2) FDIC-R’s motion to compel broader discovery.
- The court narrowed issues on privilege logs, and ordered supplementation; the broader discovery sought categories including other claims, reinsurance, reserves, retention policies, and regulatory filings in other states.
- No final determination on the Disputed Provisions’ ambiguity was reached; the ruling focuses on discovery scope and privilege-log sufficiency.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Privilege log sufficiency | FDIC-R contends logs lack detail and seek waivers due to redactions. | FDIC-R argues insufficient information precludes evaluating privilege claims; seeks production or waiver. | Privilege logs partly deficient; Progressive required to supplement logs for 14 documents. |
| Reinsurance communications discoverability | Reinsurance communications may reveal Progressive’s interpretations and defenses. | Such communications should be produced despite potential privilege. | Progressive ordered to produce (with privilege logs) communications with reinsurers and related reinsurance policies regarding the Disputed Provisions and FDIC-R’s claims. |
| Reserve information discoverability vs. privilege | Reserve information could reveal legal analysis and exposure relevant to defenses. | Reserve data may be work product or privileged attorney-client communications. | Produce pre-May 11, 2010 reserve documents; post-May 11, 2010 reserves remain protected as work product/privilege. |
| Other similar claims and notional interpretations | Evidence of Progressive’s interpretation in other claims is relevant to ambiguity and defenses. | Request is overly broad and burdensome; fishing expedition. | Partial relief; Progressive to search and identify relevant non-privileged materials from 526 claim files and produce with privilege logs. |
| Regulatory filings in states other than Iowa | Those filings may show Progressive’s interpretations of policy provisions. | Burdensome fishing expedition; public records may suffice. | Denied to compel Progressive to produce all non-Iowa regulatory filings; may obtain directly from regulators. |
Key Cases Cited
- Rabushka v. Crane Co., 122 F.3d 559 (8th Cir. 1997) (detailed privilege log suffices to support privilege claim)
- Simon v. G.D. Searle & Co., 816 F.2d 397 (8th Cir. 1987) (work product protection for attorney-generated reserve information)
- Baker v. General Motors Corp., 209 F.3d 1051 (8th Cir. 2000) (work product and privilege considerations in discovery disputes)
- Hofmeyer v. Iowa Dist. Ct. for Fayette County, 640 N.W.2d 225 (Iowa 2001) (extrinsic evidence considerations in contract interpretation)