ORDER

KATHLEEN M. TAFOYA, Magistrate Judge.

This matter is before the court pursuant to "Defendants' Motion for Clarification/ Reconsideration of Court's March 27 Order and Request for Expedited Consideration" [Doc. No. 151] ("Reconsideration Motion") filed April 2, 2012 and on "Plaintiffs' Motion for Extension of Time/Clarification Regarding Dates for Discovery Cut Off and Class Certification" [Doc. No. 175] filed June 14, 2012. Plaintiffs filed a response to Defendants' Reconsideration Motion [Doc. No. 155] to which Defendants replied on April 11, 2012 [Doc. No. 157].1

On April 30, 2012, District Judge William J. Martínez issued his Order granting in part and denying in part Defendants' Motion for Summary Judgment ("SJ Order").2 [Doc. No. 165.] Since the SJ Order appeared to impact the composition of claimants who might qualify as potential class members thereby affecting issues raised in the Reconsideration Motion, this court asked for supplemental briefing addressing that issue and staying compliance with its March 27, 2012 Order ("Claim File Order"). (See Doc. No. 166, hereinafter referenced as "Stay Order.") The parties filed supplemental briefs on May 11, 2012. [See Doc. Nos. 170 and 171.]

As noted by this court in the Stay Order,

Stay Order at 1-2.

A. Universe of Claim Files

1. Limitation to Putative Class Files

Plaintiffs' original Motion seeking production of claim and legal files for UM/UIM claimants was captioned, "Plaintiffs' Motion to Compel Complete Putative Class Files & Documents." [Doc. No. 61] In spite of the caption, which inserted the term "putative class," Plaintiffs sought enforcement of their Request for Production of Documents ("RFP") No. 2, which reads

(Mot. to Compel [Doc. No. 61], Ex. 6, "Defendants' Responses to Plaintiffs' First Set of Requests for Production of Documents.") Defendants objected to RFP No. 2 in its entirety, (id.) however offered a compromise sampling of ten claim files concerning putative class members to be produced under particularized conditions. One of Defendants' original objections to RFP No. 2 was that it called for files not involving putative class members. (Id.) After Plaintiffs filed their Motion to Compel, Defendants objected to Plaintiffs' Motion in the following respects: the date limitation beginning in May 4, 2006 instead of May 4, 2008; producing privileged information contained in the requested files; producing claim files for the entire putative class would be overly burdensome; producing medical or other private documents might violate privacy rights of non-parties; and producing information unrelated to class certification was inappropriate at this stage of the discovery. [Doc. No. 75.] Notably, Defendants did not repeat their objection that Plaintiffs were seeking files pertaining to non-putative class members. It now appears to the court that Defendants believed the universe of claim files at issue in the Motion to Compel had been voluntarily limited by the plaintiffs to putative class members only. The court, however, missed that nuance and considered RFP No. 2 as written to be the crux of the discovery dispute.

Defendants, based on their interpretation of the effect of Plaintiffs' motion language, asserted that the universe of files at issue was approximately 1600. Plaintiffs reaffirmed their request for files of putative class members only in their Reply and did not challenge the 1600 figure as deficient. Clearly, between the Motion, Response and Reply, in spite of Plaintiffs hollow argument now that their motion was "imprecise in off-handed references to "putative class" claim files in their motion to compel," the parties all believed that the issue involved only "putative class" member files. The court was the only participant in the dispute still adhering to the language of the original request requiring production of all UM/UIM files.

As explained by the Defendants in the Reconsideration Motion, the actual universe of files responsive to RFP No. 2 (all UM/UIM claims originating during the relevant period) was significantly higher than what either Plaintiffs or Defendants considered to be potential putative class members — i.e., those UM/UIM claims made during the relevant time period which were "referred either to Medical Services or Claims Legal."3 (Reconsideration Motion at 2, ¶ 1, 3.)4

The Plaintiffs further limited their definition of the putative class in the Second Amended Complaint by specifically excluding

Second Am. Compl. at ¶ 96.

In the Claim File Order, this court ordered a sampling from the universe of claims identified in RFP No. 2 and provided reason and justification for so doing. While the court continues to believe that such an approach would be appropriate and useful in the context of class certification, it is beyond cavil that the Motion to Compel filed by the Plaintiffs requested only putative class member files as defined in the Second Amended Complaint. The defendants reasonably relied on the Plaintiffs' motion as conceding Defendants' original objection to RFP No. 2 concerning production of files "about persons who are not class members." (Reconsideration Motion at 3.) Therefore, the court, upon reconsideration, now holds that the motion to compel sought only files of putative class members and therefore any sampling of files ordered by the court should be based upon the universe of files associated with only putative class members.

2. Effect of SJ Order on Membership in Putative Class

In the SJ Order, District Judge Martínez found that the release signed by former named plaintiff Valerie Jenkins precluded her participation as a plaintiff in this action. The court found that Valerie Jenkins's release

SJ Order at 13. Judge Martínez upheld the validity of the release signed by Jenkins and dismissed all of Jenkins' claims. Since the release at issue was a so-called, "standard" release used by the Defendants at that time when closing out its claims by payment to the insured, the dismissal of plaintiff Jenkins' claims on that basis significantly changes the potential class. The class, if certified, will now exclude those persons whose first-party claims arising between May 4, 2006 and May 4, 2011 have been paid by Defendants pursuant to a form of release similar to that used for Ms. Jenkins' claims (hereinafter referred to as a "Jenkins Release").5

Considering the totality of Plaintiffs' Second Amended Complaint, the Motion to Compel as limited to the putative class members' files and the SJ Order, Defendants now argue that the potential class has been narrowed to include only Colorado UM/UIM claimants insured by American Family with dates of loss between May 4, 2006 to May 4, 2011 who have not settled with American Family and executed a Jenkins Release and whose claims files were referred to Medical Services or Claims Legal or both during the class period and who have not received a final judgment following litigation or arbitration. Id. at 5-6. Defendants have stated that approximately 200 claims meeting this definition are pending in Claims Legal, and approximately 33 claims meeting the definition have been referred to Medical Services. Id. (See also Defendants' Status Report [Doc. No. 172].)

The court agrees with Defendants as to the make-up of the universe of potential files at issue in the Motion to Compel as it was drafted and then later modified by the SJ Order. The court disagrees, however, that "all" the claim files at issue necessarily are `active cases.' There is some evidence and argument that occasionally claims were and are settled using a non-standard release or no release, thus making it incumbent upon the Defendants to thoroughly review all UM/UIM claims made during the relevant time period to determine which claims specifically meet the newly established criteria for inclusion in the putative class.

3. Documents Created Subsequent to May 4, 2011

This matter was removed to federal court on April 25, 2011. [Doc. No. 1, Amended Notice of Removal]. The Amended Complaint [Doc. No. 11] was filed on May 4, 2011. The parties are engaged in class certification discovery only at this time. This court has and will continue to allow production of a sampling of the putative class members' claims files in order to facilitate Plaintiffs' ability to determine whether the case meets the requirements of Fed. R. Civ. P. 23(a) to obtain certification of a class, specifically the requirements of numerosity, commonality, typicality and that the named plaintiffs can fairly and adequately represent the class. The court concludes that the sample size allowed in Section B, infra, together with the files of the named plaintiffs, is an adequate representation of the universe of potential class members to allow the Plaintiffs to make such a showing if, in their estimation, the evidence supports certification. Given the purpose for which this discovery is being allowed, there is no reason to believe that providing additional claim files arising subsequent to the date of filing of the lawsuit would help Plaintiffs with the required showing to support their motion for class certification. However, should class certification be granted, the "end date" of May 4, 2011 would certainly be revisited during the merits phase of discovery.

B. Sample Parameters

As noted in the previous Order, there is scant authority suggesting the appropriate size of any sample of the claim and legal files in the class action discovery context, except for implicit approval of sampling in general. (See Manual for Complex Litigation, Fourth, §21.14 (2009).) Defendants have estimated that the time required to gather each file associated with a claim and prepare it for production is between 2 and 6 hours. (Resp. to Mot. to Compel, [Doc. No. 75], Ex. 12, Alsup Decl. at ¶ 3.) Therefore, Defendants would be required to expend between 466 and 1,398 hours producing the files and documents associated with approximately 233 claims which are potentially contained in the putative class. On the other hand, Plaintiffs carry the burden of convincing the District Court that the claimants in the putative class are united by sufficient numerosity, commonality, and typicality to be considered as a group and additionally to prove that the named plaintiffs can fairly and adequately represent the class. The court continues to believe that a sample of files would strike an appropriate balance between the burden of production on the defendants and the plaintiffs' need to examine some files of potential class members to prove their certification contentions.

Plaintiffs initially argued against the use of a random sample for production of potential class member files, but suggested alternatively, that if the court was inclined to allow discovery only on a sample basis, the sample size should be no less than 25%. (Plaintiffs' Supp. Mot. [Doc. No. 99] at 4.) Based on the fact that the universe of claims is significantly smaller than originally thought, the court agrees that a more significant percentage of claims should be examined to ensure that the sample is truly representative. See, Tagatz v. Marquette University, 861 F.2d 1040, 1045 (7th Cir. 1988) (a larger sample is more reliable than a smaller one); Chichilnisky v. Trustees of Columbia University, No. 91 Civ. 4617 (MJL),1994 WL 88247, *2 (S.D.N.Y. 1994) (same). Further, statistical evidence is "only helpful when the plaintiff faithfully compares one apple to another without being clouded by thoughts of Apple Pie ala Mode or Apple iPods." E.E.O.C. v. Brinker Intern. Payroll Co., L.P., No. 05-C-1063, 2007 WL 775584, *9 (E.D. Wis. March 9, 2007) quoting Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 492 (7th Cir. 2007).

Therefore, the court concludes that a sample of fifty claims within the narrowed group of potential class members will be adequate to allow Plaintiffs the opportunity to prepare for their class certification arguments while not significantly overburdening the Defendants in preparation of the discovery at this stage.

Therefore, Defendants shall be required to select a sample of fifty claims and compile for production all files associated with those claims using the following method:

C. Permissible Redactions

This case involves claims of an insured against his own insurance company, usually known as a first-party claim.6 The purpose of uninsured motorist coverage is to compensate insureds for loss caused by negligent and financially irresponsible motorists outside the control of either the insured or his own insurance carrier. Parsons ex rel. Parsons v. Allstate Ins. Co., 165 P.3d 809, 814 (Colo. App. 2006); Kral v. Am. Hardware Mut. Ins. Co., 784 P.2d 759 (Colo. 1989). In this context, if the insured suffers a loss in an accident, his own insurer must pay the insured, up to the limits of the policy, all the losses to which the insured would be legally entitled from the uninsured motorist but for his lack of adequate insurance. Id. As noted in the court's original Claim File Order, first-party claims are uniquely different from third-party claims because an insurer has a legal obligation to deal with its own insured fairly and in good faith, often removing adversarial posturing. Farmers Group, Inc. v. Trimble, 691 P.2d 1138 (Colo.1984).

In the Claim File Order this court originally found that evidence of the reserves and settlement authority contained in the sample claim files would likely lead to admissible evidence of whether Defendants' conduct was reasonable or unreasonable and/or in good faith or bad faith. It cannot be seriously disputed, however, that such evidence is directed at the "merits" of the Plaintiffs' claims more than to satisfying the requirements of a Rule 23 class certification motion. Since the defendants would ultimately be required to reveal this information during merits discovery, the court held, as an expedient, that the information should not be specifically redacted prior to the sample file production during class certification discovery.

The universe of claims, however, has undergone a fundamental character shift as a result of the SJ Order. As currently structured, the putative class claims are highly likely to consist primarily of open, active claims, most of which are currently being litigated. Given the fundamental difference in the make up of the claims, the pragmatism of allowing the Plaintiffs to obtain what is essentially merits discovery at this early stage is now outweighed by the substantial prejudice that may enure to the Defendants by revealing an adjuster's valuation of a claim in active cases which may not ultimately be part of a class action lawsuit. The court now finds and orders that for each file produced as part of the sample authorized by this Order, evidence of reserves and settlement authority, or other "values" applied to the claim in monetary terms, shall be redacted prior to production. For any and all redactions made pursuant to this Order, a privilege log shall be prepared and produced. Of course, this issue can and should be re-visited should the Plaintiffs emerge victorious from the class certification fray.

Consistent with and unchanged from the Claims File Order, the court finds that Plaintiffs have made no showing sufficient to overcome claims of work product or attorney/client privilege and such information may be redacted in the claims, medical and legal files produced in accordance with this Order. Information redacted on the basis of privilege should be reflected on a privilege log consistent with previous orders and the Protective Order entered in this case.

The court finds that the appropriate date range for inclusion in the universe of claims from which the sample files will be culled is May 4, 2006 through May 4, 2011.

It is therefore ORDERED

1. "Defendants' Motion for Clarification/Reconsideration of Court's March 27 Order and Request for Expedited Consideration" [Doc. No. 151] is GRANTED to the extent consistent with this Order. Defendants shall produce to Plaintiffs the claim, medical and legal files associated with the fifty claim sample on or before July 27, 2012. All provisions of the March 27, 2012 Order [Doc. No. 147] not specifically addressed or modified herein remain valid, and

2. The stay previously imposed by the Stay Order [Doc. No. 166] is hereby LIFTED; and

3. "Plaintiffs' Motion for Extension of Time/Clarification Regarding Dates for Discovery Cut off and Class Certification" [Doc. No. 175] is GRANTED in part as follows:

4. The parties shall file a Notice and Status Report with this court within five days of any ruling regarding class certification, setting forth the parties' position with respect to future scheduling needs; and

5. A Scheduling/Status Conference will be held on January 14, 2013 at 9:30 a.m.