MARK W. BENNETT, District Judge.
TABLE OF CONTENTS
I. INTRODUCTION ................................................548
II. LEGAL ANALYSIS ..............................................548
A. Standard Of Review ......................................548
B. Progressive's Objections ................................549
1. The challenged parts of the Order ...................549
2. Work-product disclosures ............................549
a. Judge Strand's ruling ...........................549
b. Arguments of the parties ........................550
c. Analysis ........................................551
3. Attorney-client privilege ...........................554
a. Judge Strand's ruling ...........................554
b. Arguments of the parties ........................555
c. Analysis ........................................556
C. Everest's Objections ....................................5591. The challenged part of the ruling ...................5592. Arguments of the parties ............................5603. Analysis ............................................562III. CONCLUSION ..................................................564
Plaintiff Progressive Casualty Insurance Company (Progressive) filed this action, on April 25, 2012, seeking a declaration that there is no coverage under Directors & Officers/Company Liability Insurance Policy For Financial Institutions Policy No. 100322780-01 (the Vantus Policy) from Progressive for the claims asserted by the Federal Deposit Insurance Corporation, as Receiver for Vantus Bank, (FDIC-R) against the former officers and directors of Vantus Bank in Sioux City, Iowa, as such claims were stated in a May 7, 2010, letter to the directors and officers by the FDIC-R's outside counsel. The FDIC-R eventually filed a separate lawsuit, on May 20, 2013, against the former officers and directors, pursuant to the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA), 12 U.S.C. § 1811 et seq., alleging the gross negligence, negligence, and breach of fiduciary duty of the former officers and directors. See FDIC v. Dosland, C 13-4046-MWB. The FDIC-R's claims are based primarily on its allegations that the former officers and directors caused Vantus Bank to use $65 million — 120 percent of its core capital — to purchase fifteen high risk collaterized debt obligations backed by Trust Preferred Securities (CDO-TruPS) without due diligence and in disregard and ignorance of regulatory guidance about the risks of and limits on purchases of such securities.
One twist on the tortuous road to trial in this case is now before me. On August 22, 2014, United States Magistrate Judge Leonard T. Strand entered an Order (docket no. 102), 302 F.R.D. 497, 2014 WL 4168477 (N.D.Iowa 2014) on two motions to compel by the FDIC-R. Two parts of Judge Strand's Order are at issue here. In Objections (docket no. 106), filed September 4, 2014, pursuant to Rule 72(a) of the Federal Rules of Civil Procedure and N.D. IA. L.R. 72.1, Progressive challenges Judge Strand's conclusion that the portions of communications between Progressive and its reinsurers redacted by Progressive on the basis of the attorney-client privilege and/or work-product doctrine are not protected from discovery by the FDIC-R. In Objections (docket no. 122), filed September 5, 2014, non-party Everest Reinsurance Company (Everest) challenges Judge Strand's conclusion that the FDIC-R is entitled to obtain the documents described in its subpoena to Everest, as narrowed by the FDIC-R in communications between counsel. The FDIC-R filed separate Responses (docket nos. 106 and 129) to Progressive's and Everest's Objections, and Progressive and Everest filed Replies (docket nos. 130 and 131) in further support of their Objections.
I do not find that oral arguments are necessary to my review of Judge Strand's Order. Moreover, my crowded schedule is such that I cannot hear oral arguments soon enough to avoid further delay of the discovery process in this case. Under these circumstances, I will consider Progressive's and Everest's Objections fully submitted on the parties' written submissions. Thus, I turn to consideration of Progressive's and Everest's Objections.
The pertinent parts of the statute and rules authorizing the powers of a federal
Section 636(b)(1)(A) and Rule 72(a) both specify that such review allows the district judge to modify or set aside any parts of the magistrate judge's order that are "clearly erroneous or contrary to law." See also Ferguson v. United States, 484 F.3d 1068, 1076 (8th Cir.2007) ("A district court may reconsider a magistrate judge's ruling on nondispositive pretrial matters where it has been shown that the ruling is clearly erroneous or contrary to law.") (citing § 636(b)(1)(A)). Although the Eighth Circuit Court of Appeals does not appear to have clarified the meaning of "clearly erroneous" in the context of a district court's review of a magistrate judge's ruling, the appellate court's formulation of the "clearly erroneous" standard for its own review of a lower court's ruling is as follows:
Story v. Norwood, 659 F.3d 680, 685 (8th Cir.2011). Like other courts, I have read "contrary to law" within the meaning of Rule 72(a) (and, hence, § 636(b)(1)(A)) to mean failure to apply or misapplication of relevant statutes, case law, or rules of procedure. See United States v. Melton, 948 F.Supp.2d 998, 1002 (N.D.Iowa 2013) (quoting Catskill Dev., L.L.C. v. Park Place Entm't Corp., 206 F.R.D. 78, 86 (S.D.N.Y.2002)).
I will apply these standards in my consideration of Progressive's and Everest's Objections.
In the part of Judge Strand's Order to which Progressive has leveled its Objections, Judge Strand considered the FDIC-R's motion to compel Progressive to produce the portions of certain communications with and from its reinsurers that Progressive had redacted on the basis of attorney-client privilege and/or the work product doctrine. I find it helpful to consider separately the Objections concerning disclosure of purported work-product information and purported attorney-client privileged information.
As to the FDIC-R's motion to compel production of purported work product, Judge Strand concluded, as follows:
Order (docket no. 102), 302 F.R.D. at 502, at *4.
In its Objections, Progressive argues that the question concerning disclosure of purported work product is not simply whether Progressive's communications with its reinsurers were prepared in the ordinary course of business, as Judge Strand premised in his Order. Rather, Progressive argues, the question is whether those communications contain opinion work-product information that pertains specifically to anticipated, and ultimately filed, coverage litigation with the FDIC-R and/or litigation between the FDIC-R and the officers and directors. Progressive argues that such protected information includes information regarding Progressive's litigation and mediation strategies and reserve information that Judge Strand has previously held is protected from disclosure.
In response, the FDIC-R argues that Judge Strand's conclusion that Progressive created or received the alleged work-product information in the ordinary course of its business is not clearly erroneous. Indeed, the FDIC-R argues that Progressive admitted that the documents at issue were ordinary business documents. Furthermore, the FDIC-R argues, with respect to claims-related communications, insurance companies usually are required by contract to notify their reinsurers of any claims for which the insurance companies may seek reinsurance coverage, and are required to provide the following: (1) a description of the claim; (2) the insurance company's analysis of whether its policy provides coverage for its policyholder; and (3) the estimated overall exposure.
In reply, Progressive argues that the law is "clear" that, even though a document as a whole may have been prepared in the ordinary course of business, material
As Judge Strand noted, in this diversity case, the court "applies federal law to work product claims." PepsiCo, Inc. v. Baird, Kurtz & Dobson, L.L.P., 305 F.3d 813, 817 (8th Cir.2002) (citing Baker v. General Motors Corp., 209 F.3d 1051, 1053 (8th Cir.2000) (en banc)). "The work product doctrine was designed to prevent `unwarranted inquiries into the files and mental impressions of an attorney,' and recognizes that it is `essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel.'" Simon v. G.D. Searle & Co., 816 F.2d 397, 400 (8th Cir.1987) (quoting Hickman v. Taylor, 329 U.S. 495, 510-11, 67 S.Ct. 385, 91 L.Ed. 451 (1947)) (internal citations omitted). Further, "in order to protect work product, the party seeking protection must show the materials were prepared in anticipation of litigation, i.e., because of the prospect of litigation." PepsiCo, Inc., 305 F.3d at 817 (citing Binks Mfg. Co. v. National Presto Indus., Inc., 709 F.2d 1109, 1118-19 (7th Cir.1983)).
Whether documents were prepared in anticipation of litigation or in the ordinary course of business is a factual determination. Simon, 816 F.2d at 401. The Eighth Circuit Court of Appeals set out the following test for this factual determination:
Simon, 816 F.2d at 401 (quoting 8 C. Wright & A. Miller, Federal Practice and Procedure § 2024, at 198-99 (1970), with footnotes omitted, and finding that this test was also consistent with the Advisory Committee Notes to Rule 26(b)(3) of the Federal Rules of Civil Procedure). As the Eighth Circuit Court of Appeals has also explained, "Documents are not protected under the work product doctrine ... merely because the other party transferred them to their attorney, litigation department, or insurer," and they are not protected if they "were assembled in the ordinary course of business or for other nonlitigation purposes." Petersen v. Douglas Cnty. Bank & Trust Co., 967 F.2d 1186, 1189 (8th Cir.1992) (citing Simon, 816 F.2d at 401).
Simon, 816 F.2d at 401 (footnote omitted).
Here, I conclude that Judge Strand did not clearly err in rejecting work-product protection for the documents in question. See Ferguson, 484 F.3d at 1076 (standard of review). Where the business of Progressive is insurance against risks, and the business of reinsurers is reinsurance of risk policies, Judge Strand did not clearly err in finding that the purported work-product documents, involving communications between Progressive and its reinsurers, were "prepared in the ordinary course of business," not "in anticipation of litigation." Simon, 816 F.2d at 401. First, Judge Strand articulated the test from Simon for determination of whether documents are subject to work-product protection. See Order (docket no. 102), 302 F.R.D. at 501, at *3 (citing this test from Simon); see also Melton, 948 F.Supp.2d at 1002 (explaining that "contrary to law" within the meaning of Rule 72(a) (and, hence, § 636(b)(1)(A)) means failure to apply or misapplication of relevant statutes, case law, or rules of procedure). Furthermore, Progressive admitted that the documents at issue were "prepared in the ordinary course of business"; the documents at issue were in the nature of business planning documents; neither Progressive nor the reinsurers were involved in giving legal advice or in mapping litigation strategy in any individual case; the communications between Progressive and its reinsurers serve numerous business functions; and Progressive's and its reinsurers businesses involved business planning on many fronts, among them litigation. Simon, 816 F.2d at 401. Indeed, had I decided the issue in the first instance, I would have reached the same conclusion as Judge Strand.
It appears to me that Progressive's real objection is not that the documents generally were not prepared in the ordinary course of business — Progressive concedes that they were. Rather, it appears to me that Progressive's real objection is that some specific documents or some specific contents of those documents were prepared in anticipation of litigation and, hence, at least those parts of the documents
Progressive did raise this argument — albeit without any citations to supporting authority, such as Simon, for it — in its Response To [The FDIC-R's] Motion To Compel (docket no. 75), 9-10.
Progressive's Response To [The FDIC-R's] Motion To Compel (docket no. 75) at 9-10 (footnotes omitted).
In his Order, Judge Strand did not explicitly consider Progressive's argument for "piecemeal" application of work-product protection to specific documents or specific parts of documents that were otherwise prepared in the regular course of business. See Order (docket no. 102), 302 F.R.D. at 502, at *4. Nevertheless, in explicitly holding that Progressive had failed to meet its burden to show that the documents were subject to work product protection, Judge Strand explicitly relied on
I cannot find that Judge Strand's conclusion that Progressive failed to meet its burden to show that the documents in question were entitled to work-product protection — including his implicit finding that not even portions of those documents were entitled to such protection — was clearly erroneous. See Ferguson, 484 F.3d at 1076 (standard of review). This is so, for three reasons. First, the fact that specific documents or parts of documents were prepared by ABAIS claims attorneys does not necessarily establish that they are subject to work-product protection. Cf. Petersen, 967 F.2d at 1189. Second, preparation of specific documents or parts of documents by claims attorneys at ABAIS for its and Progressive's "internal use" does not unambiguously show that such "internal use" was "in anticipation of litigation," rather than "in the ordinary course of business," where the business of an insurance company and its managing agent is risk management. Cf. Simon, 816 F.2d at 401 ("A business corporation may engage in business planning on many fronts, among them litigation."). Third, Progressive also conceded that the documents were provided to the reinsurers as case updates pursuant to the reinsurance agreements and/or in response to their requests — that is, Progressive conceded that the specific documents or parts of documents were prepared — and would have been prepared anyway — "in the ordinary course of business." Indeed, had I considered this issue in the instance, I also would have concluded that Progressive had failed to meet its burden to show that that even portions of the documents in question were entitled to work-product protection.
Progressive's Objections to Judge Strand's rejection of work-product protections for the documents in question are overruled.
Progressive also objects to Judge Strand's Order as erroneously granting the FDIC-R's motion to compel production of purported attorney-client privileged documents. In his Order, Judge Strand ruled as follows:
Order (docket no. 102), 302 F.R.D. at 502-03, at *4-5.
In support of its Objections to this part of Judge Strand's Order, Progressive argues Judge Strand's conclusion that the "common interest" exception does not apply in the circumstances of this case is clearly erroneous and contrary to law. Progressive argues that there is no waiver of the attorney-client privilege where, as here, there is a "common interest" among the parties with whom the documents are shared. Progressive concedes that no Iowa courts appear to have addressed the issue of the "common interest" exception to waiver, but Progressive argues that courts around the country have concluded that the "common interest" exception applies to communications between insurers and reinsurers, at least when, as here, their interests regarding the availability of coverage under a policy are aligned. Progressive argues that the facts here show both the existence of a common legal interest and communications made in the course of and in furtherance of that interest. The common legal interest on which Progressive relies is the express authorization in the reinsurance agreements for the reinsurers to participate with Progressive in the defense of any claim, loss, or legal proceeding likely to involve the reinsurer. Progressive then argues that the documents in question where provided in direct furtherance of the common legal enterprise between Progressive and the reinsurers.
In its Opposition, the FDIC-R argues that Judge Strand properly rejected Progressive's argument that the "common interest" exception prevented a waiver, because he found that, even if the exception was recognized under Iowa law, Progressive failed to establish any common legal, as opposed to commercial or financial,
Judge Strand was correct that, in a diversity case, such as this, the determination of whether attorney-client privilege applies is governed by state law. See FED. R.EVID. 501; Union Cnty., Iowa v. Piper Jaffray & Co., Inc., 525 F.3d 643, 646 (8th Cir.2008) ("Because this is a diversity case, the determination of whether attorney-client privilege applies is governed by state law."). Progressive concedes that Judge Strand's conclusion that Iowa courts have never expressly recognized the "common interest" exception as an exception to waiver of the attorney-client privilege is not contrary to law. See Ferguson, 484 F.3d at 1076 (standard of review); see also Melton, 948 F.Supp.2d at 1002 (explaining that "contrary to law" within the meaning of Rule 72(a) (and, hence, § 636(b)(1)(A)) means failure to apply or misapplication of relevant statutes, case law, or rules of procedure). Progressive appears to argue that Judge Strand should, nevertheless, have found the "common interest" exception applicable here and that his conclusion that it was not was clearly erroneous. I find no such clear error.
First, Judge Strand did consider, in the alternative, whether Progressive had established that the "common interest" exception is applicable, if it were recognized under Iowa law. Second, Progressive does not object to Judge Strand's legal formulation of the requirements to establish the "common interest" exception, see Order, 302 F.R.D. at 502, at *3, as contrary to law. See Ferguson, 484 F.3d at 1076 (standard of review); see also Melton, 948 F.Supp.2d at 1002 (explaining that "contrary to law" within the meaning of Rule 72(a) (and, hence, § 636(b)(1)(A)) means failure to apply or misapplication of relevant statutes, case law, or rules of procedure). I agree that Judge Strand correctly described the legal requirements for application of the exception.
More specifically, in a case on which Judge Strand relied, involving an assertion of an exception for communications between an insurer and a reinsurer, the United States District Court for the Southern District of New York explained the exception as follows:
Fireman's Fund Ins. Co. v. Great Am. Ins. Co. of New York, 284 F.R.D. 132, 139-40 (S.D.N.Y.2012); see also Order, 302 F.R.D. at 502, at *3 (relying, in part, on Fireman's Fund Ins. Co., 284 F.R.D. at 139-40).
The court in Fireman's Fund Insurance rejected a categorical rule that insurers and reinsurers share a joint legal interest based on a reinsurer's obligations to cover the insurer's payment obligations. Id. at 140. The court in Fireman's Fund Insurance rejected such an argument, because, unlike the relationship between an insurer and an insured, there is no "duty to defend" between a reinsurer and an insurer, and expressly concluded that "`a common interest cannot be assumed merely on the basis of the status of the parties.'" Id. (quoting North River Ins. Co. v. Columbia Cas. Co., No. 90 Civ. 2518(MJL)(JCF), 1995 WL 5792, *4 (S.D.N.Y. Jan. 5, 1995)). What is required is evidence of an agreement (although not necessarily a written agreement) between an insurer and its reinsurer that establishes a "`cooperative and common enterprise towards an identical legal strategy.'" Id. at 141 (quoting Lugosch v. Congel, 219 F.R.D. 220, 237 (N.D.N.Y.2003)). Not only did the court in Fireman's Fund Insurance find no common legal interest sufficient to support application of the "common interest" exception, it also found no sufficient evidence that the purportedly privileged materials were exchanged "`in the course of formulating a common legal strategy' or `for the purpose of obtaining legal advice from'" the reinsurer. Id. The parties in that case had not pointed to the involvement of attorneys in the exchange of the documents, which "might have supported such a finding," nor had the parties pointed to evidence of a "legal necessity of exchanging otherwise protected information." Id.
Here, Judge Strand, likewise, concluded that Progressive and its reinsurers do not have a common legal interest merely because the reinsurers may have an obligation to pay Progressive's losses; rather the relationship between Progressive and its reinsurers and reinsurance broker is commercial and financial, id., and that finding is not clearly erroneous. Judge Strand also did not clearly err in concluding that Progressive also failed to establish that an agreement between it and its reinsurers established a "`cooperative and common enterprise towards an identical legal strategy.'" Id. at 141 (quoting Lugosch v. Congel, 219 F.R.D. 220, 237 (N.D.N.Y.2003)). A contractual authorization for the reinsurers to participate in litigation with Progressive falls well short of evidence satisfying that requirement. As Judge Strand found, "There is no evidence establishing a joint legal strategy or legal enterprise, which is central to the common interest doctrine," Order, 302 F.R.D. at 503, at *4, and I find no clear error in that finding. I also find no clear error in Judge Strand's conclusion, like the conclusion in Fireman's Fund Insurance, 284 F.R.D. at 141, that Progressive failed to establish that any exchange of the documents in question was in furtherance of a common legal interest, or was a matter of legal necessity, rather than in furtherance of Progressive's commercial or financial relationship with its reinsurers, even if
In short, I do not find any part of Judge Strand's disposition of the attorney-client privilege issue that is contrary to law or clearly erroneous. See Ferguson, 484 F.3d at 1076 (standard of review); see also Melton, 948 F.Supp.2d at 1002 (meaning of "contrary to law"). Again, had I considered this issue in the first instance, I would have decided it the same way. Progressive's Objections to this part of Judge Strand's Order are overruled.
Thus, Progressive's Objections to Judge Strand's Order are overruled in their entirety.
I turn, next, to non-party Everest's September 5, 2014, Objections (docket no. 122). In those Objections, Everest challenges Judge Strand's conclusion that the FDIC-R is entitled to obtain the documents described in its subpoena to Everest, as narrowed by the FDIC-R in communications between counsel.
The challenged part of Judge Strand's Order is the following:
Order, 302 F.R.D. at 504-05, at *5-7 (footnote omitted).
Everest asserts that this part of Judge Strand's Order is contrary to law, because it fails to take into account the limitation on duplicative discovery in Rule 26(a)(2)(C). Everest explains that, in communications between counsel, the FDIC-R's counsel agreed that the FDIC-R was "not seeking documents beyond those ordered to be produced by Progressive." Everest also explains that the FDIC-R had argued that the material sought from Everest was not duplicative of documents already produced by Progressive, because Progressive's disclosures had been "deficient," but Judge Strand concluded in his Order that Progressive's production was only deficient as to redaction of the documents on the basis of attorney-client privilege and/or work product protection. Everest argues that duplicative production cannot be based on a finding that the production might contain additional relevant material. Indeed, Everest contends that the Order fails even to consider Everest's argument that the discovery demanded in the subpoena is duplicative of discovery that the FDIC-R has already obtained from Progressive and that is otherwise available from the reinsurers who actually reinsure the Vantus Policy. Instead, Everest argues that the Order considered only "relevance" under Rule 26(b)(1). Everest also argues that, even if there is no duplication, there is no question that the FDIC-R could have obtained the discovery demanded in its subpoena to Everest by way of document requests to Progressive, but the FDIC-R never tried to do so.
Everest also argues that Judge Strand's Order is contrary to law, because it fails to consider the heightened standard for relevance applicable to discovery from non-parties, which it argues is different from the Rule 26(b)(1) standard that applies to discovery from parties. Everest cites cases that it argues establish that discovery from non-parties requires a greater showing of "necessity," and more sensitivity to inconvenience and harassment of the entity from whom the discovery is sought. Everest argues that, under this heightened standard, Judge Strand should have found that the discovery sought by the subpoena imposed an undue burden.
The FDIC-R also disputes Everest's contention that Judge Strand applied the wrong "relevance" standard to discovery from non-parties. The FDIC-R argues, first, that Everest cannot raise this contention now, because it failed to do so before Judge Strand. Just as importantly, the FDIC-R argues, Judge Strand applied the correct "relevance" standard, as set out in Rule 26(b)(1), which applies to all parties or entities from whom discovery is sought. In the alternative, the FDIC-R points out that Judge Strand did take note of the fact that Everest is a non-party, that he recited his awareness of the "undue burden or expense" limitation in Rule 45, and that his "relevance" findings satisfy any standard.
In reply, Everest argues that the FDIC-R has mischaracterized its Objections, because Everest is actually arguing that Judge Strand's Order requires discovery that is entirely duplicative of the discovery that Progressive already provided to the FDIC-R, not that the FDIC-R seeks discovery that is entirely duplicative of discovery that the FDIC-R pursued from Progressive. Everest explains its objection to be that, because Judge Strand limited the documents that Everest is required to produce to those documents responsive to the subpoena, as "modified to reflect the limitations to which the FDIC-R ha[d] already agreed," Order, 302
Judge Strand drew the standards for "relevance" and the "scope" of discovery from Rule 26(b) and Hofer v. Mack Trucks, Inc., 981 F.2d 377 (8th Cir.1992). Rule 26(b)(1) provides, as follows:
FED.R.CIV.P. 26(b)(1). The cited portion of Rule 26(b), which states limitations on the frequency and extent of discovery, provides as follows:
FED.R.CIV.P. 26(b)(2). Nothing in the language of Rule 26 or the Advisory Committee Notes suggests that different standards of relevance or limitations on the frequency and extent of discovery are applicable to non-parties than are applicable to parties to the litigation.
Thus, as the Eighth Circuit Court of Appeals explained in Hofer,
Hofer, 981 F.2d at 380. Like Rule 26, Hofer does not recognize standards or limitations on relevance or the scope of discovery from a non-party separate or different from those for discovery from a party to the litigation.
Judge Strand also recognized, however, that Rule 45, which permits subpoenas for documents from non-parties, requires "[a] party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena." FED.R.CIV.P. 45(d)(1). The Advisory Committee Notes to the 1991 amendment of Rule 45 explain, "Paragraph (d)(1) extends to non-parties the duty imposed on parties by the last paragraph of Rule 34(b), which was added in 1980." Id., Advisory Committee Notes to 1991 Amendments. Thus, this rule also does not impose a different standard for discovery of documents from non-parties than from parties, simply a separate recitation of the standard.
I do not find Judge Strand's reliance on these standards to determine the relevance or the scope of discovery from a non-party to be contrary to law. See Ferguson, 484 F.3d at 1076 (standard of review); see also Melton, 948 F.Supp.2d at 1002 (meaning of "contrary to law").
Nevertheless, the Eighth Circuit Court of Appeals has hinted that the need for and the burden of discovery from a non-party should be taken into consideration, when a party may, instead, be able to obtain discovery directly from another party to the litigation. See Government of Ghana v. ProEnergy Servs., L.L.C., 677 F.3d 340, 345 & n. 5 (8th Cir.2012). That said, Judge Strand was clearly aware that Everest was a non-party to this litigation, and he did consider the burdens of the discovery on Everest.
The thrust of Everest's Objections appears to be that, in his Order, Judge Strand did not recognize that the discovery he was ordering from Everest is duplicative of the discovery that he was or had ordered from Progressive. Everest contends that the duplicativeness of the discovery is apparent from the FDIC-R's counsel's representations about the limitations on discovery from Everest in communications to Everest, which Judge Strand specifically incorporated into his Order. Yet, Judge Strand specifically identified the communications of the FDIC-R's counsel that narrowed the scope of what Everest was compelled to produce. See Order, 302 F.R.D. at 504, at *6 (citing FDIC-R's Motion To Compel Everest Reinsurance Company's Compliance With Subpoena, Exhibit C (docket no. 77-5) at 2-4). That citation is to an e-mail from the FDIC-R's counsel that cogently explains the comment of the FDIC-R's counsel on which Everest relies and why the FDIC-R's request to Everest is not duplicative
Everest's Objections to Judge Strand's Order are overruled.
Upon the foregoing,
1. Plaintiff Progressive's September 4, 2014, Objections (docket no. 106) to Judge Strand's August 22, 2014, Order (docket no. 102) are
2. Non-party Everest's September 5, 2014, Objections (docket no. 122) to Judge Strand's August 22, 2014, Order (docket no. 102) are
3. Judge Strand's August 22, 2014, Order (docket no. 102) is
