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Hartford Accident and Indemnity Co. v. FFP Holdings LLC

United States District Court, N.D. Ohio, Western Division

January 9, 2018

Hartford Accident and Indemnity Company, et al., Plaintiffs
v.
FFP Holdings, LLC, et al., Defendants

          MEMORANDUM OPINION AND ORDER

          Jeffrey J. Helmick United States District Judge.

         I. Brief Introduction

         This declaratory judgment action is aimed at coverage for defense, reimbursement of defense costs, or indemnity of environmental liabilities and remediation costs arising out of the Flexible Foam's[1] facility in Elkhart, Indiana. In February 2015, the EPA sought reimbursement from Flexible Foam for approximately $5.7 million dollars in remediation costs. This litigation ensued.

         This matter is before me on the Insurers'[2] motion to strike policyholder evidence disclosed after the Court established discovery deadline. (Doc. No. 200). Also before me is the Policyholders'[3]opposition (Doc. No. 205), the Insurers' reply (Doc. No. 207), as well as the Policyholders' sur-reply (Doc. No. 212). For the reasons stated below, the motion to strike is denied.

         II. Discussion

         The Insurers move to strike evidence they contend the Policyholders failed to produce prior to the October 31, 2016 discovery deadline in violation of Fed.R.Civ.P. 26(e)(1)(A). As a result, they request that I implement the mandatory sanction provision under Fed.R.Civ.P. 37(c)(1) for this violation. Specifically, they move to strike: (1) Policyholders' December 12, 2016 supplemental answers to CNA interrogatories 5, 8, and 10 and Winchester 12-13; (2) John Stepelton deposition exhibits 3, 9, and 24-26; and (3) Stepelton deposition testimony on these issues, including related documents.

         FFP opposes the motion to strike because the parties agreed to take the Stepelton deposition (FFP's Rule 30(b)(6) designee) on November 1, 2016, beyond the discovery deadline of October 31, 2016. It is Stepelton's testimony from that deposition which is at the heart of this dispute.

         Under Fed.R.Civ.P. 26(e)(1)(A):

In General. A party who has made a disclosure under Rule 26(a)-or who has responded to an interrogatory, request for production, or request for admission- must supplement or correct its disclosure or response:
(A) in a timely manner if the party learns that some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing;

         At the Case Management Conference in July 2015, I assigned this case to the complex track and it was agreed to conduct discovery in phases:

Phase 1 discovery will be limited to identifying which state's substantive law applies to the insurance policies issued to Flexible Foam and whether the Insurers' policies' pollution exclusions preclude coverage under the relevant state's substantive law for Flexible Foam's alleged environmental liabilities at the Site.
Phase 2 discovery will include, if appropriate, discovery on the Insurers' other potentially-available coverage defenses under the policies issued to Flexible Foam, as well as Flexible Foam's potential exposure from its alleged environmental liabilities at the Site. Phase 2 discovery may not begin and the schedule for that phase of discovery will not be set until after a ruling on any Phase 1 dispositive motions has been issued.

(Doc. No. 100 at ΒΆ 4(b)). A deadline for Phase 1 discovery was established at that initial conference. This discovery deadline was the subject of multiple unopposed extensions. On September 1, 2016, I extended the discovery deadline ...


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