Free Opening Brief in Support - District Court of Delaware - Delaware

Case 1:04-cv-01324-JJF—LPS Document 116-8 Filed 10/26/2005 Page 1 013
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Case 1:04-cv—01324-JJF-LPS Document 116-8 Filed 10/26/2005 Page 2 gf 3
I age 1 of 3
I John S Sgadaro
From: "John S Spadaro"
I To: "Curtis P. Cheyney"
Sent: l Friday, May 20, 2005 10:06 AM
Subject: Re: Eames v. Nationwide; Nationwide's responses to document requests
I Mr. Cheyney:
Although we're forced by circumstances to pursue the June 2 teleconference that we've arranged with the Court,
we remain willing to negotiate with Nationwide in an effort to resolve the dispute prior to June 2. Toward that end.
l‘ve set forth below an additional copy of my May 16 message. John Spadaro
-—- Original Message -----
I From: .i@__s_spa.c1aro
To: Q.tirtis-E..Chexr1ev
Sent: Monday, May 16, 2005 2:22 PM
I Subject: Re: Eames v. Nationwide; Nationwide‘s responses to document requests
Mr. Cheyney:
I in a consumer transaction, where an adhesion contract is sold, the consumer's subjective expectations are
irrelevant. The doctrine of reasonable expectations is a matter of objective. not subjective, expectations.
Further, ambiguities in adhesion contracts are construed in the consumer insured's favor without regard to that
I insured's subjective intent. So from our perspective, your observation about the insured's "state of mind when
purchasing the policy" misses the mark.
But that aside, it's difficult to frame the search terms when I don‘t know what your search capabilities are. My
I law 1irm's docu ment management software could search "PlP" within ten words of "full", "Protection" within ten
words of "fulI", etc.; and this capability could make for a very manageable search. Nationwide is obviously more
high-tech than my six-lawyer Erm, and may have search capabilities far beyond those that l might propose.
I On a related point, i have written to you repeatedly regarding Nationwide‘s failure to comply with the Court's
Default Standard for Discovery of Electronic Documents, as required under Section 1 of the Scheduling Order.
lf Nationwide would simply comply with that standard, we might be better able to work through document-
I search issues.
So here are some suggestions to address our pending discovery dispute.
I 1. Could you please answer the questions in my May 11 message now?
I 2. Could you review and comply with the Default Standards now?
3. Could we set aside for the moment the existence of responsive documents from among
l policyholder-specific materials (like claim files) and focus on generic materials, like internal
memoranda, guidelines and manuals, and board meeting minutes? Though we'Il reserve our
right to discover the nongeneric items, we might be in a position to accept only the generic
l items for now, depending on the extent to which they exist and the speed with which you can
produce them. Can you tell us that now?
4. lf we can't have some final word from you on whether. when and to what extent Nationwide will supplement
I its responses, we'll have to bring the matter to the Court's attention quickly. The class certification discovery
schedule does not allow us the luxury of waiting on Nationwide's in-house counsel for very long.
I Please give these suggestions some thought, and get back to me as soon as you can. Thank you. John
Spadaro
I smxzoos

Case 1:04-cv—01324-JJF-LPS Document 116-8 Filed 10/26/2005 Page 3 of 3
I Page 2 of 3
I ---- Original Message ·----
I From: Cu.rtis.P. .Q.h.eyn6>*
To: John S Spadaro
Sent: Thursday, May 12, 2005 2:50 PM
I Subject: RE: Eames v. Nationwide; Nationwide's responses to document requests
John, I have tonrvarded your request to NW's counsel and suggested a substantive responce. lf possible and
feasable, can you suggest a protocol for a document sweep? What word order or phrase might you suggest. I
I don't want to go through everyPlP, It/iedPay, BUIM and feret out any oft hand comment by an adjuster that
might use "full" referring to the available PIP limit stated in the policy while considering a claim and making a
claim log entry; after-all, no claim adjusters comment has relevance to the insureds state of mind when
I purchasing the policy. Curt
I From: John S Spadaro [mailto:jspadart>msllaw.com]
Sent: Wednesday, May 11, 2005 2:25 PM
To: Curtis P. Cheyney
I Cc: Nicholas E. Skiles
Subject: Eames v. Nationwide; Nationwicle's responses to document requests
I Mr. Cheyney:
ln Nationwide's responses to the Eames plaintiffs' document requests. Nationwide interposes a general
obiection to the effect that Nationwide's characterization of PIP limits as "fu|l", or its discussion of that
I characterization, is relevant and discoverable only to the extent that it appears in an insurance contract. We
disagree; but for present purposes, I'd like to determine whether the disagreement is one of substance.
Suppose, for example, that Nationwide possessed an internal memorandum or minutes from a board meeting,
and a characterization of PIP limits as "fu|l" appeared in that document. Nationwide's objection might mean
that notwithstanding its response to Request Nos. 1 and 2 -- that it is "currently unaware of any other
documents that legally characterize the PIP policy limits" -- Nationwide has never searched for our
I hypothetical document, simply because it doesn't regard them as "legally characterizing" PIP limits (whatever
that means}. Or it might mean that Nationwide is aware of our hypothetical document, but is neither
producing nor identifying it, because it doesn't meet Nationwide's criterion for being a “|egal characterization".
I Before we seek relief from the Court, I ask you to clarify the matter by answering three simple questions:
1. in responding to our document requests, has Nationwide searched all documents in its possession,
I custody or control that might reasonably be expected to contain characterizations of PIP limits as “fu||",
including internal memoranda, guidelines and manuals, and minutes of board meetings?
I 2. Conversely, has Nationwide limited its search to insurance policies?
3. ls Nationwide aware of any documents in its possession, custody or control that do not consist of
I insurance policies or parts of insurance policies, but do characterize PIP limits as "full"?
ln light ofthe compressed discovery schedule for class certincation issues, I ask for your prompt response.
I Thank you. John Spadaro
I 5/27/2005