Flood Control

Initial Discovery Protocols in the Southern District of Texas

By Chief Judge Lee H. Rosenthal and Daniel D. Hu

Stacks of Papers

THE FLOOD, AFTER THE FLOOD
Labor Day 2017 will be known in large parts of the southern United States as Hurricane Harvey Day. Flood damage from this devastating hurricane has been estimated at approximately $125 billion, with significant impacts in the Houston area. More than 100,000 homes were damaged and their occupants displaced. And now a potential second flood looms, this one in the courts. Fortunately, innovative litigation tools are in place designed to address this litigation flood.

Hundreds of first-party property damage cases have been filed in Texas federal and state courts. In the U.S. District Court for the Southern District of Texas, Houston Division, approximately 600 Hurricane Harvey first-party flood insurance property disputes were pending as of March 2019, and another 50-plus Harvey insurance cases were pending in the Harris County and Galveston County state courts. Although many disputes were settled before any litigation was filed, many remain. The statute of limitations will not run out for months; the number, like the floodwaters, will no doubt continue to rise.

Our courts need tools to manage the wave of first-party property insurance cases that can arise from disasters, natural and human-made. The innovative Initial Discovery Protocols for First-Party Insurance Property Damages Cases Arising from Disasters fits the bill. These disaster protocols are already being implemented in our district and elsewhere, with good results.1 This tool, like its similar predecessors, can make our courts work better for everyone involved, particularly those who are seeking to rebuild their homes and their lives.

WHAT ARE INITIAL DISCOVERY PROTOCOLS?
The disaster protocols are the third set of initial discovery protocols designed for a specific category of cases. The protocols grew out of an extensive study of ways to address costs and delays in civil litigation. There was broad support for the idea of case-type-specific “pattern discovery” as a way to jumpstart the exchange of the core information needed in almost all cases of a particular type or category. Each protocol is tailored to a category of cases with similar allegations, issues, and fact patterns, requiring the exchange of the same core information in almost every case. The idea is to require the parties in these types of cases to exchange this core information without waiting for formal discovery requests, and without objecting, because the requirements are both mutual and limited and not objectionable.

All of the protocols comprise expanded mandatory initial disclosures requiring both sides to exchange a core set of documents and information, without waiting to be asked. The protocols are designed to be implemented by trial judges, lawyers, and litigants, in both state and federal courts. The protocols “make it easier and faster for the parties and their counsel to: (1) exchange important information and documents early in the case; (2) frame the issues to be resolved; (3) value the claims for possible early resolution; and (4) plan for more efficient and targeted subsequent formal discovery, if needed.”2

The protocols supersede the parties’ obligations to make initial disclosures under Federal Rules of Civil Procedure Rule 26(a)(1) or under the applicable state disclosure rules. The protocols are unlike initial disclosures under Rule 26(a)(1) because they require the exchange of unfavorable as well as favorable information and documents, are limited to information and documents that are not subject to objection, and are limited to the information and documents most likely to be important and useful in facilitating early settlement discussion and resolving or narrowing the issues. The initial discovery is subject to Federal Rules of Civil Procedure Rule 26(e) on supplementation, to Federal Rules of Civil Procedure Rule 26(g) on certification of responses, and to similar applicable state rules. The protocols do not replace discovery, but precede it, almost always reduce it, and may avoid it altogether, by giving the parties early and easy access to the information often needed to resolve the case.

The first set of protocols, the Initial Discovery Protocols for Employment Cases Alleging Adverse Actions, was launched in November 2011.3 These employment protocols were developed by a nationwide committee of a state court judge, a federal court judge, and attorneys on both sides of the “v.” with expertise in employment matters. The employment protocols have since been implemented by about 75 individual federal judges and by districts around the country. Approximately half the judges in the Southern District of Texas use these protocols. The Federal Judicial Center has issued reports evaluating their use, concluding that discovery motions are far less common in cases using the employment protocols.4

Following the success of the employment protocols, a second set, the Protocols for Fair Labor Standards Act Cases Not Pleaded as Collective Actions, was developed.5 Once again, a committee of judges and attorneys from across the country, balanced between those who regularly represent plaintiffs and those who represent employer defendants in FLSA cases, developed these FLSA protocols. Several judges in the Southern District of Texas are already using the FLSA protocols, and many find them useful in both cases pleaded as individual and as collective actions.

THE DISASTER DISCOVERY PROTOCOLS
The new disaster protocols are built on the earlier successes. A balanced committee of practitioners with expertise in post-disaster first-party property insurance litigation, including litigation arising from flood, wind, fire, hail, earthquake, and human-made disasters, worked together with a state and a federal judge to develop protocols for initial discovery in the anticipated first-party property insurance lawsuits that would follow the many recent storms, fires, and quakes. A vigorous and extensive collaboration among counsel for insureds, insurers, and the Federal Emergency Management Agency, or FEMA, again resulted in agreement on the information and documents that are needed from both the insured and insurer in almost every first-party property insurance case arising from a disaster, whether the litigation is in state or federal court. Similar standard discovery tools were successfully used by Texas state courts in Hurricane Ike lawsuits.6 Judges around the country used similar discovery tools after Hurricanes Katrina and Sandy and other calamities.

The final product is the result of debate and compromise on both sides, inspired by the goal of improving the pretrial process in disaster cases nationwide. Judges using the disaster protocols, even in earlier versions, again found that they achieved the intended purposes. The early exchange of core information, often followed by a brief stay to permit the parties to engage in a dispute-resolution process, greatly facilitates early settlements.

The disaster protocols replace initial disclosures with initial discovery specific to disaster cases. Both sides must automatically provide this discovery within 45 days of the insurer’s responsive pleading or motion. No formal discovery request is needed to trigger the obligation to disclose the information and documents specified in the protocols. The disaster protocols cover information and documents that both sides agree can be produced without objection other than attorney-client or work-product privilege. Information or documents that could give rise to legitimate objections are not required to be disclosed under the protocols. Formal discovery is still available if the parties need more information, but in many cases, the amount and type of information initially exchanged may be enough to narrow the discovery needed or resolve the case.

The Initial Discovery Protocols are accompanied by a standing order or a case-specific order implementing them by individual courts or judges, as well as an interim protective order that the courts and parties can use to help expedite the exchange.7

Settlement is facilitated by a common practice that the attorneys on both sides often request. The practice is to set a date for the protocol-required exchange, then to stay the case for 90 days to allow the parties to engage in alternative dispute resolution, mediation, or other settlement efforts. Many cases do settle. For those that don’t, the disputed issues are focused, the discovery process is streamlined, and the case moves faster and more efficiently.

Under the protocols, the insured provides key information, such as ownership, mortgage-payment history, related cases, preexisting damage, and identification of public adjusters and other people engaged related to the claimed loss. Critical documents including proofs of loss, adjuster reports, receipts, photographs, communications (including electronic) between the insurer and insured, appraisals, and other items supporting the claimed loss are produced. The insurer—and in flood cases, the Write Your Own carrier or FEMA—will provide information about coverage disputes, valuation disputes, payments made, the basis for nonpayment, and will identify the adjusters, decision-makers, and other claim-process participants. Importantly, the entire claim file and policy are produced, as well as adjustments, the underwriting file, photographs, claims logs or journals, proofs of loss, and appraisals.

The disaster protocols may not provide all parties in every case with everything they want. But, as the Rolling Stones taught us years ago, each party usually gets what it needs. And this happens faster, and with less cost or work, for the litigants, lawyers, and court, than with conventional discovery. The flood of cases is reduced to a much more manageable stream.

SOME PRACTICE TIPS

• This is the first dance. The disaster protocols are designed to exchange core information that is not objectionable.8 The parties can use formal discovery if the responses reveal the need to learn more.9

• Meet quickly with your client after you learn that a claim was denied or that suit was filed. Organize, copy, and secure the information and documents covered in the protocols. Send a copy of the protocols to your client, even before suit is filed, to identify any preservation or other issues and address them fast. At the first meeting, decide how to produce electronically stored information;

• Read the definitions closely, especially for “identify,” “insurer,” and “insured”;

• Agree on the form of a protective order; and

• Keep the goals in mind: identify the issues, narrow the issues, and facilitate prompt resolution, whether by settlement or a faster trial with tailored issues.

Disaster lawsuits arise out of, well, disasters. Property insurance litigation should not heap another disaster on the pile. For the litigants on both sides, the resolution process itself can also be arduous. The parties, the lawyers, and the courts each have a different perspective, but everyone shares the goals of an accessible, fair, and efficient process. The Disaster Discovery Protocols seek to achieve these goals for all. TBJ

This article, which was originally published in The Houston Lawyer, has been edited and reprinted with permission.

NOTES

1. The protocols may be found at: https://iaals.du.edu/sites/default/files/documents/publications/initial_disaster_protocols.pdf.

2. Id. at 1, 4.

3. Fed. Judicial Ctr., Pilot Project Regarding Initial Discovery Protocols for Employment Cases Alleging Adverse Action (2011), https://www.fjc.gov/sites/default/files/ 2012/DiscEmpl.pdf. See also https://iaals.du.edu/sites/default/files/documents/publications/federal_employment_protocols_pilot_project.pdf. See also https://www.txs.uscourts.gov/sites/txs/files/Employment%20FINAL%20Web%20version.pdf.

4. Jason A. Cantone & Emery G. Lee III, Fed. Judicial Ctr., Initial Discovery Protocols for Employment Cases Alleging Adverse Action: Report on a Pilot Project to the Judicial Conference Advisory Committee on Rules of Civil Procedure (2018); Emery G. Lee III & Jason A. Cantone, Fed. Judicial Ctr., Report on Pilot Project Regarding Initial Discovery Protocols for Employment Cases Alleging Adverse Action (2015). See also Memorandum from Emery G. Lee III & Jason A. Cantone to the Judicial Conference Advisory Committee on Civil Rules (Oct. 26, 2016).

5. Fed. Judicial Ctr., Initial Discovery Protocols for Fair Labor Standards Act Cases Not Pleaded as Collective Actions (2018), https://www.fjc.gov/sites/default/files/materials/12/Initial_Discovery_Protocols_FLSA_Jan_2018.pdf. See also https://iaals.du.edu/sites/default/files/documents/publications/flsa_initial_discovery_protocols.pdf. See also https://www.txs.uscourts.gov/sites/txs/files/Final_Initial_Discovery_Protocols _FLSA.pdf.

6. See, e.g., In re Hurricane Ike Residential Property Claim Litigation, No. 2009-23570, 11th Judicial District Court, Harris County.

7. https://www.txs.uscourts.gov/sites/txs/files/Disaster%20FINAL%20Web%20version.pdf.

8. Id. at Instruction 3(b).

9. Id. at Instruction 3(d).


Headshot Judge Lee H. RosenthalJUDGE LEE H. ROSENTHAL is the chief U.S. district judge of the U.S. District Court for the Southern District of Texas. She has served on and chaired Judicial Conference committees of the Federal Rules of Civil Procedure and the Rules of Practice and Procedure and has been active in writing and working on case-management innovations, including managing disclosure and discovery obligations.

Headshot of Daniel HuDANIEL D. HU is the chief of the Civil Division of the U.S. Attorney’s Office for the U.S. District Court for the Southern District of Texas.

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