Preview
1 PERKINS COIE LLP
John S. Rossiter, Jr., Bar No. 151113
2 JRossiter@perkinscoie.com
505 Howard Street, Suite 1000
3 San Francisco, California 94105
Telephone: 415.344.7000
4 Facsimile: 415.444.7050
James M. Davis (admitted pro hac vice)
5 JamesDavis@perkinscoie.com
1201 Third Avenue, Suite 4900
6 Seattle, WA 98101-3099
Telephone: 206.359.8000
7 Facsimile: 206.359.9000
8 Bradley H. Dlatt (admitted pro hac vice)
BDlatt@perkinscoie.com
9 110 North Wacker Drive, Suite 3400
Chicago, IL 60606-1511
10 Telephone: 312.324.8400
Facsimile: 312.324.9400
11 Counsel for Plaintiffs Calistoga Ranch Owner
LLC and Calistoga Ranch Investors LLC
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[ADDITIONAL COUNSEL LISTED ON
13 SUBSEQUENT PAGES]
14 SUPERIOR COURT OF THE STATE OF CALIFORNIA
15 COUNTY OF NAPA
16 UNLIMITED JURISDICTION
17 CALISTOGA RANCH OWNER LLC; Case No. 21CV001530
CALISTOGA RANCH INVESTORS LLC;
18 AUBERGE RESORTS LLC; and PLAINTIFFS AND CROSS-DEFENDANTS
CALISTOGA RANCH CLUB, CALISTOGA RANCH OWNER LLC’S,
19 Plaintiffs, CALISTOGA RANCH INVESTORS LLC’S,
AUBERGE RESORTS LLC’S AND
20 v. CALISTOGA RANCH CLUB’S
AIG SPECIALTY INSURANCE RESPONSE TO DEFENDANT AIG
21 COMPANY; ARCH SPECIALTY SPECIALTY INSURANCE COMPANY’S
INSURANCE COMPANY; LANDMARK SEPARATE STATEMENT IN SUPPORT OF
22 AMERICAN INSURANCE COMPANY; ITS MOTION TO STAY DEPOSITION AND
HOMELAND INSURANCE COMPANY TO QUASH DEPOSITION NOTICE AND
23 OF NEW YORK; INTERSTATE FIRE & FOR PROTECTIVE ORDER
CASUALTY COMPANY; MARK
24 VORONIN; and DOES 1-20, inclusive,
Date: October 10, 2023
Defendants. Time: 8:30 a.m.
25 __________________________________ Place: Dept. A
26 AND RELATED CROSS-CLAIMS Judge: Honorable Cynthia P. Smith
27 Action Filed: October 28, 2021
28
Plaintiffs’ Response to AIG’s Separate Statement ISO of Its Motion to Case No. 21CV001530l
Stay Deposition and to Quash Deposition Notice and for Protective Order
1 JENNER & BLOCK LLP
Lindsay C. Harrison, Bar No. 232998
2 LHarrison@jenner.com
455 Market Street, Suite 2100
3
San Francisco, California 94105-2453
4 Telephone: 628.267.6800
Facsimile: 628.267.6859
5
Jan A. Larson, Bar No. 339835
6 JanLarson@jenner.com
515 South Flower Street, Suite 3300
7 Los Angeles, CA 90071-2246
Telephone: 213.239.2273
8 Facsimile: 213.239.5199
9 Counsel for Plaintiff Auberge Resorts LLC
10 PILLSBURY & COLEMAN LLP
Philip L. Pillsbury Jr., Bar No. 72261
11 ppillsbury@pillsburycoleman.com
Ryan H. Opgenorth, Bar No. 252273
12 ropgenorth@pillsburycoleman.com
The Pillsbury & Coleman Building
13 100 Green Street
San Francisco, CA 94111
14 Telephone: 415.433.8000
Facsimile: 415.433.4816
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Counsel for Plaintiff Calistoga Ranch Club
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Plaintiffs’ Response to AIG’s Separate Statement ISO of Its Motion to Case No. 21CV001530l
Stay Deposition and to Quash Deposition Notice and for Protective Order
1 Plaintiffs Calistoga Ranch Owner LLC (“CRO”), Calistoga Ranch Investors LLC (“CRI”),
2 Auberge Resorts LLC (“Auberge”), and Calistoga Ranch Club (the “Club”) (collectively, “Plaintiffs”
3 or “Policyholders”), by and through their respective attorneys, submit this Opposition to Defendant AIG
4 Specialty Insurance Company’s Separate Statement in Support of its Motion to Stay Deposition and to
5 Quash Deposition Notice and for Protective Order.
6 AIGSIC’S SPECIFIC OBJECTIONS AND RESPONSES TO DESIGNATED TOPICS
7 TOPIC NO. 1:
8 All actions, activities, thought processes, knowledge, information and material reviewed and
9 documents received or created, by the most senior person(s) at AIG personally involved with
10 Plaintiffs’ claim for insurance benefits to explain all actions and determinations made by AIG with
11 respect to the claim after the Court’s Order granting in part Plaintiffs’ motion for judgment on the
12 pleadings filed on March 28, 2023.
13 AIGSIC’S SPECIFIC OBJECTIONS AND RESPONSE TO TOPIC NO. 1:
14 In addition to and without waiving the General Objections and Objections to Definitions set out
15 above, AIGSIC objects to this Topic on the grounds that it seeks testimony irrelevant to any issues in
16 this case. California law affords an absolute privilege to AIGSIC’s litigation strategy. See California
17 Physicians' Serv. v. Superior Ct., 9 Cal. App. 4th 1321, 1330 (1992) (“Defensive pleading, including
18 the assertion of affirmative defenses, is communication protected by the absolute litigation privilege.”);
19 see also Cal. Civ. Code § 47. AIGSIC’s strategic responses to this Court’s Order—in particular, its
20 continuing litigation of the relevant coverage issues through to final judgment and, if necessary,
21 through appeal—cannot serve as the basis for liability or even as evidence of bad faith.
22 AIGSIC further objects to this Topic on the grounds that it seeks to invade AIGSIC’s attorney-
23 client and work product privileges. The only purpose of this Topic is to seek testimony regarding
24 strategic legal decisions made by AIGSIC in the midst of this litigation. Because the Topic so
25 fundamentally implicates AIGSIC’s privileged communications and litigation strategy, it is improper.
26 AIGSIC further objects that the Topic is oppressive and unduly burdensome—especially now,
27 with this case slated for trial in two months.
28 AIGSIC stands on its objections.
-1-
Plaintiffs’ Response to AIG’s Separate Statement ISO of Its Motion to Case No. 21CV001530l
Stay Deposition and to Quash Deposition Notice and for Protective Order
1 REASON WHY TESTIMONY ON TOPIC #1 IS REQUIRED:
2 1. Relevance. The testimony sought goes directly to plaintiffs’ bad faith claim. The
3 depositions are not only likely to lead to admissible evidence they are almost certain to do so. An
4 insurer’s duty of good faith and fair dealing does not end when litigation is filed. The California
5 Supreme Court in White v. Western Title Ins. Co. (1985) 50 Cal.3d 870 (“White”) rejected a distinction
6 between pre and post-litigation filing conduct.
7 2. Privilege. The Court in White also rejected the argument that post-litigation claims conduct
8 was protected by the litigation privilege. White involved what were at least arguably “judicial
9 communications” within that privilege. We seek testimony regarding conduct within a claims handling
10 context only that do not involve judicial communications; defendants’ fear that plaintiffs seek to hold
11 them liable for legal arguments made in this action in support of the Occurrence Limited Liability
12 Endorsement is manufactured and unfounded. Plaintiffs also do not seek testimony attorney client
13 privileged communications or work product. The Declaration of Cheryl Kaminski makes it apparent
14 that there are relevant, unprivileged matters to explore.
15 3. Burden. This will be about a three-hour deposition. Plaintiffs told the insurers’ counsel this
16 before they spent more than that time preparing this motion. The notices of deposition were timely and
17 within the statutory discovery cutoff. Those depositions could and should have been completed by
18 now. This motion is simply a ploy by the defendants to deprive plaintiffs of this testimony for use in
19 their oppositions to defendants’ motions for summary judgment and the “timing” burdens are self-
20 inflicted. Plaintiffs are entitled to this testimony for use at trial.
21 TOPIC NO. 2:
22 All actions, activities, thought processes, knowledge, information and material reviewed and
23 documents received or created by the senior person(s) at AIG involved in the claim determination to
24 refuse payment of AIG’s full share of the Program’s $100,000,000 blanket limit following the Court’s
25 Order granting in part Plaintiffs’ motion for judgment on the pleadings filed on March 28, 2023.
26 AIGSIC’S SPECIFIC OBJECTIONS AND RESPONSE TO TOPIC NO. 2:
27 In addition to and without waiving the General Objections and Objections to Definitions set out
28 above, AIGSIC objects to this Topic on the grounds that it seeks testimony irrelevant to any issues in
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Plaintiffs’ Response to AIG’s Separate Statement ISO of Its Motion to Case No. 21CV001530l
Stay Deposition and to Quash Deposition Notice and for Protective Order
1 this case. California law affords an absolute privilege to AIGSIC’s litigation strategy. See California
2 Physicians' Serv. v. Superior Ct., 9 Cal. App. 4th 1321, 1330 (1992) (“Defensive pleading, including
3 the assertion of affirmative defenses, is communication protected by the absolute litigation privilege.”);
4 see also Cal. Civ. Code § 47. AIGSIC’s strategic responses to this Court’s Order—in particular, its
5 decision to continue to defend itself in this case without paying the remaining balance of its policy
6 limit—cannot serve as the basis for liability or even as evidence of bad faith.
7 AIGSIC further objects to this Topic on the grounds that it seeks to invade AIGSIC’s attorney-
8 client and work product privileges. The only purpose of this Topic is to seek testimony regarding
9 strategic legal decisions made by AIGSIC in the midst of this litigation. Because the Topic so
10 fundamentally implicates AIGSIC’s privileged communications and litigation strategy, it is improper.
11 AIGSIC further objects that the Topic is oppressive and unduly burdensome—especially now,
12 with this case slated for trial in two months.
13 AIGSIC stands on its objections.
14 REASON WHY TESTIMONY ON TOPIC #2 IS REQUIRED:
15 1. Relevance. The testimony sought goes directly to plaintiffs’ bad faith claim. The
16 depositions are not only likely to lead to admissible evidence they are almost certain to do so. An
17 insurer’s duty of good faith and fair dealing does not end when litigation is filed. The California
18 Supreme Court in White v. Western Title Ins. Co. (1985) 50 Cal.3d 870 (“White”) rejected a distinction
19 between pre and post-litigation filing conduct.
20 2. Privilege. The Court in White also rejected the argument that post-litigation claims conduct
21 was protected by the litigation privilege. White involved what were at least arguably “judicial
22 communications” within that privilege. We seek testimony regarding conduct within a claims handling
23 context only that do not involve judicial communications; defendants’ fear that plaintiffs seek to hold
24 them liable for legal arguments made in this action in support of the Occurrence Limited Liability
25 Endorsement is manufactured and unfounded. Plaintiffs also do not seek testimony attorney client
26 privileged communications or work product. The Declaration of Cheryl Kaminski makes it apparent
27 that there are relevant, unprivileged matters to explore.
28 3. Burden. This will be about a three-hour deposition. Plaintiffs told the insurers’ counsel this
-3-
Plaintiffs’ Response to AIG’s Separate Statement ISO of Its Motion to Case No. 21CV001530l
Stay Deposition and to Quash Deposition Notice and for Protective Order
1 before they spent more than that time preparing this motion. The notices of deposition were timely and
2 within the statutory discovery cutoff. Those depositions could and should have been completed by
3 now. This motion is simply a ploy by the defendants to deprive plaintiffs of this testimony for use in
4 their oppositions to defendants’ motions for summary judgment and the “timing” burdens are self-
5 inflicted. Plaintiffs are entitled to this testimony for use at trial.
6 TOPIC NO. 3:
7 AIG’s reserves on the claim following the Court’s Order granting in part Plaintiffs’ motion for
8 judgment on the pleadings filed on March 28, 2023.
9 AIGSIC’S SPECIFIC OBJECTIONS AND RESPONSE TO TOPIC NO. 3:
10 In addition to and without waiving the General Objections and Objections to Definitions set out
11 above, AIGSIC objects to this Topic on the grounds that it seeks testimony irrelevant to any issues in
12 this case. California law affords an absolute privilege to AIGSIC’s litigation strategy. See California
13 Physicians' Serv. v. Superior Ct., 9 Cal. App. 4th 1321, 1330 (1992) (“Defensive pleading, including
14 the assertion of affirmative defenses, is communication protected by the absolute litigation privilege.”);
15 see also Cal. Civ. Code § 47. AIGSIC’s strategic responses to this Court’s Order, including any
16 changes to its loss reserves following the Court’s March 28, 2023 Order, cannot serve as the basis for
17 liability or even as evidence of bad faith.
18 AIGSIC further objects to this Request on the ground that information regarding reinsurance
19 and reserves is privileged and confidential, contains trade or business secrets or other confidential,
20 proprietary, or sensitive business information, is not relevant to any issue in this case, and is not
21 reasonably calculated to lead to the discovery of admissible evidence.
22 AIGSIC further objects that the Topic is oppressive and unduly burdensome—especially now,
23 with this case slated for trial in two months.
24 In addition, AIGSIC has already produced a person most knowledgeable to testify regarding
25 this topic relating to events up until the date of the commencement of this litigation, October 28, 2021.
26 AIGSIC otherwise stands on its objections.
27 REASON WHY TESTIMONY REGARDING TOPIC #3 IS REQUIRED:
28 1. Relevance. Reserve information is discoverable. Whether AIG and Landmark changed
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Plaintiffs’ Response to AIG’s Separate Statement ISO of Its Motion to Case No. 21CV001530l
Stay Deposition and to Quash Deposition Notice and for Protective Order
1 their reserves on the claim, which, if kept unreasonably low, is evidence that “the insurer was
2 attempting to avoid reimbursing the insured for all losses covered by the policy.” (Croskey, et al.,
3 supra, at ¶15:747, emphasis in original, citing Bernstein v. Travelers Ins. Co. (N.D. Cal. 2006) 447
4 F.Supp.2d 1100, 1105.) The testimony sought goes directly to plaintiffs’ bad faith claim. The
5 depositions are not only likely to lead to admissible evidence they are almost certain to do so. An
6 insurer’s duty of good faith and fair dealing does not end when litigation is filed. The California
7 Supreme Court in White v. Western Title Ins. Co. (1985) 50 Cal.3d 870 (“White”) rejected a distinction
8 between pre and post-litigation filing conduct.
9 2. Privilege. The Court in White also rejected the argument that post-litigation claims conduct
10 was protected by the litigation privilege. White involved what were at least arguably “judicial
11 communications” within that privilege. We seek testimony regarding conduct within a claims handling
12 context only that do not involve judicial communications; defendants’ fear that plaintiffs seek to hold
13 them liable for legal arguments made in this action in support of the Occurrence Limited Liability
14 Endorsement is manufactured and unfounded. Plaintiffs also do not seek testimony attorney client
15 privileged communications or work product. The Declaration of Cheryl Kaminski makes it apparent
16 that there are relevant, unprivileged matters to explore.
17 3. Burden. This will be about a three-hour deposition. Plaintiffs told the insurers’ counsel this
18 before they spent more than that time preparing this motion. The notices of deposition were timely and
19 within the statutory discovery cutoff. Those depositions could and should have been completed by
20 now. This motion is simply a ploy by the defendants to deprive plaintiffs of this testimony for use in
21 their oppositions to defendants’ motions for summary judgment and the “timing” burdens are self-
22 inflicted. Plaintiffs are entitled to this testimony for use at trial.
23 TOPIC NO. 4:
24 A complete description, identification and authentication of all documents produced by AIG in
25 the case.
26 AIGSIC’S SPECIFIC OBJECTIONS AND RESPONSE TO TOPIC NO. 4:
27 In addition to and without waiving the General Objections and Objections to Definitions set out
28 above, AIGSIC objects to this Topic on the grounds that it is vague, ambiguous, overly broad, and
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Plaintiffs’ Response to AIG’s Separate Statement ISO of Its Motion to Case No. 21CV001530l
Stay Deposition and to Quash Deposition Notice and for Protective Order
1 unduly burdensome. There is no basis in the California rules for requiring a “complete description” of
2 all documents produced by a party in the course of litigation.
3 AIGSIC further objects to this Topic as wasteful and harassing. AIGSIC has already provided
4 a declaration authenticating the documents it has produced in this matter.
5 In addition, AIGSIC has already produced a person most knowledgeable to testify regarding
6 this topic relating to events up until the date of the commencement of this litigation, October 28, 2021.
7 AIGSIC otherwise stands on its objections.
8 REASON WHY TESTIMONY ON TOPIC #4 IS REQUIRED:
9 The parties should be able to work out authentication issues by stipulation. To the extent we
10 cannot, testimony by a claims adjuster as to the authenticity of the claims file etc. would be required,
11 would be routine, and would not take long.
12 AIGSIC’S SPECIFIC OBJECTIONS AND REQUESTS TO DOCUMENT REQUESTS
13 REQUEST FOR PRODUCTION NO. 1:
14 All Documents relating to the Lawsuit or any issue raised by the Lawsuit, including, but not
15 limited to, any internal Documents constituting or evidencing Communications between and among
16 Your Representatives and any Communications between You and Plaintiffs or their Representatives.
17 AIGSIC’S SPECIFIC OBJECTIONS AND RESPONSE TO REQUEST NO. 1:
18 In addition to and without waiving the General Objections and Objections to Definitions set out
19 above, AIGSIC objects to this Request on the grounds that it is vague, ambiguous, overly broad, and
20 unduly burdensome, to the extent that it would require AIGSIC to locate and produce each and every
21 document that potentially “relates” to “any issue raised by the Lawsuit.” The term “relating to” is
22 defined very broadly for purposes of these Requests, and this Request, taken literally, would require
23 AIGSIC to locate and produce an enormous volume of documents and data, the vast majority of which
24 would have nothing to do with this case, merely because their contents “relate” in some manner to an
25 “issue” raised in this case.
26 AIGSIC further objects to this Request to the extent it seeks documents that were prepared,
27 generated, or received in anticipation of or after the commencement of this litigation, and to the extent
28 it seeks disclosure of confidential and/or proprietary business information, and/or information subject
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Plaintiffs’ Response to AIG’s Separate Statement ISO of Its Motion to Case No. 21CV001530l
Stay Deposition and to Quash Deposition Notice and for Protective Order
1 to the attorney-client privilege; attorney work product doctrine; the common interest doctrine; the joint
2 defense doctrine; California Constitution, Article I, Section 1; California Evidence Code Section 1060;
3 California Insurance Code Section 791.13; or any other applicable legal privileges, protections, and
4 rules or considerations of confidentiality.
5 AIGSIC further objects to this Request to the extent it seeks information regarding reinsurance
6 and reserves. Such information is privileged and confidential, contains trade or business secrets or
7 other confidential, proprietary, or sensitive business information, is not relevant to any issue in this
8 case, and is not reasonably calculated to lead to the discovery of admissible evidence.
9 AIGSIC further objects to this Request to the extent it seeks information or documents pertaining to
10 policies, insureds, and/or claimants other than the Plaintiffs in this action. Such information is
11 irrelevant and confidential.
12 AIGSIC further objects to the extent to which this Request seeks any information about the
13 pricing of the Policy at issue. Information about pricing (e.g., the means by which premiums are
14 calculated and the risk is rated) is both irrelevant to the coverage issues presented in this case and
15 commercially sensitive.
16 AIGSIC further objects to this Request as redundant of Request No. 1 in Plaintiffs’ Request for
17 Production of Documents and Tangible Things, Set One. AIGSIC has already produced responsive,
18 non-privileged, non-objectionable documents located in its underwriting file for the Policy and its
19 claim file for the claim at issue in this litigation in response to a virtually identical Request. See
20 Defendant AIGSIC’s Responses and Objections to Plaintiffs Requests for Production of Documents
21 and Tangible Things, Set One at Response to Request No. 1 (Apr. 14, 2022).
22 AIGSIC stands on its objections.
23 REASON WHY FURTHER RESPONSE IS REQUIRED:
24 As plaintiffs told defendants in the meet and confer process, we only seek production of an
25 updated version of the claims file, redacted as appropriate to protect attorney-client privilege and work
26 product. The claims file is obviously relevant to the bad faith claim and its production will impose no
27 undue burden. Reserve information must not be redacted. Whether AIG and Landmark changed their
28 reserves on the claim, which, if kept unreasonably low, is evidence that “the insurer was attempting to
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Plaintiffs’ Response to AIG’s Separate Statement ISO of Its Motion to Case No. 21CV001530l
Stay Deposition and to Quash Deposition Notice and for Protective Order
1 avoid reimbursing the insured for all losses covered by the policy.” (Croskey, et al., supra, at ¶15:747,
2 emphasis in original, citing Bernstein v. Travelers Ins. Co. (N.D. Cal. 2006) 447 F.Supp.2d 1100,
3 1105.)
4 REQUEST FOR PRODUCTION NO. 2:
5 All Documents or Communications relating to the meaning, purpose, interpretation,
6 application, and scope of the terms, definitions, provisions, conditions, and/or exclusions of the Policy,
7 including the OLL Endorsement.
8 AIGSIC’S SPECIFIC OBJECTIONS AND RESPONSE TO REQUEST NO. 2:
9 In addition to and without waiving the General Objections and Objections to Definitions set out
10 above, AIGSIC objects to this Request on the grounds that it is vague, ambiguous, overly broad, and
11 unduly burdensome, and any benefit is outweighed by the burden of locating and producing any such
12 documents, in that the vast majority of documents that could potentially be responsive to this Request
13 are not “relevant to the subject matter involved in the pending action.” Cal. Code Civ. P. § 2017.010.
14 The AIGSIC Policy at issue in this action is 73 pages long, and Plaintiffs have not identified the
15 relevance to this dispute of each and every “term[], definition[], provision[], condition[], and/or
16 exclusion[]” contained within those 73 pages. In addition, the term “relating to” is defined very
17 broadly for purposes of these Requests, and this Request, taken literally, would require AIGSIC to
18 locate and produce an enormous volume of documents and data, the vast majority of which would have
19 nothing to do with this case, merely because their contents “relate” in some manner to a “term[],
20 definition[], provision[], condition[], and/or exclusion[]” that appears in the Policy.
21 AIGSIC further objects on the grounds that this Request is not limited to any particular time
22 period, much less a time period bearing any relationship to this insurance dispute. Plaintiffs have not
23 shown that it is necessary or proportional to require AIGSIC to search all files within its possession,
24 custody, and control (including any historical records, which may be stored only in hard copy) when
25 this dispute concerns a Policy that was issued in 2020.
26 AIGSIC further objects to this Request to the extent it seeks documents that were prepared,
27 generated, or received in anticipation of or after the commencement of this litigation, and to the extent
28 it seeks disclosure of confidential and/or proprietary business information, and/or information subject
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Plaintiffs’ Response to AIG’s Separate Statement ISO of Its Motion to Case No. 21CV001530l
Stay Deposition and to Quash Deposition Notice and for Protective Order
1 to the attorney-client privilege; attorney work product doctrine; the common interest doctrine; the joint
2 defense doctrine; California Constitution, Article I, Section 1; California Evidence Code Section 1060;
3 California Insurance Code Section 791.13; or any other applicable legal privileges, protections, and
4 rules or considerations of confidentiality.
5 AIGSIC further objects to this Request to the extent it seeks information regarding reinsurance
6 and reserves. Such information is privileged and confidential, contains trade or business secrets or
7 other confidential, proprietary, or sensitive business information, is not relevant to any issue in this
8 case, and is not reasonably calculated to lead to the discovery of admissible evidence.
9 AIGSIC further objects to this Request to the extent it seeks information or documents
10 pertaining to policies, insureds, and/or claimants other than the Plaintiffs in this action. Such
11 information is irrelevant and confidential.
12 AIGSIC further objects to the extent this Request seeks any information about the pricing of the
13 Policy at issue. Information about pricing (e.g., the means by which premiums are calculated and the
14 risk is rated) is both irrelevant to the coverage issues presented in this case and commercially sensitive.
15 AIGSIC further objects to this Request to the extent that it seeks documents that are equally or more
16 readily accessible to Plaintiffs.
17 AIGSIC further objects to this Request as redundant of Request No. 8 in Plaintiffs’ Request for
18 Production of Documents and Tangible Things, Set One. AIGSIC has already produced responsive,
19 non-privileged, non-objectionable documents located in its underwriting file for the Policy and its
20 claim file for the claim at issue in this litigation in response to a virtually identical Request. See
21 Defendant AIGSIC’s Responses and Objections to Plaintiffs Requests for Production of Documents
22 and Tangible Things, Set One at Response to Request No. 8 (Apr. 14, 2022).
23 AIGSIC stands on its objections.
24 REASON WHY FURTHER RESPONSE IS REQUIRED:
25 As plaintiffs told defendants in the meet and confer process, we only seek production of an
26 updated version of the claims file, redacted as appropriate to protect attorney-client privilege and work
27 product. The claims file is obviously relevant to the bad faith claim and its production will impose no
28 undue burden. Reserve information must not be redacted. Whether AIG and Landmark changed their
-9-
Plaintiffs’ Response to AIG’s Separate Statement ISO of Its Motion to Case No. 21CV001530l
Stay Deposition and to Quash Deposition Notice and for Protective Order
1 reserves on the claim, which, if kept unreasonably low, is evidence that “the insurer was attempting to
2 avoid reimbursing the insured for all losses covered by the policy.” (Croskey, et al., supra, at ¶15:747,
3 emphasis in original, citing Bernstein v. Travelers Ins. Co. (N.D. Cal. 2006) 447 F.Supp.2d 1100,
4 1105.)
5 REQUEST FOR PRODUCTION NO. 3:
6 All Documents relating to Your investigation, handling, evaluation, assessment, and/or
7 adjustment of the Claims and/or Your decision to deny or limit coverage for the Claims, including, but
8 not limited to, all Documents constituting, consisting of or contained in any claim file(s) maintained by
9 You, however any such file is denominated, including, but not limited, to all Documents constituting or
10 evidencing Communications with, between and/or among consultants, third party Representatives,
11 adjusting firms, legal counsel, and/or reinsurers.
12 AIGSIC’S SPECIFIC OBJECTIONS AND RESPONSE TO REQUEST NO. 3:
13 In addition to and without waiving the General Objections and Objections to Instructions set
14 out above, AIGSIC objects to this Request to the extent it seeks documents that were prepared,
15 generated, or received in anticipation of or after the commencement of this litigation, and to the extent
16 it seeks disclosure of confidential and/or proprietary business information, and/or information subject
17 to the attorney-client privilege; attorney work product doctrine; the common interest doctrine; the joint
18 defense doctrine; California Constitution, Article I, Section 1; California Evidence Code Section 1060;
19 California Insurance Code Section 791.13; or any other applicable legal privileges, protections, and
20 rules or considerations of confidentiality.
21 AIGSIC further objects to this Request to the extent it seeks information regarding reinsurance
22 and reserves. Such information is privileged and confidential, contains trade or business secrets or
23 other confidential, proprietary, or sensitive business information, is not relevant to any issue in this
24 case, and is not reasonably calculated to lead to the discovery of admissible evidence.
25 AIGSIC further objects to this Request as redundant of Request No. 9 in Plaintiffs’ Request for
26 Production of Documents and Tangible Things, Set One. AIGSIC has already produced responsive,
27 non-privileged, non-objectionable documents located in its claim file for the claim at issue in this
28 litigation in response to an identical Request. See Defendant AIGSIC’s Responses and Objections to
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Plaintiffs’ Response to AIG’s Separate Statement ISO of Its Motion to Case No. 21CV001530l
Stay Deposition and to Quash Deposition Notice and for Protective Order
1 Plaintiffs Requests for Production of Documents and Tangible Things, Set One at Response to Request
2 No. 9 (Apr. 14, 2022).
3 AIGSIC stands on its objections.
4 REASON WHY FURTHER RESPONSE IS REQUIRED:
5 As plaintiffs told defendants in the meet and confer process, we only seek production of an
6 updated version of the claims file, redacted as appropriate to protect attorney-client privilege and work
7 product. The claims file is obviously relevant to the bad faith claim and its production will impose no
8 undue burden. Reserve information must not be redacted. Whether AIG and Landmark changed their
9 reserves on the claim, which, if kept unreasonably low, is evidence that “the insurer was attempting to
10 avoid reimbursing the insured for all losses covered by the policy.” (Croskey, et al., supra, at ¶15:747,
11 emphasis in original, citing Bernstein v. Travelers Ins. Co. (N.D. Cal. 2006) 447 F.Supp.2d 1100,
12 1105.)
13 REQUEST FOR PRODUCTION NO. 4
14 All Documents or Communications relating to the Court’s Order granting in part Plaintiffs’
15 motion for judgment on the pleadings filed in this Lawsuit on March 28, 2023.
16 AIGSIC’S SPECIFIC OBJECTIONS AND RESPONSE TO REQUEST NO. 4:
17 In addition to and without waiving the General Objections and Objections to Instructions set
18 out above, AIGSIC objects to this Request as seeking documents irrelevant to any issues in this case.
19 California law recognizes an “absolute litigation privilege” in pursuing relief in court through the
20 assertion of affirmative defenses, such as the limitations of liability found in the OLL Endorsements.
21 See California Physicians' Serv. v. Superior Ct., 9 Cal. App. 4th 1321, 1330 (1992) (“Defensive
22 pleading, including the assertion of affirmative defenses, is communication protected by the absolute
23 litigation privilege.”); see also Cal. Civ. Code § 47. Plaintiffs cannot use the fact that Defendants have
24 pursued, and have indicated an intention to continue to pursue, appropriate judicial relief from this
25 Court’s non-final March 28, 2023 Ruling on appeal “as the basis for allegations of ongoing bad faith.”
26 Id. at 1330.
27 AIGSIC further objects to this Request because it tramples on AIGSIC’s attorney-client
28 privilege. Because this case is actively being litigated, AIGSIC’s response to this Court’s non-final
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Plaintiffs’ Response to AIG’s Separate Statement ISO of Its Motion to Case No. 21CV001530l
Stay Deposition and to Quash Deposition Notice and for Protective Order
1 March 28, 2023 Order has been the result of input from counsel. The content of those communications
2 is privileged as they involve sensitive lawyer-client communication and advice as well as lawyer work
3 product. See Cal. Evid. Code § 954 (describing elements of privilege); Costco Wholesale Corp. v.
4 Superior Court, 47 Cal. 4th 725, 732 (2009) (“The attorney client privilege, set forth at Evidence Code
5 section 954, confers a privilege on the client ‘to refuse to disclose, and to prevent another from
6 disclosing, a confidential communication between client and lawyer.”) (internal citation omitted).
7 AIGSIC further objects to this Request to the extent it seeks information regarding reinsurance
8 and reserves. Such information is privileged and confidential, contains trade or business secrets or
9 other confidential, proprietary, or sensitive business information, is not relevant to any issue in this
10 case, and is not reasonably calculated to lead to the discovery of admissible evidence.
11 AIGSIC further objects to this Request as oppressive and unduly burdensome. Even if the vast
12 majority of the documents Plaintiffs seek are privileged for the reasons already articulated, the Request
13 as written would require AIGSIC to dedicate dozens, if not hundreds, of personnel hours to collecting
14 AIGSIC’s post-litigation files, reviewing them, and logging privileged documents, on top of the
15 extensive work it already undertook more than a year ago in responding to largely overlapping
16 requests. Furthermore, the exercise would be wasteful and largely futile because AIGSIC’s decision-
17 making in response to the non-final March 28, 2023 Order involved strategic and tactical legal
18 decisions in this case, made with litigation in mind and with counsel’s advice.
19 AIGSIC stands on its objections.
20 REASON WHY FURTHER RESPONSE IS REQUIRED:
21 As plaintiffs told defendants in the meet and confer process, we only seek production of an
22 updated version of the claims file, redacted as appropriate to protect attorney-client privilege and work
23 product. The claims file is obviously relevant to the bad faith claim and its production will impose no
24 undue burden. Reserve information must not be redacted. Whether AIG and Landmark changed their
25 reserves on the claim, which, if kept unreasonably low, is evidence that “the insurer was attempting to
26 avoid reimbursing the insured for all losses covered by the policy.” (Croskey, et al., supra, at ¶15:747,
27 emphasis in original, citing Bernstein v. Travelers Ins. Co. (N.D. Cal. 2006) 447 F.Supp.2d 1100,
28 1105.)
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Plaintiffs’ Response to AIG’s Separate Statement ISO of Its Motion to Case No. 21CV001530l
Stay Deposition and to Quash Deposition Notice and for Protective Order
1 REQUEST FOR PRODUCTION NO. 5:
2 All Claims Manuals, however such manuals are denominated, applicable during the period of
3 January 1, 2020 through present day, relating to the handling of the Claims.
4 AIGSIC’S SPECIFIC OBJECTIONS AND RESPONSE TO REQUEST NO. 5:
5 In addition to and without waiving the General Objections and Objections to Instructions set
6 out above, AIGSIC objects to this Request on the grounds that it is vague, ambiguous, overly broad,
7 unduly burdensome, and seeks documents that are not material to the subject matter involved in the
8 pending action.
9 AIGSIC further objects to this Request as redundant of Request No. 10 in Plaintiffs’ Request
10 for Production of Documents and Tangible Things, Set One. AIGSIC has already produced a copy of
11 the claims-handling materials that were in effect at the time AIGSIC received the subject claim in
12 response to a virtually identical Request. See Defendant AIGSIC’s Responses and Objections to
13 Plaintiffs Requests for Production of Documents and Tangible Things, Set One at Response to Request
14 No. 10 (Apr. 14, 2022).
15 AIGSIC stands on its objections.
16 REASON WHY FURTHER RESPONSE IS REQUIRED:
17 Defendants need only produce claims manuals if they have been revised/updated since the
18 previous production.
19 REQUEST FOR PRODUCTION NO. 6:
20 All Documents concerning any reserve(s) set by You and/or Your insurers and/or
21 reinsurers for the Claims.
22 AIGSIC’S SPECIFIC OBJECTIONS AND RESPONSE TO REQUEST NO. 6:
23 In addition to and without waiving the General Objections and Objections to Instructions set
24 out above, AIGSIC objects to this Request on grounds that any “reserve(s) set by You and/or Your
25 insurers and/or reinsurers for the Claims” are privileged and confidential; constitute trade or business
26 secrets or other confidential, proprietary, or sensitive business information; may reflect the advice of
27 counsel; are not relevant to any issue in this case; and are not reasonably calculated to lead to the
28 discovery of admissible evidence.
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Plaintiffs’ Response to AIG’s Separate Statement ISO of Its Motion to Case No. 21CV001530l
Stay Deposition and to Quash Deposition Notice and for Protective Order
1 AIGSIC further objects to this Request to the extent that it seeks information within the
2 possession of any “insurer[] and/or reinsurer[]” of AIGSIC. Such information is not within AIGSIC’s
3 possession, custody, or control.
4 AIGSIC further objects to this Request to the extent it seeks disclosure of confidential and/or
5 proprietary business information, and/or information subject to the attorney-client privilege; attorney
6 work product doctrine; California Constitution, Article I, Section 1; California Evidence Code Section
7 1060; California Insurance Code Section 791.13; or any other applicable legal privileges, protections,
8 and rules or considerations of confidentiality.
9 AIGSIC stands on its objections.
10 REASON WHY FURTHER RESPONSE IS REQUIRED:
11 Whether AIG and Landmark changed their reserves on the claim, which, if kept unreasonably
12 low, is evidence that “the insurer was attempting to avoid reimbursing the insured for all losses
13 covered by the policy.” (Croskey, et al., supra, at ¶15:747, emphasis in original, citing Bernstein v.
14 Travelers Ins. Co. (N.D. Cal. 2006) 447 F.Supp.2d 1100, 1105.)
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Dated: September 27, 2023 PILLSBURY & COLEMAN LLP
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By: /s/ Ryan H. Opgenorth
18 Philip L. Pillsbury Jr.
Ryan H. Opgenorth
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Attorneys for Plaintiff
20 Calistoga Ranch Club
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22 Dated: September 27, 2023 PERKINS COIE, LLP
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24 By: /s/ John S. Rossiter, Jr.
John S. Rossiter, Jr., Bar No. 151113
25 James M. Davis (admitted pro hac vice)
Bradley H. Dlatt (admitted pro hac vice)
26
27 Attorneys for Plaintiffs Calistoga Ranch
Owner LLC and Calistoga Ranch Investors
28 LLC
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Plaintiffs’ Response to AIG’s Separate Statement ISO of Its Motion to Case No. 21CV001530l
Stay Deposition and to Quash Deposition Notice and for Protective Order
1 Dated: September 27, 2023 JENNER & BLOCK LLP
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Lindsay C. Harrison
5 Attorneys for Plaintiff Auberge Resorts LLC
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Plaintiffs’ Response to AIG’s Separate Statement ISO of Its Motion to Case No. 21CV001530l
Stay Deposition and to Quash Deposition Notice and for Protective Order
Preview
1 PERKINS COIE LLP John S. Rossiter, Jr., Bar No. 151113 2 JRossiter@perkinscoie.com 505 Howard Street, Suite 1000 3 San Francisco, California 94105 Telephone: 415.344.7000 4 Facsimile: 415.444.7050 James M. Davis (admitted pro hac vice) 5 JamesDavis@perkinscoie.com 1201 Third Avenue, Suite 4900 6 Seattle, WA 98101-3099 Telephone: 206.359.8000 7 Facsimile: 206.359.9000 8 Bradley H. Dlatt (admitted pro hac vice) BDlatt@perkinscoie.com 9 110 North Wacker Drive, Suite 3400 Chicago, IL 60606-1511 10 Telephone: 312.324.8400 Facsimile: 312.324.9400 11 Counsel for Plaintiffs Calistoga Ranch Owner LLC and Calistoga Ranch Investors LLC 12 [ADDITIONAL COUNSEL LISTED ON 13 SUBSEQUENT PAGES] 14 SUPERIOR COURT OF THE STATE OF CALIFORNIA 15 COUNTY OF NAPA 16 UNLIMITED JURISDICTION 17 CALISTOGA RANCH OWNER LLC; Case No. 21CV001530 CALISTOGA RANCH INVESTORS LLC; 18 AUBERGE RESORTS LLC; and PLAINTIFFS AND CROSS-DEFENDANTS CALISTOGA RANCH CLUB, CALISTOGA RANCH OWNER LLC’S, 19 Plaintiffs, CALISTOGA RANCH INVESTORS LLC’S, AUBERGE RESORTS LLC’S AND 20 v. CALISTOGA RANCH CLUB’S AIG SPECIALTY INSURANCE RESPONSE TO DEFENDANT AIG 21 COMPANY; ARCH SPECIALTY SPECIALTY INSURANCE COMPANY’S INSURANCE COMPANY; LANDMARK SEPARATE STATEMENT IN SUPPORT OF 22 AMERICAN INSURANCE COMPANY; ITS MOTION TO STAY DEPOSITION AND HOMELAND INSURANCE COMPANY TO QUASH DEPOSITION NOTICE AND 23 OF NEW YORK; INTERSTATE FIRE & FOR PROTECTIVE ORDER CASUALTY COMPANY; MARK 24 VORONIN; and DOES 1-20, inclusive, Date: October 10, 2023 Defendants. Time: 8:30 a.m. 25 __________________________________ Place: Dept. A 26 AND RELATED CROSS-CLAIMS Judge: Honorable Cynthia P. Smith 27 Action Filed: October 28, 2021 28 Plaintiffs’ Response to AIG’s Separate Statement ISO of Its Motion to Case No. 21CV001530l Stay Deposition and to Quash Deposition Notice and for Protective Order 1 JENNER & BLOCK LLP Lindsay C. Harrison, Bar No. 232998 2 LHarrison@jenner.com 455 Market Street, Suite 2100 3 San Francisco, California 94105-2453 4 Telephone: 628.267.6800 Facsimile: 628.267.6859 5 Jan A. Larson, Bar No. 339835 6 JanLarson@jenner.com 515 South Flower Street, Suite 3300 7 Los Angeles, CA 90071-2246 Telephone: 213.239.2273 8 Facsimile: 213.239.5199 9 Counsel for Plaintiff Auberge Resorts LLC 10 PILLSBURY & COLEMAN LLP Philip L. Pillsbury Jr., Bar No. 72261 11 ppillsbury@pillsburycoleman.com Ryan H. Opgenorth, Bar No. 252273 12 ropgenorth@pillsburycoleman.com The Pillsbury & Coleman Building 13 100 Green Street San Francisco, CA 94111 14 Telephone: 415.433.8000 Facsimile: 415.433.4816 15 Counsel for Plaintiff Calistoga Ranch Club 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs’ Response to AIG’s Separate Statement ISO of Its Motion to Case No. 21CV001530l Stay Deposition and to Quash Deposition Notice and for Protective Order 1 Plaintiffs Calistoga Ranch Owner LLC (“CRO”), Calistoga Ranch Investors LLC (“CRI”), 2 Auberge Resorts LLC (“Auberge”), and Calistoga Ranch Club (the “Club”) (collectively, “Plaintiffs” 3 or “Policyholders”), by and through their respective attorneys, submit this Opposition to Defendant AIG 4 Specialty Insurance Company’s Separate Statement in Support of its Motion to Stay Deposition and to 5 Quash Deposition Notice and for Protective Order. 6 AIGSIC’S SPECIFIC OBJECTIONS AND RESPONSES TO DESIGNATED TOPICS 7 TOPIC NO. 1: 8 All actions, activities, thought processes, knowledge, information and material reviewed and 9 documents received or created, by the most senior person(s) at AIG personally involved with 10 Plaintiffs’ claim for insurance benefits to explain all actions and determinations made by AIG with 11 respect to the claim after the Court’s Order granting in part Plaintiffs’ motion for judgment on the 12 pleadings filed on March 28, 2023. 13 AIGSIC’S SPECIFIC OBJECTIONS AND RESPONSE TO TOPIC NO. 1: 14 In addition to and without waiving the General Objections and Objections to Definitions set out 15 above, AIGSIC objects to this Topic on the grounds that it seeks testimony irrelevant to any issues in 16 this case. California law affords an absolute privilege to AIGSIC’s litigation strategy. See California 17 Physicians' Serv. v. Superior Ct., 9 Cal. App. 4th 1321, 1330 (1992) (“Defensive pleading, including 18 the assertion of affirmative defenses, is communication protected by the absolute litigation privilege.”); 19 see also Cal. Civ. Code § 47. AIGSIC’s strategic responses to this Court’s Order—in particular, its 20 continuing litigation of the relevant coverage issues through to final judgment and, if necessary, 21 through appeal—cannot serve as the basis for liability or even as evidence of bad faith. 22 AIGSIC further objects to this Topic on the grounds that it seeks to invade AIGSIC’s attorney- 23 client and work product privileges. The only purpose of this Topic is to seek testimony regarding 24 strategic legal decisions made by AIGSIC in the midst of this litigation. Because the Topic so 25 fundamentally implicates AIGSIC’s privileged communications and litigation strategy, it is improper. 26 AIGSIC further objects that the Topic is oppressive and unduly burdensome—especially now, 27 with this case slated for trial in two months. 28 AIGSIC stands on its objections. -1- Plaintiffs’ Response to AIG’s Separate Statement ISO of Its Motion to Case No. 21CV001530l Stay Deposition and to Quash Deposition Notice and for Protective Order 1 REASON WHY TESTIMONY ON TOPIC #1 IS REQUIRED: 2 1. Relevance. The testimony sought goes directly to plaintiffs’ bad faith claim. The 3 depositions are not only likely to lead to admissible evidence they are almost certain to do so. An 4 insurer’s duty of good faith and fair dealing does not end when litigation is filed. The California 5 Supreme Court in White v. Western Title Ins. Co. (1985) 50 Cal.3d 870 (“White”) rejected a distinction 6 between pre and post-litigation filing conduct. 7 2. Privilege. The Court in White also rejected the argument that post-litigation claims conduct 8 was protected by the litigation privilege. White involved what were at least arguably “judicial 9 communications” within that privilege. We seek testimony regarding conduct within a claims handling 10 context only that do not involve judicial communications; defendants’ fear that plaintiffs seek to hold 11 them liable for legal arguments made in this action in support of the Occurrence Limited Liability 12 Endorsement is manufactured and unfounded. Plaintiffs also do not seek testimony attorney client 13 privileged communications or work product. The Declaration of Cheryl Kaminski makes it apparent 14 that there are relevant, unprivileged matters to explore. 15 3. Burden. This will be about a three-hour deposition. Plaintiffs told the insurers’ counsel this 16 before they spent more than that time preparing this motion. The notices of deposition were timely and 17 within the statutory discovery cutoff. Those depositions could and should have been completed by 18 now. This motion is simply a ploy by the defendants to deprive plaintiffs of this testimony for use in 19 their oppositions to defendants’ motions for summary judgment and the “timing” burdens are self- 20 inflicted. Plaintiffs are entitled to this testimony for use at trial. 21 TOPIC NO. 2: 22 All actions, activities, thought processes, knowledge, information and material reviewed and 23 documents received or created by the senior person(s) at AIG involved in the claim determination to 24 refuse payment of AIG’s full share of the Program’s $100,000,000 blanket limit following the Court’s 25 Order granting in part Plaintiffs’ motion for judgment on the pleadings filed on March 28, 2023. 26 AIGSIC’S SPECIFIC OBJECTIONS AND RESPONSE TO TOPIC NO. 2: 27 In addition to and without waiving the General Objections and Objections to Definitions set out 28 above, AIGSIC objects to this Topic on the grounds that it seeks testimony irrelevant to any issues in -2- Plaintiffs’ Response to AIG’s Separate Statement ISO of Its Motion to Case No. 21CV001530l Stay Deposition and to Quash Deposition Notice and for Protective Order 1 this case. California law affords an absolute privilege to AIGSIC’s litigation strategy. See California 2 Physicians' Serv. v. Superior Ct., 9 Cal. App. 4th 1321, 1330 (1992) (“Defensive pleading, including 3 the assertion of affirmative defenses, is communication protected by the absolute litigation privilege.”); 4 see also Cal. Civ. Code § 47. AIGSIC’s strategic responses to this Court’s Order—in particular, its 5 decision to continue to defend itself in this case without paying the remaining balance of its policy 6 limit—cannot serve as the basis for liability or even as evidence of bad faith. 7 AIGSIC further objects to this Topic on the grounds that it seeks to invade AIGSIC’s attorney- 8 client and work product privileges. The only purpose of this Topic is to seek testimony regarding 9 strategic legal decisions made by AIGSIC in the midst of this litigation. Because the Topic so 10 fundamentally implicates AIGSIC’s privileged communications and litigation strategy, it is improper. 11 AIGSIC further objects that the Topic is oppressive and unduly burdensome—especially now, 12 with this case slated for trial in two months. 13 AIGSIC stands on its objections. 14 REASON WHY TESTIMONY ON TOPIC #2 IS REQUIRED: 15 1. Relevance. The testimony sought goes directly to plaintiffs’ bad faith claim. The 16 depositions are not only likely to lead to admissible evidence they are almost certain to do so. An 17 insurer’s duty of good faith and fair dealing does not end when litigation is filed. The California 18 Supreme Court in White v. Western Title Ins. Co. (1985) 50 Cal.3d 870 (“White”) rejected a distinction 19 between pre and post-litigation filing conduct. 20 2. Privilege. The Court in White also rejected the argument that post-litigation claims conduct 21 was protected by the litigation privilege. White involved what were at least arguably “judicial 22 communications” within that privilege. We seek testimony regarding conduct within a claims handling 23 context only that do not involve judicial communications; defendants’ fear that plaintiffs seek to hold 24 them liable for legal arguments made in this action in support of the Occurrence Limited Liability 25 Endorsement is manufactured and unfounded. Plaintiffs also do not seek testimony attorney client 26 privileged communications or work product. The Declaration of Cheryl Kaminski makes it apparent 27 that there are relevant, unprivileged matters to explore. 28 3. Burden. This will be about a three-hour deposition. Plaintiffs told the insurers’ counsel this -3- Plaintiffs’ Response to AIG’s Separate Statement ISO of Its Motion to Case No. 21CV001530l Stay Deposition and to Quash Deposition Notice and for Protective Order 1 before they spent more than that time preparing this motion. The notices of deposition were timely and 2 within the statutory discovery cutoff. Those depositions could and should have been completed by 3 now. This motion is simply a ploy by the defendants to deprive plaintiffs of this testimony for use in 4 their oppositions to defendants’ motions for summary judgment and the “timing” burdens are self- 5 inflicted. Plaintiffs are entitled to this testimony for use at trial. 6 TOPIC NO. 3: 7 AIG’s reserves on the claim following the Court’s Order granting in part Plaintiffs’ motion for 8 judgment on the pleadings filed on March 28, 2023. 9 AIGSIC’S SPECIFIC OBJECTIONS AND RESPONSE TO TOPIC NO. 3: 10 In addition to and without waiving the General Objections and Objections to Definitions set out 11 above, AIGSIC objects to this Topic on the grounds that it seeks testimony irrelevant to any issues in 12 this case. California law affords an absolute privilege to AIGSIC’s litigation strategy. See California 13 Physicians' Serv. v. Superior Ct., 9 Cal. App. 4th 1321, 1330 (1992) (“Defensive pleading, including 14 the assertion of affirmative defenses, is communication protected by the absolute litigation privilege.”); 15 see also Cal. Civ. Code § 47. AIGSIC’s strategic responses to this Court’s Order, including any 16 changes to its loss reserves following the Court’s March 28, 2023 Order, cannot serve as the basis for 17 liability or even as evidence of bad faith. 18 AIGSIC further objects to this Request on the ground that information regarding reinsurance 19 and reserves is privileged and confidential, contains trade or business secrets or other confidential, 20 proprietary, or sensitive business information, is not relevant to any issue in this case, and is not 21 reasonably calculated to lead to the discovery of admissible evidence. 22 AIGSIC further objects that the Topic is oppressive and unduly burdensome—especially now, 23 with this case slated for trial in two months. 24 In addition, AIGSIC has already produced a person most knowledgeable to testify regarding 25 this topic relating to events up until the date of the commencement of this litigation, October 28, 2021. 26 AIGSIC otherwise stands on its objections. 27 REASON WHY TESTIMONY REGARDING TOPIC #3 IS REQUIRED: 28 1. Relevance. Reserve information is discoverable. Whether AIG and Landmark changed -4- Plaintiffs’ Response to AIG’s Separate Statement ISO of Its Motion to Case No. 21CV001530l Stay Deposition and to Quash Deposition Notice and for Protective Order 1 their reserves on the claim, which, if kept unreasonably low, is evidence that “the insurer was 2 attempting to avoid reimbursing the insured for all losses covered by the policy.” (Croskey, et al., 3 supra, at ¶15:747, emphasis in original, citing Bernstein v. Travelers Ins. Co. (N.D. Cal. 2006) 447 4 F.Supp.2d 1100, 1105.) The testimony sought goes directly to plaintiffs’ bad faith claim. The 5 depositions are not only likely to lead to admissible evidence they are almost certain to do so. An 6 insurer’s duty of good faith and fair dealing does not end when litigation is filed. The California 7 Supreme Court in White v. Western Title Ins. Co. (1985) 50 Cal.3d 870 (“White”) rejected a distinction 8 between pre and post-litigation filing conduct. 9 2. Privilege. The Court in White also rejected the argument that post-litigation claims conduct 10 was protected by the litigation privilege. White involved what were at least arguably “judicial 11 communications” within that privilege. We seek testimony regarding conduct within a claims handling 12 context only that do not involve judicial communications; defendants’ fear that plaintiffs seek to hold 13 them liable for legal arguments made in this action in support of the Occurrence Limited Liability 14 Endorsement is manufactured and unfounded. Plaintiffs also do not seek testimony attorney client 15 privileged communications or work product. The Declaration of Cheryl Kaminski makes it apparent 16 that there are relevant, unprivileged matters to explore. 17 3. Burden. This will be about a three-hour deposition. Plaintiffs told the insurers’ counsel this 18 before they spent more than that time preparing this motion. The notices of deposition were timely and 19 within the statutory discovery cutoff. Those depositions could and should have been completed by 20 now. This motion is simply a ploy by the defendants to deprive plaintiffs of this testimony for use in 21 their oppositions to defendants’ motions for summary judgment and the “timing” burdens are self- 22 inflicted. Plaintiffs are entitled to this testimony for use at trial. 23 TOPIC NO. 4: 24 A complete description, identification and authentication of all documents produced by AIG in 25 the case. 26 AIGSIC’S SPECIFIC OBJECTIONS AND RESPONSE TO TOPIC NO. 4: 27 In addition to and without waiving the General Objections and Objections to Definitions set out 28 above, AIGSIC objects to this Topic on the grounds that it is vague, ambiguous, overly broad, and -5- Plaintiffs’ Response to AIG’s Separate Statement ISO of Its Motion to Case No. 21CV001530l Stay Deposition and to Quash Deposition Notice and for Protective Order 1 unduly burdensome. There is no basis in the California rules for requiring a “complete description” of 2 all documents produced by a party in the course of litigation. 3 AIGSIC further objects to this Topic as wasteful and harassing. AIGSIC has already provided 4 a declaration authenticating the documents it has produced in this matter. 5 In addition, AIGSIC has already produced a person most knowledgeable to testify regarding 6 this topic relating to events up until the date of the commencement of this litigation, October 28, 2021. 7 AIGSIC otherwise stands on its objections. 8 REASON WHY TESTIMONY ON TOPIC #4 IS REQUIRED: 9 The parties should be able to work out authentication issues by stipulation. To the extent we 10 cannot, testimony by a claims adjuster as to the authenticity of the claims file etc. would be required, 11 would be routine, and would not take long. 12 AIGSIC’S SPECIFIC OBJECTIONS AND REQUESTS TO DOCUMENT REQUESTS 13 REQUEST FOR PRODUCTION NO. 1: 14 All Documents relating to the Lawsuit or any issue raised by the Lawsuit, including, but not 15 limited to, any internal Documents constituting or evidencing Communications between and among 16 Your Representatives and any Communications between You and Plaintiffs or their Representatives. 17 AIGSIC’S SPECIFIC OBJECTIONS AND RESPONSE TO REQUEST NO. 1: 18 In addition to and without waiving the General Objections and Objections to Definitions set out 19 above, AIGSIC objects to this Request on the grounds that it is vague, ambiguous, overly broad, and 20 unduly burdensome, to the extent that it would require AIGSIC to locate and produce each and every 21 document that potentially “relates” to “any issue raised by the Lawsuit.” The term “relating to” is 22 defined very broadly for purposes of these Requests, and this Request, taken literally, would require 23 AIGSIC to locate and produce an enormous volume of documents and data, the vast majority of which 24 would have nothing to do with this case, merely because their contents “relate” in some manner to an 25 “issue” raised in this case. 26 AIGSIC further objects to this Request to the extent it seeks documents that were prepared, 27 generated, or received in anticipation of or after the commencement of this litigation, and to the extent 28 it seeks disclosure of confidential and/or proprietary business information, and/or information subject -6- Plaintiffs’ Response to AIG’s Separate Statement ISO of Its Motion to Case No. 21CV001530l Stay Deposition and to Quash Deposition Notice and for Protective Order 1 to the attorney-client privilege; attorney work product doctrine; the common interest doctrine; the joint 2 defense doctrine; California Constitution, Article I, Section 1; California Evidence Code Section 1060; 3 California Insurance Code Section 791.13; or any other applicable legal privileges, protections, and 4 rules or considerations of confidentiality. 5 AIGSIC further objects to this Request to the extent it seeks information regarding reinsurance 6 and reserves. Such information is privileged and confidential, contains trade or business secrets or 7 other confidential, proprietary, or sensitive business information, is not relevant to any issue in this 8 case, and is not reasonably calculated to lead to the discovery of admissible evidence. 9 AIGSIC further objects to this Request to the extent it seeks information or documents pertaining to 10 policies, insureds, and/or claimants other than the Plaintiffs in this action. Such information is 11 irrelevant and confidential. 12 AIGSIC further objects to the extent to which this Request seeks any information about the 13 pricing of the Policy at issue. Information about pricing (e.g., the means by which premiums are 14 calculated and the risk is rated) is both irrelevant to the coverage issues presented in this case and 15 commercially sensitive. 16 AIGSIC further objects to this Request as redundant of Request No. 1 in Plaintiffs’ Request for 17 Production of Documents and Tangible Things, Set One. AIGSIC has already produced responsive, 18 non-privileged, non-objectionable documents located in its underwriting file for the Policy and its 19 claim file for the claim at issue in this litigation in response to a virtually identical Request. See 20 Defendant AIGSIC’s Responses and Objections to Plaintiffs Requests for Production of Documents 21 and Tangible Things, Set One at Response to Request No. 1 (Apr. 14, 2022). 22 AIGSIC stands on its objections. 23 REASON WHY FURTHER RESPONSE IS REQUIRED: 24 As plaintiffs told defendants in the meet and confer process, we only seek production of an 25 updated version of the claims file, redacted as appropriate to protect attorney-client privilege and work 26 product. The claims file is obviously relevant to the bad faith claim and its production will impose no 27 undue burden. Reserve information must not be redacted. Whether AIG and Landmark changed their 28 reserves on the claim, which, if kept unreasonably low, is evidence that “the insurer was attempting to -7- Plaintiffs’ Response to AIG’s Separate Statement ISO of Its Motion to Case No. 21CV001530l Stay Deposition and to Quash Deposition Notice and for Protective Order 1 avoid reimbursing the insured for all losses covered by the policy.” (Croskey, et al., supra, at ¶15:747, 2 emphasis in original, citing Bernstein v. Travelers Ins. Co. (N.D. Cal. 2006) 447 F.Supp.2d 1100, 3 1105.) 4 REQUEST FOR PRODUCTION NO. 2: 5 All Documents or Communications relating to the meaning, purpose, interpretation, 6 application, and scope of the terms, definitions, provisions, conditions, and/or exclusions of the Policy, 7 including the OLL Endorsement. 8 AIGSIC’S SPECIFIC OBJECTIONS AND RESPONSE TO REQUEST NO. 2: 9 In addition to and without waiving the General Objections and Objections to Definitions set out 10 above, AIGSIC objects to this Request on the grounds that it is vague, ambiguous, overly broad, and 11 unduly burdensome, and any benefit is outweighed by the burden of locating and producing any such 12 documents, in that the vast majority of documents that could potentially be responsive to this Request 13 are not “relevant to the subject matter involved in the pending action.” Cal. Code Civ. P. § 2017.010. 14 The AIGSIC Policy at issue in this action is 73 pages long, and Plaintiffs have not identified the 15 relevance to this dispute of each and every “term[], definition[], provision[], condition[], and/or 16 exclusion[]” contained within those 73 pages. In addition, the term “relating to” is defined very 17 broadly for purposes of these Requests, and this Request, taken literally, would require AIGSIC to 18 locate and produce an enormous volume of documents and data, the vast majority of which would have 19 nothing to do with this case, merely because their contents “relate” in some manner to a “term[], 20 definition[], provision[], condition[], and/or exclusion[]” that appears in the Policy. 21 AIGSIC further objects on the grounds that this Request is not limited to any particular time 22 period, much less a time period bearing any relationship to this insurance dispute. Plaintiffs have not 23 shown that it is necessary or proportional to require AIGSIC to search all files within its possession, 24 custody, and control (including any historical records, which may be stored only in hard copy) when 25 this dispute concerns a Policy that was issued in 2020. 26 AIGSIC further objects to this Request to the extent it seeks documents that were prepared, 27 generated, or received in anticipation of or after the commencement of this litigation, and to the extent 28 it seeks disclosure of confidential and/or proprietary business information, and/or information subject -8- Plaintiffs’ Response to AIG’s Separate Statement ISO of Its Motion to Case No. 21CV001530l Stay Deposition and to Quash Deposition Notice and for Protective Order 1 to the attorney-client privilege; attorney work product doctrine; the common interest doctrine; the joint 2 defense doctrine; California Constitution, Article I, Section 1; California Evidence Code Section 1060; 3 California Insurance Code Section 791.13; or any other applicable legal privileges, protections, and 4 rules or considerations of confidentiality. 5 AIGSIC further objects to this Request to the extent it seeks information regarding reinsurance 6 and reserves. Such information is privileged and confidential, contains trade or business secrets or 7 other confidential, proprietary, or sensitive business information, is not relevant to any issue in this 8 case, and is not reasonably calculated to lead to the discovery of admissible evidence. 9 AIGSIC further objects to this Request to the extent it seeks information or documents 10 pertaining to policies, insureds, and/or claimants other than the Plaintiffs in this action. Such 11 information is irrelevant and confidential. 12 AIGSIC further objects to the extent this Request seeks any information about the pricing of the 13 Policy at issue. Information about pricing (e.g., the means by which premiums are calculated and the 14 risk is rated) is both irrelevant to the coverage issues presented in this case and commercially sensitive. 15 AIGSIC further objects to this Request to the extent that it seeks documents that are equally or more 16 readily accessible to Plaintiffs. 17 AIGSIC further objects to this Request as redundant of Request No. 8 in Plaintiffs’ Request for 18 Production of Documents and Tangible Things, Set One. AIGSIC has already produced responsive, 19 non-privileged, non-objectionable documents located in its underwriting file for the Policy and its 20 claim file for the claim at issue in this litigation in response to a virtually identical Request. See 21 Defendant AIGSIC’s Responses and Objections to Plaintiffs Requests for Production of Documents 22 and Tangible Things, Set One at Response to Request No. 8 (Apr. 14, 2022). 23 AIGSIC stands on its objections. 24 REASON WHY FURTHER RESPONSE IS REQUIRED: 25 As plaintiffs told defendants in the meet and confer process, we only seek production of an 26 updated version of the claims file, redacted as appropriate to protect attorney-client privilege and work 27 product. The claims file is obviously relevant to the bad faith claim and its production will impose no 28 undue burden. Reserve information must not be redacted. Whether AIG and Landmark changed their -9- Plaintiffs’ Response to AIG’s Separate Statement ISO of Its Motion to Case No. 21CV001530l Stay Deposition and to Quash Deposition Notice and for Protective Order 1 reserves on the claim, which, if kept unreasonably low, is evidence that “the insurer was attempting to 2 avoid reimbursing the insured for all losses covered by the policy.” (Croskey, et al., supra, at ¶15:747, 3 emphasis in original, citing Bernstein v. Travelers Ins. Co. (N.D. Cal. 2006) 447 F.Supp.2d 1100, 4 1105.) 5 REQUEST FOR PRODUCTION NO. 3: 6 All Documents relating to Your investigation, handling, evaluation, assessment, and/or 7 adjustment of the Claims and/or Your decision to deny or limit coverage for the Claims, including, but 8 not limited to, all Documents constituting, consisting of or contained in any claim file(s) maintained by 9 You, however any such file is denominated, including, but not limited, to all Documents constituting or 10 evidencing Communications with, between and/or among consultants, third party Representatives, 11 adjusting firms, legal counsel, and/or reinsurers. 12 AIGSIC’S SPECIFIC OBJECTIONS AND RESPONSE TO REQUEST NO. 3: 13 In addition to and without waiving the General Objections and Objections to Instructions set 14 out above, AIGSIC objects to this Request to the extent it seeks documents that were prepared, 15 generated, or received in anticipation of or after the commencement of this litigation, and to the extent 16 it seeks disclosure of confidential and/or proprietary business information, and/or information subject 17 to the attorney-client privilege; attorney work product doctrine; the common interest doctrine; the joint 18 defense doctrine; California Constitution, Article I, Section 1; California Evidence Code Section 1060; 19 California Insurance Code Section 791.13; or any other applicable legal privileges, protections, and 20 rules or considerations of confidentiality. 21 AIGSIC further objects to this Request to the extent it seeks information regarding reinsurance 22 and reserves. Such information is privileged and confidential, contains trade or business secrets or 23 other confidential, proprietary, or sensitive business information, is not relevant to any issue in this 24 case, and is not reasonably calculated to lead to the discovery of admissible evidence. 25 AIGSIC further objects to this Request as redundant of Request No. 9 in Plaintiffs’ Request for 26 Production of Documents and Tangible Things, Set One. AIGSIC has already produced responsive, 27 non-privileged, non-objectionable documents located in its claim file for the claim at issue in this 28 litigation in response to an identical Request. See Defendant AIGSIC’s Responses and Objections to - 10 - Plaintiffs’ Response to AIG’s Separate Statement ISO of Its Motion to Case No. 21CV001530l Stay Deposition and to Quash Deposition Notice and for Protective Order 1 Plaintiffs Requests for Production of Documents and Tangible Things, Set One at Response to Request 2 No. 9 (Apr. 14, 2022). 3 AIGSIC stands on its objections. 4 REASON WHY FURTHER RESPONSE IS REQUIRED: 5 As plaintiffs told defendants in the meet and confer process, we only seek production of an 6 updated version of the claims file, redacted as appropriate to protect attorney-client privilege and work 7 product. The claims file is obviously relevant to the bad faith claim and its production will impose no 8 undue burden. Reserve information must not be redacted. Whether AIG and Landmark changed their 9 reserves on the claim, which, if kept unreasonably low, is evidence that “the insurer was attempting to 10 avoid reimbursing the insured for all losses covered by the policy.” (Croskey, et al., supra, at ¶15:747, 11 emphasis in original, citing Bernstein v. Travelers Ins. Co. (N.D. Cal. 2006) 447 F.Supp.2d 1100, 12 1105.) 13 REQUEST FOR PRODUCTION NO. 4 14 All Documents or Communications relating to the Court’s Order granting in part Plaintiffs’ 15 motion for judgment on the pleadings filed in this Lawsuit on March 28, 2023. 16 AIGSIC’S SPECIFIC OBJECTIONS AND RESPONSE TO REQUEST NO. 4: 17 In addition to and without waiving the General Objections and Objections to Instructions set 18 out above, AIGSIC objects to this Request as seeking documents irrelevant to any issues in this case. 19 California law recognizes an “absolute litigation privilege” in pursuing relief in court through the 20 assertion of affirmative defenses, such as the limitations of liability found in the OLL Endorsements. 21 See California Physicians' Serv. v. Superior Ct., 9 Cal. App. 4th 1321, 1330 (1992) (“Defensive 22 pleading, including the assertion of affirmative defenses, is communication protected by the absolute 23 litigation privilege.”); see also Cal. Civ. Code § 47. Plaintiffs cannot use the fact that Defendants have 24 pursued, and have indicated an intention to continue to pursue, appropriate judicial relief from this 25 Court’s non-final March 28, 2023 Ruling on appeal “as the basis for allegations of ongoing bad faith.” 26 Id. at 1330. 27 AIGSIC further objects to this Request because it tramples on AIGSIC’s attorney-client 28 privilege. Because this case is actively being litigated, AIGSIC’s response to this Court’s non-final - 11 - Plaintiffs’ Response to AIG’s Separate Statement ISO of Its Motion to Case No. 21CV001530l Stay Deposition and to Quash Deposition Notice and for Protective Order 1 March 28, 2023 Order has been the result of input from counsel. The content of those communications 2 is privileged as they involve sensitive lawyer-client communication and advice as well as lawyer work 3 product. See Cal. Evid. Code § 954 (describing elements of privilege); Costco Wholesale Corp. v. 4 Superior Court, 47 Cal. 4th 725, 732 (2009) (“The attorney client privilege, set forth at Evidence Code 5 section 954, confers a privilege on the client ‘to refuse to disclose, and to prevent another from 6 disclosing, a confidential communication between client and lawyer.”) (internal citation omitted). 7 AIGSIC further objects to this Request to the extent it seeks information regarding reinsurance 8 and reserves. Such information is privileged and confidential, contains trade or business secrets or 9 other confidential, proprietary, or sensitive business information, is not relevant to any issue in this 10 case, and is not reasonably calculated to lead to the discovery of admissible evidence. 11 AIGSIC further objects to this Request as oppressive and unduly burdensome. Even if the vast 12 majority of the documents Plaintiffs seek are privileged for the reasons already articulated, the Request 13 as written would require AIGSIC to dedicate dozens, if not hundreds, of personnel hours to collecting 14 AIGSIC’s post-litigation files, reviewing them, and logging privileged documents, on top of the 15 extensive work it already undertook more than a year ago in responding to largely overlapping 16 requests. Furthermore, the exercise would be wasteful and largely futile because AIGSIC’s decision- 17 making in response to the non-final March 28, 2023 Order involved strategic and tactical legal 18 decisions in this case, made with litigation in mind and with counsel’s advice. 19 AIGSIC stands on its objections. 20 REASON WHY FURTHER RESPONSE IS REQUIRED: 21 As plaintiffs told defendants in the meet and confer process, we only seek production of an 22 updated version of the claims file, redacted as appropriate to protect attorney-client privilege and work 23 product. The claims file is obviously relevant to the bad faith claim and its production will impose no 24 undue burden. Reserve information must not be redacted. Whether AIG and Landmark changed their 25 reserves on the claim, which, if kept unreasonably low, is evidence that “the insurer was attempting to 26 avoid reimbursing the insured for all losses covered by the policy.” (Croskey, et al., supra, at ¶15:747, 27 emphasis in original, citing Bernstein v. Travelers Ins. Co. (N.D. Cal. 2006) 447 F.Supp.2d 1100, 28 1105.) - 12 - Plaintiffs’ Response to AIG’s Separate Statement ISO of Its Motion to Case No. 21CV001530l Stay Deposition and to Quash Deposition Notice and for Protective Order 1 REQUEST FOR PRODUCTION NO. 5: 2 All Claims Manuals, however such manuals are denominated, applicable during the period of 3 January 1, 2020 through present day, relating to the handling of the Claims. 4 AIGSIC’S SPECIFIC OBJECTIONS AND RESPONSE TO REQUEST NO. 5: 5 In addition to and without waiving the General Objections and Objections to Instructions set 6 out above, AIGSIC objects to this Request on the grounds that it is vague, ambiguous, overly broad, 7 unduly burdensome, and seeks documents that are not material to the subject matter involved in the 8 pending action. 9 AIGSIC further objects to this Request as redundant of Request No. 10 in Plaintiffs’ Request 10 for Production of Documents and Tangible Things, Set One. AIGSIC has already produced a copy of 11 the claims-handling materials that were in effect at the time AIGSIC received the subject claim in 12 response to a virtually identical Request. See Defendant AIGSIC’s Responses and Objections to 13 Plaintiffs Requests for Production of Documents and Tangible Things, Set One at Response to Request 14 No. 10 (Apr. 14, 2022). 15 AIGSIC stands on its objections. 16 REASON WHY FURTHER RESPONSE IS REQUIRED: 17 Defendants need only produce claims manuals if they have been revised/updated since the 18 previous production. 19 REQUEST FOR PRODUCTION NO. 6: 20 All Documents concerning any reserve(s) set by You and/or Your insurers and/or 21 reinsurers for the Claims. 22 AIGSIC’S SPECIFIC OBJECTIONS AND RESPONSE TO REQUEST NO. 6: 23 In addition to and without waiving the General Objections and Objections to Instructions set 24 out above, AIGSIC objects to this Request on grounds that any “reserve(s) set by You and/or Your 25 insurers and/or reinsurers for the Claims” are privileged and confidential; constitute trade or business 26 secrets or other confidential, proprietary, or sensitive business information; may reflect the advice of 27 counsel; are not relevant to any issue in this case; and are not reasonably calculated to lead to the 28 discovery of admissible evidence. - 13 - Plaintiffs’ Response to AIG’s Separate Statement ISO of Its Motion to Case No. 21CV001530l Stay Deposition and to Quash Deposition Notice and for Protective Order 1 AIGSIC further objects to this Request to the extent that it seeks information within the 2 possession of any “insurer[] and/or reinsurer[]” of AIGSIC. Such information is not within AIGSIC’s 3 possession, custody, or control. 4 AIGSIC further objects to this Request to the extent it seeks disclosure of confidential and/or 5 proprietary business information, and/or information subject to the attorney-client privilege; attorney 6 work product doctrine; California Constitution, Article I, Section 1; California Evidence Code Section 7 1060; California Insurance Code Section 791.13; or any other applicable legal privileges, protections, 8 and rules or considerations of confidentiality. 9 AIGSIC stands on its objections. 10 REASON WHY FURTHER RESPONSE IS REQUIRED: 11 Whether AIG and Landmark changed their reserves on the claim, which, if kept unreasonably 12 low, is evidence that “the insurer was attempting to avoid reimbursing the insured for all losses 13 covered by the policy.” (Croskey, et al., supra, at ¶15:747, emphasis in original, citing Bernstein v. 14 Travelers Ins. Co. (N.D. Cal. 2006) 447 F.Supp.2d 1100, 1105.) 15 Dated: September 27, 2023 PILLSBURY & COLEMAN LLP 16 17 By: /s/ Ryan H. Opgenorth 18 Philip L. Pillsbury Jr. Ryan H. Opgenorth 19 Attorneys for Plaintiff 20 Calistoga Ranch Club 21 22 Dated: September 27, 2023 PERKINS COIE, LLP 23 24 By: /s/ John S. Rossiter, Jr. John S. Rossiter, Jr., Bar No. 151113 25 James M. Davis (admitted pro hac vice) Bradley H. Dlatt (admitted pro hac vice) 26 27 Attorneys for Plaintiffs Calistoga Ranch Owner LLC and Calistoga Ranch Investors 28 LLC - 14 - Plaintiffs’ Response to AIG’s Separate Statement ISO of Its Motion to Case No. 21CV001530l Stay Deposition and to Quash Deposition Notice and for Protective Order 1 Dated: September 27, 2023 JENNER & BLOCK LLP 2 3 By: /s/ Jan A. Larson 4 Jan A. Larson Lindsay C. Harrison 5 Attorneys for Plaintiff Auberge Resorts LLC 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 15 - Plaintiffs’ Response to AIG’s Separate Statement ISO of Its Motion to Case No. 21CV001530l Stay Deposition and to Quash Deposition Notice and for Protective Order