D. AXA’s Burden, Delay, and Local Rule 37.2 Arguments

AXA raises, in the briefest manner, three other arguments that potentially could justify
denying Baxter’s Motion to Compel. The first is burden. According to AXA, producing the
communications Baxter is seeking would be burdensome because AXA would have to translate
and review all of its communications with reinsurers and co-insurers, most or all of which are in
German. AXA’s Response, [ECF No. 421], at 1. AXA says this process would require
significant expense and effort. Jd. But AXA never develops this burden argument or supports its
assertions with citations to case law or actual evidence. Instead, AXA’s entire argument with
respect to burdensomeness is condensed in a couple of sentences in the Introduction section of its
brief.

As the party objecting to discovery on the basis of burdensomeness, AXA must
“specifically demonstrate the burden that the discovery would impose.” Symons Int’l Grp., Inc v.
Cont’! Cas. Co., 2015 WL 1279839, at *7 (S.D. Ind. Mar. 20, 2015). To satisfy this burden,
AXA “must ‘adequately demonstrate the nature and extent of the claimed burden.”” Exec.
Mgmt. Servs., Inc. v. Fifth Third Bank, 2014 WL 5529895, at *7 (S.D. Ind. Nov. 3, 2014)
(quoting Bitler Inv. Venture Il, LLC v. Marathon Ashland Petroleum LLC, 2007 WL 1164970, at
*4 (N.D. Ind. Apr. 18, 2007)). AXA has not provided the necessary detail for the Court to assess
whether it would suffer an undue burden if forced to produce the communications Baxter is
seeking. AXA has done nothing more than say it would have to review some indefinite number
of documents and translate them. It has not provided the Court with estimates of, for example,
how many documents it needs to review, how many people would need to be involved in the

review process, how long it would take to review the documents, and how much money it would

14


for the scope of general discovery ... .”). Under that provision, a party “may obtain discovery
regarding any nonprivileged matter that is relevant to any party’s claim or defense and
proportional to the needs of the case.” FED. R. Civ. P. 26(b)(1).

According to Baxter, AXA’s notices to its co-insurers and reinsurers are relevant to the
present litigation for two reasons.” First, Baxter says the notices may contain admissions by
AXA about the scope of coverage under the 1990 Policy and its obligations to Baxter. Baxter’s
Reply in Support of Its Motion to Compel Certain of AXA’s Communications with Its Co-
Insurers and Reinsurers under the 1990 AXA Policy (“Baxter’s Reply”), [ECF No. 430], at 8.
Second, Baxter argues the notices could be relevant to AXA’s motive for denying coverage.
Baxter’s Motion to Compel, [ECF No. 414], at 6. More specifically, Baxter says AXA may be
concerned about its reinsurers asserting a late notice defense. Jd In other words, Baxter’s
theory is that AXA may be fighting Baxter’s claim because it fears that it may have no
reinsurance to help spread its risk if Baxter prevails in this case. There is some support in case
law for that theory of relevance. See Allendale Mut. Ins. Co. v. Bull Data Sys., Inc., 152 F.R.D.
132 (N.D. Ill. 1993).

AXA does not address Baxter’s theory that the notices are relevant because they may
include AXA’s admissions regarding the scope of coverage under the 1990 Policy. In addition,
AXA does not raise a work product or any other privilege objection with respect to the notices.
The Court agrees with Baxter that the notices may contain relevant information not only because
AXA does not rebut that contention, but also because it is supported by common sense. It also is
consistent with a draft notice prepared by AXA that addressed, at least to some extent, the scope
of coverage under the 1990 Policy. Because the Court accepts this theory of relevance, it need
not address Baxter’s other theory of relevance or AXA’s arguments against that theory having to

? AXA appears only to object to production of its notices to its reinsurers.

5


business, not in anticipation of litigation.”); Country Life Ins. Co. v. St. Paul Surplus Lines Ins.
Co., 2005 WL 3690565, at *7 (C.D. Ill. Jan. 31, 2005) (“As a general ruling, I find that
documents dated after the denial of coverage are privileged if but only if they reveal the conduct
of litigation, the insurer’s position and/or plan for that litigation, or if they discuss the issues
involved in the litigation.”); In re Grand Jury Proceedings, 2001 WL 1167497, at *14 (S.D.N.Y.
Oct. 3, 2001) (“It is not enough that a document is created after the threat of litigation becomes
real, but it is also necessary that the motivation for creating that document be the litigation.”).

Therefore, it is not outcome determinative that AXA gave notice to its reinsurers only
after Baxter filed this lawsuit and that all of their respective communications occurred after that
point in time. In essence, AXA’s argument is sound only if, after giving notice, none of the
documents in dispute were created in the ordinary course of business. If AXA created any of the
correspondence in the ordinary course of business, then those documents would not be protected
by the work product doctrine. Although it is not uncommon for parties in litigation to agree that
documents created after the commencement of litigation are not subject to discovery, the parties
to this case did not adopt that convention, nor does the law require them to do so.

Baxter cites two cases in support of its position that communications between an insurer
and a reinsurer may not be protected by the work product doctrine in some circumstances. In
one, a defendant moved to compel the production of correspondence and information that the
plaintiff insurance company shared with its reinsurer. Front Royal Ins. Co. v. Gold Players, Inc.,
187 F.R.D. 252, 257 (W.D. Va. 1999). The plaintiff argued the work product doctrine protected
a reinsurance loss notice and a general reinsurance report, both sent by one of plaintiff's
employees to an employee of the reinsurer, and the reinsurer’s response to the loss notice. Id.

The court found “that these documents were not prepared in anticipation of litigation,” but,

10


litigation.” Heriot v. Byrne, 257 F.R.D. 645, 664 (N.D. Ill. 2009). That means the work product
doctrine does not shield from production “documents that are created in the ordinary course of
business or that would have been created irrespective of litigation.” Caremark, Inc. v. Affiliated
Computer Servs., Inc., 195 F.R.D. 610, 614 (N.D. Ill. 2000); see also Sandra, 600 F.3d at 622;
Med. Assur. Co. v. Weinberger, 295 F.R.D. 176, 183 (N.D. Ind. 2013).

The party asserting the work product doctrine bears the burden of establishing that the
doctrine applies to each document as to which it is asserted. Miyano Mach. USA, Inc. v.
MiyanoHitec Mach, Inc., 257 F.R.D. 456, 460 (N.D. Ill. 2008); McCook Metals L.L.C. v. Alcoa
Inc., 192 F.R.D. 242, 258 (N.D. Ill. 2000); Coltec Indus., Inc. v. Am. Motorists Ins. Co., 197
F.R.D. 368, 371 (N.D. Ill. 2000). The party “must present for each document an explanation
sufficient for the court to determine whether the party has discharged its burden.” Lis/ewood
Corp. v. AT&T Corp., 2015 WL 1539051, at *3 (N.D. Ill. Mar. 31, 2015).

There is one preliminary matter that must be addressed before turning to the parties’ main
arguments. For the first time in its reply brief, Baxter argues AXA waived its work product
objection by failing to raise it earlier. Baxter’s Reply, [ECF No. 430], at 2. This argument
appears nowhere in Baxter’s opening brief. Instead, in that filing, Baxter asserts AXA’s
communications are not categorically protected. Baxter’s Motion to Compel, [ECF No. 414], at
7-9. Baxter notes AXA failed to object to producing certain documents, but never mentions
waiver in connection with that failure. See id. at 10. “[I]t is well-established that arguments
raised for the first time in [a] reply brief are waived.” Mendez v. Perla Dental, 646 F.3d 420,
423-24 (7th Cir. 2011). In addition, it does not appear to the Court, on the merits, that AXA

intentionally waived its work product argument. It implicitly raised that argument in 2015.


do with AXA’s purported fear that its reinsurers will raise a late notice defense. Accordingly,
the Court overrules AXA’s relevance objection to producing its notices of the Second Generation
Litigation.

B. AXA has not met its burden to show the work product doctrine covers all of its
communications with its co-insurers and reinsurers after Baxter filed this lawsuit.

The work product doctrine is codified in Federal Rule of Civil Procedure 26(b)(3).
Charvat v. Valente, 82 F. Supp. 3d 713, 718 (N.D. Ill. 2015), objections overruled, 2016 WL
98570 (N.D. Ill. Jan. 8, 2016).> The doctrine “is designed to serve dual purposes: (1) to protect
an attorney’s thought processes and mental impressions against disclosure; and (2) to limit the
circumstances in which attorneys may piggyback on the fact-finding investigation of their more
diligent counterparts.” Sandra T.E. v. S. Berwyn Sch. Dist. 100, 600 F.3d 612, 622 (7th Cir.
2010). To that end, the doctrine protects documents prepared “in anticipation of litigation for the
purpose of analyzing and preparing a client’s case.” Jd. at 618. To show documents were
created in anticipation of litigation, a party must establish they were “prepared because ‘some
articulable claim, likely to lead to litigation, has arisen.” Jd. at 622 (quoting Binks Mfg. Co. v.
Nat'l Presto Indus., Inc., 709 F.2d 1109, 1120 (7th Cir. 1983)). Rule 26(b)(3) expressly includes
documents prepared by or for a party’s insurer as entitled to work product protection. FED. R.
Civ. P. 23(b)(3)(A).

A document need not be prepared solely for the purpose of litigation to merit protection;

rather, “the primary motivating factor in preparing the document must be the anticipation of

3 AXA asserts “German law should govern AXA Versicherung’s privilege claims.” AXA Versicherung’s
Opposition to Baxter’s Motion to Compel (“AXA’s Response”), [ECF No. 421], at 8n.3. But AXA also
says it will “accede[] to using Illinois privilege law to decide Baxter’s Motion without waiver of its rights
under German law to privilege in other documents.” Jd. The Court interprets AXA also to be acceding to
the use of federal law with respect to the issue of work product. See Slaven v. Great Am. Ins. Co., 83 F.
Supp. 3d 789, 795 (N.D. Ill. 2015) (“[C]ourts sitting in diversity consider the work-product doctrine . . .
on the basis of federal law.”).


In this case, AXA takes the position that all of its post-litigation communications with its
co-insurers and reinsurers are protected work product. AXA first asserts these documents are
“classic work product” because they address “the very matters in dispute.” Jd. Of course, a
document whose subject matter relates to a matter in dispute may be work product. But AXA
does not cite any case for the proposition that a document is work product solely because it
addresses a disputed matter.

AXA also argues the documents are protected by the work product doctrine because they
are post-litigation communications that are “in no ways a continuation of pre-litigation claims
reporting.” AXA’s Response, [421], at 5. The fact that the documents were prepared after
Baxter filed this case certainly may help AXA; for one thing, it means there cannot be any
dispute about whether litigation was anticipated. But AXA has not shown the primary
motivating factor for creating any (much less all) of the documents was the anticipation of
litigation. Documents created after the inception of litigation are not work product per se. “To
obtain the protection of the work product privilege,” a party “must do more than establish that
documents were prepared after” the filing of a “lawsuit.” Barela v. Safeco Ins. Co. of Am., 2014
WL 11497826, at *5 (D.N.M. Aug. 22, 2014); see also Charvat v. Valente, 82 F. Supp. 3d 713,
719 (N.D. Ill. 2015), objections overruled, 2016 WL 98570 (N.D. Ill. Jan. 8, 2016) (“[T]he
commencement of the lawsuit does not automatically qualify a company’s internal reports as
work product.”) (quoting E.E.O.C. v. Commonwealth Edison, 119 F.R.D. 394, 395 (N.D.
Ill.1988)); Meighan v. TransGuard Ins. Co. of Am., 298 F.R.D. 436, 443-44 (N.D. Iowa 2014)
(“I find that litigation was reasonably foreseeable on March 13, 2012, when Armstrong first
accused TransGuard of acting in bad faith. However, that is not to say that all documents created

after that date are privileged, as some may reflect work performed in the ordinary course of


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
BAXTER INTERNATIONAL, INC., )
)
Plaintiff, ) Case No. 11-ev-9131

)

v. ) Jeffrey T. Gilbert

) Magistrate Judge
AXA VERSICHERUNG, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff Baxter International, Inc. (“Baxter”) has filed a motion to compel Defendant
AXA Versicherung (“AXA”) to produce certain communications between AXA and its co-
insurers and reinsurers. Plaintiff's Motion to Compel Certain of AXA’s Communications with
Its Co-Insurers and Reinsurers under the 1990 AXA Policy (“Baxter’s Motion to Compel”),
[ECF Nos. 410, 414]. For the reasons stated below, Baxter’s Motion [ECF Nos. 410, 414] is
granted in part and denied without prejudice in part.

I. BACKGROUND

This lawsuit stems from the settlement of a multi-district litigation “CMDL”) involving
product liability lawsuits brought against Baxter and other drug companies seeking damages for
allegedly contaminated blood products. See Baxter Int'l, Inc. v. AXA Versicherung, 2014 WL
3583929 (N.D. Ill. July 18, 2014) for a thorough discussion of the facts underlying both the
MDL and this case. Consistent with the parties’ terminology, the Court will refer to the MDL as
“the Second Generation Litigation.” In this lawsuit, Baxter seeks indemnification from AXA for

the costs of defending and settling HCV claims raised in the Second Generation Litigation. Jd. at


notices and other correspondence sent to reinsurers can be characterized as ordinary business
documents when the facts require that result has not been criticized.

AXA relies primarily on the Logan case for the proposition that all its post-litigation
communications with its co-insurers and reinsurers are protected work product. As discussed
earlier, however, Logan cannot be read that broadly.

In this case, there is no dispute about whether there was an articulable claim likely to lead
to litigation when AXA created the documents Baxter is seeking to compel it to produce. The
litigation already existed. The central issue raised by the present motion is whether the litigation
was the primary factor for creating the documents AXA is withholding, or whether, instead, they
were created in whole or in part in the ordinary course of business. On that issue, the Court has
nothing but bald arguments, assertions, and conclusions from AXA—and the undeniable
temporal context in which the documents were created, namely, after Baxter sued AXA—to
support AXA’s claim that all of the documents are covered by the work product doctrine. That is
not sufficient. Although some of the documents AXA is withholding may be protected by the
work product doctrine, the Court is unable to conclude that any or all of the documents AXA is
withholding were prepared in anticipation of litigation and therefore protected as work product
with the information AXA has provided to date.

AXA has not, for example, provided Baxter or the Court with a log that describes in any
detail the documents being withheld. It is unclear from the briefs whether AXA has translated
any of the documents, most or all of which are not in the English language. If it has, then its
failure to make a precise showing may be an indication that is unable to do so. If, however,
AXA has not translated the documents and thought it could parry Baxter’s arguments with broad,

generalized thrusts, it is wrong.

12


rather, “were created in the ordinary course of business under the contractual obligations
between insurer and reinsurer.” Jd. at 258. Based on this conclusion, the court held the work
product doctrine did not protect the documents. Jd.; see also Progressive Cas. Ins. Co. v.
F.D.LC., 302 F.R.D. 497, 502 (N.D. Iowa), aff'd, 49 F. Supp. 3d 545 (N.D. Iowa 2014)
(“Progressive itself admits that the documents were provided for case updates pursuant to the
reinsurance agreements, or in response to specific requests, and included the matter's history, its
present posture, current activity, assessments of coverage and liability issues, amounts paid and
reserve, and plans for future handling. Those are all typical business purposes for the
reinsurance industry.”) (internal citation omitted).

The second case is Allendale, cited earlier. In that case, when assessing the reinsurers’
work product claims, the court said, “It is the very nature of an insurer’s business to investigate
and evaluate the claims of its insured, and the fact that the investigation and evaluation continues
after litigation commences is not conclusive proof that material has been created to aid in that
litigation.” Allendale, 152 F.R.D. at 136. After describing in detail the documents being
withheld, the court concluded the “vast majority of the documents are simply the private musings
of non-lawyer employees of a non-party, which on their face do not appear to be related to
preparation for litigation other than in an incidental sense.” Jd. at 137. Finally, the court noted a
“party claiming a privilege must present for each document ‘a specific explanation of why the
document is privileged or immune from discovery,’ such that [the court] can determine whether
the discovery opponent has discharged its burden,” and criticized the reinsurers and the plaintiff
for “provid[ing] no more than conclusory assertions that the material does constitute protectable
work product.” Jd. (quoting Allendale Mut. Ins. Co. v. Bull Data Sys., Inc., 145 F.R.D. 84, 88

(N.D. Ill. 1992)). Although Allendale has been criticized on other grounds, its conclusion that

sis]


Therefore, on the record and arguments before it, the Court does not find AXA waived the
protections of the work product doctrine.

The Court now turns to the merits of the parties’ work product dispute. Baxter argues the
documents it is seeking from AXA are not categorically protected by the work product doctrine
and were created in the ordinary course of business. Baxter’s Motion to Compel, [ECF No. 414],
at 7-8. AXA does not dispute that the notices and responses to them fall outside of the scope of
the work product doctrine. But AXA does argue the work product doctrine protects the other
documents Baxter seeks—that is, correspondence from AXA to its co-insurers and reinsurers
regarding the coverage available under the 1990 Policy. AXA’s Response, [ECF No. 421], at 5.

AXA appears to argue that documents created after litigation begins deserve a higher
order of work product protection than pre-litigation documents. AXA Verischerung’s Sur-Reply
in further Opposition to Baxter’s Motion to Compel, [ECF No. 435], at 3-4. It cites one Seventh
Circuit decision to support this theory, Logan v. Commercial Union Ins. Co., 96 F.3d 971 (7th
Cir. 1996). In that case, however, the Seventh Circuit did not create or recognize the existence
of different standards depending on whether a document was created before or after litigation
began. Instead, the court of appeals applied to post-litigation documents the very same work
product principles it has used when confronted with pre-litigation documents. See id. at 976-77.
The court of appeals recognized the subject matter of the documents at issue in that particular
case generally concerned how the defendant intended to defend against lawsuits brought against
it by the plaintiff. Jd. at 977. Based on this conclusion, the Seventh Circuit found the relevant
documents to be protected by the work product doctrine because they “were created in

anticipation of litigation.” Jd.


Gile v. United Airlines, Inc., 95 F.3d 492, 496 (7th Cir. 1996). Ultimately, the party objecting to
discovery bears the burden to show the requested discovery is improper. Deere v. Am. Water
Works Co., 306 F.R.D. 208, 215 (S.D. Ind. 2015); Dauska v. Green Bay Packaging Inc., 291
F.R.D. 251, 258 (E.D. Wis. 2013); JAB Distributors, LLC v. London Luxury, LLC, 2010 WL
4008193, at *1 (N.D. Ill. Oct. 13, 2010).
Ill. DISCUSSION

As noted, AXA objects to producing the documents Baxter is seeking. AXA argues the
notices to its reinsurers of the Second Generation Litigation are irrelevant to this case. AXA also
contends the work product doctrine protects all correspondence between it and its co-insurers
and reinsurers describing either the coverage available, or agreements or understandings
regarding the coverage available. As a fallback position, AXA asserts that, if the Court orders it
to produce any documents, AXA should be permitted to redact the amount of its reserves and
related information from which the amount can be calculated because the reserve amounts are
irrelevant and are work product, and the production of that information now, at the close of
discovery and on the eve of a scheduled mediation, would give Baxter a tactical advantage to
which it is not entitled after waiting years to request the reinsurance documents. Finally, AXA
briefly mentions, but does not develop, arguments related to the undue burden created by
Baxter’s request, Baxter’s delay in filing its Motion to Compel, and Baxter’s failure to meet and
confer before filing its current Motion.

A. AXA’s notices to its co-insurers and reinsurers may contain relevant and discoverable
information.

Federal Rule of Civil Procedure 26(b) defines the general scope of discovery. Hurt v.
Vantlin, 2016 WL 3144992, at *1 (S.D. Ind. June 6, 2016), objections overruled, 2016 WL

3917138 (S.D. Ind. July 20, 2016) (“Federal Rule of Civil Procedure 26(b)(1) sets the standard


cost to complete the review. Again, if these arguments can be more fully developed, that can be
done after the parties’ mediation.

AXA also asserts—again in the Introduction section of its brief—that Baxter delayed
seeking the documents it is now moving to compel. AXA’s Response, [ECF No. 421], at 2.
AXA says Baxter has known throughout this litigation that AXA was withholding post-litigation
documents. Jd. Baxter also has known, according to AXA, for more than three years about a
letter drafted by AXA that AXA was preparing to send its reinsurers that Baxter now says is one
of the reasons it believes AXA’s communications with its reinsurers contain relevant
information. Jd) AXA complains that Baxter has not offered any excuse for its delay in seeking
to compel production of AXA’s post-litigation communications with its co-insurers and
reinsurers. Id.

“The Federal Rules of Civil Procedure place no prescribed time limit on the outside date
for filing a motion to compel discovery—leaving the question of timeliness to the broad
discretion of the district court to control discovery ....” Fast Food Gourmet, Inc. v. Little Lady
Foods, Inc., 2007 WL 1673563, at *2 (N.D. Ill. June 8, 2007). Baxter filed the present motion
more than two months before the close of fact discovery. In addition, although fact discovery
formally closes today, the parties have agreed to take two depositions after that date, if
necessary. [ECF No. 423]. AXA has not claimed that, or explained why, requiring it to produce
the documents Baxter is seeking will delay the resolution of this case. Further, Baxter has been
pressing this issue for some time now. As described above, Baxter filed a motion seeking pre-
litigation communications back in 2015 based on its assumption that most of the responsive
documents would pre-date the filing of this lawsuit. The Court denied that motion after AXA

represented that responsive pre-litigation documents did not exist. According to Baxter, it

15


IV. CONCLUSION

For the reasons stated above, Baxter’s Motion to Compel Certain of AXA’s
Communications with its Co-Insurers and Reinsurers under the 1990 AXA Policy [ECF Nos.
410, 414] is granted in part and denied without prejudice in part. On or before April 10, 2017, or
a different date if the parties agree, AXA shall produce its “notice(s) of the Second Generation
Litigation to its co-insurers and reinsurers under the 1990 Policy, and the co-insurers’/reinsurers’
response(s).” The Court will deal with the other issues advanced in Baxter’s Motion if or when
they are raised again along the lines discussed in this Memorandum Opinion and Order.

This case previously was set for a status hearing on April 11,2017. [ECF No. 423]. That

date is stricken and reset to April 12, 2017, at 10:15 a.m.

It is so ordered.

—
K
wy
yr uA
Jeffréy T. Gilbert
United States Magistrate Judge

Dated: March 30, 2017


will be presented somewhat differently in the future if any of them need to be addressed at all.”
Id.

Baxter’s present motion to compel again asks that AXA be required to produce
documents covered by Request for Production Nos. 27 and 31. But Baxter now has limited these
requests both temporally and substantively. Baxter only seeks post-litigation communications.
Baxter’s Motion to Compel, [ECF No. 414], at 3. Also, Baxter only seeks two types of post-
litigation communications. The first is: “AXA’s notice(s) of the Second Generation Litigation to
its co-insurers and reinsurers under the 1990 Policy, and the co-insurers’/reinsurers’
response(s).” Jd. at 4; see also id. at 11. The second is: “Correspondence from AXA to its co-
insurers and reinsurers under the 1990 Policy in which AXA describes (a) the coverage available
to Baxter under the 1990 Policy for its losses in the Second Generation [L]itigation or (b) any
agreement or understanding between Baxter/Immuno and AXA/Colonia concerning coverage
available under the 1990 Policy for HCV claims.” Jd. at 4; see also id. at 11. Baxter argues the
relevance of the documents it is now requesting AXA be ordered to produce only became clear
late in discovery. Jd. at 1,4. AXA objects to producing any of these communications with its
co-insurers and reinsurers.

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 37(a), when a party does not respond properly to a
discovery request, the party that issued the request may file a motion to compel a proper
response. FED. R. Civ. P. 37(a); Vukadinovich v. Hanover Cmty. Sch. Corp., 2014 WL 667830,
at *4 (N.D. Ind. Feb. 20, 2014). The court then must independently determine the proper course
of discovery. John Wiley & Sons, Ltd. v. McDonnell Boehnen Hulbert & Berghoff LLP, 2013

WL 505252, at *2 (N.D. Ill. Feb. 12, 2013). When doing so, the court has significant discretion.


*1. Baxter alleges AXA incurred its duty to indemnify through an insurance policy issued in
1990 by a predecessor of AXA to a company that Baxter later acquired. Jd. The Court will call
that insurance policy “the 1990 Policy.” Jd. AXA is what Baxter calls “the ‘lead insurer’ on the
1990 Policy.” Baxter’s Motion to Compel, [ECF No. 414], at 1. But the insured risk is shared
by others. There are four co-insurers under the 1990 Policy. Jd. And there are one or more
reinsurers of AXA’s risk under the 1990 Policy. Id.!

During discovery in this case, Baxter served requests for production on AXA that sought
communications between AXA and its co-insurers and reinsurers. Request for Production No.
27 seeks: “All documents reflecting communications between AXA and reinsurers of the AXA
Policy relating to claims made under that policy.” Baxter International Inc.’s First Set of
Requests for Production of Documents Propounded to Defendant AXA Versicherung AG, [ECF
No. 414-2], at 8 (capitalization altered). Request for Production No. 31 seeks: “All documents
reflecting communications between AXA and one or more of its co-insurers relating to the AXA
Policy.” Baxter International Inc.’s Second Set of Requests for Production of Documents
Propounded to Defendant AXA Versicherung AG, [ECF No. 414-3], at 5 (capitalization altered).

AXA objected to producing any of the documents covered by these two requests.
Baxter’s Motion to Compel, [ECF No. 414], at 2-3. In late 2015, Baxter filed a motion to
compel documents sought by Request Nos. 27 and 31. [ECF Nos. 290, 291]. Baxter limited its
motion, though, to documents created before Baxter filed the present lawsuit. Jd After AXA
told Baxter it did not have responsive pre-litigation documents, Baxter suggested tabling the
motion. [ECF No. 321]. But the Court denied the motion without prejudice on the ground that

“the better approach is to deny [the motion] outright based on the present record since the issues

' When the Court references AXA’s co-insurers and reinsurers throughout this Opinion, the Court is
referring only to AXA’s co-insurers and reinsurers under the 1990 Policy.

2


The Court does agree with AXA, however, that Baxter’s request for these documents
comes late in the discovery process. That may not be a reason to deny Baxter access to those
documents forever, but, with expert discovery yet to commence, no trial date looming, and
mediation to begin in the near future, it is a reason for the Court to allow AXA to make a more
fully supported argument in favor of its work product objection, if it can do that, so the Court can
tule on the merits of the dispute rather than by default. If the parties do not resolve the case in
their upcoming mediation, then the Court will confer with counsel and decide on an appropriate
way for these issues to be presented for decision.

C. Information about AXA’s reserves

AXA argues that, if it is required to produce the documents Baxter is seeking, then AXA
should be permitted to redact the amount of reserves and related information from which that
amount can be calculated. AXA’s Response, [ECF No. 421], at 8. According to AXA, the
amount and related information are privileged and irrelevant. Jd. In response, Baxter argues, in
one paragraph, that AXA has failed to show the reserve-related information is privileged. Baxter
does not discuss AXA’s relevance objection or address the case law cited by AXA in support of
that objection. See Indianapolis Airport Auth. v. Travelers Prop. Cas. Co. of Am., 2015 WL
1548959, at *2 (S.D. Ind. Apr. 7, 2015); Front Royal, 187 F.R.D. at 257. At this time, the Court
is not convinced that, based on the facts of this case and the theories asserted by the parties, Rule
26 permits discovery of the amount of reserves and related information from which that amount
can be calculated. If necessary, the Court can revisit this issue if, as, and when the work product

issue is resubmitted for decision.

13


learned somewhat recently that responsive post-litigation communications might contain relevant
information. See Baxter’s Motion to Compel, [ECF No. 414], at 3. Shortly after that supposed
discovery, Baxter filed the motion now before the Court. Therefore, the Court is not convinced
Baxter’s motion should be denied solely because it did not file the motion earlier.

Finally, AXA asserts Baxter did not meet and confer before filing its motion, as required
by Local Rule 37.2. AXA’s Response, [ECF No. 421], at 8. AXA takes issue with Baxter’s
alleged failure to tell AXA that it would limit its discovery requests in the manner it has done in
its Motion to Compel. /d. But the parties did meet and confer about whether AXA must produce
the post-litigation documents encompassed by Requests to Produce Nos. 27 and 31. See Baxter’s
Motion to Compel [ECF No. 414], at 4. And Baxter’s counsel informed AXA’s counsel during a
status hearing that it likely would further limit its requests in connection with its forthcoming
motion.

Even though it would have been better for Baxter to discuss the contours of its narrowed
requests with AXA during a meet and confer, the Court doubts that would have made a
difference. Baxter represents that, during their email back-and-forth and meet and confer, AXA
asserted privilege on a categorical basis. Jd. AXA’s response to Baxter’s motion to compel
clearly supports this characterization of AXA’s position. As such, the Court does not agree that
any deficiency in Baxter’s attempt to comply with Local Rule 37.2 independently justifies
denying its motion to compel. See Amarei v. City of Chicago, 2016 WL 3693425, at *1 (N.D.
Ill. July 12, 2016) (“[I]t is apparent from the number of filings and the divergent views expressed
therein that additional efforts at resolution would not have avoided court intervention. So, while
the parties may not have strictly adhered to the mechanics of LR 37.2, the spirit of the rule

largely was met.”).