UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

TIMIKA KEATHLEY, 

 Plaintiff, CIVIL ACTION NO. 15-cv-11888 

 v. DISTRICT JUDGE PAUL D. BORMAN 

 

GRANGE INSURANCE COMPANY MAGISTRATE JUDGE MONA K. MAJZOUB 

OF MICHIGAN, 

Defendant. 

________________________________/ 

 

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART 

PLAINTIFF’S MOTION FOR SANCTIONS AND TO COMPEL [35] 

 This matter comes before the Court on Plaintiff Timika Keathley’s Motion for Sanctions 

and to Compel for Defendant’s Failure to Produce Photographs Taken by its Claims Adjuster at 

Plaintiff’s Home, and for Other Discovery Violations. (Docket no. 35.) Defendant Grange 

Insurance Company of Michigan responded to Plaintiff’s Motion (docket no. 40), and Plaintiff 

replied to Defendant’s Response (docket no. 41). The Motion has been referred to the 

undersigned for consideration. (Docket no. 37.) The Court has reviewed the pleadings and 

dispenses with oral argument pursuant to Eastern District of Michigan Local Rule 7.1(f)(2). The 

Court is now ready to rule pursuant to 28 U.S.C. § 636(b)(1)(A).

I. BACKGROUND

 At all times relevant to this matter, Plaintiff owned a home in Belleville, Michigan, which 

was insured by a policy issued by Defendant. (Docket no. 1 ¶¶ 4-5.) Plaintiff alleges that on or 

about January 28, 2014, her home suffered water damage caused by frozen and broken pipes. 

(Id. ¶ 9.) According to Plaintiff, the insurance policy provided casualty coverage, personal 

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property coverage, and loss of use/temporary housing and expense coverage for water damage 

resulting from broken or frozen pipes. (Id. ¶ 8.) Plaintiff purportedly submitted a claim to 

Defendant for loss of the premises, loss of personal property, and loss of use/temporary housing 

expenses on April 4, 2014. (Id. ¶ 10.) On May 28, 2014, Jason May, a claims adjuster employed 

by Defendant, allegedly conducted a fifteen-minute inspection of Plaintiff’s home, during which 

Plaintiff claims that Mr. May took no photographs,1 made no estimates for repairs, and took no 

samples or specimens of the broken pipes. (Id. ¶¶ 11-12.) Plaintiff asserts that Mr. May then 

approved payments for temporary housing or “Additional Living Expenses” (ALE) on or about 

June 30, 2014, but that Defendant failed to follow through with those payments and denied 

approval of ALE for Plaintiff’s proposed temporary housing at a hotel. (Id. ¶ 13-14.) 

 Defendant ultimately denied Plaintiff’s insurance claim on the basis that no coverage 

existed under the policy because Plaintiff did not prove that the loss occurred; Plaintiff 

misrepresented information material to Defendant’s investigation; the policy provided no 

coverage for a “Known Loss;” and Plaintiff failed to exhibit the damaged property to Defendant. 

(Id. ¶ 17; docket no. 36-7.) Plaintiff then initiated this action seeking damages for breach of 

contract regarding Defendant’s alleged failure to conduct a complete inspection of Plaintiff’s 

home, to provide temporary replacement housing to Plaintiff, and to pay the benefits due under 

the policy for the damages to and the loss of Plaintiff’s real and personal property, as well as the 

loss of use expenses incurred by Plaintiff. (Docket no. 1 ¶¶ 24-26.) 

 Plaintiff previously filed two motions to compel, on January 21, 2016, and February 22, 

2016, respectively. (Docket nos. 8 and 16.) On June 30, 2016, the Court held a hearing on those 

motions and contemporaneously issued an order granting the motions in part and denying the 

 

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 Discovery has revealed that Mr. May did indeed take photographs of Plaintiff’s home during his inspection, the 

production of which is a subject of dispute in the instant Motion. 

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motions in part. (Docket no. 43.) Plaintiff filed the instant Motion on June 3, 2016, prior to the 

aforementioned hearing, in which she moves (1) for sanctions, including an adverse jury 

instruction, related to Defendant’s failure to produce the photographs taken by its claims 

adjuster, Jason May, during his May 28, 2014 inspection of Plaintiff’s home that were 

“inexplicably” not produced during discovery; (2) to compel defense witnesses Jason May and 

Brian Maxwell to respond to deposition questions that they declined to answer on the basis of 

attorney-client privilege; (3) to compel the production of documents withheld by Defendant on 

the basis of attorney-client privilege; (4) to compel Defendant to produce for deposition a 

corporate representative with knowledge of the meaning of the acronym, “CLASSP,” which was 

used by Defendant when it opened Plaintiff’s claim on its computer system; (5) to compel the 

production of Jason May and Brian Maxwell’s home addresses; and (6) for the attorneys’ fees 

and costs that Plaintiff incurred in filing the instant Motion. (Docket no. 35.) Some of the issues 

Plaintiff raises in the instant Motion are identical or substantially similar to those raised in her 

previously-filed motions. The Court will address each of these issues herein. 

II. GOVERNING LAW

The scope of discovery under the Federal Rules of Civil Procedure is traditionally quite 

broad. Lewis v. ACB Bus. Servs., 135 F.3d 389, 402 (6th Cir. 1998). Parties may obtain 

discovery on any matter that is not privileged, is relevant to any party’s claim or defense, and is 

proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). “Relevant evidence” is “evidence 

having any tendency to make the existence of any fact that is of consequence to the 

determination of the action more probable or less probable than it would be without the 

evidence.” Fed. R. Evid. 401. Information need not be admissible in evidence to be 

discoverable. Fed. R. Civ. P. 26(b)(1). But the scope of discovery is not unlimited. “District 

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courts have discretion to limit the scope of discovery where the information sought is overly 

broad or would prove unduly burdensome to produce.” Surles ex rel. Johnson v. Greyhound 

Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007). 

 Rules 33 and 34 allow a party to serve interrogatories and requests for production of 

documents on an opposing party. Fed. R. Civ. P. 33, 34. A party receiving these types of 

discovery requests has thirty days to respond with answers or objections. Fed. R. Civ. P. 

33(b)(2), 34(b)(2)(A). Rule 30 allows a party to conduct a deposition of any person without 

leave of court, subject to certain exceptions. Fed. R. Civ. P. 30(a)(1). If the party receiving 

discovery requests under Rules 33 or 34 fails to respond properly, or if the person whose 

deposition is sought under Rule 30 fails to properly comply with the rule, Rule 37 provides the 

party who sent the discovery or noticed the deposition the means to file a motion to compel. 

Fed. R. Civ. P. 37(a)(3)(B). 

 If a court grants a Rule 37 motion to compel, or if discovery is received after a Rule 37 

motion is filed, then the court must award reasonable expenses and attorney’s fees to the 

successful party, unless the successful party did not confer in good faith before the motion, the 

opposing party’s position was substantially justified, or other circumstances would make an 

award unjust. Fed. R. Civ. P. 37(a)(5)(A). Furthermore, Federal Rule of Civil Procedure 37(d) 

authorizes the Court to order sanctions if a party fails to answer interrogatories or respond to a 

request for production of documents. Rule 37(b) provides a list of sanctions the Court may order 

if a party fails to obey a discovery order, up to and including dismissal of that party’s action or 

proceeding in whole or in part. Fed. R. Civ. P. 37(b)(2)(A). 

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III. ANALYSIS 

 1. The Photographs Taken by Jason May 

 Plaintiff argues that Defendant should be sanctioned for failing to produce the 

photographs of Plaintiff’s home taken by Defendant’s claims adjuster, Jason May, that 

“inexplicably” were not produced during discovery. (Docket no. 35 at 1, 8-11, 16-19.) Notably, 

Plaintiff alleges in her Complaint that Jason May failed to take any photographs during his May 

28, 2014 inspection of Plaintiff’s home. However, Plaintiff learned through the March 2016 

deposition testimony of Mr. May, Joe Tison (the contractor whom Plaintiff hired to perform 

water mitigation in her home), and Brian Maxwell (Mr. May’s supervisor and Defendant’s 

Property Manager), that Mr. May did take photographs during the inspection and uploaded them 

to Defendant’s computer system. (Docket no. 1 ¶ 12; docket no. 35 at 8-11.) Plaintiff asserts 

that Defendant has not produced the photographs taken by Mr. May in discovery, and she 

speculates that the reason for Defendant’s failure to produce is because the photographs have 

been either lost or destroyed. (Docket no. 35 at 9, 10, 11.) Plaintiff argues that Defendant 

should face sanctions for its failure to produce Mr. May’s photographs, including an adverse jury 

instruction related to the spoliation of evidence, the striking of Defendant’s affirmative defenses 

and the entry of a judgment in Plaintiff’s favor, and/or attorneys’ fees and costs. (Id. at 16-17.) 

 In response, Defendant argues against the imposition of sanctions, but it neither confirms 

nor denies the existence of the photographs, does not provide any information regarding the 

former, current, or last known location of the photographs, and does not provide any explanation 

for its failure to produce these photographs in discovery. (Docket no. 40 at 6-11.) At most, 

Defendant vaguely states that it “cannot confirm what happened to photographs Jason May 

took.” (Id. at 10-11.) Defendant also argues that the photographs are irrelevant to this matter 

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because Mr. May testified at his deposition that he did not see any burst pipes during his 

inspection of Plaintiff’s home, and he therefore would not have taken any photographs of burst 

pipes. (Id. at 8, 10-11.) Defendant’s relevance argument lacks merit. Defendant denied 

Plaintiff’s claim in part because Plaintiff “failed in every way to exhibit the allegedly damaged 

property to [Defendant], whatever the extent of the damage was.” (Docket no. 35-6 at 4-5.) 

Moreover, the condition of Plaintiff’s home on the date of Mr. May’s inspection, including 

whether there were any burst pipes or other evidence related to the alleged water damage in the 

home, is a disputed issue in this matter, as evidenced by the competing deposition testimony of 

Mr. May and Mr. Tison. (See, e.g., docket no. 35 at 9-11.) Accordingly, the photographs of 

Plaintiff’s home taken by Mr. May are indeed relevant to this matter, and they should be 

produced. 

 Notably, throughout this litigation, Defendant has agreed to produce photographs of 

Plaintiff’s residence. For example, in response to Plaintiff’s interrogatory that inquired whether 

Defendant was in possession, custody, or control of any photographs of Plaintiff’s residence, 

Defendant responded affirmatively and referred Plaintiff to the photographs produced 

contemporaneously with its response. (Docket no. 35 at 17; docket no. 35-8 at 4.) Also, in 

correspondence dated November 9, 2015, defense counsel represented to Plaintiff’s counsel that 

Defendant had “produced all photographs in the claim file.” (Docket no. 8-12 at 3, 5.) 

 Nevertheless, after the deposition of Defendant’s claims investigator, Plaintiff became 

suspicious of whether Defendant had produced all documents and materials responsive to her 

discovery requests, and raised that suspicion as an issue in her first motion to compel. (Docket 

no. 8; docket no. 8-1 at 3-6.) The Court addressed this issue at the June 30, 2016 hearing and 

ordered Defendant to “either file an affidavit stating that it has produced all responsive 

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documents within its custody, possession, or control and that the production is complete, or 

augment its production to include all responsive documents.” (Docket no. 43 at 1.) In 

compliance with the Court’s order, Defendant filed such an affidavit on July 14, 2016, through 

its Senior Litigation Counsel, Steven E. Carr. (Docket no. 45-1.) In the affidavit, Mr. Carr 

attested that he “conducted a search in those areas where responsive information is likely to be 

found[,] and all responsive materials in the custody, possession, or control of [Defendant] have 

been produced with the exception of those documents withheld due to a claim of privilege.” (Id.) 

 Mr. Carr’s affidavit is seemingly all-encompassing; however, in light of the fact that the 

instant Motion was not addressed at the June 30, 2016 hearing or in the contemporaneous court 

order, and in light of the ambiguous statements that Defendant made in its response to the instant 

Motion regarding the existence and disposition of Mr. May’s photographs, the Court will order 

Defendant to either (1) produce the photographs taken by Mr. May during his May 28, 2014 

inspection of Plaintiff’s home, or (2) amend its July 14, 2016 affidavit to (a) state that it has 

searched for all responsive documents or materials, including, but not limited to, the photographs 

taken by Mr. May during his May 28, 2014 inspection of Plaintiff’s home; that it has produced 

all responsive documents or materials within its custody, possession, or control; and that the 

production is complete; and (b) explain in detail the measures that it undertook to locate Mr. 

May’s photographs. In consideration of this forthcoming order, the Court will deny Plaintiff’s 

motion for sanctions without prejudice as premature. 

 2. Documents and Deposition Answers Withheld on the Basis of Privilege 

 Next, Plaintiff argues that “Defendant’s improper reliance upon the Attorney-Client 

Privilege/Work-Product should not be allowed.” (Docket no. 35 at 11-14, 19-21.) Plaintiff 

previously raised this argument in her first Motion to Compel with regard to documents withheld 

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from production by Defendant on the basis of attorney-client privilege. (Docket no. 8.) In the 

instant Motion, Plaintiff reasserts her arguments with regard to the documents withheld and 

extends those same arguments to deposition questions that defense counsel advised Jason May 

and Brian Maxwell not to answer on the basis of privilege. Because the Court already addressed, 

rejected, and denied Plaintiff’s arguments regarding Defendant’s assertion of attorney-client 

privilege in its June 30, 2016 hearing and order, the Court will deny Plaintiff’s Motion in this 

regard as moot. (Id.) 

 3. Corporate Representative with Knowledge of the Acronym, “CLASSP” 

 Plaintiff also argues that Defendant “should produce a corporate representative with 

knowledge of the meaning of the acronym, ‘CLASSP,’ which was used by [Defendant] when 

[P]laintiff reported her claim.” (Docket no. 35 at 14-16.) In its response to Plaintiff’s Motion, 

Defendant informed that it was providing Plaintiff’s counsel with additional discovery responses, 

which would explain the acronym and obviate the need for another deposition. (Docket no. 40 at 

11.) In light of Defendant’s response, the Court finds that this issue is now moot and will deny it 

as such. 

 4. The Home Addresses of Jason May and Brian Maxwell 

 Finally, Plaintiff argues that “Defendant’s refusal to provide the home addresses of Jason 

May and Brian Maxwell is wrong as such information is relevant and necessary.” (Docket no. 

35 at 21-22.) Plaintiff previously raised this discovery issue in her second Motion to Compel 

(docket no. 16), which the Court resolved in its June 30, 2016 hearing and order. The Court will 

therefore deny Plaintiff’s Motion in this regard as moot. 

 

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IT IS THEREFORE ORDERED that Plaintiff’s Motion for Sanctions and to Compel 

[35] is GRANTED IN PART and DENIED IN PART as follows: 

a. Defendant will, within fourteen (14) days of this Order, either (1) produce the 

photographs taken by its claims adjuster, Jason May, during his May 28, 2014 inspection 

of Plaintiff’s home, or (2) amend its July 14, 2016 affidavit to (A) state that it has 

searched for all responsive documents or materials, including, but not limited to, the 

photographs taken by Mr. May during his May 28, 2014 inspection of Plaintiff’s home; 

that it has produced all responsive documents or materials within its custody, possession, 

or control; and that the production is complete; and (B) explain in detail the measures that 

it undertook to locate Mr. May’s May 28, 2014 photographs which Defendant has not 

produced. Plaintiff’s motion for sanctions related to Defendant’s failure to produce the 

photographs taken by Mr. May, is therefore DENIED without prejudice as premature; 

b. Plaintiff’s motion to compel defense witnesses Jason May and Brian Maxwell to respond 

to deposition questions that they declined to answer on the basis of attorney-client 

privilege and to compel the production of documents withheld by Defendant on the basis 

of attorney-client privilege is DENIED as moot; 

c. Plaintiff’s motion to compel Defendant to produce for deposition a corporate 

representative with knowledge of the meaning of the acronym, “CLASSP,” is DENIED 

as moot; 

d. Plaintiff’s motion to compel the production of the home addresses of Jason May and 

Brian Maxwell is DENIED as moot; and 

e. Plaintiff’s motion for the attorneys’ fees and costs that she incurred in filing the instant 

Motion is DENIED. 

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NOTICE TO THE PARTIES

 Pursuant to Federal Rule of Civil Procedure 72(a), the parties have a period of fourteen 

days from the date of this Order within which to file any written appeal to the District Judge as 

may be permissible under 28 U.S.C. § 636(b)(1). 

Dated: January 19, 2017 s/ Mona K. Majzoub 

 MONA K. MAJZOUB 

 UNITED STATES MAGISTRATE JUDGE

PROOF OF SERVICE

 I hereby certify that a copy of this Order was served upon counsel of record on this date. 

Dated: January 19, 2017 s/ Lisa C. Bartlett 

 Case Manager 

 

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