UNITED STATES DISTRICT COURT

FOR THE

DISTRICT OF NEW HAMPSHIRE

•••••••••••••••••••••••••••••••••••••••••••

ST. PAUL'S SCHOOL,

v.

•

•

• Civil No. 08-cv-202-MML

•

FRED C. CHURCH, INC. •

•

•

•••••••••••••••••••••••••••••••••••••••••••

DISCOVERY PLAN

Fed. R. Civ. P. 26(0

Jury Trial Demanded

DATE/PLACE OF CONFERENCE: This plan represents modifications made

following the parties' telephone conference with the Court on December 18,2008.

COUNSEL PRESENTIREPRESENTING:

Wilbur A. Glahn, III, of McLane, Graf, Raulerson & Middleton, representing St.

Paul's School

William D. Chapman, of Melick Porter & Shea, LLP, representing Fred C.

Church, Inc.

CASE SUMMARY

The summary ofthe Theory ofLiability and Theory ofDefense, as well as the

description of discovery needed set forth below, are the respective statements of each

party. Inclusion in this Discovery Plan should not be taken as an agreement by either

party as to the statement ofthe other.

Case 1:08-cv-00202-MML Document 27 Filed 01/05/09 Page 1 of 14
THEORY OF LIABILITY:

S1. Paul's School ("S1. Paul's" or the "School") seeks to recover against Fred C.

Church, Inc. ("Church") for damages resulting from flooding in May 2006. S1. Paul's

contends that Church breached a "Fee/Consulting Agreement" entered into by the parties,

and under which Church contracted to provide "Property & Casualty Risk Management

Services" to S1. Paul's. S1. Paul's further alleges that Church acted negligently in breach

ofits duties to S1. Paul's established as a result of a long standing relationship under

which Church undertook to provide risk management services to the School. S1. Paul's

alleges that Church breached the agreement and its duty to the School by virtue ofthis

special relationship by failing to identify, evaluate, quantify and monitor the School's

risks and to present adequate and accurate information about alternatives for procuring

insurance covering those risks, including determining premiums for necessary coverage.

In particular, Church failed to perform these risk management functions with regard to

the risk ofloss by flooding in Zone A. S1. Paul's also contends that Church's actions

constitute a breach ofthe implied covenant of good faith and fair dealing, as well as a

breach offiduciary duty.

THEORY OF DEFENSE:

The defendant, Fred C. Church, Inc., denies the plaintiffs claims with respect to

liability and damages. Church continues to maintain that the plaintiffs complaint, as

amended on November 10,2008 in the wake ofthe Motion to Dismiss hearing, fails to

state a cognizable claim ofliability. S1. Paul's seeks to hold Church liable for uninsured

flood losses it sustained in May, 2006. The plaintiff claims that Church breached duties

it allegedly owed as an insurance broker, as well as in its alleged capacity as a risk

- 2-

Case 1:08-cv-00202-MML Document 27 Filed 01/05/09 Page 2 of 14
manager and/or insurance advisor. Church denies that it breached any legal duty owed to

St. Paul's School. St. Paul's School alleges that it was not adequately advised about the

risk of uninsured flood loss at its campus, and/or how such property in Flood Zone A

might be protected by insurance. Without limitation, in the years leading up to the flood

loss, Church repeatedly advised the School, both verbally and in writing, that a "major

part" ofthe campus was uninsured for flood damage. Church explained that coverage

was available for property located in Flood Zone A through the National Flood Plan.

Church asked the School whether it wished to pursue such coverage. Following an

internal dialogue, the School declined to pursue obtaining flood insurance. Church

believes that the School did so because the School was at that time under considerable

financial pressure, as well as considerable public scrutiny with respect to the handling of

its finances as a charitable entity. As such, Church expects that the insurance

relationships and transactions at issue, as well as the legal status and financial history and

condition ofthe School during the time period surrounding the flood, will be the subject

of what will probably be considerable discovery in this case. It is also expected that the

damages claims will be contested. Without limitation, the School has previously received

insurance claim payment(s) from Travelers Insurance Company. The School also

brought a separate prior action against Travelers, seeking the same damages which it now

seeks to recover against Church. The School settled this action in February, 2008, and to

date has declined to reveal the terms ofthe settlement to Church, on the purported basis

of confidentiality.

- 3 -

Case 1:08-cv-00202-MML Document 27 Filed 01/05/09 Page 3 of 14
DAMAGES:

St. Paul's claims it has sustained damages in excess of approximately $1.6

Million, exclusive of interest, costs and attorneys' fees.

JURISDICTIONAL QUESTIONS:

The parties do not anticipate any jurisdictional questions at this time.

QUESTIONS OF LAW:

Anticipated questions oflaw include issues ofthe duties owed by risk managers

and insurance brokers.

TYPE OF TRIAL: Jury.

DISCOVERY

TRACK ASSIGNMENT: 12 months.

DISCOVERY NEEDED:

St. Paul's anticipates discovery relating to: the relationship ofthe School and

Church; Church's knowledge of, and representations concerning, the risks offlooding at

the School, alternatives for determining and obtaining coverage for losses due to flooding

in Flood Zone A (including determining premiums for necessary coverage whether from

private insurers or under the National Flood Insurance Program), and the steps taken by

Church to identify, evaluate, quantify and monitor the risk ofloss from flooding on the

St. Paul's campus.

Church intends to take discovery to support its defenses with respect to liability

and damages. The subject of discovery is expected to include but not be limited to the

legal duties which may apply to the parties, the history ofthe insurance relationships and

transactions between the School, and/or Church, and/or other involved third parties

-4-

Case 1:08-cv-00202-MML Document 27 Filed 01/05/09 Page 4 of 14
(including but not limited to the School's property insurance history, and the resolution of

the underlying Travelers case), the legal status and financial history and condition ofthe

School during the time period surrounding the flood, and the processes, procedures, and

parties involved in decision making at the School with respect to insurance and financial

matters.

MANDATORY DISCLOSURES:

Mandatory disclosures pursuant to Fed. R. Civ. P. 26(a)(1) shall be served by

February 2. 2009.

ELECTRONIC INFORMATION DISCLOSURES (Fed. R. Clv, P. 26(1):

The parties have discussed the production of electronic documents and believe at

this time that the procedures set out in Exhibit A hereto are sufficient to address issues

pertaining to the discovery and production ofsuch documents. The parties do not intend

to require the production of electronic files in "native format." If issues arise regarding

the production of documents maintained in electronic files, the parties will address those

issues as they arise.

STIPULATION REGARDING CLAIMS OF PRIVILEGEIPROTECTION OF

TRIAL PREPARATION MATERIALS:

St. Paul's proposes that privilege issues be dealt with in accordance with Exhibit

"A" hereto.

- 5 -

Case 1:08-cv-00202-MML Document 27 Filed 01/05/09 Page 5 of 14
COMPLETION OF DISCOVERY:

The Parties propose the following deadlines with regard to discovery.

March 2, 2009 Formal fact discovery, both written and oral, shall begin.

December 31, 2009 Formal fact discovery shall end. All parties shall supplement their

answers to interrogatories concerning factual matters within fifteen

(15) days ofthe close offormal fact discovery.

INTERROGATORIES:

A maximum of 25 interrogatories by each party to any other party. Responses

due 30 days after service unless otherwise agreed to pursuant to Fed. R. Civ. P. 29.

REQUESTS FOR ADMISSION:

The parties agree to a maximum of 50 requests for admission by each party to any

other party. Responses due 30 days after service unless otherwise agreed to pursuant to

Fed. R. Civ. P. 29. Leave ofthe Court shall be required to seek additional requests.

DEPOSITIONS:

The parties agree that each party may take up to 15 depositions, and that each

deposition will be limited to a maximum ofseven hours unless extended by agreement of

the parties. Leave ofCourt shall be required, as provided in Rule 30 ofthe Federal Rules

ofCivil Procedure, for depositions beyond the 15 depositions agreed to by the parties or

to extend the time period per deposition. The parties further agree that all disclosed

experts may be deposed for the same seven-hour period.

- 6-

Case 1:08-cv-00202-MML Document 27 Filed 01/05/09 Page 6 of 14
DATES OF DISCLOSURE OF EXPERTS AND EXPERTS' WRITTEN REPORTS

AND SUPPLEMENTATIONS:

10/01/09 Parties with the burden of proofwill submit expert reports on

issues on which they bear the burden of proof pursuant to Fed.

R. Civ. P. 26(a)(2).

11/01/09 Responsive expert reports pursuant to Fed. R. Civ. P.

26(a)(2).

12/31109 All expert depositions shall be completed.

CHALLENGES TO EXPERT TESTIMONY:

45 days prior to trial.

OTHER ITEMS

JOINDER OF ADDITIONAL PARTIES: None anticipated at this time.

THIRD-PARTY ACTIONS: None anticipated at this time.

AMENDMENT OF PLEADINGS:

Plaintiff: Any further amendments by February 16,2009. Defendant:

March 16,2009.

DISPOSITIVE MOTIONS:

To Dismiss: March 2, 2009.

For Summary Judgment:

01131110 The last date upon which the parties may submit Rule 56

summary judgment motions on any outstanding issues. Nothing

in this Order shall preclude the parties from serving motions for

summary judgment prior to this date.

- 7 -

Case 1:08-cv-00202-MML Document 27 Filed 01/05/09 Page 7 of 14
02/28110 The parties shall exchange their objections to the summary

judgment motions.

03/15/10 The parties shall exchange their reply papers concerning the

summary judgment motions.

SETTLEMENT POSSIBILITIES:

Settlement possibilities cannot be evaluated at this time.

JOINT STATEMENT RE MEDIATION:

Mediation, if any, shall occur by June 1,2009.

WITNESSES AND EXHIBITS:

04/01110 The Parties shall exchange draft pretrial orders and proposed

illustrative exhibits (models, videotapes, diagrams, etc.). The

parties shall thereafter meet and confer in an effort to resolve any

differences.

04/15/10 The Parties shall deliver draft pretrial orders that identify areas of

agreement and disagreement to the Court and each other.

TRIAL ESTIMATE: Six days.

TRIAL DATE: May 3, 2010.

PRELIMINARY PRETRIAL CONFERENCE:

The parties held a pretrial conference with the Court on December 18, 2008. This

Amended Discovery Plan is prepared following that pretrial conference.

OTHER MATTERS:

Church states that it may need to seek an order compelling disclosure ofthe

proceedings in and outcome ofthe underlying Travelers litigation. St. Paul's submits that

- 8 -

Case 1:08-cv-00202-MML Document 27 Filed 01/05/09 Page 8 of 14
the Travelers settlement is confidential pursuant to the agreement with the Travelers but

that ifsubpoenaed, it is likely that the settlement will be disclosed.

Respectfully submitted,

ST. PAUL'S SCHOOL

By its attorneys,

McLANE, GRAF, RAULERSON &

MIDDLETON, PROFESSIONAL ASSOCIAnON

Dated: January 2,2009

Dated: January 2, 2009

By: /s/ Wilbur A. Glahn. III

Wilbur A. Glahn, III, Bar No. 937

bill.glahn@mclane.com

Michael J. Quinn, Bar No. 5584

mike.quinn@mclane.com

Adam M. Hamel, Bar No. 17110

adam.hamel@mclane.com

900 Elm Street, P.O. Box 326

Manchester, New Hampshire 03105

(603) 625-6464

FRED C. CHURCH, INC.

By its attorneys,

MELICK PORTER & SHEA, LLP

By: /s/ William D. Chapman

William D. Chapman, pro hac vice

wchapman@melicklaw.com

Maureen E. Lane, Bar No. 15152

mlane@melicklaw.com

Jessica M. Farrelly, pro hac vice

jfarrelly@melicklaw.com

28 State Street

Boston, MA 02109

(617) 523-6200

- 9-

Case 1:08-cv-00202-MML Document 27 Filed 01/05/09 Page 9 of 14
Nothing in this Order shall prevent a party, upon a showing of good cause, from

obtaining relieffrom the provisions ofthis Order, either by stipulation between the

affected parties and order thereon or by motion to the Court.

DATED:~ dj~'t tL'i-J~ . oC~ -H-on-o.....;r~. USi

Judge, United States District Court for the

District ofRhode Island

- 10 -

Case 1:08-cv-00202-MML Document 27 Filed 01/05/09 Page 10 of 14
EXHIBIT A TO DISCOVERY PLAN UNDER RULE 26<0

DISCOVERY AND PRE-TRIAL SCHEDULE

I. Written Discovery and Production of Documents

A. Written Discovery

1. Within a reasonable time before production of documents, the producing

party shall advise the inspecting party ofthe approximate volume ofthe documents and a general

description ofthe types offiles involved. The producing party shall produce, at its option, either

a legible set of paper copies, or a cd containing the documents in their original format.

2. The parties shall use their best efforts to agree on the place and time for

production. When original documents are produced, all such documents must remain available

for inspection and copying for a reasonable period oftime.

3. Prior to the delivery of copies of documents to the requesting party, the

documents shall be Bates numbered with appropriate identification ofthe source ofthe

document.

4. All documents withheld from production on the basis of a claim of

privilege or work-product immunity shall be identified in a privilege log which will be produced

within thirty (30) days from the date the producing party completes its production at a specific

location, regardless of whether the reviewing parties have completed their review ofthe

produced documents. For each document withheld, the privilege log shall contain a description

ofthe type of document (e.g., letter, memorandum), an identification number ofthe document,

the authors' name(s), the recipients' name(s) (e.g., the direct addressees' name(s)), the name(s)

of all persons identified by the document as receiving copies (e.g., all persons copied on the

document), the date ofthe document, a description ofthe document's general subject matter or

Case 1:08-cv-00202-MML Document 27 Filed 01/05/09 Page 11 of 14
reference line, and the legal basis for withholding the document. Nothing herein shall prevent

any party from seeking additional information regarding any documents or categories of

documents identified in a privilege log.

B. Misdirected Communications or Documents

Each party has an affirmative duty to notify immediately the involved party upon receipt

of any misdirected attorney-client or other privileged communication or work-product document

outside the ordinary course of discovery. (Inadvertent production of privileged or protected

material during discovery is subject to the provisions of Section C below). Upon written request,

the receiving party shall return such communication or other document and all copies ofthe

communication or other document to the involved party. Ifthe involved party requests return of

the misdirected communication or other document within twenty (20) days of notice ofthe

misdirection, no waiver ofthe applicable privilege or protection shall be deemed to have

occurred as a result ofthe disclosure by misdirection, and the receiving party shall not use the

information obtained by the misdirection for any purpose.

C. Inadvertently Produced Privileged or Otherwise Protected Documents

If a party inadvertently produces information or documents that it considers privileged or

protected material, in whole or in part, or learns ofthe production of privileged or protected

material by a third party, the party may retrieve such information or documents or parts thereof,

memoranda and other material, as follows:

1. Within thirty (30) days ofthe date of discovery by a party ofthe

inadvertent production by it or a third party ofsuch a document, but no later than ninety (90)

days before the trial date, the party asserting inadvertent production must give written notice to

all parties that the party claims the document, in whole or in part, to be privileged or protected

- 2-

Case 1:08-cv-00202-MML Document 27 Filed 01/05/09 Page 12 of 14
material; in addition, the notice must state the nature ofthe privilege or protection and the factual

basis for asserting it.

2. Upon receipt ofsuch notice, all parties who have received copies ofthe

produced document shall promptly (a) return all such copies to the party asserting inadvertent

production or (b) provide written assurance to the producing party that all such copies have been

destroyed. In the event that only part ofthe document is claimed to be privileged or protected,

the party asserting inadvertent production shall furnish to all parties redacted copies ofsuch

document, removing only the part(s) thereof claimed to be privileged or protected, together with

such written notice. Upon receipt ofthe redacted copy, each party shall promptly (a) return all

unredacted copies to the party asserting inadvertent production or (b) provide written assurance

to the producing party that all unredacted copies have been destroyed.

3. Alternatively, a recipient of any notice pursuant to Subsection III.C. I

above may retain the document and inform the producing party within thirty (30) days ofits

receipt ofsuch notice that the claim of privilege is disputed. Any such party shall retain all

copies ofthe document under dispute segregated from other documents in a file marked

"INADVERTENT PRODUCTION - PRIVILEGE OR PROTECTION DISPUTED." The party

asserting inadvertent production shall be deemed to have waived the claim of privilege or

protection unless it moves for an order confirming that the claim of privilege or protection is

well-founded within thirty (30) days ofreceiving notice that the claim of privilege or protection

is disputed. No party may use any such document (except in connection with such a motion

concerning the privileged status ofthe document) before the motion is resolved or the time for

filing such a motion has passed and no motion has been filed. The procedure stated in this

subsection (III,C) shall be subject to any rights to recall witnesses or any rights to question

- 3 -

Case 1:08-cv-00202-MML Document 27 Filed 01/05/09 Page 13 of 14
witnesses regarding the basis or bases for the privilege or protection, provided that in any other

motion any party may refer to any pending motion to compel and any matters submitted in

support of any pending motion to compel.

4. After service of a notice in accordance with this section claiming that a

privileged or protected document was inadvertently produced, no opposition to a motion

requesting confirmation ofthe privileged or protected nature ofthe document shall rely on an

allegation that any privilege or protection as to the document was waived by its inadvertent

production. However, the parties reserve their rights to claim the privilege was waived due to

any delay in claiming the privilege or on account of any party's detrimental reliance on a claimed

privileged document inadvertently produced.

5. Ifthe Court rules that the inadvertently produced document is privileged

or protected, all parties shall, within thirty (30) days, either (a) return the segregated copy and

any other copies in their possession or control to the party asserting inadvertent production or (b)

provide written assurance to the producing party that all such copies have been destroyed. Ifthe

Court rules that the document is not privileged or protected, or the party asserting the claim of

privilege or protection waives its claim by failing to file a timely motion to confirm the privilege

or protection, parties need not keep the document segregated.

6. The provisions of paragraphs 1-4 above are without prejudice to any other

rights any party may have with respect to challenging or defending any claim of privilege.

- 4-

Case 1:08-cv-00202-MML Document 27 Filed 01/05/09 Page 14 of 14