Supreme Court of Texas Further Defines “Fishing Expeditions”

On October 31, 2014, the Supreme Court of Texas issued a per curium opinion having potentially far-reaching impact on first-party insurance litigation discovery practices. The Court curtailed the common tactic of requesting "all claims files" of the insurer in first-party insurance litigation in an attempt to show a practice of underpayment—holding that other insureds’ claims files were only discoverable if some showing of relevance was made first.

In the instant case, Cedar Hill resident Mary Erving filed a claim for wind and hail damage with her homeowner’s carrier, National Lloyds Insurance Company. As with many other cases filed by her law firm, she sought production of all claims files from the previous six years by three adjusters and all claims files from the previous year for properties in Dallas and Tarrant Counties involving certain adjusting firms. National Lloyds objected to such production as overboard, unduly burdensome, and not calculated to lead to the discovery of admissible evidence. The trial court granted Ms. Erving’s motion to compel in part, ordering the production of claims files from the two adjusting firms that handled her claims, limiting the order to Cedar Hill claims stemming from the same two storms that damaged Ms. Erving’s home. National Lloyds filed a petition for writ of mandamus with the court of appeals, which denied relief, and then with the Supreme Court of Texas. The Court held that the trial court abused its discretion in compelling the production of claims files for other insureds, even when those claims involved the same storms and adjusting firms in the same town. As the Court explained, whether National Lloyds overpaid, underpaid, or correctly paid other claims does not prove it improperly paid Erving's claim. The Court noted that such claims files were discoverable only if some showing of relevance was made first: “Scouring claim files in hopes of finding similarly situated claimants whose claims were evaluated differently from Erving’s is at best an ‘impermissible fishing expedition.’"