
    STATE FARM FIRE AND CASUALTY COMPANY, Plaintiff, v. Donald E. NOKES, Jr., et al., Defendants.
    Cause No. 2:08-CV-312-PPS-PRC.
    United States District Court, N.D. Indiana, Hammond Division.
    Sept. 30, 2009.
    Order Denying Reconsideration Nov. 30, 2009.
    
      John H. Halstead, Querrey & Harrow, Merrillville, IN, for Plaintiff.
    Jere L. Humphrey, Wyland Humphrey Wagner Gifford & Clevenger LLP, Plymouth, IN, for Donald E. Nokes, Jr., Patricia Ann Nokes.
    Elizabeth A. Flynn, Braje Nelson & Janes LLP, Michigan City, IN, for Steven Davis.
    Anna Marie Hearn, Law Office of Anna M. Hearn, Valparaiso, IN, for Brandon Phelps.
   OPINION AND ORDER

PAUL R. CHERRY, United States Magistrate Judge.

This matter is before the Court on (1) State Farm Fire and Casualty Company’s Motion for Protective Order [DE 58], filed by Plaintiff on September 1, 2009; (2) State Farm Fire and Casualty Company’s Amended Motion for Protective Order and Request for Fees [DE 63], filed by Plaintiff on September 4, 2009; and a(3) Motion to Compel Answers to Interrogatories and Award Fees [DE 65], filed by Defendants Donald E. Nokes, Jr. and Patricia Ann Nokes (“the Nokes Defendants”) on September 9, 2009.

On October 24, 2008, Plaintiff filed a Complaint for Declaratory Judgment, related to an underlying negligence suit arising from the molestation of a child in the Nokes Defendants’ custody. Plaintiff filed an Amended Complaint for Declaratory Judgment on January 14, 2009. Plaintiff seeks a declaratory judgment that there is no coverage under the Nokes Defendants’ insurance policy for the claims, resulting bodily injury, and any liability of the Nokes Defendants related to the underlying suit. Further, Plaintiff requests that the Court declare that Plaintiff has no duty under the Nokes Defendants’ insurance policy to either defend or indemnify the Nokes Defendants in any claim or lawsuit that may be pending related to the alleged molestation in the underlying suit.

On January 23, 2009, the Nokes Defendants filed an Answer to Amended Complaint, alleging that Plaintiff is estopped from asserting the claims in its Amended Complaint and has waived any rights to deny coverage to the Nokes Defendants.

In the instant Motion to Compel, the Nokes Defendants represent that in a previous lawsuit filed in the Starke Circuit Court, alleging that a previous foster child molested another child in the Nokes Defendants’ care, Plaintiff informed the Nokes Defendants that their insurance policy covered the claims and Plaintiff settled the lawsuit.

Plaintiff filed a Motion for Summary Judgment on July 15, 2009. In response, the Nokes Defendants submitted Interrogatories to the Plaintiff, requesting information as to the reasons why the Nokes Defendants were covered by their insurance policy in the previous molestation suit, but not the instant suit. Plaintiff objected to the Interrogatories on the basis that they were not reasonably calculated to lead to the discovery of admissible evidence, and two of the Interrogatones called for information protected by the work product doctrine.

As a result of Plaintiffs objections, the Nokes Defendants filed a Motion to Compel on September 2, 2009, refiled in its entirety on September 9, 2009. In the Motion to Compel, the Nokes Defendants request that the Court compel Plaintiff to answer the Interrogatories and award fees incurred in filing the Motion. In response, Plaintiff filed a Motion for Protective Order, and Amended Motion for Protective Order and Fees. In the Motion for Protective Order, Plaintiff requests that the Court issue an order forbidding discovery regarding the bases for Plaintiffs decision to provide or refuse insurance coverage in the previous molestation lawsuit or the instant suit. The Court addresses each, beginning with Plaintiffs request for a protective order.

ANALYSIS

1. Plaintiff’s Request for a Protective Order

Federal Rule of Civil Procedure 26(e)(1) provides that:

A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending — or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
(A) forbidding the disclosure or discovery

Fed.R.Civ.P. 26(c)(1) (emphasis added). A district court has discretion in deciding when a protective order is appropriate and what degree of protection is required. Felling v. Knight, 211 F.R.D. 552, 554 (S.D.Ind.2003). As Rule 26(e)(1) provides, only good cause is required in determining whether or not to issue a protective order. Beauchem v. Rockford Prods. Corp., No. 01 C 50134, 2002 WL 31155088, at *3 (N.D.Ill. Sept.27, 2002). “The rule essentially operates to balance the public’s interest in open proceedings against an individual’s private interest in avoiding ‘annoyance, embarrassment, oppression, or undue burden or expense ....’” Felling, 211 F.R.D. at 554. The party seeking the protective order has the burden of showing that good cause exists for it. Id.

As a preliminary matter, Plaintiffs Motion for Protective Order and Amended Motion for Protective Order and Request for Fees are substantively the same except that the latter makes the additional request for fees under Rule 26(c)(3). Accordingly, the Court denies as moot the Motion for Protective Order.

In support of Plaintiffs Amended Motion for Protective Order and Request for Fees, Plaintiff fails to address whether good cause exists to issue a protective order. Rather, Plaintiff solely focuses on whether the Nokes Defendants’ defense of estoppel applies to the instant situation where an insurance company does not assert a policy defense in one claim, but did so in a previous claim arising out of similar circumstances. Although the issue of whether Plaintiff is precluded from arguing that coverage does not exist in the instant litigation is relevant, the Court need not address the issue at this stage of the proceedings. The issue relevant to whether the Court should grant Plaintiffs request for a protective order is whether Plaintiff has established that good cause exists to do so, because Plaintiff, as the moving party, bears the burden of showing that good cause exists. “To establish good cause, a party must submit ‘a particular and specific demonstration of fact, as distinguished from stereotyped and eonclusory statements.’ ” Felling, 211 F.R.D. at 554. Plaintiff has failed to carry its burden in the instant matter.

Plaintiff has failed to show that it will incur annoyance, embarrassment, oppression, or undue burden or expense by having to participate in discovery on the issues of the bases for Plaintiffs decision to provide insurance coverage in the previous suit and refusal to do so in the instant litigation. Plaintiff fails to allege any facts demonstrating that good cause exists to issue a protective order or that it will suffer any harm. Accordingly, the Court denies Plaintiffs Amended Motion for Protective Order and Request for Fees.

2. The Nokes Defendants’ Motion to Compel

The Nokes Defendants represent in the Motion to Compel that they submitted Interrogatories to Plaintiff that inquired into the reasons for Plaintiffs decision to provide payment under the Nokes Defendant’s insurance policy in the previous molestation lawsuit but now deny coverage. In response to the Nokes Defendants’ Interrogatories Nos. 1, 2, 3, 4, 5, and 12, Plaintiff refused to provide answers, instead objecting on the grounds that the request is not reasonably calculated to lead to the discovery of admissible evidence (Interrogatories Nos. 1, 2, 3, 4, 5, and 12), there was no legal authority supporting that Plaintiff could not now assert a policy defense in the instant litigation, although it did not do so in the previous molestation lawsuit (Interrogatories Nos. 1, 2, 3, 4, 5, and 12), and the interrogatory called for mental impressions, conclusions, opinions, and/or legal theories concerning the litigation (Interrogatories Nos. 4, 5, and 12). The Nokes Defendants argue that the Interrogatories are relevant to Plaintiffs reasons for permitting coverage in the previous lawsuit but not the instant suit and the defense of estoppel. Accordingly, the Nokes Defendants request that the Court compel Plaintiff to answer the Interrogatories and award fees incurred in filing the instant Motion.

Plaintiff has not filed a response brief to the instant Motion and did not address these issues in its Amended Motion for Protective Order and Request for Fees. Accordingly, the Court will evaluate the instant Motion in light of the objections raised in Plaintiffs Answers to Defendants’ Interrogatories.

Under Federal Rule of Civil Procedure 26(b)(1), a party may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party. See Fed.R.Civ.P. 26(b)(1). “Relevant information need not be admissible at trial if the discovery appears to be reasonably calculated to lead to the discovery of admissible evidence.” Whitlow v. Martin, 259 F.R.D. 349, 350 (C.D.Ill.2009). Under Rule 33, parties may serve interrogatories inquiring into any matter that is within the scope of Rule 26(b). “A party may seek an order compelling disclosure when an opposing party fails to respond to discovery requests or has provided evasive or incomplete responses.” Id.

Here, in response to the Nokes Defendants’ Interrogatories Nos. 1, 2, 3, 4, 5, and 12, Plaintiff objected on the ground that the requests were not reasonably calculated to lead to the discovery of admissible evidence. See Pl.’s Answer to Defs.’ Interrogs. Nos. 1-5, 12. The burden “rests upon the objecting party to show why a particular discovery request is improper.” McGrath v. Everest Nat. Ins. Co., 625 F.Supp.2d 660, 670 (N.D.Ind.2008). Plaintiff must show with specificity that the request is improper. Graham v. Casey’s General Stores, 206 F.R.D. 251, 254 (S.D.Ind.2002). Aside from making the general objection that the request is not reasonably calculated to lead to the discovery of admissible evidence, Plaintiff fails to provide reasons why. Plaintiffs burden cannot be met by “a reflexive invocation of the same baseless, often abused litany that the requested discovery is vague, ambiguous, overly broad, unduly burdensome or that it is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence.” McGrath, 625 F.Supp.2d at 670.

Further, the Court finds that the information sought through the Interrogatories is relevant to the issues raised in this matter. Interrogatory No. 1 requests information as to why Plaintiff provided coverage in the previous molestation lawsuit; Interrogatory No. 2 requests information as to the amount of the settlement paid by Plaintiff in the previous molestation lawsuit; Interrogatory No. 3 requests information as to whether Plaintiff contested coverage in the previous molestation lawsuit; Interrogatory Nos. 4 and 5 request information as to whether the injuries and damages in the previous molestation lawsuit were the same as alleged in the underlying suit; and Interrogatory No. 12 requests information as to why coverage existed in the previous molestation suit but not the underlying suit, all of which are relevant to the Nokes Defendants’ estoppel defense.

Next, Plaintiff objects to the Interrogatories on the ground that “[tjhere is no legal authority for the proposition that an insurer who does not assert policy defenses in one claim cannot subsequently assert those defenses in a subsequent claim arising out of similar factual circumstances.” Pl.’s Answer to Defs.’ Interrogs. Nos. 1-5, 12. This objection appears to go to the issue of whether the Nokes Defendants can properly invoke the defense of estoppel. As noted above, at this stage of the proceedings, the Court need not determine whether the defense of estoppel applies to the instant litigation. Further, Plaintiff has failed to show how this objection is a proper basis for refusing to answer the Interrogatories.

Finally, Plaintiff objects on the ground that Interrogatories 4, 5, and 12 call for mental impressions, conclusions, opinions, and/or legal theories concerning the litigation. The work product doctrine protects otherwise discoverable documents and tangibles, including an attorney’s thoughts and mental impressions, made in anticipation of litigation. U.S. ex rel. Yannacopoulos v. General Dynamics, 231 F.R.D. 378, 381 (N.D.Ill.2005). Federal Rule of Civil Procedure 26(b)(3) provides, in part, that:

(A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative ... [b]ut, subject to Rule 26(b)(4), those materials may be discovered if: (i) they are otherwise discoverable under Rule 26(b)(1); and (ii) the party shows that it has substantial need for the materials to prepare its ease and cannot, without undue hardship, obtain their substantial equivalent by other means. (B) Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.

Fed.R.Civ.P. 26(b)(3). Rule 26(b)(3) distinguishes between ordinary/fact work product and opinion work product. Eagle Compressors, Inc. v. HEC Liquidating Corp., 206 F.R.D. 474, 478 (N.D.Ill.2002). Fact work product consists of factual material while opinion work product consists of the mental impressions, conclusions, opinions, or legal theories of an attorney. U.S. ex rel. Yannacopoulos, 231 F.R.D. at 382. Here, Plaintiff invokes the opinion work product doctrine. “Factual information may not be withheld under the work product doctrine, but must be produced through interrogatories, depositions or other discovery.” Eagle Compressors Inc., 206 F.R.D. at 478. Further, the party invoking the work product privilege bears the burden of establishing that the privilege applies. Miyano Machinery USA, Inc. v. MiyanoHitec Machinery, Inc., 257 F.R.D. 456, 460 (N.D.Ill.2008).

Aside from making the general allegation that the Interrogatories request information covered by the work product privilege, Plaintiff has failed to provide the Court with sufficient detail to allow the Court to determine if this privilege applies to the requested information. Further, the Interrogatories appear to request factual information, rather than opinions, mental impressions, conclusions, or legal theories concerning the litigation. As previously discussed in this Opinion and Order, Interrogatory No. 4 and No. 5 request information regarding whether the injuries and damages were the same as alleged in the instant matter. Further, Interrogatory No. 12 asks why coverage existed in the previous molestation suit but not in the suit underlying the instant matter. These requests solely request facts and “the privilege only extends to documents and tangible things, not to underlying facts.” Transcap Associates, Inc. v. Euler Hermes American Credit Indemnity Co., No. 08-C-723, 2009 WL 1543857, at *3 (N.D.Ill. June 3, 2009). Accordingly, Plaintiff cannot rely on the work product privilege to avoid responding to these Interrogatories.

The Nokes Defendants filed a Certification of Informal Conference to Settle Discovery Disputes, as required by Rule 37(a)(1) of the Federal Rules of Civil Procedure and Local Rule 37.1. Counsel for the Nokes Defendants represents that he conferred with counsel for Plaintiff via telephone on August 24, 2009, and that the parties were unable to resolve their discovery disputes.

Rule 37(a) of the Federal Rules of Civil Procedure, in part, provides:

If the motion [to compel] is granted — or if the disclosure or requested discovery is provided after the motion was filed — the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant’s reasonable expenses incurred in making the motion, including attorney’s fees. But the court must not order this payment if:
(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action;
(ii) the opposing party’s nondisclosure, response, or objection was substantially justified; or
(iii) other circumstances make an award of expenses unjust.

Rule 37(a)(5)(A).

Accordingly, the Court grants the Motion to Compel and grants the Nokes Defendants’ request for fees.

CONCLUSION

Having reviewed the instant Motions, the Court hereby (1) DENIES AS MOOT the State Farm Fire and Casualty Company’s Motion for Protective Order [DE 58]; (2) DENIES the State Farm Fire and Casualty Company’s Amended Motion for Protective Order and Request for Fees [DE 63];and (3) GRANTS the Motion to Compel Answers to Interrogatories and Award Fees [DE 65].

The Court ORDERS Plaintiff to respond and serve upon the Nokes Defendants its responses to their Interrogatories Nos. 1, 2, 3, 4, 5, and 12 by October 16,2009.

The Court GRANTS the Nokes Defendants’ request for reasonable expenses incurred in filing the Motion to Compel Answers to Interrogatories and Award Fees and ORDERS the Nokes Defendants to file an affidavit detailing their itemization of costs and fees related to the Motion.

SO ORDERED.

OPINION AND ORDER

This matter is before the Court on State Farm’s Motion for Relief from Court’s Order [DE 72], filed by Plaintiff on October 27, 2009. The Nokes Defendants filed a response brief on November 2, 2009. No reply brief has been filed and the time to do so has passed.

PROCEDURAL AND FACTUAL BACKGROUND

On September 30, 2009, the Court issued an Opinion and Order denying Plaintiffs Amended Motion for Protective Order and Request for Fees [DE 63], denying as moot Plaintiffs Motion for a Protective Order [DE 58], and granting the Nokes Defendants’ Motion to Compel Answers to Interrogatories and Award Fees [DE 65].

As discussed in the September 30, 2009 Opinion and Order, on October 24, 2008, Plaintiff filed a Complaint for Declaratory Judgment, related to an underlying negligence suit arising from the molestation of a child in the Nokes Defendants’ custody. Plaintiff provided insurance coverage to the Nokes Defendants during the time period related to the underlying suit. Plaintiff filed an Amended Complaint for Declaratory Judgment on January 14, 2009. Plaintiff seeks a declaratory judgment that there is no coverage under the Nokes Defendants’ insurance policy for the claims, resulting bodily injury, and any liability of the Nokes Defendants related to the underlying suit. Further, Plaintiff requests that the Court declare that Plaintiff has no duty under the Nokes Defendants’ insurance policy to either defend or indemnify the Nokes Defendants in any claim or lawsuit that may be pending related to the alleged molestation in the underlying suit.

On January 23, 2009, the Nokes Defendants filed an Answer to Amended Complaint, alleging that Plaintiff is estopped from asserting the claims in its Amended Complaint and has waived any rights to deny coverage to the Nokes Defendants.

In the Motion to Compel, the Nokes Defendants represented that in a previous lawsuit filed in the Starke Circuit Court, alleging that a previous foster child molested another child in the Nokes Defendants’ care, Plaintiff informed the Nokes Defendants that their insurance policy covered the claims and Plaintiff settled the lawsuit.

Plaintiff filed a Motion for Summary Judgment on July 15, 2009. In response, the Nokes Defendants submitted Interrogatories to the Plaintiff, requesting information as to the reasons why the Nokes Defendants were covered by their insurance policy in the previous molestation suit, but not the instant suit. Plaintiff objected to the Interrogatories on the basis that they were not reasonably calculated to lead to the discovery of admissible evidence, and two of the Interrogatories called for information protected by the work product doctrine.

As a result of Plaintiffs objections, the Nokes Defendants filed a Motion to Compel on September 2, 2009, refiled in its entirety on September 9, 2009. In the Motion to Compel, the Nokes Defendants requested that the Court compel Plaintiff to answer the Interrogatories and award fees incurred in filing the Motion. Plaintiff did not file a response brief to the Motion to compel, but did file a Motion for Protective Order, and Amended Motion for Protective Order and Fees. In the Motion for Protective Order, Plaintiff requested that the Court issue an order forbidding discovery regarding the bases for Plaintiffs decision to provide or refuse insurance coverage in the previous molestation lawsuit.

In its September 30, 2009 Opinion and Order, the Court denied Plaintiffs request for a protective order, finding that Plaintiff failed to show good cause for granting such an order. The Court granted the Nokes Defendants’ Motion to Compel, finding that the information requested was relevant to the Nokes Defendants’ estoppel defense, and ordered Plaintiff to respond to the Nokes Defendants’ Interrogatories Nos. 1, 2, 3, 4, 5, and 12 by October 16, 2009, and granted the Nokes Defendants’ request for reasonable expenses incurred in filing the Motion to Compel.

In the instant Motion, Plaintiff asks the Court to reconsider its finding that the Nokes Defendants’ discovery request was reasonably calculated to lead to the discovery of admissible evidence and reconsider the award of attorney’s fees to the Nokes.

ANALYSIS

As a preliminary matter, Plaintiff relies on Federal Rule of Civil Procedure 60 as the basis for requesting that the Court reconsider the September 30, 2009 Opinion and Order. However, Plaintiffs reliance on Rule 60 in this matter is improper as Rule 60 only applies to final orders. See Santamarina v. Sears, Roebuck & Co., 466 F.3d 570, 571-72 (7th Cir.2006) (discussing that Rule 60(b) by its terms is limited to “final” judgments or orders and does not apply to interlocutory orders); Fed.R.Civ.P. 60, Advisory Committee Notes on 1946 Amendment to Subdivision (b) (“The addition of the qualifying word ‘final’ emphasizes the character of the judgments, orders, or proceedings from which Rule 60(b) affords relief; and hence interlocutory judgments are not brought within the restrictions of the rule, but rather they are left subject to the complete power of the court rendering them to afford such relief from them as justice requires.”).

Rather, reconsideration of an interlocutory order, such as the order at issue here, is a matter of a district court’s inherent power and is committed to a court’s sound discretion. Cima v. Wellpoint Health Networks, Inc., 250 F.R.D. 374, 386 (S.D.Ill. 2008). Motions to reconsider “serve a limited function: to correct manifest errors of law or fact or to present newly discovered evidence.” Id. (quoting Zurich Capital Mkts. Inc. v. Coglianese, 383 F.Supp.2d 1041, 1045 (N.D.Ill.2005)). Reconsideration of an interlocutory order may be granted where “the court has misunderstood a party; the court has made a decision outside the adversarial issues presented to the court by the parties; the court has made an error of apprehension (not of reasoning); a significant change in the law has occurred; or significant new facts have been discovered.” Id. Motions for reconsideration cannot be employed to introduce new evidence that could have been adduced during the pendency of the underlying motion and “is not an appropriate forum for rehashing previously rejected arguments or arguing matters that could have been heard during the pendency of the previous motion.” Caisse Nationale De Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1269-70 (7th Cir. 1996).

Here, Plaintiff essentially argues that the Court misunderstood Plaintiffs objection to the requested discovery or made an error of apprehension. In particular, Plaintiff argues that the Court treated its contentions that the Nokes Defendants’ discovery request was not reasonably calculated to lead to the discovery of admissible evidence and that there is no legal authority for the proposition that an insurer who does not assert a policy defense in one claim cannot do so in a subsequent claim arising out of similar factual circumstances as two separate objections when the latter was merely a clarification of why the request was not reasonably calculated to lead to the discovery of admissible evidence.

To the extent that the Court may have viewed Plaintiffs contentions as two separate objections, the Court nonetheless evaluated each contention and rejected it. In the Court’s September 30, 2009 Opinion and Order, it determined that the information that the Nokes Defendants sought through their Interrogatories is relevant to the defense of estoppel. Further, the Court found that Plaintiffs contention that there is no legal authority supporting that an insurer who failed to assert a policy defense in one claim cannot do so in a subsequent claim arising out of similar factual circumstances goes to the issue of whether the defense of estoppel properly applies to this matter. The Court noted that at this stage of the proceedings, it did not need to determine whether the defense of estoppel applies to the instant litigation and Plaintiff failed to show how this was a proper basis for refusing to answer the Nokes Defendants’ Interrogatories. Accordingly, the Court addressed, and rejected, each part of the Plaintiffs objection.

Nonetheless, in the instant Motion, Plaintiff represents that it does not ask the Court to decide whether the estoppel defense applies at this stage of the proceedings, essentially representing that Plaintiff has failed to show the relevancy of the information requested, yet Plaintiff argues that the Nokes Defendants have failed to show how the estoppel defense applies here and essentially attacks the Nokes Defendants’ reliance on this defense and on their coverage of the prior claim. First, Plaintiff argues that the Nokes Defendants have failed to explain how the estoppel defense applies in this case. However, in support of their Motion to Compel, the Nokes Defendants specifically argued that they relied upon Plaintiffs alleged representations of coverage in the underlying suit by maintaining insurance coverage with the Plaintiff. Next, Plaintiff argues that the Nokes Defendants have the burden of showing how the information sought is potentially relevant. However, when dealing with a discovery objection, as the Court did in the September 30, 2009 Opinion and Order when addressing the Motion to Compel, the burden “rests upon the objecting party to show why a particular discovery request is improper.” McGrath v. Everest Nat. Ins. Co., 625 F.Supp.2d 660, 670 (N.D.Ind.2008) (emphasis added). The Court already found that the Plaintiff failed to satisfy this burden.

Further, Plaintiff argues that the Nokes Defendants have failed to explain how they relied on Plaintiffs coverage of the prior claim and Plaintiff attempts to disprove reliance by the Nokes Defendants. However, Plaintiff rehashes arguments regarding the applicability of estoppel to this matter that the Court already rejected. In its September 30, 2009 Opinion and Order, the Court provided that at this stage of the proceedings the Court need not determine if the defense of estoppel applies, instead determining whether good cause existed to grant Plaintiffs requested protective order and if Plaintiff showed that the discovery request was improper. Here, Plaintiff seeks to have the Court re-evaluate this issue when it already determined that it need not do so at this stage of the proceedings.

Further, Plaintiff raises the new argument that the actions underlying the previous suit and the instant suit occurred during the same time period and, thus, it was impossible for the Nokes Defendants to rely on Plaintiffs coverage of the previous suit. These are arguments that could have been made during the pendency of the Motion to Compel, yet Plaintiff failed to file a response brief, as noted in the September 30, 2009 Opinion and Order, and Plaintiff cannot now raise these arguments. Caisse Nationale, 90 F.3d at 1269-70.

Accordingly, Plaintiffs attempts to rehash arguments that were already rejected by this Court and new arguments that it previously could have raised are improper bases for reconsidering the Court’s September 30, 2009 Opinion and Order. See id. Therefore, Plaintiff has failed to show manifest error of law or fact in the Court's granting of the Motion to Compel and finding that the requested information is reasonably calculated to lead to the discovery of admissible evidence. Therefore, to this extent, the Court denies the instant Motion.

Finally, Plaintiff requests that the Court reconsider its award of attorney’s fees pursuant to Federal Rule of Civil Procedure 37(a) (5)(A). In support of this request, Plaintiff correctly points out that the Court failed to specifically address whether Plaintiffs objections to the requested discovery were “substantially justified.” While the Court found that the Nokes Defendants filed a Certification of Informal Conference to Settle Discovery Disputes, as required by Rule 37(a)(1) and Local Rule 37.1, the Court failed to make a specific finding as to whether Plaintiffs nondisclosure or objection was substantially justified. Plaintiff argues that because it is unclear how the defense of estoppel could apply to the facts of this case, its objection was substantially justified. However, this is an argument that could have been raised during the pendency of the Motion to Compel. Instead, Plaintiff failed to respond to the Motion to Compel and filed its Motion for Protective Order, which failed to address the issue of whether the objections were substantially justified.

Further, as addressed in the September 30, 2009 Opinion and Order, aside from objecting to Interrogatories Nos. 1, 2, 3, 4, 5, and 12 on the basis that they were not reasonably calculated to lead to the discovery of admissible evidence, Plaintiff objected to Interrogatories Nos. 4, 5, and 12 on the basis that the sought information was protected under the work product doctrine. However, the Court found that aside from generally invoking the work product doctrine, Plaintiff failed to provide the Court with sufficient detail to determine whether the privilege applies to the requested information while the Interrogatories solely requested facts, which are not protected by the work product doctrine. Accordingly, the Court found that Plaintiff could not rely on this doctrine to avoid responding to the Interrogatories.

Further, the Court determined, with regard to the request for a protective order, that Plaintiff failed to show good cause for issuing a protective order forbidding discovery as to the requested information.

Accordingly, as discussed in the September 30, 2009 Opinion and Order, Plaintiff has failed to show good cause for prohibiting discovery on the requested information, that the work product doctrine properly applies to this matter, and how a dispute as to whether estoppel applies to the instant litigation is a proper basis for refusing to answer the Interrogatories. Therefore, Plaintiff has failed to show that its objections were substantially justified. Accordingly, the Court denies the instant Motion as to reconsideration of the award of attorney’s fees.

CONCLUSION

Having reviewed the instant Motion, the Court hereby DENIES State Farm’s Motion for Relief from Court’s Order [DE 72], The Court ORDERS Plaintiff to respond and serve upon the Nokes Defendants its responses to their Interrogatories Nos. 1, 2, 3, 4, 5, and 12 by December 15,2009.

The Court further ORDERS Plaintiff to pay the Nokes Defendants’ reasonable attorney’s fees in the amount of $1,050.00, as provided in the Court’s October 20, 2009 Order, by December 31, 2009.

SO ORDERED. 
      
      . Because the Court has denied Plaintiffs request for a protective order, its request for fees under Rule 26(c)(3) is also denied.
     
      
      . Plaintiff refers to "Trial Rule 60” as permitting a Court to relieve a party from part of an order for any reason that justifies relief. See Mot. at ¶ 12. The Court assumes that this is a typographical error and Plaintiff meant to refer to Federal Rule of Civil Procedure 60, which allows a court to "relieve a party or its legal representative from a final judgment, order, or proceeding for ... any other reason that justifies relief.” Fed.R.Civ.P. 60(b)(6) (emphasis added).
     
      
      . In presenting these new arguments, Plaintiff also improperly relies on evidence (exhibits attached to the Complaint and Motion to Compel) that was available during the pendency of the Motion to Compel.
     
      
      . Plaintiff incorrectly refers to this rule as "Trial Rule 37(5)’’ but quotes the language of Rule 37(a)(5)(A).
     