Case 1:09-cv-00447-JLK-MEH Document 67 Filed 10/27/2009 USDC Colorado Page 1 of 33

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

DISH NETWORK CORPORATION AND :

DISH NETWORK L.L.C., :
:
Dish Network, :
:
v. : No. 2009 CV 00447-JLK-MEH
:
ARCH SPECIALTY INSURANCE COMPANY; :
ARROWOOD INDEMNITY COMPANY; :
NATIONAL UNION FIRE INSURANCE :
COMPANY OF PITTSBURGH, PA.; TRAVELERS :
INDEMNITY COMPANY OF ILLINOIS; AND XL :
INSURANCE AMERICA, INC., :
:
Defendants. :

DISH NETWORK’S COMBINED MOTION AND MEMORANDUM

TO COMPEL DISCOVERY FROM ALL DEFENDANTS
AND FOR ATTORNEY FEES AND COSTS

Dish Network Corporation and Dish Network L.L.C. (collectively, “Dish Network”) submit

this combined motion and memorandum of law, pursuant to Federal Rule of Civil Procedure 37(a)

and D.C.Colo.LCivR 7.1, to: (1) compel discovery from the defendant-insurers (collectively, the

“Insurers”) and (2) recover from the Insurers the attorney fees and other expenses incurred in the

filing of Dish Network’s motion.1

INTRODUCTION

This is an insurance coverage action through which Dish Network seeks, among other

things, a defense against any claim asserted and indemnification for any damages paid in an

underlying lawsuit captioned as: Ronald A. Katz Technology Licensing, L.P. v. EchoStar Satellite

1
Prior to filing this motion, Dish Network conferred in good faith with the Insurers, pursuant to
D.C.Colo.LCivR 7.1.A., in an attempt to resolve the discovery disputes addressed herein. The efforts in that regard
are recounted in the certification of Dish Network’s counsel as set forth in the declaration of Lee M. Epstein (the
“Epstein Dec.”), dated October 26, 2009, and submitted in support of Dish Network’s motion to compel.
Case 1:09-cv-00447-JLK-MEH Document 67 Filed 10/27/2009 USDC Colorado Page 2 of 33

L.L.C., Case No. 07-03151 WDB (N.D. Cal.) (the “Katz Technology Lawsuit”).2 The parties agreed

to litigate this case in phases, with Phase One devoted to the Insurers’ duty to defend the interests of

Dish Network in the Katz Technology Lawsuit. That agreement is reflected in the Stipulated

Scheduling and Discovery Order entered by the Court (attached as Ex. “1” to the Epstein Dec.). In

issuing that Order, the Court considered and rejected the Insurers’ contention that discovery during

Phase One was unnecessary and allowed a period of discovery extending until November 13, 2009.

(See Stipulated Scheduling and Discovery Order at 23, annexed to the Epstein Dec. at Ex. 1).

Consistent with the Stipulated Scheduling and Discovery Order, Dish Network propounded

discovery for the purpose of, among other things, eliciting information concerning the meaning of

the operative insurance policy language, including evidence reflecting alternative, reasonable

interpretations of that language. For the most part, the Insurers objected to the discovery sought by

Dish Network and refused to produce responsive information. They argued generally that the

discovery sought by Dish Network is not relevant in this duty to defend phase of the case.

The position advanced by the Insurers is misguided. As discussed fully herein, the

discovery sought by Dish Network is highly relevant and the Insurers should be compelled to

produce the information sought by Dish Network. Moreover, the Insurers have failed to comply

with the initial disclosure requirements of Fed. R. Civ. P. 26(a) and should be compelled to comply

fully with those requirements. In light of the Insurers’ failure to comply with its discovery and

disclosure obligations, Dish Network is also entitled to an award of attorneys’ fees and expenses.

2
EchoStar Communications Corp. has since been renamed Dish Network Corporation and EchoStar Satellite
L.L.C. has since been renamed Dish Network L.L.C.

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LEGAL ARGUMENT

I. The Insurers Should Be Compelled To Respond Fully To Interrogatory No. 7

Which Seeks Information Concerning The Insurers’ Membership In ISO
And Dates Thereof .

Dish Network seeks to compel complete responses to a single one of its First Set of

Interrogatories (attached to the accompanying Epstein Affidavit as Ex. 2). That interrogatory

provides, in full, as follows:

 Interrogatory No. 7: State whether You have ever been a member of

ISO and, if so, the dates of Your membership.

An appreciation of the relevance of the ISO-related information sought by Interrogatory No. 7

requires some background in the nature of liability insurance in general, and Advertising Injury

Liability insurance in particular.

This case concerns the respective rights and obligations of Dish Network and the Insurers

under the Advertising Injury Liability coverage portion of the Commercial General Liability

(“CGL”) insurance policies sold to Dish Network. (See generally Stipulated Scheduling and

Discovery Order at 8-18, annexed to the Epstein Dec. at Ex. 1). As is typical of CGL insurance

policies, the Advertising Injury Liability insurance policy language at issue in this case was

promulgated by the Insurance Services Office (“ISO”).3 ISO first introduced personal and

advertising injury liability coverage in 1973 as part of the Broad Form Comprehensive General

Liability Endorsement (“Broad Form Endorsement”). J. Thomas McCarthy, McCarthy on

Trademarks & Unfair Corporation, § 33:5 at 33-10 (4th ed. 2009) (“McCarthy”); see also State

Farm Fire and Cas. Co. v. Steinberg, 393 F.3d 1226, 1231 n. 2 (11th Cir. 2004). With regard to

3
ISO “is an insurance industry-supported organization that develops standard insurance policy language.”
Weitz Co. LLC v. Mid-Century Ins. Co., 181 P.3d 309, 311 (Colo. Ct. App. 2007) (citation omitted).

3
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personal and advertising injury liability coverage, the Broad Form Endorsement provided as

follows:

The company will pay on behalf of the insured all sums which the insured shall
become legally obligated to pay as damages because of … Personal Injury or
Advertising Injury to which this insurance applies … arising out of the conduct of
the named insured’s business….

“Advertising Injury” means injury arising out of an offense committed during the
policy period occurring in the course of the named insured’s advertising activities, if
such injury arises out of libel, slander, defamation, violation of right of privacy,
piracy, unfair competition, or infringement of copy right, title or slogan.

McCarthy, at 33-10 (alteration in original); see also Novell, Inc. v. Federal Ins. Co., 141 F.3d 983,

986-87 (10th Cir. 1998) (prior to 1986, CGL policies typically defined advertising injury as

injury arising out of, among other things, “privacy” and “unfair competition”). The 1973 Broad

Form Endorsement specifically excluded coverage for certain types of infringement claims, but

not patent infringement claims. McCarthy, at 33-10.4

In 1986, ISO amended its standard form CGL policy and revised the definition of

“advertising injury” to mean injury arising out of one or more of the following offenses:

(a) Oral or written publication of material that slanders or libels a person or

organization or disparages a person’s or organizations’ goods, products or
services;

(b) Oral or written publication of material that violates a person’s right of

privacy;

(c) Misappropriation of advertising ideas or style of doing business; or

(d) Infringement of copyright, title or slogan.

4
That exclusion purported to bar coverage for claims of:

infringement of trademark, service mark or trade name, other than titles or slogans, by use thereof
on or in connection with goods, products or services sold, offered for sale or advertised.

Id.

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McCarthy, at 33-10-11; see also Novel, 141 F.3d at 986-87. This definition of “advertising injury”

is set forth in the majority of the insurance policies at issue in this case. (See Stipulated Scheduling

and Discovery Order at 8-18, annexed to the Epstein Dec. at Ex. 1). The 1986 form removed the

terms “piracy” and “unfair competition” from the list of advertising injury offenses and replaced

them with the offense of “misappropriation of advertising ideas or style of doing business.”

McCarthy, at 33-11; Novell, 141 F.3d at 987. Nevertheless, ISO explained, at the time, that no

change was intended in the scope of coverage:

Coverage in basic policy, simplified with no change in scope. Coverage triggered,

as in current policy, by offense committed during policy period.

McCarthy, at 33-11 (citing ISO Introduction and Overview for the 1986 Standard Form

Commercial General Liability Policy Revision (April 1985)).

In 1998, ISO revised the standard form CGL policy further by deleting the phrase

“advertising injury” and replaced it with the phrase “personal and advertising injury,” which it

defined as:

(d) oral or written publication of material that slanders or libels a person or

organization or disparages a person’s or organizations’ goods, products or
services;

(e) oral or written publication of material that violates a person’s right of

privacy;

(f) the use of another’s advertising idea in your “advertisement”; or

(g) infringing upon another’s copyright, trade dress or slogan in your

“advertisement.”

McCarthy, at 33-11-12; see also Steinberg, 393 F.3d at 1231 n. 2. This language purportedly is

contained in one of the insurance policies at issue in this case. (See Stipulated Scheduling and

Discovery Order at 15, annexed to the Epstein Dec. at Ex. 1).

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Thereafter, in 2001, ISO added an exclusion purporting to bar coverage for personal and

advertising injury:

arising out of the infringement of copyright, patent, trademark, trade secret or other
intellectual property rights. However, this exclusion does not apply to infringement,
in your ‘advertisement,’ of copyright, trade dress or slogan.

McCarthy, § 33:15 at 33-44; see also Steinberg, 393 F.3d at 1251 n. 2. That exclusion is

purportedly in one of the insurance policies at issue in this case. (See Stipulated Scheduling and

Discovery Order at 6, annexed to the Epstein Dec. at Ex. 1).

The foregoing history and evolution of Advertising Injury Liability coverage raises

numerous questions that Dish Network is attempting to answer through discovery. For example:

1. Did the omission of patent infringement from the exclusion for certain enumerated

infringement claims (such as “trademark, service mark or trade name”) in the 1973 Broad Form

Endorsement connote an intent by insurers to cover patent infringement claims?

2. Did the deletion in 1986 of the exclusion for certain enumerated infringement claims

connote an intent by insurers to cover infringement claims? See, e.g., Lebas Fashion Imports of

USA, Inc. v. ITT Hartford Ins. Group, 59 Cal. Rptr.2d 36, 46-47 (Cal. Ct. App. 1996) (“the fact that

the trademark exclusion was dropped from the policy could contribute to the objectively reasonable

expectation that a trademark infringement was now a covered act under the advertising injury

clause”).

3. Did ISO’s representation in 1986 that there was no change in the scope of coverage

when the definition of advertising injury was revised by deleting the word “piracy” and inserting the

phrase “misappropriation of advertising ideas or style of doing business” connote an intent to

continue insuring patent infringement claims that were previously covered as a form of “piracy?”

See, e.g., Union Ins. Co. v. Land and Sky, Inc., 529 N.W.2d 773, 778 (Neb. 1995); New Hampshire

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Ins. Co. v. R.L. Chaides Constr. Co., 847 F.Supp. 1452, 1456 (N.D. Cal. 1994); National Union

Fire Ins. Co. of Pittsburgh, Pa. v. Siliconix Inc., 729 F.Supp. 77, 79 (N.D. Cal. 1989); Omnitel v.

Chubb Group of Ins. Cos., 26 U.S.P.Q.2d 1933 (Cal. Super. Ct. 1993).5

4. What is the import of ISO’s modification of the definition of advertising injury in

1998 by deleting the phrase “misappropriation of advertising ideas or style of doing business” and

replacing it with the phrase “the use of another’s advertising idea in your advertisement?”

5. Did ISO’s adoption of an intellectual property exclusion purportedly applicable to

advertising injury claims arising out of the infringement of patent connote that absent such an

exclusion, patent infringement claims were covered? See Dupre v. Allstate Ins. Co., 62 P.3d 1024,

1029 (Colo. Ct. App. 2003) (“An exclusion is unnecessary unless the excluded event would

otherwise fall within the coverage provisions.”) (citation omitted).

These issues are equally as important in the context of an insurer’s duty to defend as they are

in the context of an insurer’s duty to indemnify and, they alone, warrant the discovery sought by

Dish Network. Indeed, the courts of Colorado have relied on this precise type of drafting history in

interpreting insurance policy language. For example in Weitz, the Colorado Court of Appeals

examined the ISO drafting history of an additional insured endorsement in determining that the

meaning of the phrase “arising out of your ongoing operations” did not cover “completed

operations” and, as a consequence, the insurer had no duty to defend or indemnify. Weitz, 181 P.3d

at 314-15. Moreover, to the extent that the Insurers were members of ISO, they are bound by ISO’s

representations regarding the meaning and scope of the policy language at issue in this case. See

5
In this regard, it is important to note that the American International Companies, of which defendant
National Union is a member, represented, in marketing materials for its “Patent Infringement Liability Insurance,” that
coverage for “piracy” under CGL policies may implicate an insurer’s duty to defend. See discussion, infra at 21-22.

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Gerrish Corp. v. Universal Underwriters Ins. Co. Kansas City, Mo., 754 F.Supp. 358, 370 (D.

Vt. 1990), aff’d, 947 F.2d 1023 (2d Cir. 1991).

For all these reasons, the Insurers’ objection to Interrogatory No. 76 on the basis of

relevancy should be rejected. In addition, any boilerplate or generalized objections, (see, e.g.,

Epstein Dec. at Ex. 7 [National Union]), should also be rejected for the reasons set forth infra at

26-27. In all, the Insurers should be compelled to respond to Interrogatory No. 7 and, thereby,

provide information concerning their membership in ISO and the dates thereof.

II. The Insurers Should Be Compelled To Produce Information Responsive To

Dish Network’s First Set Of Requests For Production

The Insurers responded to Dish Network’s First Set of Requests for Production (“the

Requests,” attached to the Epstein Dec. at Ex. 8) largely with objections. With three exceptions,7

they refused to produce any documents beyond the insurance policies sued on, the underlying

complaints and the correspondence to and from Dish Network regarding the claim. (See

Insurers’ objections and responses to the Requests, attached to the Epstein Dec. at Exs. 9

[Arrowood], 10 [Travelers], 11 [XL], 12 [Arch], and 13 [National Union]). As set forth in more

detail below, the Insurers’ responses to the Requests are largely insufficient and the Court should

compel them to produce all responsive documents to the Requests.

A. The Documents Requested By Dish Network Are Relevant For

Purposes Of Discovery

In objecting to Dish Network’s Requests, the Insurers assert generally that the

information sought by the Requests is not relevant to the duty to defend phase of this action.8 As

6
The Insurers’ Objections and Responses to Dish Network’s First Set of Interrogatories are annexed to the
Epstein Dec. at Exs. 3 (Arrowood), 4 (Travelers), 5 (XL), 6 (Arch) and 7 (National Union).
7
Three Insurers, Arrowood, XL and Arch, produced at least portions of their respective underwriting files.
8
Although the parties agreed to restrict Phase One of this action to the single issue of the Insurers’ duty to
defend, those Insurers that have already moved for summary judgment are seeking judgment on all claims asserted

8
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demonstrated below, however, the information sought by the Requests is relevant to the Insurers’

duty to defend and fully discoverable under the Federal Rules.

1. The Standard For Relevancy Makes The Scope Of Discovery

Under Rule 26 Very Broad

As a threshold matter, the scope of discovery in federal court is broad since it is based on

a very liberal definition of relevancy. For purposes of discovery, information is “relevant” if it

has the potential to lead to the discovery of admissible evidence:

Parties may obtain discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense - including the existence, description, nature,
custody, condition, and location of any documents or other tangible things . . . .
Relevant information need not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence.

Fed. R. Civ. P. 26(b)(1). Indeed, the Tenth Circuit has held that “discovery is not limited to

issues raised by the pleadings, for discovery itself is designed to help define and clarify the

issues.” Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1520 (10th Cir. 1995) (quotation

omitted). Whether information sought in discovery meets the relevancy standard in Rule

26(b)(1) “is a broad determination, the goal of which is to allow the parties to discover whatever

is necessary to prove or disprove their cases.” Medcorp, Inc. v. Pinpoint Techs., Inc., Civ.

Action No. 08-cv-00867-MSK-KLM, 2009 WL 1049758, at *2 (D. Colo. Apr. 20, 2009)

(citations omitted).9

As this Court has noted, “discovery should not necessarily be prohibited merely because

it relates to claims that one party asserts are based on an insufficient theory.” Professional

Solutions Ins. Co. v. Mohrlang, Civ. Action No. 07-cv-02481-REB-KLM, 2008 WL 4426016, at

*3 (D. Colo. Sept. 25, 2008) (citations omitted). Indeed, by producing information in discovery,

by Dish Network, including those claims involving the Insurers’ breaches of their duties to indemnify and act in
good faith. (See Epstein Dec. at ¶ 10).
9
All unreported opinions are attached to the Epstein Dec. at Exs. 20-27.

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a party does not waive any objections it has made concerning the relevancy or materiality of the

information, “since [those] objections are generally raised at trial or in dispositive motions.”

Abouhalima v. Gonzales, Civ. Action No. 05-cv-02653-REB-MEH, 2007 WL 549831, at *2 (D.

Colo. Feb. 16, 2007). As set forth below, the information sought by the Requests is relevant to

Dish Network’s theory of this case and the burden is to be borne by the Insurers. Thus, the

Insurers should be compelled to produce that information. To the extent they dispute the

relevance or materiality of that information, the Insurers can argue those points later in

dispositive motions or at trial.

2. The Documents Requested By Dish Network Are Relevant

The Insurers argue that only their insurance policies and the underlying complaints filed

in the Katz Technology Lawsuit are relevant to resolving their duties to defend.10 In support of

their position, the Insurers rely on cases such as Cyprus Amax Minerals Co. v. Lexington

Insurance Co., 74 P.3d 294, 299 (Colo. 2003), which recites the rule that “courts must look no

further than the four corners of the underlying complaint” in determining an insurer’s duty to

defend. In relying on that rule to avoid responding to Dish Network’s discovery, the Insurers

confuse a court’s consideration of evidence pertinent to the claims asserted in the underlying

litigation with a court’s consideration of information pertinent to the scope of coverage provided

under their policy language.

As this Court has recognized, the law restricts consideration of the nature of the

underlying claim to what is pled in the underlying complaint, for the benefit of the policyholder:

Basing the [duty to defend] determination solely on the complaint supports the
insured’s legitimate expectation of defense in situations in which the underlying

10
The following statement by XL is representative of the position taken by Defendants: “[A] carrier’s
defense obligation is determined by examination of the underlying Complaint and the insurance policy; XL objects
to any Request seeking identification of facts outside of these documents.” (Epstein Dec. at Ex. 11 at 3).

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complaint falls within the scope of the insurance policy, regardless of whether
coverage will ultimately exist.

Mountain States Mut. Cas. Co. v. Kirkpatrick, Civ. Action No. 06-cv-00221-WDM-MEH, 2007

WL 707461, at *1 (D. Colo. Mar. 6, 2007) (emphasis added). As reflected in Mountain States,

however, the scope of the pertinent insurance policy always remains a fundamental consideration

in determining the duty to defend.11 See also Hecla Mining Co. v. New Hampshire Ins. Co., 811

P.2d 1083, 1089 (Colo. 1991) (“An insurer’s duty to defend arises when the underlying

complaint against the insure[d] alleges any facts that might fall within coverage.”) (citation

omitted). In Hecla Mining, for example, the Colorado Supreme Court reasoned that “[t]he

determination of a duty to defend in this case depends on the terms in the insurance policy, and

the interpretation of those terms based upon the principles of contract interpretation.” Helca

Mining, 811 P.2d at 1090. Thus, the fact that Phase One of this case concerns the Insurers’ duty

to defend makes discovery into the scope of insurance coverage no less essential.

Here, the discovery that Dish Network seeks goes directly to the scope of the insurance

policy language at issue. In order to resolve the Insurers’ duty to defend, the Court will

necessarily need to interpret the language of their policies and determine whether it is susceptible

to more than one reasonable interpretation. Helca Mining, 811 P.2d at 1092 (court determines

that insurers had duty to defend upon concluding that the “sudden and accidental” exception to a

pollution exclusion was ambiguous). If so, it is ambiguous and must be interpreted against the

insurer and in favor of coverage. Id.; see also, Weitz, 181 P.3d at 312; Fight Against Coercive

11
Dish Network anticipates that the Insurers will rely on this Court’s opinion in Mountain States to support
their objections. In Mountain States, this Court concluded that an insurer’s claim file was not relevant in a dispute
over its duty to defend. In support, this Court stated that the policyholder’s “legitimate expectation of defense is
based on the factual allegations of the underlying complaint.” Id. at *2. That is true as far as it goes. While the
factual allegations of the underlying complaint are certainly relevant, the meaning or ambiguity of the operative
policy language is equally important. See Cotter Corp. v. American Empire Surplus Lines Ins. Co., 90 P.3d 814,
827, 828 (Colo. 2004) (in making the duty to defend determination, the four corners of the underlying complaint and
the insurance policy are considered); Helca Mining, 811 P.2d at 1090 (the determination of an insurer’s duty to
defend turns on the terms of the insurance policy and the interpretation of those terms).

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Tactics Networks Inc. v. Coregis Ins. Co., 926 F.Supp. 1426, 1430 (D. Colo. 1996). As one court

has stated, “[W]hether language is ambiguous is a legal determination that often cannot be made

without looking at the factual context of a case.” Mohrlang, 2008 WL 4426016, at *1 (citation

omitted). Ambiguity may also be evidenced by an insurer’s failure to utilize alternative language

that would have put the matter beyond reasonable question. Coregis, 926 F.Supp. at 1433.

Furthermore, an insurer relying on an insurance policy exclusion in attempting to avoid

its duty to defend, as is the case here, bears a heavy burden. See, e.g., Compass Ins. co. v. City of

Littleton, 984 P.2d 606, 614 (Colo. 1999). The insurer must defend unless it can prove both that

the allegations in the underlying complaint fall solely and entirely within the exclusions upon

which it relies, and that those exclusions are not subject to any other reasonable interpretation.

Id. at 618. If the exclusionary language is reasonably susceptible to more than one interpretation,

that language is ambiguous and must be interpreted against the insurer. See, e.g., Weitz, 181

P.3d at 312. The Insurers therefore bear the heavy burden in this case of proving that the

exclusionary language upon which they rely encompasses all allegations in the underlying Katz

Technology Lawsuit and that it is not ambiguous. Cyprus, 74 P.3d at 301 (“An insurer has a

heavy burden to overcome in avoiding the duty to defend, such that ‘the insured need only show

that the underlying claim may fall within policy coverage; the insurer must prove that it

cannot.’”) (quoting Compass, 984 P.2d at 613-14).

Accordingly, the scope of the insurance policy language at issue will play a large role in

resolving the Insurers’ duty to defend Dish Network. As discussed above, that determination

cannot be made in a vacuum. In fact, Colorado has a well established protocol under which

courts conditionally admit extrinsic evidence to be used in determining whether particular

language within an insurance policy or other contract is ambiguous. Such evidence includes, but

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is not limited to, “evidence regarding the meaning of the written terms, including evidence of

local usage and of the circumstances surrounding the making of the contract.” Eppich v. State

Farm Mut. Auto Ins. Co., Civ. Action No. 08-cv-01697, 2009 WL 3162245, at *3 (D. Colo. Sept.

30, 2009) (quotation omitted); see also, e.g., Mohrlang, 2008 WL 4426016, at *1; D.C. Concrete

Mgmt., Inc. v. Mid-Century Ins. Co., 39 P.3d 1205, 1207-08 (Colo. Ct. App. 2001). If a court

finds, after considering the extrinsic evidence, that the policy or contract language at issue is not

ambiguous, the extrinsic evidence is stricken and the court will give effect to the terms of that

policy or contract. See, e.g., Level 3 Communications, LLC v. Liebert Corp., 535 F.3d 1146,

1155 (10th Cir. 2008); Arenberg v. Central United Life Ins. Co., 18 F.Supp.2d 1167, 1179 (D.

Colo. 1998); D.C. Concrete, 39 P.3d at 1207-08. Of course, the conditional admission of this

sort of interpretative evidence can only occur after such information is discovered and produced

in the first instance.12

Overall the documents sought by Dish Network “[lend] guidance to the meaning of

policy language” in that they may show alternative, reasonable interpretations of the pertinent

policy provisions by the Insurers or others, or ways in which those provisions could have been

worded to “[put] the matter beyond reasonable question.” See Mohrlang, 2008 WL 4426016, at

*2 (citation omitted); Coregis, 926 F.Supp. at 1433. Accordingly, the Court should issue an

12
Dish Network anticipates that the Insurers will contend that evidence of ambiguity can only be considered
after the court first deems the language ambiguous. That argument is wrong for two reasons. First, as discussed
above, Colorado courts conditionally admit extrinsic evidence in the first instance in order to determine whether
language is ambiguous. Second, if insurance policy language is ambiguous, it is construed in favor of coverage and,
therefore, there is no need to consider additional extrinsic evidence of ambiguity. In any event, courts have deemed
the policy language at issue here to be ambiguous. See, e.g., Novell, 141 F.3d at 987 (“courts have construed the
phrase ‘misappropriation of … style of doing business’ in varying ways.”). Of course, a split of judicial authority on
the meaning of policy language is indicative of ambiguity. Coregis, 926 F.Supp.2d at 1433 (“That different courts
have arrived at conflicting interpretations of similar clauses in other policies is indicative of the Policy’s
ambiguity.”); see also Lebas Fashions, 59 Cal. Rptr.2d at 43 (court concludes that phrase “misappropriation of
advertising ideas or style of doing business” is ambiguous); Super Duper Inc. v. Travelers Prop. Cas. Co. of Am., et
al., No. 26717, 2009 WL 2948516, at **3-4 (S.C. Sept. 14, 2009) (term “misappropriation” within phrase
“misappropriation of advertising ideas or style of doing business” is ambiguous).

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order compelling the Insurers to produce information responsive to the Requests referenced

below.

3. The Specific Requests For Production

Set forth immediately below are Dish Network’s specific Requests for Production,

grouped generally by topic, along with the parties’ respective positions.

The Liability Insurance Policies

 Request No. 1: Produce a complete copy of each of the Liability

Insurance Policies You sold to, or subscribed to, either of the Plaintiffs
(whether it be a primary, umbrella, or excess insurance policy), including all
endorsements, exclusions, and riders thereto.

Request No. 1 seeks the production of all liability insurance policies that the Insurers sold

to Dish Network. In response, the Insurers produced only those insurance policies that are the

subject of this litigation, and refused to produce all liability insurance policies they sold to Dish

Network. As discussed above, however, alternative policy wordings that may be reflected in

those other insurance policies are highly relevant in determining whether the Insurers’ policy

language at issue in this case is ambiguous. Coregis, 926 F.Supp. at 1433. The Insurers should

therefore be compelled to produce all liability insurance policies that they sold to Dish Network.

Documents Concerning The Underwriting, Drafting, Negotiation

and Sale of The Liability Insurance Policies

 Request No. 2: Produce a complete copy of each of the underwriting files

maintained by You with respect to: either of the Dish Network or any of
the Liability Insurance Policies You sold to either of the Dish Network.

 Request No. 4: Produce all documents referring or relating to the

underwriting, drafting, negotiation, approval, or sale of any of the
Liability Insurance Policies.

 Request No. 5: Produce all insurance applications, or any other

documents and/or information, that You requested, either directly or
indirectly (through an insurance agent, broker, or other entity), from either

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of the Dish Network, in order for You to assess the risk associated with
the Liability Insurance Policies.

Request Nos. 2, 4 and 5 seek the production of the relevant underwriting files and

documents related to the drafting, negotiation, approval and sale of the CGL policies at issue

here. That information may set forth the scope of the coverage encompassed by the insurance

policies as well as any alternative interpretations of those policy provisions. As discussed above,

that information is clearly relevant and discoverable.

In addition, the underwriting files may reflect the Insurers’ understanding of the risks

they were insuring. For example, the Insurers rely on an exclusion purporting to exclude

coverage for advertising injury committed by an insured whose business is “advertising,

broadcasting, publishing or telecasting.” (See Stipulated Scheduling and Discovery Order at 6,

annexed to the Epstein Dec. at Ex. 1). In light of that reliance, the Insurers’ understanding of the

nature of Dish Network’s business is highly relevant.

National Union refused to respond at all to Request Nos. 2, 4 and 5, taking the position

that its policy language is not ambiguous and the information sought is not relevant to the duty to

defend. (See Epstein Dec. at Ex. 13). That argument may be raised in briefing dispositive

motions, but it does not preclude the discovery that Dish Network seeks. While Travelers

represented that it would make responsive information available, over one month later, it has still

failed to do so. (See Epstein Dec. at Ex. 10). The remaining three Insurers, Arrowood, XL and

Arch, produced what they contend are their entire underwriting files in response to Request Nos.

2 and 4. (See Epstein Dec. at Exs. 9, 11, & 12). Accordingly, only National Union and

Travelers need be compelled to produce documents and information responsive to Request Nos.

2, 4 and 5.

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Case 1:09-cv-00447-JLK-MEH Document 67 Filed 10/27/2009 USDC Colorado Page 16 of 33

 Request No. 9: For the period beginning in 1976 and ending with the
present, produce all Form Language utilized by You and referring or
relating to insurance coverage for claims of advertising injury.

 Request No. 11: Produce all documents referring or relating to Your

membership in, subscription to, or affiliations with ISO.

As discussed supra at 3-6, the insurance policy language at issue in this case was

promulgated by ISO. To the extent that any of the Insurers were ISO members, ISO acted as

their agent and they are bound by ISO’s drafting efforts and representations about the scope,

meaning and application of the drafted language to regulators. See, e.g., Gerrish Corp., 754

F.Supp. at 370 (D. Vt. 1990), aff’d, 947 F.2d 1023 (2d Cir. 1991). The ISO forms utilized by the

Insurers and their understanding of those forms are, therefore, highly relevant. Weitz Co., 181

P.3d at 314-15 (court considers ISO drafting history of additional insured endorsement in

determining meaning of phrase “arising out of your ongoing operations.”).

All of the Insurers objected to Request Nos. 9 and 11 on the basis that they seek

information beyond the limited scope of Phase One (regarding the duty to defend). (See Epstein

Dec. at Exs. 9, 10, 11, 12, & 13). With respect to Request No. 9, Arch referred Dish Network to

the language of the Arch insurance policy, which is a nonresponsive answer. (See Epstein Dec. at

Ex. 12). Accordingly, all of the Insurers should be compelled to respond in full to Request Nos.

9 and 11.

Documents Concerning Dish Network’s Claim for Insurance

 Request No. 3: Produce a complete copy of each claim file maintained by

You with respect to any claims for insurance by either of the Dish
Network, including any claims for insurance arising in connection with
the Katz Technology Lawsuit.

 Request No. 6: Produce all documents referring or relating to Your

handling, investigation, review, consideration, assessment, evaluation
and/or resolution of Dish Network’s requests for insurance coverage in
connection with the Katz Technology Lawsuit.

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Case 1:09-cv-00447-JLK-MEH Document 67 Filed 10/27/2009 USDC Colorado Page 17 of 33

Request Nos. 3 and 6 seek the production of relevant claim files and documents related to

the handling, investigation, review, consideration, assessment, evaluation and/or resolution of

Dish Network’s request for insurance coverage in connection with the Katz Technology Lawsuit.

That information, including claim adjuster logs, journals or notes and internal communications

such as email or memoranda is relevant to the scope of coverage of the insurance policies at

issue, including the meaning of key policy provisions, or alternative interpretations of those

provisions. As discussed supra at 10-14, documents reflecting the meaning of the policy

language at issue remain as relevant in the context of an insurer’s duty to defend as they are in

the context of the duty to indemnify.

All of the Insurers except Arch objected to Request Nos. 3 and 6 on the basis that they

sought information that was not relevant and was beyond the scope of Phase One on the duty to

defend. (See Epstein Dec. at Exs. 9, 10, 11, & 13). As discussed above, that argument is

misguided. Arrowood produced only correspondence comprising of the tender and disclaimer of

coverage for the underlying Katz Technology Lawsuit, while Arch produced the same

correspondence, as well as the complaints in the underlying Katz Technology Lawsuit. (See

Epstein Dec. at Exs. 9 & 12). Travelers and National Union declined to respond to Request

Nos. 3 and 6. (See Epstein Dec. at Exs. 10 & 13). XL objected and declined to respond to

Request No. 3, and with respect to Request No. 6, XL’s response was insufficient, referring only

to one of its insurance policies. (See Epstein Dec. at Ex. 11). None of the Insurers produced any

of their claim adjuster logs, journals or notes, internal email, memoranda or records, claim

reports or other interpretative materials. Accordingly, each of the Insurers should be compelled

to produce all documents and information responsive to Request Nos. 3 and 6.

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Case 1:09-cv-00447-JLK-MEH Document 67 Filed 10/27/2009 USDC Colorado Page 18 of 33

 Request No. 7: Produce all handbooks, manuals, and other documents

referring or relating to Your procedures, guidelines, or policies for the
handling of claims for advertising injury.

Request No. 7 seeks handbooks, manuals, and other documents referring or relating to the

Insurers’ procedures, guidelines, or policies for the handling of claims for advertising injury.

Those documents are relevant because they may contain responsive information concerning the

meaning, scope and application of key insurance policy language relied on by the Insurers.

All of the Insurers objected to Request No. 7 as being beyond the scope of proper Phase

One discovery and refused to respond. (See Epstein Dec. at Exs. 9-13). As discussed supra at

10-14, the position advocated by the Insurers is not well supported. Thus, the Insurers should be

compelled to produce all responsive documents and information.

 Request No. 8: Produce all documents referring or relating to Your

denial of the duty to defend Dish Network against the claims asserted in
the Katz Technology Lawsuit.

Request No. 8 seeks documents referring or relating to the Insurers’ denials of their

irrespective duties to defend Dish Network against the claims asserted in the Katz Technology

Lawsuit. Those documents are unquestionably relevant because Phase One of this litigation

concerns that very duty. Information relating to the Insurers’ denial of their duty to defend may

reflect the meaning, scope or application of key policy language upon which they have relied, or

reference interpretative materials, authored by Insurers or others in the insurance industry, such

as claim manuals, reports, memos, papers, or the like relating to the meaning, scope or

application of key policy terms.

None of the Insurers provided a complete response to Request No. 8 and all but Arch

asserted the same objection that the Request sought information not relevant or discoverable in

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Phase One (regarding the duty to defend). Again, Dish Network has demonstrated the error of

that argument.

Travelers asserted that only its policy and disclaimer letter were properly responsive and

Arrowood and XL produced only those same documents. (See Epstein Dec. at Exs. 9, 10 & 11).

Arrowood also produced recent correspondence comprising of the tender and disclaimer of

coverage for the Katz Technology Lawsuit, as did Arch. (See Epstein Dec. at Exs. 9 & 12).

None of the Insurers produced any claim adjuster logs, journals, claim reports, notes, internal

correspondence, memoranda or emails, correspondence with other insurance entities, such as

insurance brokers or agents, or the like. Each of the Insurers should be compelled to produce all

responsive documents and information responsive to Request No. 8.

Documents Concerning The Operative Policy Language

 Request No. 12: Produce all documents, including guidelines, manuals,

procedures, handbooks, or drafting history documents, referring or
relating to any term, provision, condition, or exclusion in any of the
Liability Insurance Policies, which You contend bars or limits, in any
way, insurance coverage for the Katz Technology Lawsuit.

 Request No. 13: Produce all documents, including guidelines, manuals,

procedures, handbooks, or drafting history documents, referring or
relating to any term, provision, condition, or exclusion in any of the
Liability Insurance Policies, on which You rely, or intend to rely, to
support any Affirmative Defense which You assert in Your Answer to the
Amended Complaint.

 Request No. 14: Produce all documents, including manuals, procedures,

handbooks, or drafting history documents, concerning the meaning,
scope, application, interpretation, understanding, and/or construction of
the following or similar language, concepts, terms or provisions contained
in the Liability Insurance Policies: (a) advertising; (b) advertising
activities; (c) advertising ideas; (d) advertising injury; (e) arising out of;
(f) arising solely out of; (g) broadcasting; (h) infringement of copyright,
patent, trademark, trade secret or other intellectual property rights; (i)
injury; (j) injury arising solely out of Your advertising activities; (k)
misappropriation; (l) misappropriation of advertising ideas or style of

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doing business; (m) occurrence; (n) offense; (o) publishing; (p) style of
doing business; and (q) telecasting.

By Request Nos. 12, 13 and 14, Dish Network seeks the production of documents which

are likely to contain information concerning the meaning, scope or application of the key policy

terms on which the Insurers rely. All of the Insurers objected to Request Nos. 12, 13 and 14 on

the basis that the information they sought was not relevant because it was beyond the limited

scope of Phase One (regarding the duty to defend). (See Epstein Dec. at Exs. 9-13). As

discussed above at 10-14, the Insurers’ argument is not well supported.

Defendant Arrowood refused to respond at all to Requests 12, 13 and 14. (See Epstein

Dec. at Ex. 9). Indeed, all Insurers refused to respond to Request No. 14. (See Epstein Dec. at

Exs. 9-13). The responses of the Insurers, other than Arrowood, to Request No. 12 were

insufficient. Travelers referred Dish Network to only its insurance policy, disclaimer letter and

Answer, while XL and Arch referred Dish Network to only their insurance policies. (See Epstein

Dec. at Exs. 10, 11 & 12). National Union likewise stated that it was producing only its policy

and the complaints in the underlying Katz Technology Lawsuit, as they were all that were

relevant to the duty to defend. (See Epstein Dec. at Ex. 13).

The Insurers, other than Arrowood, also provided insufficient responses to Request No.

13. Defendant Travelers refused to respond to Request No. 13 while defendant XL claimed to

have no such handbook, manual, guideline or drafting history documents, a response that is

frankly not credible. (See Epstein Dec. at Exs. 10 & 11). Arch referred Dish Network only to its

insurance policies, and National Union again took the position that only its policy and the

underlying complaints were relevant. (See Epstein Dec. at Exs. 12 & 13). None of the Insurers

produced any drafting history documents, handbooks, manuals, guidelines or any other

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Case 1:09-cv-00447-JLK-MEH Document 67 Filed 10/27/2009 USDC Colorado Page 21 of 33

documents responsive to these three Requests. Accordingly, all the Insurers should be

compelled to produce all documents and information responsive to Request Nos. 12, 13 and 14.

 Request No. 16: Produce any speeches made or papers written by You,
or any of Your employees or representatives, referring or relating to
insurance coverage for claims for advertising injury or claims of patent
infringement specifically.

 Request No. 17: Produce any advertising, marketing or promotional

material referring or relating to Your insurance for claims of
advertising injury generally or claims of patent infringement specifically.

Request Nos. 16 and 17 seek the production of speeches, papers, advertising, marketing

and promotional documents related to advertising injury coverage in general and insurance

coverage for patent infringement claims in particular. That information is relevant, in that it may

reveal the meaning of the operative policy language or alternative interpretations of that

language. A graphic example of the relevancy of this information was provided by the American

International Companies, of which defendant National Union is a member. Those insurers

represented in marketing materials that coverage under CGL insurance policies can implicate an

insurer’s duty to defend its policyholder against patent infringement claims:

Who can be subject to a patent infringement suit?

Any person or corporation who manufacturers, advertises, sells or distributes a

product, or uses a manufacturing process…maybe subject to a patent infringement
suit…

Doesn’t my insurance carrier have to defend my company under the Comprehensive

General Liability policy?

Maybe. There has been highly contested litigation between insurers and their
insureds…Arguments have been made that language referring to unfair trade
practices and/or piracy may extend coverage, or at least a duty to defend patent
infringement suits…Many insurance companies are specifically excluding coverage
[under their current policies] for patent infringement or are revising policy language
to clarify their intent not cover this type of action.

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Case 1:09-cv-00447-JLK-MEH Document 67 Filed 10/27/2009 USDC Colorado Page 22 of 33

Eugene R. Anderson, et al., Insurance Coverage Litigation, §16.04[E]16-76-76.1 (2010) (quoting

“Patent Infringement Liability Insurance, Q & A”) (emphasis added).13 The concession that

insurers may have to defend patent infringement lawsuits under CGL insurance policies is directly

contrary to the position taken in this litigation by National Union and, alone, warrants the discovery

sought by Dish Network.

All of the Insurers objected to Request Nos. 16 and 17 on the basis that the information

they sought was not relevant because it was beyond the limited scope of Phase One (regarding

the duty to defend). (See Epstein Dec. at Exs. 9-13). Dish Network has already shown that

argument to be incorrect.

While none of the Insurers provided documents or information responsive to Request

Nos. 16 and 17, Arch represented that it has no responsive documents. (See Epstein Dec. at Ex

12). Likewise, XL refused to produce documents responsive to Request Nos. 16 and 17, but

represented that, having made a diligent search, it has no speeches or articles responsive to

Request No. 16. (See Epstein Dec. at Ex. 11). National Union also refused to produce

documents responsive to Requests 16 and 17, but stated that it was “unaware of” any speeches or

articles responsive to Request 16; National Union did not state that it had conducted any search.

(See Epstein Dec. at Ex. 13). Arrowood simply refused to produce documents responsive to both

Requests. (See Epstein Dec. at Ex. 9). Each of the Insurers should be compelled to produce

documents and information responsive to Request Nos. 16, and 17 or to certify that, after a

diligent search was made, no such documents or information were located.

13
Counsel for Dish Network obtained the above-referenced marketing document through another source and
it is attached to the Epstein Dec. at Ex. 19.

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Case 1:09-cv-00447-JLK-MEH Document 67 Filed 10/27/2009 USDC Colorado Page 23 of 33

The Insurers’ Document Retention Guidelines

 Request No. 15: Produce all of Your document retention or document

destruction policies, guidelines, instructions or rules dating from 2001 to
the present.

Request No. 15 seeks documents concerning the Insurers’ document retention or

destruction policies and, as such, unquestionably seeks the production of relevant information.

Responsive documents will enable Dish Network to assess the completeness of the Insurers’

responses to all of its discovery. All of the Insurers objected to Request No. 15 on the ground

that it is beyond the scope of Phase One. (See Epstein Dec. at Exs. 9-13). Nevertheless,

Travelers represented that it would produce its document retention/destruction policies for the

time period beginning with the underwriting of its policy and ending with the present; it has yet

to do so. (See Epstein Dec. at Ex. 10). Arch represented that it has no documents responsive to

Request No. 15. (See Epstein Dec. at Ex. 12). All of the Insurers should be compelled to

produce documents and information responsive to Request No. 15, or to certify that, after a

diligent search, no such documents or information were located.

B. The Insurers’ Remaining Objections Are Also Not Well Founded

1. The Insurers’ Privilege Objections Provide No Basis For Their

Failure To Respond

In addition to the Insurers’ objections on the ground of relevancy, most of the Insurers

also objected to certain of Dish Network’s Requests to the extent that any responsive documents

were encompassed by the attorney-client privilege or work-product doctrine. The Requests to

which such objections were raised involve largely the discovery of claim files, claim handling

documents, claim manuals, handbooks and guidelines, and drafting history documents.14

14
Arrowood, Travelers, and National Union objected to Request No. 3 (seeking claim files) on that basis.
(See Epstein Dec. at Exs. 9, 10 & 13). Arrowood, Travelers, XL and National Union objected to Request No. 6
(seeking documents referring or relating to the Insurers’ handling, investigation, review, evaluation, etc. of Dish

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Case 1:09-cv-00447-JLK-MEH Document 67 Filed 10/27/2009 USDC Colorado Page 24 of 33

The Insurers’ privilege objections provide no basis for their refusal to produce documents

responsive to Dish Network’s Requests. As a threshold matter, the Insurers may express any

claim of privilege or protection by identifying on a privilege log and withholding, on an

individual basis, each document that is supposedly privileged. More importantly, most of the

documents belonging to the categories of responsive documents to which the Insurers refer

would not be privileged. Under the law of this district, documents created or prepared in the

everyday course of the insurance business are not protected by any privilege. See Western Nat’l

Bank of Denver v. Employers Ins. of Wausau, 109 F.R.D. 55, 57 (D. Colo. 1985); see also, e.g.,

American Banker’s Ins. Co. of Fla. v. Colorado Flying Academy, Inc., 97 F.R.D. 515, 517-18 (D.

Colo. 1983); Hawkins v. District Court, 638 P.2d 1372, 1378-79 (Colo. 1982). Accordingly, the

Court should compel all of Insurers to produce all responsive and not privileged documents and

information, withholding and entering any purportedly privileged documents on a privilege log

to be promptly provided to Dish Network.15

Network’s requests for coverage for Katz Technology Lawsuit) on that basis. (See Epstein Dec. at Exs. 9, 10, 11 &
13). Arrowood and XL objected to Request No. 8 (seeking documents referring or relating to the Insurers’ denial of
duty to defend Katz Technology Lawsuit) on that basis. (See Epstein Dec. at Exs. 9 & 11). National Union objected
to Request Nos. 13 and 14 (seeking drafting history documents, manuals, handbooks, guidelines, etc. either referring
or relating to any policy term on which the Insurers will rely for an Affirmative Defense or concerning the meaning
of certain identified policy terms or concepts) on that basis. (See Epstein Dec. at Ex. 13). Travelers and National
Union objected to Request No. 16 (seeking speeches or papers referring or relating to coverage for claims of
advertising injury and patent infringement) on that basis. (See Epstein Dec. at Exs. 10 & 13).
15
In addition, National Union’s objections (Epstein Dec. at Ex. 13), based on the purportedly confidential and
proprietary nature of at least some information responsive to Request Nos. 2 (underwriting file), 4 (documents
referring to underwriting, drafting, negotiation, approval or sale of the Insurers’ policies to Dish Network), 7
(handbooks, manuals, etc. referring or relating to procedures and guidelines for handling of claims for advertising
injury), 8 (documents referring or relating to denial of duty to defend against Katz Technology Lawsuit), 12 (drafting
history documents, manuals, handbooks, etc., referring or relating to terms in the Insurers’ policies which they
contend bar or limit coverage), 13 (drafting history documents, manuals, handbooks, etc. referring or relating to
terms in their policies upon which the Insurers intend to rely to support their affirmative defenses), 14 (drafting
history documents, manuals, handbooks, etc. referring or relating to the meaning, scope, application or interpretation
of certain policy terms and concepts), 16 (speeches or papers referring or relating to coverage for claims of
advertising injury or patent infringement), and 17 (advertising, marketing, promotional materials referring or
relating to coverage for claims of advertising injury or patent infringement) also form no basis for the failure to
produce documents and information responsive to those Requests. First, the parties are currently negotiating a
stipulated confidentiality order based on a form suggested by Judge Kane. (Epstein Dec., ¶ 7). Second, again, any

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Arrowood presents a special issue because it has waived any privilege in this case. In its

answer to Interrogatory No. 6, seeking the identity of the person responsible for Arrowood’s

denial of the duty to defend, Arrowood responded, “Paula Douglas on the advice of counsel.”

(Epstein Dec. at Ex. 3). A party’s decision made in reliance on the advice of counsel places that

advice at issue in the case and results in a waiver of privilege. See, e.g., Sedillos v. Board of

Educ. of Sch. Dist. No. 1, 313 F.Supp.2d 1091 (D. Colo. 2004); Cunningham v. Standard Fire

Ins. Co., Civ. Action No. 07-cv-02538, 2008 WL 2902621 at *9 (D. Colo. 2008) (“[I]f

Defendants actually asserted the defense of advice of counsel, the attorney-client privilege would

be waived….”) (citation omitted).

The attorney-client privilege cannot be used as both a sword and a shield. Id. In Sedillos,

this Court explained:

The attorney client privilege may also be implicitly waived, and one way that is
done is by raising attorney advice as a defense….[A party] cannot selectively
assert the privilege to block the introduction of information harmful to his case
after introducing other aspects of his conversations with [his attorney] for his own
benefit. The attorney client privilege cannot be used as both a shield and a sword,
and [a party] cannot claim in his defense that he relied on [his attorney’s] advice
without permitting the prosecution to explore the substance of that advice.

Sedillos, 313 F.Supp.2d at 1093 (quoting United States v. Workman, 138 F.3d 1261, 1264 (8th

Cir. 1998)). Here, Arrowood placed its attorneys’ advice in issue by representing that Ms.

Douglas relied on the “advice of counsel” in denying, on behalf of Arrowood, any duty to defend

Dish Network. Arrowood cannot claim that it relied on the advice of counsel in denying its duty

to defend without permitting Dish Network to explore the substance of that advice. Thus,

Arrowood should be compelled to produce all information responsive to Dish Network’s

discovery without regard to privilege.

such purportedly confidential documents can be entered on a privilege log provided to Dish Network, while non-
confidential documents are produced.

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2. The Insurers’ Boilerplate Objections Should Be Rejected

In their responses, most of the Insurers relied on boilerplate or generalized objections,

which they asserted in response to all, or a number of, the Requests. For example, Arrowood

asserted, in connection with nearly every Request, that the Request was “overly broad, unduly

burdensome, not reasonably calculated to lead to the discovery of admissible evidence and

beyond the scope of the duty to defend issue . . . .” (See Epstein Dec. at Ex. 9). Likewise,

defendant XL asserted, in connection with nearly every Request, that the Request was “overly

broad, not calculated to lead to admissible evidence, not limited in time and beyond the limited

scope of discovery allowed by the Court . . . .” (See Epstein Dec. at Ex. 11). Another example is

National Union’s assertion in its responses that a number of the Requests were “unduly

burdensome” without providing any explanation as to why or how that was so. (See Epstein

Dec. at Ex. 13).

Colorado federal courts have held that boilerplate and generalized objections are not

acceptable and that, where such objections are asserted without being accompanied by support or

justification, they normally should be overruled. Greystone Constr., Inc. v. National Fire &

Marine Ins. Co., Civ. Action No. 07-cv-00066-MSK-CBS, 2008 WL 795815, at *5 (D. Colo.

Mar. 21, 2008) (“Generalized objections that a discovery request is vague, overly broad or

unduly burdensome are not acceptable and should be overruled.”) (citations omitted); see also

Medcorp, 2009 WL 1049758, at *2 (“It is the objecting party’s burden to show why a discovery

request is objectionable, and that burden cannot be sustained merely by asserting ‘boilerplate

claims that the requested discovery is oppressive [or] burdensome . . . .’”) (quotation omitted).

On a motion to compel, the party resisting discovery must show and support the proposition that,

in spite of the broad scope of discovery under the Federal Rules, the discovery at issue should

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not be allowed. Id. The generalized or blanket assertion that a discovery request is vague,

overly broad, and/or unduly burdensome, by itself, is insufficient to satisfy that burden. That

being so, the Court should overrule any boilerplate or generalized objections to the Requests that

were made by the Insurers.

III. The Insurers Have Failed To Comply With The Initial Disclosure
Requirements Of Rule 26(a)

Pursuant to Federal Rule of Civil Procedure 26(a), at the commencement of an action, each

party in the action must, without awaiting any discovery request, provide certain initial disclosures

to the remaining parties. Parties must disclose among other things, the name and contact

information of each person likely to have discoverable information that the disclosing party may use

to support its claims or defenses, along with the subjects of each person’s information. Fed. R. Civ.

P. 26(a)(1)(A)(i). If a party fails to identify a witness or provide the information required by the

disclosure requirements of Rule 26(a), then that party may not make use of the witness or

information to support its position in briefing any motion, at a hearing or at trial, unless the party

can show that its failure to disclose was “substantially justified or is harmless.” Fed.R. Civ. P.

37(c). “Initial disclosures should provide the parties ‘with information essential to the proper

litigation of all relevant facts, to eliminat[e] surprise, and to promot[e] settlement’ . . . . ‘The

litigants should not indulge in gamesmanship with respect to the disclosure obligations.’” Hertz v.

Luzenac America, Inc., Civ. Action No. 04-cv-1961-LTB-CBS, 2006 WL 994431, at *5 (D. Colo.

Apr. 13, 2006) (brackets in original; emphasis added) (quotations and citations omitted). National

Union has engaged in such gamesmanship here.

In its initial disclosure statement (see Epstein Dec. at Ex. 18), National Union disclosed no

less than nine individuals (and five additional categories of unnamed persons) purportedly having

knowledge of the underlying Katz Technology Lawsuit. With respect to those persons having

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knowledge of the insurance issues in this litigation, National Union identified Lee M. Epstein,

attorney for Dish Network in this case; Robert Frankel, Senior Corporate Counsel for Dish

Network; and three categories of unidentified representatives of Dish Network who were

purportedly responsible for notifying Dish Network’s insurers of the Katz Technology Lawsuit,

involved in the negotiations and placement of the National Union Policy, or responsible for

“disclosing known risks” to National Union during the underwriting process. (Epstein Dec. Ex. 18,

at 2-3). However, National Union failed to identify a single one of its representatives that National

Union may use to support its claims or defenses. National Union disclosed no representative with

knowledge about, among other things, the National Union insurance policy at issue, its negotiation

and underwriting, the meaning and application of any of its terms, the claim for insurance coverage

made by the Dish Network in connection with the underlying Katz Technology Lawsuit, the

handling of that claim, and the ultimate denial of coverage to Dish Network. It is wholly incredible

that no such persons exist.

The initial disclosures of the remaining Insurers, Arch, Arrowood, Travelers, and XL, were

only marginally better. Each of those Insurers identified only a single insurer representative having

information about their claims or defenses in this action. (See Epstein Dec. at Exs. 14 [Arrowood],

15 [Travelers], 16 [XL] & 17 [Arch]). Again, it is simply not credible that no other insurer

representatives with such knowledge exist. By way of example, Arrowood has moved for

summary judgment relying, in part, on the affidavit of Sue C. Clark, even though Arrowood

never disclosed Ms. Clark as someone with pertinent knowledge. (See Epstein Dec. at ¶ 10).

In light of the foregoing, this Court should order all of the Insurers to supplement their initial

disclosures by identifying all of their employees, agents or representatives with information

concerning the insurance issues in this case and disclosing the subjects of that information. See,

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e.g., Pham v. Hartford Fire Ins. Co., 193 F.R.D. 659, 660-61 (D. Colo. 2000) (insurer failed to meet

Rule 26(a) disclosure requirement if other individuals, in addition to the lone person disclosed, had

knowledge of the insurance policy language and the decision to deny coverage). To the extent the

Insurers fail to do so, their use of evidence from any such witnesses in briefing on any motions, or at

any hearing or trial of this matter, should be barred. Fed. R. Civ. P. 37(c).

IV. Dish Network Should Be Awarded Their Attorney Fees And Expenses In
Making Their Motion .

In addition to moving to compel discovery, as set forth above, Dish Network also seeks

to recover the attorney fees and costs incurred in making their motion to compel. Federal Rule

of Procedure 37(a)(5)(A) authorizes such sanctions. “This is a mandatory provision [awarding

fees and costs] unless the party seeking sanctions failed to confer, the nondisclosure was

‘substantially justified’ or ‘circumstances make an award of expenses unjust.’” New Salida

Ditch Co. v. United Fire & Cas. Ins. Co., Civ. Action No. 08-cv-00391-JLK-KLM, 2009 WL

2399933, at *1 (D. Colo. July 31, 2009) (quotation omitted). The award of such sanctions under

Rule 37(a)(5)(A) does not require that the party against whom fees and costs are imposed have

acted intentionally or in bad faith. Id. at *2.

Here, Dish Network conferred in good faith with the Insurers, but was unable to obtain

the discovery it sought. (See Epstein Dec. at ¶¶ 3-5). The nondisclosure by the Insurers was not

substantially justified since the law on the duty to defend as well as the conditional admittance

and consideration of extrinsic evidence to determine ambiguity are well established under

Colorado law. No other circumstances make an award of expenses unjust. Accordingly, the

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Case 1:09-cv-00447-JLK-MEH Document 67 Filed 10/27/2009 USDC Colorado Page 30 of 33

Court should order the Insurers to pay Dish Network’s attorney fees and costs incurred in the

course of making its motion to compel. 16

CONCLUSION

For all the foregoing reasons, Dish Network respectfully requests that the Court grant its

motion to compel and order the Insurers to produce all information responsive to Dish Network’s

written discovery, to make all required initial disclosures and to pay the reasonable attorneys’

fees and costs incurred in making this motion.

Dated: October 27, 2009 /s/ Lee M. Epstein

Lee M. Epstein
FRIED & EPSTEIN LLP
325 Chestnut Street, Suite 900
Philadelphia, PA 19106
Tel.: 215-625-0123
leeepstein@fried-epstein.com

and

Todd Mackintosh, Esq.

Mackintosh Law Office, LLC
1775 Sherman, Suite 1650
Denver, CO 80203
Tel.: 303-282-5166
tmackintosh@solucian.com

and

Robert E. Frankel, Esq.

Echostar Satellite LLC
9601 South Meridian Blvd.
Englewood, CO 80112
Tel.: 303-723-1621
robert.frankel@dishnetwork.com

Attorneys for Dish Network Corp. and

Dish Network LLC

16
In the event that the instant motion to compel is granted, Dish Network will supplement its filings for the
purpose of establishing the reasonable attorneys’ fees and costs incurred in making this motion.

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Case 1:09-cv-00447-JLK-MEH Document 67 Filed 10/27/2009 USDC Colorado Page 31 of 33

CERTIFICATE OF SERVICE

I certify that on October 27, 2009, I electronically filed the foregoing with the Clerk of

the Court by using the court’s CM/ECF system which will send notification of such filing to the

individuals on the attached service list.

/s/ Lee M. Epstein

Lee M. Epstein
FRIED & EPSTEIN LLP
325 Chestnut Street, Suite 900
Philadelphia, PA 19106
Tel.: 215-625-0123
leeepstein@fried-epstein.com

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Case 1:09-cv-00447-JLK-MEH Document 67 Filed 10/27/2009 USDC Colorado Page 32 of 33

SERVICE LIST

Attorneys for Arrowood Indemnity Co.:

Todd E. Jaworsky, Esq.

Lawrence M. McHeffey, Esq.
McElroy, Deutsch, Mulvaney & Carpenter, LLP
5613 DTC Parkway, Suite 1100
Legacy Center
Greenwood Village, CO 80111-3039
Tel.: 303-226-8956 (Todd E. Jaworsky)
Tel.: 303-226-8965 (Lawrence M. McHeffey)
tjaworsky@mdmlawco.com
lmcheffey@mdmlawco.com

Roger K. Heidenreich, Esq.

Deborah C. Druley, Esq.
Sonnenschein, Nath & Rosenthal, LLP
One Metropolitan Square, #3000
St. Louis, MO 63102
Tel.: 314-259-5805
rheidenreic@sonnenschein.com
ddruley@sonnenschein.com

Attorneys for Arch Specialty Ins. Co.:

Thomas N. Alfrey, Esq.

Robert J. Zavaglia, Esq.
Treece, Alfrey, Musat & Bosworth, P.C.
999 18th Street, Suite 1600
Denver, CO 80202
Tel.: 303-292-2700
talfrey@tamblaw.com
rzavaglia@tamblaw.com

Attorneys for National Union Ins. of Pittsburgh PA:

John W. Grund, Esq.

Della S. Nelson, Esq.
Grund, Dagner & Nelson, P.C.
1660 Lincoln Street, Suite 2800
Denver, CO 80264
Tel.: 303-830-7770
jwgrund@gdnlaw.net
dsnelson@gdnlaw.net

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Case 1:09-cv-00447-JLK-MEH Document 67 Filed 10/27/2009 USDC Colorado Page 33 of 33

Richard H. Nicolaides, Jr., Esq.

Daniel I. Graham, Jr., Esq.
Bates & Carey LLP
191 North Wacker Street, Suite 2400
Chicago, IL 60606
Tel.: 312-762-3100
rnicolaides@batescarey.com
dgraham@batescarey.com
aklie@batescarey.com

Attorneys for Travelers Indemnity Co. of America:

Erik Robert Neusch, Esq.

Kevin F. Amatuzio, Esq.
Montgomery, Kolodny, Amatuzio & Dusbabek, LLP
1775 Sherman Street, #2100
Denver, CO 80203
Tel.: 303-592-6600
eneusch@mkadlaw.com
kamatuzio@mkadlaw.com

Attorneys for XL Insurance America:

Lisa F. Mickley, Esq.

Hall & Evans, LLC
1125 17th Street, Suite 600
Denver, CO 80202
Tel.: 303-628-3300
mickleyl@hallevans.com

George S. McCall, Esq.

Sedgwick, Detert, Moran & Arnold LLP
1717 Main Street, Suite 5400
Dallas, TX 75201
Tel.: 469-227-8200
george.mccall@sdma.com

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