United States District Court, D. Delaware
ESTATE OF BEVERLY BERLAND, By its Personal Representatives, Cindy Gilman and Andrea Frazin, Plaintiff,
BEVERLY BERLAND INSURANCE TRUST, BEVERLY BERLAND FAMILY INSURANCE TRUST, BERLAND INSURANCE TRUST, THE GUI ACCUMULATION TRUST, and PARK VENTURE ADVISORS, LLC, Defendants.
J. Bellew, Cozen O'Connor, Wilmington, DE; Gregory Star,
Joseph M. Kelleher, Cozen O'Connor, Philadelphia, PA -
Attorneys for Plaintiff
L. Caponi, K&L Gates, Wilmington, DE - Attorney for
Defendant, The GUI Accumulation Trust
NOREIKA, U.S. DISTRICT JUDGE
September 13, 2018, Plaintiff, the Estate of Beverly Berland
(the "Estate" or "Plaintiff), filed an action
in the Delaware Superior Court against Defendants, Beverly
Berland Insurance Trust, Beverly Berland Family Insurance
Trust, Berland Insurance Trust, The GUI Accumulation Trust,
and Park Venture Advisors, LLC (collectively
"Defendants") (Del. Super, N19C-09-102 MMJ CCLD).
September 26, 2018, Defendants, Beverly Berland Insurance
Trust and The GUI Accumulation Trust ("GUI")
removed the case to this Court pursuant to 28 U.S.C. §
1332, citing diversity of citizenship. (D.I. 1).
the Court is Plaintiffs October 9, 2018 Motion for Leave to
Conduct Limited Immediate Discovery "necessary to
confirm that the Estate has named all of the entities who
should be named Defendants in this action" prior to the
potential expiration of the statute of limitations. (D.I. 3
at 3-4). Only one of the Defendants, GUI, responded to the
motion. (D.I. 8). For the following reasons, the Court
grants the motion and orders limited immediate discovery.
party may not seek discovery from any source before the
parties have conferred as required by Rule 26(f), except . .
. when authorized by these rules, by stipulation, or by court
order." Fed. R. Civ. P 26(d)(1). Courts in this district
have applied a "good cause" standard in cases like
these, "where expedited discovery is sought in order to
identify unknown or anonymous John Doe defendants."
Reybold Grp. of Companies, Inc. v. Does 1-20, 323
F.R.D. 205, 208 (D. Del. 2017); see also Vision Films,
Inc. v. John Does 1-24, 2013 WL 1163988, at *3 (D. Del.
Mar. 20, 2013). To determine whether good cause exists, the
Court considers many factors, including: (1) whether
Plaintiff has established a prima facie showing; (2)
whether Plaintiff "has no other way to identify the
alleged wrongdoers, aside from obtaining the discovery at
issue;" and (3) whether "expedited discovery is
necessary . . . ." Reybold, 323 F.R.D. at 208;
see also Vision Films, 2013 WL 1163988 at *3.
court must weigh the need for discovery at an early juncture
in the litigation against the breadth of the discovery
requests and the prejudice to the responding party, by
considering such factors as (1) the timing and context of the
discovery requests [ ] . . .; (2) the scope and purpose of
those requests; and (3) the nature of the burden to the
respondent." Vision Films, Inc., 2013 WL
1163988, at *3 (quoting Kone Corp. v Thyssenkrupp USA,
Inc., C.A. No. 11-465-LPS-CJB, 2011 WL 4478477, at *4
(D. Del. Sept. 26, 2011) (alterations in original). Of
course, an assessment of these factors (going to issues like
the "context.. . of the requests" or the
"scope" or "purpose" of those requests)
will require different types of analyses, depending on the
particular kind of case at issue and the particular type of
expedited discovery sought. (Id.)
GUI does not argue that the Estate has failed to establish
a prima facie showing of its claims or that the
Estate has other ways of identifying potential but yet
unknown defendants. Nor does GUI dispute that a statute of
limitations defense may be raised with respect to potential
defendants. Instead, GUI argues that the discovery sought is
overly broad and that responding would be unduly burdensome.
While the Court is troubled by the Estate's decision to
wait until the end of the limitations period to investigate
claims against potential unknown defendants, it cannot
conclude that that delay should preclude the Estate from
seeking that discovery. The Court finds that Plaintiff has
shown good cause to seek expedited discovery and provided
sufficient evidence that the information sought is limited in
scope and poses little to no burden on the Defendants.
Court will thus grant Plaintiffs motion for leave to conduct
limited immediate discovery. Recognizing GUI's concerns
related to the scope of the proposed order (D.I. 8 at 5), the
Court limits immediate discovery to (a) the issuance of a
document request and an interrogatory to each of the
Defendants and (b) the issuance of third-party subpoenas
pursuant to Rule 45 for documents to any insurance carrier
that may have issued life insurance policy on the life of Ms.
Berland that were identified in response to a document
request or the interrogatory and limited to confirming the
identity of such a policy.
forgoing reasons, Plaintiffs Motion for Leave to Conduct
Limited Immediate Discovery (D.I. 3) is ...