United States District Court, N.D. Mississippi, Aberdeen Division
A. SANDERS, UNITED STATES MAGISTRATE JUDGE
a telephonic conference held on October 31, 2019, the parties
brought before the Court a discovery dispute. Plaintiff asks
the Court to compel Defendant to produce documents related to
modifications and/or alterations to the language of the
“crime coverage” provisions of Axis Insurance
Company's forms made subsequent to Mississippi
Silicon's claim of December 12, 2017. Plaintiff also
asks the Court to compel Defendant to produce a witness to
testify on “underwriting issues” related to the
subject policy and to subsequent modification to the
“crime coverage” provisions.[2" name="FN2" id="FN2">2]
case involves a claim for breach of contract and seeks a
declaratory judgment. At issue is whether Plaintiff's
claimed loss of $1, 025, 887.13 was the direct result of
“computer transfer fraud”-i.e.,
“hacking”-or whether Plaintiff was the victim of
“social engineering.” Computer transfer fraud had
a coverage limit of $1, 000, 000, whereas social engineering
had a coverage limit of $100, 000. Defendant determined the
loss did not meet the definition of computer transfer fraud,
but did meet the definition of social engineering, and paid
the $100, 000 limit. Plaintiff argues the loss met both
definitions, and under the policy, entitled it to the higher
relates to the current discovery dispute, the complaint
alleges that, by denying coverage under the Computer Transfer
Fraud provision, “AXIS has breached its contract with
MS Silicon. AXIS has denied this coverage despite the fact
that its Policy provides for coverage and for which no
exclusion applies.” Moreover, Plaintiff contends
“[n]o reasonable interpretation of the policy permits
AXIS' denial of coverage for MS Silicon's claim under
the Computer Transfer Fraud and Funds Transfer Fraud
analogous case, Renasant Bank sought to recover under a
financial institution bond for damages arising out of the
alleged dishonest or fraudulent conduct of a former bank
vice-president. Renasant Bank v. St. Paul Mercury Ins.
Co., 2016 WL 613360, *1 (N.D. Miss. Oct. 20, 2016).
During discovery, the bank sought information concerning
“the drafting history, interpretation, and construction
of the Bond.” Id. at *2. On appeal, the
district judge affirmed the magistrate judge's finding
“that only the four corners of the Bond should be
considered in any analysis performed in the
breach-of-contract action, because the parties have not
challenged the Bond as ambiguous.” Id.
concedes that evidence of subsequent remedial measures is
inadmissible to prove culpable conduct, but that it can be
admitted for another purpose-and if admissible, it is
discoverable. See F.R.E. 407 (allowing admission of
subsequent remedial measures for purposes such as
“impeachment or-if disputed-proving ownership, control,
or the feasibility of precautionary measures”).
However, Plaintiff fails to show what other purpose the
extrinsic evidence supports, and the case on which it
relies-Jones v. Benefit Trust Life Ins. Co., 800
F.2d 1397 (5th Cir. 1986)-supports the opposite conclusion.
Jones, the district court allowed the introduction
of a policy issued by Benefit Trust to a third party, which
contained language different from that used in Jones'
policy (subsequent remediation). Id. at 1399-1400.
The Fifth Circuit found “[i]t is clear from the record
. . . that the policy was offered as evidence not to
establish culpable conduct but to impeach the credibility of
witnesses for Benefit Trust. Indeed, in a lengthy argument
before the district court, Jones' counsel urged that the
evidence was admissible insofar as it tended to impeach
Benefit Trust's position that the policy language was
ambiguous.” Id. at 1400-01.
Defendant notes that ambiguity is not specifically pled.
Whether the insurance policy at issue is ambiguous is a
decision left to this Court. None of the admissible purposes
of Rule 407 appear applicable. And while evidence need not be
itself admissible to be discoverable, Plaintiff has not shown
this Court that the requested information is relevant or that
it would lead to relevant information. The information
sought-subsequent changes to future policies of the kind at
issue here-has no bearing on whether this particular policy
is itself ambiguous.
ore tenus motion to compel is therefore DENIED.
 Specifically, Mississippi Silicon
seeks “documents related to modifications/alterations
of the language of the Crime Coverage Part of the Privatus
Platinum Forms No. 101 0502 (10-16) and 101 0507 (10-16) made
subsequent to Mississippi Silicon's claim on December 12,
[2" name="ftn.FN2" id=
"ftn.FN2">2] Specifically, Mississippi silicon
seeks “a witness to testify on underwriting issues
related to the subject policy MCN 623938/01/2017 and to
modifications to the Crime Coverage Part of the Privatus
Platinum forms 101 0502 (10-16) and 101 ...