I. Discoverability of Extra-contractual Materials
Federal Rule of Civil Procedure 26 and similar rules in the state courts set forth the limits by which one party can compel discovery from another party. Courts construe Rule 26 broadly to “encompass any matter that bears on, or that reasonably could lead to another matter that could bear on, any issue that is or may be in the case.” However, at the same time, courts are constantly looking to define the limits of Rule 26. As one court noted, although “the boundaries defining information that is relevant” for purposes of discovery are “necessarily vague” and that it is “practically impossible to state a general rule” by which those boundaries might be drawn, “no one would suggest that discovery should be allowed of information that has no conceivable bearing on the case.” Moreover, notwithstanding the vagaries of the limits of Rule 26, courts are directed to limit discovery of even relevant material if they determine that the discovery sought is unreasonably cumulative, duplicative, or obtainable from some other source that is more convenient or if the burden or expense of such discovery outweighs the likely benefit.
Courts that examine the question of whether extra-contractual materials are discoverable typically focus on the question of whether the policy language is (or might be) ambiguous, requiring parol evidence to aid in the interpretation of the policy language. This is because courts generally only admit extrinsic evidence when it is relevant to explain an ambiguity in the written instrument, prove collateral oral agreement that does not vary the terms of the writing, add missing terms in agreements that do not have an integration clause, or show mistake or fraud. Only the first purpose is usually relevant in coverage litigation.
Courts that refuse to allow discovery of any extra-contractual materials often do so based on the conclusion that the policyholder has not identified an ambiguity that requires such an inquiry, or because the law does not permit the policyholder to look beyond the plain language in the insurance contract.
On the other hand, courts that permit discovery of extra-contractual materials normally do so because the policyholder has pointed to some ambiguity in the policy language or because the policyholder has pleaded a claim for bad faith. More frequently of late, courts permit discovery of extra-contractual materials because the judge has not yet determined whether the policy is ambiguous. In these cases, because extrinsic evidence might be relevant if the court finds an ambiguity, extra-contractual materials are fair game in discovery. In some further instances, courts will permit discovery of extra-contractual materials so that the policyholder can attempt to use those materials to establish an ambiguity (sometimes called a “latent ambiguity”) in otherwise unambiguous policy language.
Because there is little consistency in court decisions to either award or deny discovery of extrinsic materials in insurance coverage litigation, the strategies employed by the parties in the litigation and in the discovery process will likely determine whether a policyholder can obtain extra-contractual materials in the course of discovery and the scope of the materials the insurer will have to produce.
II. Strategies for Policyholders Seeking Documents
A. Plead an ambiguity.
Policyholders most often enter coverage litigation after receiving a coverage denial letter or, at the very least, a reservation of rights letter from the insurance carrier. Because these letters identify the particular language in the policy that the insurer determines precludes coverage, the policyholder has the opportunity early in the process to determine whether there is a dispute regarding the meaning or use of terms or phrases in the insurance policy, which can form the basis of the coverage litigation.
If the policyholder believes that the policy is ambiguous, and can otherwise meet his or her Rule 11 obligations, it is to the advantage of the policyholder to plead that the policy is ambiguous, because the pleading forms the starting point from which the scope of discovery is determined. This might include pleading the specific facts that support the policyholder’s belief that the policy is ambiguous.
Thereafter, the policyholder can point to the pleading of ambiguity if the insurer objects to a request for extra-contractual materials on the basis that such materials are not reasonably calculated to lead to the discovery of admissible evidence. This should show the court that the request for such information is clearly designed to seek admissible evidence to support the claim that the policy language is ambiguous. Because the existence of an ambiguity is the hallmark for the admissibility of extrinsic evidence, policyholders are often able to establish a right to discover that information from the insurer if they plead an ambiguity in the policy.
B. Plead bad faith.
To the extent that policyholders have difficulty identifying an ambiguity in the policy that has led to a difference of opinion regarding the insurer’s coverage obligations, another strategy used by policyholders is to blame the adverse decision on the insurer’s bad faith. “Bad faith” on the part of an insurer has been defined as “any frivolous or unfounded refusal to pay proceeds of a policy; it is not necessary that such refusal be fraudulent.” Usually, a policyholder must simply plead and prove the absence of any reasonable basis for the insurer’s coverage position.
Like requesting extrinsic evidence in the first place, it costs the policyholder very little to allege that the insurer’s coverage denial was unreasonable or unfounded. Assuming that such a claim meets the basic Rule 11 requirements, in addition to inviting the potential for extra-contractual damages from the insurer, a bad-faith claim against an insurer opens up many opportunities to discover extra-contractual materials.
For instance, courts have held that claims manuals or guidelines, or both, could show whether the insurer complied with its internal policies and procedures in handling the policyholder’s claim for purposes of determining bad-faith conduct by the insurer. Likewise, courts find that evidence of bad faith can be gleaned from how insurers handle other similar claims, often based on an allegation of a “pattern of bad faith.” Courts have also found that discovery of communications with reinsurers is permitted in litigation of a claim of bad faith, because such communications might elucidate the rationale for the claims decision.
Accordingly, by pleading bad faith against an insurer, policyholders create an issue in the case regarding the rationale for claims handling. That issue permits discovery of many of the extra-contractual materials that might otherwise not be available to a policyholder who cannot establish an ambiguity in the policy language.
C. Make specific discovery requests.
The most common problem with policyholder efforts to obtain discovery of extra-contractual materials is the failure by the policyholder to target the requests to specific sets of documents. Requests seeking all “similar” claims, the drafting histories of all policies over an extended period, all marketing materials over the course of several years, or the entire claims manual/guidelines are very likely overly broad, unduly burdensome, or both. While some courts make an effort to limit overly broad requests in orders to compel discovery, other courts make no effort to do so and instead simply deny motions to compel such requests because they are overly broad.
By targeting requests for materials that are specific to the dispute at issue, policyholders make their requests appear to be much more reasonable, even if such requests are no less burdensome to an insurer. For instance, if the dispute is about the language in a policy endorsement, there is very little reason to request drafting histories, claims materials, or other claims regarding other aspects of the policy. Most courts will not compel such information in any case. When a policyholder limits the request for extra-contractual materials to materials implicating a particular endorsement or specific policy term at issue in the coverage dispute, reviewing courts at the motion-to-compel stage typically show much less reluctance to order an insurer to produce responsive documents.
D. Note that relevance is not the standard. Insurers and some courts focus on whether the discovery requests seek relevant materials when making decisions as to whether extra-contractual materials must be produced. While at a very basic level, this may make a lot of sense, it is not the standard by which discovery is allowed under the Federal Rules of Civil Procedure and in most states.
To the contrary, the limits of discovery are much broader than what documents might be relevant and therefore admissible at trial. This point was underscored in the cited widely by policyholders, Nestle Foods. In that case, the court found that because it had not ruled as to whether the policies were subject to a plain meaning or were ambiguous, discovery of extrinsic materials must be allowed because it could affect the ultimate interpretation of the policy language. The Nestle Foods court ruled that drafting histories and documents that reflect the handling of other claims were discoverable, even if not ultimately admissible, so as to allow the policyholder to determine whether it could prove a claim for ambiguity by exploring the creation of the language and whether the intent of the drafter was consistent with its application by the insurer.
Accordingly, by reminding the court that the relevance and admissibility of extra-contractual materials is not determinative of whether such materials are discoverable, policyholders improve their chances of compelling production of those documents when the insurer refuses to produce them.
III. Insurer Strategies for Thwarting Production
A. Make explicit objections.
When faced with discovery requests for extra-contractual materials, insurers typically respond by issuing standard objections of burden, over-breadth, and lack of relevance. However, courts ordinarily disfavor boilerplate or generalized objections to such requests. Accordingly, when receiving requests for extrinsic evidence, it is important that the insurer evaluate each request individually to determine whether is actually overly broad, burdensome, or vague, and include as part of the written objection an explanation regarding the deficiency in the discovery request. Indeed, some courts find that a failure to provide individualized objections amounts to a waiver of those objections.
For example, an insurer should always challenge the notion that extra-contractual materials are relevant or reasonably calculated to lead to the discovery of admissible evidence. Although it may be enough to make that objection, without more, to avoid waiving it, this objection by itself does not explain for the court (or the policyholder) all of the flaws inherent in such requests. At a minimum, and particularly if the policyholder has not pleaded an ambiguity or bad faith, the insurer should point out that there is no controversy in the case on which such evidence could have any bearing. Because “potential bearing on the case” is the outer limit of discovery afforded by Rule 26, the insurer can begin paving the way for challenging a future motion to compel with specific written objections to this type of discovery.
Another example is a policyholder’s request for documents related to other similar claims files held by an insurer. The flaw in such requests is obvious from the insurer’s point of view. When receiving a request for documents based on similarity, there is no effective way for an insurer to judge whether another claim is truly similar to it. Such requests are too vague to allow any response; they require the insurer to speculate as to what constitutes similarity. In this regard, the insurer has an easy and particularized objection to such requests.
Finally, when an insurer receives a request for all drafting histories, all marketing materials, or all administrative complaints, the insurer has a straightforward objection based on the overbreadth of the request. Adding to the objection an explanation why it is overly broad and burdensome to produce such documents will help preserve the objection against a claim that it is merely boilerplate, and it will add to the insurer’s presentation in responding to a future motion to compel.
B. Focus on burdensomeness.
Rule 26 requires courts to consider the burden and expense the proposed discovery would impose on the responding party, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the discovery in resolving those issues.
The greatest risk facing insurers who engage in disputes over the production of extra-contractual materials is that a court will order an insurer to produce materials without fully evaluating those issues, creating a substantial burden on the insurer in both lost time and expense. The costs can multiply quickly, particularly when the court orders the production of electronic discovery of other claims that must be reviewed and possibly redacted for privilege and potential privacy concerns under the Health Insurance Portability and Accountability Act. Accordingly, when reviewing requests for production of such materials and, in particular, when responding to motions to compel such materials, the insurer should focus on explaining how the production of this material will create a terrible burden for it.
As explained above, the insurer should begin this process by providing some detail regarding the burden of production in tailoring its objections to the specific discovery requests. In addition, any motion for a protective order or opposition to a motion to compel should be accompanied by an affidavit from the insurer that explains the burdens of complying with the request. This affidavit should focus not only on the cost of producing the documents requested; importantly, it should also focus on the cost of searching for responsive documents because this cost might be even more significant.
For example, the insurer may not have a unified database for all claims, such that a search for similar claims or claims involving particular policy language would require searching over many insurance offices and databases. The insurer may not have the ability to electronically search for claim files involving a dispute over a particular endorsement in other claim files, marketing materials regarding a specific insurance term, or correspondence regarding particular policy forms or language. In fact, such searches might require an insurer to expend thousands of man-hours to hand search claim files, marketing files, or correspondence files, to determine whether the documents in those files are even responsive to a particular request. Explaining these types of burdens can be very effective in convincing a court to either deny or severely limit production of such documents based upon burdensomeness. Moreover, by placing the burdensomeness issue into the context of limited relevance, needs of the case, amount of controversy, and the like, the insurer can make a very effective argument to the court regarding the overall need to produce extra-contractual materials.
In addition, to the extent that the policyholder pushes for broad and expensive discovery in a motion to compel, another strategy, which can be used to turn the tables on the policyholder, is to ask the court to shift the costs of that production to the policyholder. By doing so, the insurer can place the policyholder on the horns of dilemma: either reduce the burdensomeness (scope) of discovery or shoulder that burden itself.
C. Requested materials cannot establish Intent.
Policyholders generally support their claim for extra-contractual materials by asserting that drafting histories, other claims files, or communications with other insurers or reinsurers might show an intent that varies with the insurer’s determination regarding the meaning of the policy language. Numerous court decisions that permit discovery of drafting histories and other claim files do so based upon the incorrect assumption that this information can actually reflect the insurer’s intent or show an ambiguity.
However, what can the evolution of the drafting of certain policy language actually tell someone who reviews this information? Ultimately, the drafting history identifies only what language was added or taken out of a policy form or endorsement over a period of time; it does not explain the reason for the changes to the policy language. At best, drafting histories can form the basis of an argument for policy interpretation that has, in each case, an equally plausible counterargument.
Moreover, the meaningfulness of drafting histories of a particular policy form to an insurer’s intent is further weakened when one considers the fact that the insurer likely did not draft the policy form at issue in the dispute. Many policy forms are drafted by independent insurance organizations such as the ISO (Insurance Services Office) or the SFAA (Surety and Fidelity Association of America). These forms are used by insurers not because of an intent by the individual insurer to use one particular turn of phrase over another but, instead, because these forms are readily approved by state insurance regulatory bodies for the insurance industry.
In addition, an insurer’s decision to pay or deny a claim in another context is hardly evidence of whether the insurer’s decision in the case at bar was appropriate. The facts of every claim are different. Even a different claims decision in an identical claim is not necessarily evidence that the insurer was wrong in the case at bar. It could simply be the circumstance that the adjustor more carefully reviewed the coverage issues in the case at bar. Most courts would not suggest that the insurer should be forced to pay all future similar claims because its adjustor previously paid a claim that he or she should have denied. Likewise, most policyholders would not agree that the policy is unambiguous based solely on evidence of consistent claims handling by the insurer. For these reasons, these materials are not actually calculated to lead to evidence of an ambiguity in the policy or bad faith by an insurer.
Requests for marketing materials or communications with other insurers are rarely calculated to lead to the discovery of admissible evidence. All insurance policies have integration clauses, which do not allow outside writings to change or supplement the language in the policy. Meanwhile, cases relied on by policyholders to compel production of any document (including marketing materials or communications) suggest that such materials, which might contain a representation that conflicts with the policy language, are discoverable because they could make the policy ambiguous. In essence, those courts are permitting discovery of this material as a source of additional terminology to the insurance contract, because this is the only way in which such documents could create an ambiguity in an otherwise unambiguous writing. However, because those documents should not be able to alter the language in the policy, an insurer should make the argument that the integration clause in the policy prevents those documents from ever leading to the discovery of admissible evidence.
Accordingly, insurers should critically look at each discovery request for extra-contractual materials and evaluate whether production of the requested documents could actually lead to the discovery of admissible evidence, in addition to the burden and scope of the discovery sought.
Keywords: insurance coverage, litigation, discovery, strategy, coverage, extrinsic
Daniel Tranen is a partner at Hinshaw & Culbertson LLP in Boston.
 Although “policyholder” is typically shorthand for the “named insured,” and “named insureds” are simply a subset of those who may be insured under a policy of insurance, for ease of reference the author uses the terms “policyholder” and “insured” interchangeably.
 Frank H. Easterbrook, Comment, “Discovery as Abuse,” 69 B.U. L. Rev. 635, 636 (1989) (Discovery is not only “a tool for uncovering facts essential to accurate adjudication” but also “a weapon capable of imposing large and unjustifiable costs on one’s adversary.”).
 Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351–52, 98 S. Ct. 2380, 57 L. Ed. 2d 253 (1978) (“[D]iscovery, like all matters of procedure, has ultimate and necessary boundaries. Discovery of matters not reasonably calculated to lead to the discovery of admissible evidence is not within the scope of Rule 26(b)(1).”) (internal citations omitted).
 Food Lion, Inc. v. U.S. Food & Commercial Workers Int’l Union, AFL-CIO-CLC, 103 F.3d 1007, 1012 (D.C. Cir. 1997) (quoting 8 Wright, Miller & Marcus, Federal Practice and Procedure: Civil 2d § 2008, at 105–6); see also Broadway & Ninety Sixth St. Realty Co. v. Loew’s Inc., 21 F.R.D. 347, 352 (S.D.N.Y. 1958) (“[P]ractical considerations dictate that the parties should not be permitted to roam in the shadow zones of relevancy and to explore matter which does not presently appear germane on the theory that it might conceivably become so.”).
 Fed R. Civ. P. 26(b)(2)(C).
 Jay Realty, Inc. v. Ahearn Dev. Corp., 453 A.2d 773 (Conn. 1983).
 See, e.g., Travco Ins. Co. v. Ward, 715 F. Supp. 2d 699, 707 (E.D. Va. 2010) (noting that only when the policy is found to be “lacking in clarity” should the court resort to parol evidence); Cato Inst., Inc. v. Cont’l Cas. Co., No. JFM-11-01418, 2011 U.S. Dist. LEXIS 91318, at * 14 (D. Md. Aug. 16, 2011) (denying, without any explanation of how the exclusion was ambiguous, policyholder’s request for discovery as to the party’s intent); Dunson v. Home-Owners Ins. Co., No. 5-09-37, 2010 Ohio App. LEXIS 1596, at * 8 (Ohio. Ct. App. May 3, 2010) (affirming trial court’s protective order regarding extrinsic evidence based on policyholder’s failure to identify the specific ambiguities in the policy); Rhone-Poulenc Rorer, Inc. v. Home Indem. Co., 139 F.R.D. 609, 611–12 (E.D. Pa. 1991) (prohibiting discovery of extrinsic evidence in advance of a determination that the policy is ambiguous).
 See, e.g., Blue Cross of Idaho Health Serv., Inc. v. Atl. Mut. Ins. Co., No. 1:09-CV-246-CWD, 2011 U.S. Dist. LEXIS 4892, at * 5 (D. Idaho Jan. 19, 2011) (finding that because, as a matter of law, courts in Idaho are required to interpret insurance policies consistent with what a reasonable person in the insured’s position would understand the language to mean, all requests for extrinsic evidence regarding the policy or the coverage decision are irrelevant).
 Nestle Foods Corp. v. Aetna Cas. & Sur. Co., 135 F.R.D. 101, 106 (D.N.J. 1990).
 See, e.g., Silgan Containers v. Nat’l Union Fire Ins., C 09-05971 RS, at *5 (N.D. Cal. Dec. 21, 2010); Viking Yacht Co. v. Affiliated FM Ins. Co., No. 07-80341-CIV, 2008 U.S. Dist. LEXIS 123444 (S.D. Fla. Feb. 7, 2008) (“[E]xtrinsic evidence of interpretive materials is discoverable at this early stage of the litigation when questions concerning ambiguity have not been resolved.”); Young v. Liberty Mut. Ins. Co., No. 3:96-CV-1189, 1999 U.S. Dist. LEXIS 6987, at * 17 (D. Conn. Feb. 16, 1999) (“[E]ven if the court were to ultimately conclude that the CGL policies at issue are unambiguous, this should not prevent the plaintiffs from discovering evidence which may present an ambiguity in the CGL policies at issue.”).
 Emp’rs Reinsurance Corp. v. Super. Ct., 161 Cal. App. 4th 906, 919–20, 74 –Cal. Rptr. 3d 733 (Cal. Ct. App. 2d Dist. 2008) (“Even apparently clear language may be found to be ambiguous when read in the context of the policy and the circumstances of the case.”); Ponder v. State Farm Mut. Auto. Ins. Co., 129 N.M. 698, 12 P.3d 960, 965 (N.M. 2000) (“In abandoning reliance only on the four-corners approach, courts are now allowed to consider extrinsic evidence in determining whether an ambiguity exists in the first instance, or to resolve any ambiguities that a court may discover.”); see also Phila. Indem. Ins. Co. v. Westchester Surplus Lines Ins. Co., No. 4:08 CV 05686 SBA, 2010 U.S. Dist. LEXIS 34873, at *3 (N.D. Cal. Mar. 19, 2010) (granting protective order for extrinsic evidence based on burdensomeness of request, but finding that extrinsic evidence could have “some limited potential relevance” to shed light on possible ambiguity in otherwise unambiguous language).
 For Illinois, compare Mutlu v. State Farm Fire and Casualty Co., 337 Ill. App. 3d 420, 785 N.E.2d 951 (Ill. App. Ct. 2003) (affirming decision to refuse discovery of extrinsic evidence prior to dispositive motion where policy was unambiguous), with In re Klein, 97 B.R. 394, 397 (N.D. Ill. 1989) (“Illinois courts have always allowed extrinsic evidence to be introduced to show that an apparently unambiguous contract is nevertheless ambiguous.”). For California, compare Employers Reinsurance Corp., 161 Cal. App. 4th at 919–20, with Ameron, Inc. v. Insurance Co. of North America, 51 F.3d 279 (9th Cir. 1995) (finding that under California law extrinsic evidence is irrelevant where the terms of a contract are not ambiguous). For New York, compare American Home Assurance Co. v. McDonald, 182 Misc.2d 716, 698 N.Y.2d 436 (N.Y. Sup. Ct. 1999) (denying motion to compel discovery where policy terms are unambiguous) with Arkwright Mutual Insurance Co. v. National Union Insurance Co. of Pittsburgh, Pa., 90 CIV 7811 (KC), 1993 U.S. Dist. LEXIS 14986 (S.D.N.Y. Oct. 26 1993) (following Nestle Foods decision and permitting discovery of drafting histories).
 Federal Rule of Civil Procedure 11 requires that the party filing the lawsuit (or any pleading) determine that (1) the pleading is not made for an improper purpose, (2) that the claims are warranted by existing law (or a non-frivolous argument for extending or modifying current law), and (3) that the factual contentions have (or will likely have) evidentiary support after a reasonable investigation. Most state court rules have a similar requirement. For purposes of this article “Rule 11” refers generally to those requirements.
 Fed. R. Civ. P. 26(b).
 Courts do look to the pleadings in determining whether to permit discovery of extra-contractual materials. See, e.g., Palacin v. Allstate Ins. Co., 119 Cal. App. 4th 855, 14 Cal. Rptr. 3d 731 (Cal. Ct. App. 2004); Champion Int’l Corp. v. Liberty Mut. Ins. Co., 129 F.R.D. 63, 37 (S.D.N.Y. 1990) (mere allegation that the insurers made representations that conflicted with the plain meaning of the policy was sufficient to make the policy ambiguous and render extrinsic evidence discoverable, even though those allegations might ultimately prove to be unfounded).
 Black’s Law Dictionary 139 (6th ed. 1990).
 Anderson v. Cont’l Ins. Co., 85 Wis. 2d 675, 271 N.W.2d 368 (Wis. 1978); Noble v. Nat’l Am. Life Ins. Co., 128 Ariz. 188, 624 P.2d 866 (Ariz. 1981); Farmers Grp., Inc. v. Trimble, 658 P.2d 1370 (Colo. App. 1982) (noting that the tort of “bad faith” is “somewhat amorphous in form”).
 U.S. Fire Ins. Co. v. Bunge N. Am., Inc., 244 F.R.D. 638, 646 (D. Kan. 2007); Evans v. USAA, 142 N.C. App. 18, 541 S.E.2d 782, 792 (N.C. Ct. App. 2001); see also Sickora v. Nw. Mut. Life Ins. Co., No. CIV. A. 00-6194, 2011 U.S. Dist. LEXIS 16394 (E.D. Pa. Oct. 10, 2001) (ordering production of training materials).
 See, e.g., Westport Ins. Corp. v. Wilkes & McHugh, P.A., 264 F.R.D. 368, 372 (W.D. Tenn. 2009).
 Imperial Trading Co. v. Travelers Prop. and Cas. Co. of Am., No. 06-4262, 2009 U.S. Dist. LEXIS 41372 (E.D. La. May 5, 2009).
 See, e.g., Pepperwood of Naples Condo Ass’n, Inc. v. Nationwide Fire Mut. Ins. Co., No. 2:10-cv-735-FtM-36SPC, 2011 U.S. Dist. LEXIS 114073 (M.D. Fla. Oct. 3, 2011); Berk-Cohen v. Landmark Am. Ins. Co., No. 07-9205, 07-9207-SSV-SS, 2009 U.S. Dist. LEXIS 63894 (E.D. La. July 9, 2009).
 In fact, by limiting the scope of discovery, a policyholder can make the request much more difficult to fulfill. For example, it may cost an insurer a great deal of money to dump 2 million claim files on a policyholder, which would have the effect of burying any useful material in a mountain of documents. However, it would likely cost an insurer much more money to search those 2 million claim files for production only of claims involving the very specific language at issue in the coverage litigation at bar.
 Falanga v. Allstate Ins. Co., 07-4235 (E.D. La. Apr. 11, 2007); In re Alford Chevrolet-Geo, 997 S.W.2d 173, 180 (Tex. 1999) (“[D]iscovery requests must be reasonably tailored to include only matters relevant to the case.”).
 See, e.g., Fed. R. Civ. P. 26(b).
 Nestle Foods Corp. v. Aetna Cas. & Sur. Co., 135 F.R.D. 101 (D.N.J. 1990).
 Nestle Foods Corp., 135 F.R.D. at 105 (“[H]ow can plaintiff be denied documents on grounds of inadmissibility before a court has ruled on the underlying issues?”).
 PLX, Inc. v. Prosystems, Inc., 220 F.R.D. 291, 293 (N.D. W. Va. 2004); Momah v. Albert Einstein Med. Ctr., 164 F.R.D. 412, 417 (E.D. Pa. 1996) (“[The] mere recitation of the familiar litany that an interrogatory or a document production request is ‘overly broad, burdensome, oppressive and irrelevant’ will not suffice.”).
 Sabol v. Brooks, 469 F. Supp. 2d 324, 328 (D. Md. 2006) (“Failure to make particularized objections to document requests constitutes a waiver of those objections.”).
 See, e.g., Cotracom Commodity Trading Co. v. Seaboard Corp., 189 F.R.D. 655, 666 (D. Kan. 1999) (denying motion to compel where the respondent is “left to guess what documents are responsive” because request “is not specific enough to readily identify what is wanted”); Cecena v. Allstate Ins. Co., No. C05-03178 JF (HRL), 2006 U.S. Dist. LEXIS 86290 (N.D. Cal. Nov. 9, 2006) (finding request for similar case information was overbroad and vague).
 Young v. Liberty Mut. Ins. Co., No. 3:96-CV-1189, 1999 U.S. Dist. LEXIS 6987, at *17 (D. Conn. Feb. 16, 1999).
 There is a significant strategic advantage to being the party that brings the discovery dispute to the attention of the court either through a motion to compel or a motion for a protective order. With a reply brief, the moving party gets both the last word and two briefs to the responding party’s single brief. This is particularly important in courts that rule on discovery motions on the papers.
 Insurers might have similar problems locating administrative or regulatory claims filed against insurers in various jurisdictions and especially marketing materials relating to specific policy types.
 See, e.g., Nestle Foods Corp. v. Aetna Cas. & Sur. Co., 135 F.R.D. 101, 107 (D.N.J. 1990) (limiting production of other claims files to a sampling of 10 earliest and 10 most recent files based on a finding of burdensomeness to the insurer); Way, Int’l v. Exec. Risk Indem., Inc., No. 3:07cv294, 2009 U.S. Dist. LEXIS 90221 (S.D. Ohio Jan. 27, 2009) (limiting production to only open claim files after insurer projected it would take “twenty full-time employees over four years to review more than 2 million closed files simply in order to identify which files involve ‘directors and officers’”); see also Scottrade, Inc. v. St. Paul Mercury Ins. Co., No. 4:09CV1855SNLJ, 2011 U.S. Dist. LEXIS 14833 (E.D. Mo. Feb. 15, 2011) (limiting production and noting that burden must be balanced with relevancy); Cummins, Inc. v. Ace Am. Ins. Co., No. 1:09-cv-00738-JMS-DML, 2011 U.S. Dist. LEXIS 4568 (S.D. Ind. Jan. 14, 2011) (limiting production of drafting history documents).
 See, e.g., Rodger v. Elec. Data Sys., Corp., 155 F.R.D. 537 (E.D.N.C. 1994) (shifting costs of broad discovery of employer to employee/plaintiffs in discrimination action).
 See, e.g., Karl N. Llewellyn, “Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed,” 3 Vand. L. Rev. 395, 401–6 (1950). In this essay, legal scholar Karl Llewellyn noted that in the statutory context, for each rule of interpretation there is a responsive rule which limits or qualifies it. These dueling interpretive canons are equally applicable in the construction of contracts.
 Pardee Constr. Co. v. Ins. Co. of the West, 77 Cal. App. 4th 1340, 92 Cal. Rptr. 2d 443, 456 n.15 (Cal. Ct. App. 2000) (“ISO is a nonprofit trade association that provides rating, statistical, and actuarial policy forms and related drafting services to approximately 3,000 nationwide property or casualty insurers. Policy forms developed by ISO are approved by its constituent insurance carriers and then submitted to state agencies for review.”).
 See, e.g., Champion International, 129 F.R.D. at 67–68.
 Courts that permit admission of extrinsic evidence to establish an ambiguity typically discuss only extrinsic evidence that provides “context” for circumstances in the creation of the contract. Thus, for marketing materials to be even potentially relevant, the policyholder should have to demonstrate that he or she actually relied on those marketing materials in agreeing to the policy language in order to establish an ambiguity in otherwise unambiguous language. This would, of course, take all (or almost all) of the insurer’s marketing materials outside of the scope of discovery.
 In re Minn. Mut. Life Ins. Co. Sales Practices Litig., 346 F.3d 830 (8th Cir. 2003) (because policies were fully integrated, court could not consider extrinsic evidence unless policy was ambiguous on its face); Abercrombie & Fitch, Co. v. Fed. Ins. Co., No. 2:06CV831, 2008 U.S. Dist. LEXIS 77181 (S.D. Ohio July 1, 2008) (denying discovery of extrinsic evidence based on existence of integration clause in policy, which prevents court from considering extrinsic evidence until it determines that the policy is ambiguous).