· drafting history and marketing materials—documents bearing on the interpretation of the policy language, such as the existence of more explicit exclusionary language, evidence that the insurer has taken an inconsistent position in interpreting the policy language, or documents supporting that the policyholder had a reasonable expectation of coverage based on the insurer’s marketing of the policy terms when the policy was placed;
· underwriting manuals—documents showing the insurer has argued for an interpretation inconsistent with its own internal policies, which could resolve ambiguities and establish a bad-faith claim;
· reinsurance information—documents establishing how the insurer and reinsurer interpreted the policy and the types of claims for which the insurer sought coverage from its reinsurer under the same policy language; and
· other insured information—documents bearing on the interpretation of policy language issued to other insureds of the same insurer that relate to the same type of coverage.
In seeking such extra-contractual evidence, the policyholder should anticipate that the insurer will object to such discovery, and the policyholder should be prepared to file a motion to compel to obtain the discovery. The insurer will most likely argue that the well-established rules of insurance interpretation, which generally require courts to determine coverage based on the plain language of the policy or to resolve any ambiguity in favor of the policyholder, makes the discovery of extra-contractual evidence irrelevant. However, the policyholder should counter that the rules of discovery are broadly construed and permit discovery that “encompass[es] any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case.” Indeed, and as recognized by several courts, “[r]elevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Thus, relevancy is more “loosely construed at the discovery stage than at trial.” The discovery of extra-contractual evidence is particularly warranted when the court has not yet ruled on whether the policy is ambiguous, thereby defeating an insurer’s argument that the doctrine of contra proferentem makes extrinsic evidence irrelevant. Also, such evidence is particularly relevant when the applicable law permits extrinsic evidence either to resolve an ambiguity or to demonstrate the existence of a latent ambiguity. Ultimately, the insurer, as the party resisting discovery, would have the burden of proving that the evidence is irrelevant or otherwise persuading the court that its grounds for objecting are valid.
As discussed in greater detail in the following sections, courts have often ordered the discovery of the categories of documents described above. Nonetheless, the policyholder can increase its chances of a favorable motion to compel ruling by considering the following strategies:
1. Plead ambiguity. The policyholder can raise the potential that the policy language is ambiguous in its complaint or answer in the coverage dispute. The policyholder is in the unique position of being able to obtain coverage by demonstrating that the plain language provides coverage or, in the alternative, by showing that the language is ambiguous. Thus, there is no real disadvantage to affirmatively pleading that the policy language is ambiguous as an alternative grounds for recovery, and the policyholder can more easily demonstrate that the extra-contractual evidence is relevant and potentially admissible because it will support the allegations of its pleading.
2. Focus the discovery requests. The insurer will likely argue that the discovery sought by the policyholder is unduly burdensome and expands beyond the scope of anything relevant to the coverage dispute at hand. For instance, the insurer may argue that a request for all drafting history is too broad. However, by tailoring the request to the specific provisions and time frame at issue, the policyholder is more likely to overcome the insurer’s complaints that the discovery will be burdensome. Each section below discusses how to tailor the discovery requests for each category to deflate the insurer’s ability to challenge the discovery on burdensome grounds.
3. Allege bad faith. Many of the cases ruling in favor of discoverability of extra-contractual evidence involve a claim for bad faith. Typically, to prove bad faith, the policyholder must show that the insurer unreasonably has interpreted policy language to deny coverage and put its own interest over its insured’s interests. Also, a showing that the insurer has taken inconsistent positions regarding the interpretation of the policy language could be used by the policyholder to prevail on its bad-faith claim or to assert a bad-faith claim. Thus, if bad faith is pled, the policyholder can argue that discovery of extra-contractual evidence would bear on its ability to prove its bad-faith claim.
4. Play fair. A policyholder that has made every reasonable effort to comply with the insurer’s discovery requests will likely persuade a court to grant its motion to compel answers to tailored discovery requests against the insurer. For instance, if the insurer has sought coverage related to the policyholder’s applications for insurance or communications with its brokers regarding the scope of coverage, compliance with such requests, except where a privilege exists, will make it difficult for the insurer to credibly argue that it should not be subject to the same type of discovery. This will be especially helpful as a counter to an insurer’s attempt to shift the costs of its obligation to produce documents onto the policyholder because the policyholder can demonstrate that it already has expended significant amounts in responding to the insurer’s discovery requests.
Drafting History and Marketing Materials
“Drafting history” is a widely used term to refer to any materials related to the creation or modification of policy language, including prior versions of the provisions involved in the coverage dispute. Typically, insurance policy terms comprise standard forms used throughout the industry, in which the Insurance Services Office, Inc. (ISO) often provides model language that insurers incorporate into their policies without change or with modification. Thus, in addition to seeking drafting history from the insurer, the insured also may need to consider serving a third-party subpoena on ISO. In other instances, the policy language at issue may be manuscript, in which the coverage and language was custom-drafted for a particular insured. Discovery of the drafting history of manuscript provisions is particularly relevant, especially if the insured was involved in the drafting of the language, because the general rules regarding interpretation of the policy might not apply and the parties may be required to present extrinsic evidence to resolve any ambiguities. Also, the insurer’s statements or marketing of policy terms to insureds could demonstrate the insurer’s true intent for the application of the disputed policy language and, at a minimum, demonstrate the insured’s reasonable expectations regarding the application of the language.
Drafting history is useful for an insured because it can provide insight into the meaning and intended application of the policy language, such as by revealing whether the insurer has changed the language over the years to make a provision more restrictive or broader, whether the insurer had access to more explicit limiting language that it did not include in the policy at issue, and whether the insurer has any notes reflecting the reason for any modifications. This information can be used to resolve any ambiguity to show that the insurer could have drafted clear exclusionary language and indeed had access to more restrictive language that it did not include in the policy. Also, the information may reveal that the insurer has a different internal interpretation than the one it has taken in the coverage dispute, which should also support or give rise to a bad-faith claim. This information will also likely give the insured greater settlement leverage.
Several courts have allowed for the discovery of drafting history materials, despite the insurer’s arguments regarding relevance. Courts have found that drafting history is relevant and could lead to the discovery of admissible evidence regarding interpretation of the policy language at issue. As explained by the Eastern District of Pennsylvania, “[t]he drafting history of the policies, the insurer’s participation in organizations involved in the drafting and their adoption of standard form language promulgated by these organizations is relevant to the insurers’ intent concerning the policies in question.” Indeed, courts have held that drafting history is relevant and discoverable information even if such information is ultimately inadmissible at trial.
Practical Tips for Discovery Requests: Counsel should draft carefully tailored discovery requests related to drafting history to increase the chances of success in obtaining the desired materials. First, an insurer should propound discovery requests to confirm whether the provisions at issue are “standard form” or manuscript. At a minimum, the document request should be limited to the exact provision or provisions at issue and include a reasonable time limitation to provide guidance on how far back the insurer needs to search, to minimize any claim that the request is unduly burdensome. Counsel also should draft requests that explicitly state what information or documents are being sought. For example, the court in Hoechst Celanese Corp. refused to permit the insured to seek discovery of promotional materials because its discovery request seeking all documents related to the scope of coverage was too vague to encompass such documents, and the insured failed adequately to explain why such documents were relevant. Indeed, the request did not even mention the terms “marketing,” “advertising,” or “promotional material.”
Practical Tips for Use During a Deposition: A careful review of any drafting history produced in discovery should help counsel prepare to obtain helpful admissions or acknowledgments from the underwriter during the deposition. Insured counsel should use the documents to gain a better understanding of how the policy language was drafted, including any reasons for modifications, the insurer’s internal interpretation of the policy language, acknowledgment that more restrictive language existed by comparing different versions of the policy language, and confirmation of whether the insurer had access to more restrictive language that it did not include in the policy.
Of course, a well-prepared witness is unlikely to give such answers directly, and counsel will have to be careful and creative in the wording of his or her questions. Counsel should request that the underwriter be designated as a corporate witness, which generally requires counsel for the insurer to provide a witness who is knowledgeable about the information to which he or she will testify. This should limit the witness’s ability to be evasive because his or her answers are being made on behalf of the insurer. However, some general areas to uncover include:
Counsel should inquire about the underwriter’s role, training, and experience to establish that the underwriter should know how to read and interpret policy language, which easily can be addressed when developing background information about the underwriter such as whether he or she has had any training, whether interpreting policy language is part of his or her role as an underwriter, and whether the witness has any experience in interpreting polices. Counsel may be able to refer back to answers to these questions if the underwriter attempts to avoid answering questions by saying he or she does not know what policy language means or how the insurer interpreted the policy.
It is not necessary for the underwriter to explicitly say that more restrictive policy language existed but was not included in the policy or that the insurer has a different internal interpretation. It can be just as powerful for an underwriter to state that the policy language is the same or different and to explain which parts are the same or different.
It also can be helpful to establish what the insurer intended for the language to mean when the policy was issued to the insured. Policies are typically placed based on the type of coverage the insured requests, and the policy language and forms are later assembled to issue the policy. The specifics of the policy language to include in the policy are rarely discussed when the policy forms are being assembled, and at times, the insurer may not even have available policy language when it agrees to issue coverage.
Underwriting Guidelines and Manuals
Discovery of underwriting guidelines and manuals refers to the “set of rules and requirements an insurer provides for its agents and underwriters” to guide them on making decisions to accept or reject an insured’s request for coverage. These documents are useful for insureds because they generally provide information about the type of risks covered or excluded by a particular provision. In some cases, these guidelines include a clear statement regarding the insurer’s intent in the application of specific policy provisions and demonstrate whether the insurer has taken an inconsistent interpretation in a coverage dispute.
Indeed courts routinely have allowed the discovery of underwriting guidelines and manuals as being relevant to how the insurer “understood and intended” to apply a particular policy provision. Because underwriting guidelines and manuals may reveal whether the insurer has taken a coverage position that is inconsistent with its internal interpretation of the same language, such documents are particularly relevant to support or establish a bad-faith claim.
Also, to the extent that the insurer argues that underwriting guidelines and manuals are not discoverable because they contain proprietary information, courts have found that such concerns can be addressed by producing the documents under a court-ordered protective order.
Practical Tips for Discovery Requests: Again counsel should seek to draft carefully tailored discovery requests to thwart the insurer’s relevancy and burdensome arguments. For instance, the insured should clarify whether it is seeking all underwriting manuals of the insurer or just the manual in place and used to issue the policy in dispute. Courts have reached different outcomes on this point, with some courts finding that only the underwriting manual in place at the time the policy was issued is irrelevant, and others accepting an insured’s argument that it should not be limited to the insurer’s representations of which manual is relevant. The insured can clarify that its request is limited to the specific type of coverage at issue and set a time frame for the manuals requested. These boundaries on the scope of discovery could be established by the parties in the meet-and-confer process.
Practical Tips for Use During a Deposition
Underwriting manuals produced by the insurer should be carefully reviewed to assess whether there are any statements that directly relate to the coverage provision and issues at stake. Such a review will help the insured’s counsel prepare for and develop tailored questions to ask during the deposition in much the same way that drafting history information can be used. Specifically, the insured’s counsel should seek to use underwriting manuals and guidelines to obtain an acknowledgement that the insurer has internally interpreted the provision differently than the interpretation taken to dispute coverage. By establishing such an inconsistency in a deposition, an insured increases the chances that the insurer may be more willing to amicably resolve the coverage dispute. Indeed, an insured fortunate enough to get discovery of an underwriting file may find that the insurer is willing to resolve the dispute before depositions are even taken.
In any event, to minimize the potential of an evasive witness, insureds should request that the underwriter be designated as a corporate witness, as discussed above, and establish the foundations necessary to qualify that the witness has knowledge or has been prepared to testify about the insurer’s use of underwriting manuals and guidelines.
Also, questioning should be focused on obtaining a statement from the witness as to the interpretation of a provision in the underwriting guideline or manual by using documents that the witness should find difficult to refute.
The insured is generally entitled to copies of the insurer’s reinsurance agreements under Federal Rule of Civil Procedure 26(a)(1)(A)(iv), which requires parties to disclose “any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.” The reinsurer would be liable to indemnify the insurer for all or part of a judgment against the insurer; therefore, courts generally hold that the insurer must produce reinsurance agreements. However, some courts have held the disclosure rule does not apply if the only claims are for a declaratory judgment about coverage, and not for monetary relief.
The communications between the insured and reinsurer are not, however, included in the disclosure rule. Some courts have ordered production, while others have limited or denied the request to compel production of communications between the insurer and reinsurer. The rulings vary based on the court’s perception of potential relevancy of the documents to the claims and defenses in the action, and the scope of the request.
Whether communications between cedents and their reinsurers are discoverable appears to be dependent on the nature of the issues to which they are alleged to be relevant. . . . [C]ourts appear reluctant to permit discovery of communications between cedents and their reinsurers for the purpose of establishing the proper interpretation of an unambiguous insurance policy, but are more willing to permit discovery for other purposes, such as defending against an insurer’s effort to rescind a policy; to deny claims for late notice; to reconstruct a lost policy; or as extrinsic evidence of an ambiguous policy provision.
The communications between an insurer and its reinsurers about the claim may reveal the insurer’s views on coverage, including admissions indicating it thought that coverage exists. As one court stated, the insurers’
communications with their reinsurers may provide or lead to the discovery of potentially admissible extrinsic evidence of a meeting of the minds concerning the language of the policies at issue. Furthermore, these communications may be relevant to the relative positions of the parties with regard to their knowledge of the risks associated with [the product].
Even though insurers will argue that the policy terms in question are unambiguous, extrinsic evidence should be admitted to show that the terms are indeed ambiguous and to interpret language found to be ambiguous. The communications with a reinsurer also may demonstrate the insurer switched its position about whether coverage existed for the claim. Such communications also may reveal the insurer’s analysis of its exposure, statements about missing policies, and valuation of the underlying claim.
Where the insurer asserts rescission or denies coverage based on an alleged misstatement in the insurance application, communications with reinsurers may expose whether the insurer thought the representation was material to underwriting. In a New York case, the insurer asserted a cross-claim against the insured for fraudulently failing to disclose certain information about the property condition. The insured argued that the reinsurance documents were relevant because they could contain a formula showing how the insurer decided to price the insurance based on the property’s condition and value. In another case from the same jurisdiction, the court found reinsurance documents relevant because they may reflect the insurer’s understanding of the risk it underwrote, allowing the insured to rebut the defense that the insured failed to disclose information.Moreover, the insurer’s notice of claim to the reinsurer may evidence the insurer’s understanding of the underlying claims against the insured and contain admissions about coverage. Statements by the insurer to its reinsurer may be used to rebut an insurer’s claim of prejudice from late notice.
In addition, in bad-faith cases, insurer-reinsurer communications may demonstrate an insurer’s pattern or practice of improperly denying claims, its failure to conduct a reasonable investigation of the claim, and its understanding of the likelihood of an excess verdict against the insured.
However, some courts have found that the purchase of reinsurance, particularly when the purchase is through a “reinsurance treaty” whereby the reinsurer agrees to accept an entire block of business from the insured, is of marginal relevance:
Underwriters’ purchase of reinsurance may show their subjective belief or intention, but it does not mean a primary insurance policy was in effect. . . . If, however, other evidence supports plaintiff’s position that the policy was in effect, reinsurance in the face of denial of coverage might suggest bad faith. [Plaintiff] also believes bad faith would be demonstrated with the opposite outcome—lack of reinsurance. That hay could be made from either outcome is probably the best demonstration that the probative value of this information is little.
Practical Tips for Discovery Requests: The insured should craft the request for communications between the insurer and reinsurer to seek documents relevant to the claims and coverage defenses, whether that is policy interpretation, late notice, or rescission. Courts have rejected motions to compel broad requests for “all documents” relating to reinsurance as fishing expeditions.
The insured should be prepared to respond to the insurer asserting attorney-client privilege or work product protection objections based on an alleged common interest privilege between the insurer and reinsurer. The common interest privilege “serves to protect the confidentiality of communications passing from one party to the attorney for another party where a joint defense effort or strategy has been decided upon and undertaken by the parties and their respective counsel.” For the common interest privilege to apply, the documents must meet the requirements of attorney-client privilege or work product, and the insurer must demonstrate that it and the reinsurer have an identical common, legal interest. A common commercial interest does not suffice. The parties must have made an agreement (although not necessarily in writing) to cooperate to pursue a common legal strategy. Insurers have argued that there is a common interest with the reinsurer because the insured’s coverage claim and the insurer’s rescission claim affect what funds the reinsurer will be obligated to pay, or if it will be reimbursed. However, courts have refused to categorically hold that there is a common interest between the insurer and reinsurer, and, indeed, the two may be adverse to each other. Also, the insurer may be obligated to notify the insurer of the policyholder’s claim and status of investigation; therefore, the documents exchanged about notice and status of the claim are not work product.
Practical Tips for Use During a Deposition: The insured can use the documents to identify the factors the insurer considers in deciding with whom and how to place the risk, and how the insurer’s and reinsurers’ knowledge or opinion about the scope of coverage of underlying policies affected the decision about placing the reinsurance risk. If the issue is policy interpretation, the insured should use any communications with the reinsurer about the covered risks and policy interpretation to determine whether the insurer has taken conflicting positions. If the insurer has raised a late notice defense, the insured should use documents informing the reinsurer of the claim and providing status reports to obtain testimony that the insurer has not been prejudiced by the late notice. When the insurer has asserted rescission based on misstatements or omissions in the insurance application, the insured can use the documents to obtain testimony demonstrating that the insurer did not consider the misstatements or omitted information crucial enough to include in communications with the reinsurers.
Other Insured Information
In anticipation of deposing the underwriter, as well as the claims adjuster, the insured should request the claims and underwriting files for other insureds with the same or similar policy language who filed similar claims. Discovery of other insureds’ files is relevant to how the insurer interpreted similar provisions in different contexts. In other words, such documents may show “identical language has been afforded various interpretations by the insurer . . . .” Other insureds’ underwriting and claim documents are especially useful when the insurer responded to claims from multiple insureds for the same event, such as a hurricane. Such other insured documents also are useful in a bad-faith case to show a pattern or practice of denying meritorious claims. For example, a Pennsylvania court allowed discovery of other insureds’ claim files because the insured alleged the defendant breached the insurance policy as the result of a corporate pattern, practice, policy, or a combination of these, to deny or dilute the disability claims of policyholders similarly situated to the plaintiff. Conversely, other insured files also may demonstrate that an insurer consistently covers similar claims but, in breach of contract and potentially in bad faith, denied the insured’s claim.
Practical Tips for Discovery Requests: The insured should be prepared to respond to the insurer’s expected objection that documents relating to other insureds are not relevant to the instant dispute. To counter this argument, the insured should make clear it is not seeking to have mini-trials on the propriety of how the insurer handled every other claim, nor is it engaging in a fishing expedition; it is merely seeking discovery on the relevant issue of how the insurer interprets the policy or the insurer’s demonstrated pattern and practice of wrongly denying similar claims.
The insurer also may object that it is unduly burdensome to compile such information. To preempt this objection, the insured should narrowly structure the request, possibly limiting the time period, the specific type of policy, or the geographic area. The insurer must demonstrate why it is too time-consuming or expensive to produce the requested documents, rather than just making the excuse and asserting impracticability. In meeting and conferring prior to a motion to compel, the insured should seek information about how the insurer stores and accesses claims information and can find out how it has addressed similar policy interpretations. A possible approach is seeking discovery of a sample of the insurer’s responsive documents.
The insurer also may argue that the discovery would infringe on confidentiality. However, provided the discovery is relevant, the court may order discovery but allow the insurer to redact confidential information.
Practical Tips for Use During a Deposition: The insured should explore the claim documents from other insureds when deposing the claims adjuster. The insured also should question the underwriter about the insurer’s understanding of the risk it was covering when underwriting the same type of risk for other insureds. If the insurer has asserted it would not have covered the risk but for a misstatement or material omission in the insured’s application, then the insured should depose the underwriter on the company underwriting the same risk for other insureds who did include the alleged misstated factor or materially omitted information in their applications.
The rules of interpretation, case law, dictionary definitions, and the reasonable expectations of the insured are important in pursuing coverage. But obtaining crucial underwriting documents and admissions from the underwriter demonstrating the insurer indeed intended to cover the risk at issue can be even more powerful at trial and as settlement leverage.
Keywords: litigation, insurance coverage, underwriter, discovery, deposition
Tyechia White is with Kilpatrick Townsend, Washington, D.C., and Sarah Anchors is with Quarles Brady LLP, Phoenix.
 While there may be additional areas to explore during discovery, this article focuses on these four areas because they pertain to materials that may be most useful in taking the deposition of an underwriter.
 See generally 2 Steven Plitt et al., Couch on Insurance § 21:4 (3d ed. 2014); 2 Couch on Insurance § 22:31.
 Nestle Foods Corp. v. Aetna Cas. & Sur. Co., 135 F.R.D. 101, 104 (D.N.J. 1990).
 Fed. R. Civ. P. 26(b)(1); U.S. Fire Ins. Co. v. City of Warren, No. 2:10-cv-13128, 2012 U.S. Dist. LEXIS 58353, at *23 (E.D. Mich. Apr. 26, 2012); Sonic Auto. Inc. v. Chrysler Ins. Co., No. 1:10-CV-717, slip op. at 4 (S.D. Ohio Sept. 27, 2012) (order on motion to compel).
 Nestle Foods Corp., 135 F.R.D. at 106.
 Nestle Foods Corp., 135 F.R.D. at 106.
 See, e.g., Sonic Automotive, slip op. at 4; Cummins, Inc. v. ACE Am. Ins. Co., No. 1:09-cv-00738, 2011 U.S. Dist. LEXIS 4568, at *17 (S.D. Ind. Jan. 14, 2011); Nestle Foods Corp., 135 F.R.D. at 106; see 2 Couch on Insurance § 21:12.
 Nestle Foods Corp., 135 F.R.D. at 106.
 See generally Daniel E. Tranen, “Discovery Strategies in Coverage Litigation,” Ins. Coverage, Vol. 22, No. 2 (March/April 2012) (last visited Jan. 14, 2015).
 See About ISO, Insurance Services Office, Inc. (last visited Jan. 14, 2015); see also Standard Form or Standard Policy, Int’l Risk Mgmt. Inst., Inc. (last visited Jan. 14, 2015).
 An insured can determine whether the provisions at issue were written on standard form or manuscript by a designation typically located on the bottom of each page of the policy that generally states “includes copyrighted material of Insurance Services Office, Inc. with its permission.”
 See Manuscript Form or Policy, Int’l Risk Mgmt. Inst., Inc. (last visited Jan. 14, 2015).
 See generally 2 Couch on Insurance § 22:31.
 Weber v. Life Ins. Co. of N. Am., 836 F. Supp. 2d 427, 431 (W.D. Va. 2011), aff’d, 492 F. App’x 444 (4th Cir. 2012) (applying Delaware law); Endurance Am. Specialty Ins. Co. v. Century Sur. Co., 46 F. Supp. 3d 398, 411-12 (S.D.N.Y. Sept. 15, 2014); Cassidy v. Ohio Cas. Grp., No. CIV. 10-2028, 2011 U.S. Dist. LEXIS 99986, at *9-12 (D.N.J. Sept. 2, 2011); Medmarc Cas. Ins. Co. v. Arrow Int’l, Inc., No. CIV.A. 01-2394, 2003 U.S. Dist. LEXIS 2052, at *11-15 (E.D. Pa. Feb. 4, 2003); Morrow Corp. v. Harleysville Mut. Ins. Co., 110 F. Supp. 2d 441, 451 (E.D. Va. 2000).
 Sonic Auto. Inc. v. Chrysler Ins. Co., No. 1:10-CV-717, slip op. at 6 (S.D. Ohio Sept. 27, 2012); Ivy Hotel San Diego, LLC v. Houston Cas. Co., No. 10cv2183-L, slip op. at 6–7 (S.D. Cal. Oct. 20, 2011) (order on motion to compel); Nestle Foods Corp. v. Aetna Cas. & Sur. Co., No. CIV. 89-1701 (CSF), 1990 U.S. Dist. LEXIS 16096 , at *12-13 (D.N.J. Nov. 13, 1990).
 See, e.g., Rhone-Poulenc Rorer, Inc. v. Home Indem. Co., No. CIV. A. 88-9752, 1991 U.S. Dist. LEXIS 6215, at *3 (E.D. Pa. May 7, 1991), modified, No. CIV. A. 88-9752, 1991 U.S. Dist. LEXIS 8304 (E.D. Pa. June 17, 1991); Leksi, Inc. v. Fed. Ins. Co., 129 F.R.D. 99, 105 (D.N.J. 1989); Hoechst Celanese Corp. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 623 A.2d 1099, 1107 (Del. Super. Ct. 1991) (recognizing that a majority of courts have held in favor of the discoverability of drafting history).
 Rhone-Poulenc Rorer, No. CIV. A. 88-9752, 1991 U.S. Dist. LEXIS 6215, at *5-68; Leksi, Inc., 129 F.R.D. at 105; Hoechst Celanese Corp., 623 A.2d at 1107.
 Hoechst Celanese Corp., 623 A.2d at 1108.
 See, e.g., Fed. R. Civ. P. 30(b)(6).
 Underwriting Guidelines, Int’l Risk Mgmt. Institute, Inc. (last visited Jan. 14, 2015).
 See, e.g., Sonic Auto. Inc. v. Chrysler Ins. Co., No. 1:10-CV-717, slip op. at 4 (S.D. Ohio Sept. 27, 2012) (order on motion to compel); U.S. Fire Ins. Co. v. City of Warren, No. 2:10-cv-13128, 2012 U.S. Dist. LEXIS 58353, at *28 (E.D. Mich. Apr. 26, 2012); Cummins, Inc. v. ACE Am. Ins. Co., No. 1:09-cv-00738, 2011 U.S. Dist. LEXIS 4568, at *13-15 (S.D. Ind. Jan. 14, 2011); Lucas v. Protective Life Ins. Co., No. 4:08cv-00059, 2010 U.S. Dist. LEXIS 11861, at *6-8 (E.D. Ky. Feb. 11, 2010); Chubb Custom Ins. Co. v. Grange Mut. Cas. Co., No. 2:07-cv-1285, 2009 U.S. Dist. LEXIS 7049, at *10-11 (S.D. Ohio Jan. 30, 2009); Stonewall Ins. Co. v. Nat’l Gypsum Co., No. 86 Civ. 9671, 1998 U.S. Dist. LEXIS 10954 (S.D.N.Y. Sept. 6, 1988); Nestle Foods Corp., 129 F.R.D. at 484; Hoechst Celanese Corp., 623 A.2d at 1107.
 See, e.g., Cummins, Inc., 2011 U.S. Dist. LEXIS 4568, at *13-18.
 Sonic Automotive, slip op. at 4; Ivy Hotel San Diego, LLC v. Houston Cas. Co., No. 10cv2183-L, slip op. at 3 (S.D. Cal. Oct. 20, 2011).
 Sonic Automotive, slip op. at 4.
 Lucas, 2010 U.S. Dist. LEXIS 11861, at *6.
 E.g., Harleysville Lake States Ins. Co. v. Lancor Equities, Ltd., No. 13 C 6391, 2014 U.S. Dist. LEXIS 154685, at *25-26 (N.D. Ill. Oct. 31, 2014); Heights at Issaquah Ridge Owners Ass’n v. Steadfast Ins. Co., No. C07-1045RSM, 2007 U.S. Dist. LEXIS 95213, at *11-12 (W.D. Wash. Dec. 13, 2007); U.S. Fire Ins. Co. v. Bunge N. Am., 244 F.R.D. 638, 641 (D. Kan. 2007) (citing Great Lakes Dredge & Dock Co. v. Commercial Union Assurance Co., 159 F.R.D. 502, 504 (N.D. Ill. 1995)); Nat’l Union Fire Ins. Co. v. Cont’l Ill. Corp., 116 F.R.D. 78 , 83 (N.D. Ill. 1987) (finding that reinsurers carry on an insurance business as the insurers’ own insurers, and thus fall within the rule, because they would indemnify the insurer for a judgment against the insurer).
 Rhone-Poulenc Rorer, Inc. v. Home Indem. Co., 139 F.R.D. 609, 613 (E.D. Pa. 1991); see also U.S. Fire Ins. Co. v. City of Warren, No. 2:10-CV-13128, 2012 U.S. Dist. LEXIS 58353, at *29-32 (E.D. Mich. Apr. 26, 2012) (finding that the reinsurance contracts were a business determination by the insurer about how to distribute the risk, and not based on policy interpretation, and therefore not discoverable). In Cummins, Inc., the court refused to order disclosure under Rule 26(a)(1)(A)(iv):
The court finds that even if reinsurance contracts theoretically fall within Rule 26(a)(1)(A)(iv), their production is not required here. First, their production in this case does not fit the purposes the rule promotes. The purpose of Rule 26’s requirement to disclose insurance policies that may provide coverage to satisfy a judgment is to allow parties to assess realistically collection of a judgment and tailor their litigation and settlement strategies in light of that information. See Advisory Notes to Rule 26 (1966 Amendment, Subdivision (b)(2)-Insurance Policies). The Insurers contend that there is no issue here whether the Insurers could satisfy a judgment in Cummins’s favor. Cummins does not disagree, and relies only on Rule 26’s “automatic” insurance policy disclosure rule to advocate production of reinsurance treaties and contracts. Second, the Insurers’ contractual relationships with reinsurers are sensitive business matters that the Insurers naturally may not wish even to share with each other. Third, the contracts themselves are not relevant to coverage or bad faith issues. For these reasons, the burden of producing the contracts outweighs any benefit. See Rule 26(b)(2)(C)(iii).
2011 U.S. Dist. LEXIS 4568, at *30-31..
 Heights at Issaquah Ridge Owners Ass’n, 2007 U.S. Dist. LEXIS 95213, at *10-11 (citing Excelsior Coll. v. Frye, 233 F.R.D. 583, 585 (S.D. Cal. 2006)).
 Medmarc Cas. Ins. Co. v. Arrow Int’l, Inc., No. CIV A 01 CV 2394, 2002 U.S. Dist. LEXIS 15082, at *10-11 (E.D. Pa. July 29, 2002); see also Bunge North America, Inc., 244 F.R.D. at 643 (discoverability of reinsurance communications “should be decided on a case-by-case basis, considering the particular claims and defenses asserted by the parties”).
 Cummins, Inc., 2011 U.S. Dist. LEXIS 4568, at *14-15 (citing Stonewall Ins. Co. v. Nat’l Gypsum Co., No. 86 Civ. 9671, 1988 U.S. Dist. LEXIS 9938 (affirming magistrate judge’s order to produce communications between insurer and reinsurers, noting plaintiff’s argument that the documents could reflect insurer’s understanding of underlying claims and whether claims are covered)); Bunge North America, Inc., 244 F.R.D. at 642–43 (reinsurance communications may be relevant to interpret ambiguous policy provision); Owens-Corning Fiberglas Corp. v. Allstate Ins. Co., 660 N.E.2d 765, 767–78 (Lucas Cnty. Ohio Ct. Com. Pl. 1993) (finding reinsurance information relevant to whether the insurer believed the policies provided coverage); Hoechst Celanese Corp. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 623 A.2d 1099, 1108 (Del. Super. Ct. 1991) (“[D]efendants’ communications with their reinsurers may provide or lead to the discovery of potentially admissible extrinsic evidence of a meeting of the minds concerning the language of the policies at issue”)); Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Stauffer Chem. Co., 558 A.2d 1091, 1096–97 (Del. Super. Ct. 1989) (holding that reinsurance agreements and communications between the carriers and their reinsurers were “relevant to the issue of whether the insurers believed that these policies covered the claims against [the insured]”).
 Hoechst Celanese Corp., 623 A.2d at 1108.
 Cummins, Inc., 2011 U.S. Dist. LEXIS 4568, at *31-32.
 Progressive Cas. Ins. Co. v. F.D.I.C., No. 2:12-CV-00665-KJD, 2013 U.S. Dist. LEXIS 157551, at *27 (D. Nev. Nov. 1, 2013), order clarified, 2014 U.S. Dist. LEXIS 32654 (D. Nev. Mar. 13, 2014) (stating that there were some documents indicating that the insurer may have taken inconsistent positions regarding coverage in communications with its policyholders versus communications with the reinsurers); Cigna Ins. Co. v. Cooper Tire & Rubber, Inc., 180 F. Supp. 2d 933, 935–36 (N.D. Ohio 2001).
 U.S. Fire Ins. Co. v. Bunge N. Am., Inc., 2007 U.S. Dist. LEXIS 38754, at *27 (D. Kan. May 27, 2007), aff’d, 244 F.R.D. 638 (D. Kan. 2007) (“Specifically, the Court finds that reinsurance is relevant and discoverable here for purposes of rebutting the Insurers’ defense of late notice, for purposes of establishing Bunge’s claims of bad faith and improper handling, and for purposes of reconstructing the terms of any lost policies.”); see also Rhone-Poulenc Rorer Inc. v. Home Indem. Co., No. Civ. A. 88-9752, 1991 U.S. Dist. LEXIS 16336 (E.D. Pa. Nov. 7, 1991) (reconsidering the court’s refusal to allow discovery of insurer-reinsurer communications, and allowing such discovery because of the affirmative defenses of lack of notice and misrepresentation).
 Soc’y Corp. v. Am. Cas. Co. of Reading, PA., No. 1:91CV0327, 1991 U.S. Dist. LEXIS 21180, at *3 (N.D. Ohio July 24, 1991).
 Fireman’s Fund Ins. Co. v. Great Am. Ins. Co. of N.Y., 284 F.R.D. 132 (S.D.N.Y. 2012).
 Fireman’s Fund, 284 F.R.D. at 137.
 Stonewall Ins. Co. v. Nat’l Gypsum Co., No. 86 Civ. 9671, 1988 U.S. Dist. LEXIS 9938, at *15-18 (S.D.N.Y. Sept. 6, 1988).
 Stonewall Insurance Co., 1988 U.S. Dist. LEXIS 9938, at *15-18.
 Bunge North America, Inc., 244 F.R.D. at 643.
 Lyon v. Bankers Life & Cas. Co., No. CIV. 09-5070-JLV, 2011 U.S. Dist. LEXIS 4702, at *51-52 (D.S.D. Jan. 14, 2011) (“The relationship between [the insurer] and its reinsurers is relevant to determining if there is a pattern of conduct or an isolated incident of denial of plaintiff’s long-term care insurance coverage. Discovery of this relationship is permissible under Rule 26(a)(1)(A)(iv) and may lead to admissible evidence under Rule 26(b)(1).”); Imperial Trading Co. v. Travelers Prop. Cas. Co. of Am., No. CIV.A. 06-4262, 2009 U.S. Dist. LEXIS 41372, at *11 (E.D. La. May 5, 2009) (“[C]ommunications between Travelers and its reinsurers about plaintiffs’ insurance claims are likely to contain information that is relevant to the issue of Travelers’ bad faith.”); Bunge North America, Inc., 244 F.R.D. at 643 (“The parties’ claims and defenses go beyond the mere issue of policy interpretation. The Insurers may well have discussed various positions or issues with their reinsurers. The timing and content of those communications could readily lead to the discovery of admissible evidence regarding the Insurers’ handling and investigation of Bunge’s claims or Bunge’s notice to the Insurers. Such communications could also relate to the allegedly lost policies.”); Lipton v. Superior Court, 48 Cal. App. 4th 1599, 1617–18 (Cal. Ct. App. 2d Dist. 1996) (“For example, correspondence between the insurer and reinsurer, not otherwise privileged, which discusses liability, exposure, the likelihood of a verdict in excess of policy limits or coverage issues may well be relevant in discovery for the same reasons reserve information may be discoverable.”).
 Great Lakes Dredge & Dock Co. v. Commercial Union Assurance Co., 159 F.R.D. 502, 504 (N.D. Ill. 1995) (citing Rhone-Poulenc Rorer, Inc. v. Home Indem. Co., 139 F.R.D. 609, 611–12 (E.D. Pa. 1991)).
 Artra 524(g) Asbestos Trust v. Transp. Ins. Co., No. 09 C 458, 2011 U.S. Dist. LEXIS 110272, at *39 (N.D. Ill. Sept. 28, 2011) (citing Great Lakes Dredge & Dock Co., 159 F.R.D. at 504 (holding that a request for “all documents” relating to reinsurance is too attenuated to a policy interpretation dispute to be discoverable); Bunge North America, Inc., 244 F.R.D. at 642–43 (noting conflicting authorities and concluding that discoverability of communications with reinsurers should be decided on case-by-case basis considering particular claims and defenses at issue)); see also Harleysville Lake States Ins. Co. v. Lancor Equities, Ltd., No. 13 C 6391, 2014 U.S. Dist. LEXIS 154685, at *26 (N.D. Ill. Oct. 31, 2014) (finding that request for any reinsurance coverage of any first-property claim and correspondence related to any loss or claim was overly broad and a fishing expedition).
 See Lipton, 48 Cal. App. 4th at 1618; Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Stauffer Chem. Co., 558 A.2d 1091, 1096 (Del. Super. Ct. 1989).
 United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989).
 Fireman’s Fund Ins. Co. v. Great Am. Ins. Co. of N.Y., 284 F.R.D. 132, 139 (S.D.N.Y. 2012).
 Fireman’s Fund, 284 F.R.D. at 139–40 (citing Schwimmer, 892 F.2d at 243).
 Fireman’s Fund, 284 F.R.D. at 140.
 Minn. Sch. Bds. Ass’n v. Emp. Ins. Co., 183 F.R.D. 627, 631 (N.D. Ill. 1999); Hartford Steam Boiler Inspection & Ins. Co. v. Stauffer Chem. Co., 1991 Conn. Super. LEXIS 2527, at *4 (Conn. Super. Ct. Nov. 4, 1991). But see Allendale Mut. Ins. Co. v. Bull Data Sys., Inc., 152 F.R.D. 132, 141 (N.D. Ill. 1993) (insurer and reinsurer do not have an identical legal interest in the information). Courts have rejected “a categorical rule that ceding insurers and their reinsurers share a joint legal interest because a reinsurer’s obligations of payment are necessarily tied to the ceding insurer’s payment obligations.” Fireman’s Fund Ins. Co. v. Great Am. Ins. Co. of N.Y., 284 F.R.D. 132, 140 (S.D.N.Y. July 3, 2012); N. River Ins. Co. v. Phila. Reinsurance Corp., 797 F. Supp. 363, 365–67 (D.N.J. 1992) (“the relationship between CIGNA Re and North River does not fall within the confines of the classic common interest doctrine”).
 Id. (citing N. River Ins. Co. v. Columbia Cas. Co., No. 90 Civ. 2518(MJL)(JCF), 1995 U.S. Dist. LEXIS 53 (S.D.N.Y. Jan. 5, 1995)).
 Bull Data Systems, 152 F.R.D. at 136.
 Transcap Assocs., Inc. v. Euler Hermes Am. Credit Indem. Co., No. 08-C-723, 2009 U.S. Dist. LEXIS 94264, at *6 (N.D. Ill. June 3, 2009) (finding that other insured information is discoverable; relying on Nestle); Nestle Foods Corp. v. Aetna Cas. & Sur. Co., 135 F.R.D. 101, 106–7 (D.N.J. 1990) (holding that information regarding the claims of other insureds with identical policy language “is relevant for purposes of discovery since it may show that identical language has been afforded various interpretations by the insurer.”); Ivy Hotel San Diego, LLC v. Houston Cas. Co., No. 10cv2183-L, slip op. at 11–12 (S.D. Cal. Oct. 20, 2011) (allowing discovery of information regarding the insurer’s application of the same or similar disputed policy language to similar claims against other insureds) (citing Carey-Canada, Inc. v. Cal. Union Ins. Co., 118 F.R.D. 242, 245–46 (D.D.C. 1986)); Minn. Mining & Mfg. Co. v. Commercial Union Ins. Co., No. Civ. A. No. 88-325, 1989 U.S. Dist. LEXIS 18352, at *5 (D.N.J. Oct. 13, 1989) (holding that insurer’s treatment of other claims “is relevant to that party’s interpretation of its own insurance contract, and is likely to lead to evidence admissible at trial”); Rhone-Poulenc Rorer, Inc. v. Home Indem. Co., No. CIV. A. 88-9752, 1991 U.S. Dist. LEXIS 6215 (E.D. Pa. May 7, 1991), modified, No. CIV. A. 88-9752, 1991 U.S. Dist. LEXIS 8304 (E.D. Pa. June 17, 1991) (same); Champion Int’l Corp. v. Liberty Mut. Ins. Co., 128 F.R.D. 608, 610–11 (S.D.N.Y. 1990) (same); Owens-Corning Fiberglas Corp. v. Allstate Ins. Co., 660 N.E.2d 765, 767–68 (Lucas Cnty. Ohio Ct. Com. Pl. 1993) (“[T]his information is relevant to the defendants’ intentions as to asbestos coverage, as it will shed light on how the defendants have approached other asbestos issues and used exclusionary clauses.”).
 Chubb Custom Ins. Co. v. Grange Mut. Cas. Co., No. CIV.A 2:07-CV-1285, 2009 U.S. Dist. LEXIS 7049 (S.D. Ohio Jan. 30, 2009) (granting discovery of the insurer’s treatment of claims by other insureds based on the same triggering event); Trestman v. Axis Surplus Ins. Co., No. 06-11400, 2008 U.S. Dist. LEXIS 40687, at *15-17 (E.D. La. Apr. 29, 2008) (permitting discovery regarding payment of other similarly situated insureds’ business loss claims based on the same event, Hurricane Katrina).
 Mabel v. Equitable Life Assurance Soc’y of U.S., No. CIV. A. 92-2721, 1992 U.S. Dist. LEXIS 17512, at *2 (E.D. Pa. Nov. 12, 1992).
 Transcap Assocs., Inc., 2009 U.S. Dist. LEXIS 94264 (rejecting objections that the request was overly broad and burdensome because Transcap narrowly sought information regarding claims made by other insureds under the same specific type of policy; the court did limit the time period for the requested information).
 Muller v. State Farm Fire & Cas. Co., No. CIVA106CV95LTSRHW, 2007 WL 1031651, at *1 (S.D. Miss. Mar. 29, 2007) (limiting discovery of other insureds within a specific area that was reasonably close to the insured claiming coverage for wind damage).
 Rhone-Poulenc Rorer, Inc. v. Home Indem. Co., No. CIV. A. 88-9752, 1991 U.S. Dist. LEXIS 8304, at *5 (E.D. Pa. June 17, 1991) (affirming order compelling discovery of other insured information and holding that “[i]n cases involving similar discovery requests, courts have held that an unwieldy record-keeping system, which requires heavy expenditures in money and time to produce relevant records, is simply not an adequate excuse to frustrate discovery”).
 Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Stauffer Chem. Co., 558 A.2d 1091, 1096 (Del. Super. Ct. 1989).