## Facts

- General Refractories Company (GRC) manufactured products that allegedly contained asbestos and was named as a defendant in numerous asbestos bodily-injury lawsuits.
- GRC sought coverage for those asbestos liabilities under its insurance program and filed a federal coverage action against its insurers, including Travelers Casualty and Surety Company (Travelers).
- Over time, GRC settled many underlying asbestos suits and paid settlement amounts.
- To track those resolutions, GRC maintained an internal, itemized summary identifying underlying cases and associated settlement payments.
- Before litigation, while Travelers functioned as GRC’s insurer, GRC periodically provided Travelers with updates or versions of the settlement-summary information.
- For trial, GRC planned to present an updated itemized settlement summary to help prove which underlying claims were settled and the amounts GRC sought to recover from Travelers.
- Travelers filed a motion in limine to exclude the settlement-summary exhibit, arguing that GRC had not produced the final version of the summaries it intended to use at trial.

## Issues

1. Whether the court should exclude GRC’s itemized settlement-summary exhibit because GRC did not produce the final trial version during discovery.
2. Whether GRC could present the settlement summary at trial as a summary of voluminous records under Federal Rule of Evidence 1006, assuming GRC could lay the required foundation and make source materials available.

## Decision

- The court denied Travelers’ motion in limine to exclude the itemized settlement summary.
- The court found that exclusion was not warranted as a discovery remedy because Travelers had been aware of the existence and substance of the settlement-summary information and did not show the kind of unfair surprise or trial prejudice that would justify barring the exhibit.
- The court permitted GRC to use the summary at trial so long as GRC satisfied the evidentiary requirements for a Rule 1006 summary, including tying the summary to underlying settlement materials and allowing Travelers access to the source documents for review and cross-examination.

## Legal Principles

- A motion in limine should not be used to impose an extreme discovery penalty absent a showing that the challenged evidence would cause unfair surprise or meaningful trial prejudice that cannot be addressed through ordinary trial tools.
- Under Federal Rule of Evidence 1006, a party may present a summary to prove the content of voluminous writings that cannot be conveniently examined in court, provided the originals or duplicates are made available to the opposing party and the proponent lays an adequate foundation.
- Where an insurer has long had notice of a compilation’s existence and has received versions or updates of the underlying information, disputes about a “final” trial format generally go to weight and cross-examination rather than categorical exclusion.
- In coverage trials involving many underlying claims, courts may allow itemized summaries to streamline proof, while preserving the opposing party’s ability to test accuracy by examining the underlying settlement records and questioning witnesses.

## Conclusion

In this pretrial ruling in GRC’s asbestos insurance-coverage action, the court declined to exclude GRC’s itemized settlement-summary exhibit based on complaints about production of the final trial version, because Travelers had prior notice of the summary and did not show unfair trial prejudice; the court allowed use of the exhibit at trial subject to Rule 1006 foundation and access to the underlying settlement documentation.


General Refractories Co. v. First State Insurance Co., 2015 U.S. Dist. LEXIS 69727 (2015)