If your client is at a loss in Declaratory Judgment litigation over the opposing party's involvement in other lawsuits involving the same Insurance Policy language, ask the opposing party. You may be able to compel an answer to your question, at least if the opposing party actually has such information in the first place.
An answer to the following Interrogatory was compelled in Clean Earth of Maryland, Inc. v. Total Safety, Inc., 2011 WL 4832381 *5 (N.D.W. Va. October 12, 2011)(Seibert, USMJ), Download Clean Earth of Maryland, Inc. v. Total Safety, Inc. (N.D.W. Va. Case No. 2.10.cv.119, Oct. 12, 2011)(Seibert, USMJ):
With respect to any policy language relied upon by you in your coverage counsel's letter dates [sic] April 14, 2010 to Total Safety, please list any and all suits filed by or against you in the last ten years involving a dispute over that same language.
In practice, of course, getting an answer to such a question means that the opposing party is capable of answering it. In other words, there can only be an answer to such a question where the opposing party in fact has been a party to lawsuits "filed by or against you in the last ten years involving a dispute over that same language." Compelling an answer to a question of this kind is in practice limited to Insurance Companies, or perhaps large Corporate Policyholders. It is not for everyone.
The online docket of this lawsuit on PACER reflects that Westchester Surplus Lines Insurance Co., "Total Safety's liability insurer," has filed objections to the U.S. Magistrate Judge's decision. Westchester's objections are pending at the time of this post.
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