The court overruled the objection to the magistrate issuance of a protective order to prevent a deposition related to a dismissed claim. Pulte Home Corp. v. TIG Ins. Co., 2021 U.S. Dist. LEXIS 159014 (S.D. Calif. Aug 23, 2021).      Plaintiff was the general contractor for two real estate development projects. In 2012 and 2013, several homeowners filed construction defect suits against plaintiff. TIG denied a defense.      Plaintiff then sued for declaratory relief, breach of contract, and breach of the implied covenant of good faith and fair dealing. The court eventually ruled that there was no duty to defend plaintiffs, and granted summary judgment to TIG on all claims, including the bad faith claim.     Plaintiff appealed. The Ninth Circuit found TIG had a duty to defend, reversing the summary judgment granted by the lower court. The Ninth Circuit also held that plaintiff waived its bad faith claim either by failing to raise the claim in its opening brief, or by raising the claim perfunctorily and inadequately in its reply brief.     On remand, Plaintiff noticed the deposition of TIG's bad faith expert. TIG was granted a protective order by the magistrate after arguing that plaintiff had waived its bad faith claim. Plaintiff then filed an objection to the magistrate's ruling.     Plaintiff sought relief from the district court, arguing that the waiver language in the Ninth Circuit's mandate was ambiguous. Plaintiff argued the mandate merely conveyed that the Ninth Circuit refused to address the bad faith issue at the appellate level.      The district court disagreed. The Ninth Circuit unambiguously held that plaintiff waived or forfeited its claim for bad faith. Therefore, the discovery plaintiff requested was irrelevant. The court agreed with the magirsrate's protective order and overruled plaintiff's objection.

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