United States District Court, D. Connecticut
RULING ON MOTIONS TO QUASH OR MODIFY
Jeffrey Alker Meyer United States District Judge
the Court are four discovery motions filed by two non-parties
who seek to quash or limit discovery sought by intervenors
and plaintiff North River Insurance Company. For the reasons
explained below, I will grant in part and deny in part each
of the motions.
insurance coverage case arises from the tragic explosion in
2010 at the Kleen Energy plant in Middletown, Connecticut.
Plaintiff North River Insurance Company (North River) filed
this action against defendant Keystone Construction and
Maintenance Services, Inc. (Keystone), contending that
Keystone breached the terms of its insurance policy with
North River such that North River no longer has obligations
to Keystone under the policy. Several dozen victims of the
explosion subsequently intervened in the case as third-party
defendants, and they in turn have alleged counterclaims
against North River, contending that North River breached its
insurance contract with Keystone and acted in bad faith.
See N. River Ins. Co. v. O&G Indus., Inc., 315
F.R.D. 1, 3 (D. Conn. 2016) (summarizing claims).
2016, intervenors served subpoenas on ACE American Insurance
Company (ACE) and Everest National Insurance Company
(Everest) to require that they produce certain documents and
a corporate representative for purposes of a Rule 30(b)(6)
deposition. Neither of these companies is a party to this
action, but they are related to this action because of their
roles as Keystone's primary insurer and first-layer
excess insurer, respectively, at the time of the explosion.
subpoenas originally and overbroadly sought discovery related
to 27 different "areas of inquiry." See
Docs. #243 at 8-10, #272-1 at 4-6. Many of these areas
duplicated past discovery requests served on ACE and Everest
by Keystone. After conferring with ACE and Everest,
intervenors narrowed the scope of their requests to 11 areas
of inquiry. See Doc. #274-1 at 2-3. ACE and Everest
nevertheless filed motions to quash the intervenors'
subpoenas, each arguing that intervenors' subpoena
subjects it to undue burden and seeks privileged or otherwise
improper information. See Docs. #243, #272-1. ACE
specifically argues that an in-person deposition will be
unduly burdensome, and that an affidavit in lieu of a live
deposition would be more appropriate. Doc. #272-1 at 10-11.
August 2016, North River served Everest and ACE with
subpoenas similar to the subpoenas served on Everest and ACE
by intervenors. Everest and ACE likewise filed motions to
quash North River's subpoenas. Docs. #271, #289. North
River clarified in its briefing and at a motion hearing
before me that, despite the breadth of its original
subpoenas, North River seeks only to participate in the
intervenors' depositions of ACE and Everest, in the event
that the Court permits those depositions to take place.
See Docs. #286, #292.
October 24, 2016, the Court heard oral argument on the four
pending motions: Everest's motion to quash or modify the
subpoena of intervenors (Doc. #242); Everest's motion to
quash the third subpoena of North River (Doc. #270);
ACE's motion to quash or modify the subpoena of
intervenors and/or for a protective order (Doc. #272); and
ACE's motion to quash or modify the subpoena of North
River and/or for a protective order (Doc. #289).
Federal Rule of Civil Procedure 45, the Court is required to
quash or modify a subpoena if the subpoena "requires
disclosure of privileged or other protected matter, if no
exception or waiver applies, " or if the subpoena
"subjects a person to undue burden." Fed.R.Civ.P.
45(d)(3)(A). In addition, under Rule 26, the Court has the
authority to "issue an order to protect a party or
person from annoyance, embarrassment, oppression, or undue
burden or expense." Fed.R.Civ.P. 26(c). When determining
whether a subpoena imposes an undue burden, the Court should
consider "such factors as relevance, the need of the
party for the documents, the breadth of the document request,
the time period covered by it, the particularity with which
the documents are described and the burden imposed."
Travelers Indem. Co. v. Metro. Life Ins. Co., 228
F.R.D. Ill. 113 (D. Conn. 2005). Further, courts "give
special weight to the burden on non-parties of producing
documents to parties involved in litigation."
Id. The movant bears the burden of persuasion in a
motion to quash a subpoena. Id. Ultimately,
determining whether a subpoena imposes an undue burden is a
decision entrusted to "the sound discretion of the trial
considered the parties' briefs and arguments in relation
to the above factors, including ACE's and Everest's
status as non-parties. On balance, I find that ACE and
Everest will not be unduly burdened by live depositions that
are limited in scope. A live deposition will best generate
evidence that may be used at trial, as indicated by counsel
at oral argument.
I will permit intervenors to conduct live depositions of
representatives from ACE and Everest. The depositions will be
limited to the narrowed areas of inquiry identified by
intervenors, see Doc. #274-1 at 2 (as to ACE), 3 (as
to Everest), further narrowed to exclude areas #1 and #9. As
to area of inquiry #1, counsel for ACE and Everest explained
at the hearing that the insurance adjusters who handled the
relevant liability determination are no longer employees of
ACE and Everest; therefore, ACE and Everest will not be
required to provide these adjusters for deposition. As to
area of inquiry #9, 1 find that Keystone's financial
condition after the explosion is not relevant and should not
be included. Additionally, I will enforce the
intervenors' subpoena with respect to the documents
requested from ACE that relate to the subject matter areas to
be covered by the deposition, but only to the extent that
these documents are non-privileged. A copy of these same
documents shall also be furnished to North River.
depositions of ACE and Everest shall each last for a total of
no more than four hours. For each deposition, counsel for
intervenors and Keystone (should Keystone choose to
participate in these depositions) will be limited to a
combined two hours, and North River will then be permitted up
to two hours to conduct its questioning. Questions shall be
limited to the narrowed subject matter areas as described