United States District Court, D. Connecticut
RULING ON DEFENDANT'S MOTION TO COMPEL
F. Martinez United States Magistrate Judge
plaintiff, Heather Musante (“Musante”), brings
this action pursuant to Title VII the Civil Rights Act of
1964, 42 U.S.C. 2000e-5(f) and the Civil Rights Act of 1991,
42 U.S.C. 1981a, against defendant USI Insurance Services,
LLC (“USI”), alleging claims of gender
discrimination, retaliation, wrongful discharge in violation
of public policy and unjust enrichment. Musante also seeks a
declaratory judgment that the 2 year non-solicitation
agreement she signed with USI's predecessor is
unenforceable. Pending before the court is USI's motion
to compel. (Doc. #48.) The court heard oral argument on July 21,
2017. The court rules as follows:
Interrogatory Nos. 14 and 15 and Production Request
Interrogatory No. 14: The motion to compel a response to
Interrogatory No. 14 is granted in part. Musante shall
identify any internist, therapist, oncologist and/or ob/gyn
with whom she treated from 2002 to the present. She shall
execute the requested records authorization for each
practitioner whom she identifies pursuant to this ruling.
Interrogatory No. 15: The motion to compel a response to
Interrogatory No. 15 is granted. Musante shall identify every
pharmacy from which she purchased medication from 2002 to the
present, and provide an executed authorization for USI to
obtain the pharmacy records.
Request for Production No. 87: The motion to compel a
response to Production Request No. 87 is granted in part. To
the extent Musante and/or her counsel already possess copies
of any records regarding any of the practitioners or
pharmacies identified in response to Interrogatory Nos. 14
and 15, Musante shall produce them. If she does not possess
all of such records from 2002 to the present, she shall
produce the documents she has in her possession or control,
but she need not request copies of records she does not
possess. The authorizations the court has ordered Musante to
execute in response to Interrogatory Nos. 14 and 15 will
permit USI to obtain the necessary records.
Interrogatory Nos. 9 and 19 and Request for Production
Interrogatory Nos. 9 and 19, and Request for Production No.
104, USI seeks information regarding Musante's subsequent
employment, compensation and benefits. Musante objected on
grounds of relevance, burden and that the information sought
is “sensitive, confidential, and personal financial
information.” Musante provided a partial response,
subject to those objections, in which she identified her
annual salary at her new employer, but not her total
compensation, which she indicated is based upon
“business brought in to the company” and
“new business generated and retained.” The
information is relevant to Musante's damages claims and
her duty to mitigate damages. She has made no showing as to
the nature and extent of the actual burden she would face in
responding to USI's requests. "Under well-settled
law, the party resisting production bears the responsibility
of establishing undue burden." Michanczyk v.
Metropolitan Life Ins. Co., No. 3:05CV1903, 2007 WL
926911, at *2 (D. Conn. Mar. 26, 2007). See, e.g.,
In re Application of Bloomfield In v. Res. Corp.,
315 F.R.D. 165, 168 (S.D.N.Y. 2016) (overruling
burdensomeness objection where objecting party did not
"present particularized evidence in their briefing that
production of the . . . records would be unduly burdensome or
costly, such as an affidavit of a person with knowledge of
the record keeping system explaining in detail the basis of
although Musante claims the information requested is
sensitive, confidential and/or proprietary, she has made no
showing to support this argument. "The mere fact that [a
party] deems these items to be proprietary does not (by
itself) render them to be proprietary." Demutis v.
Sally Beauty Supply LLC, No. 09CV92A, 2010 WL 1038679,
at *3 (W.D.N.Y. Mar. 19, 2010). "[M]erely labeling the
material 'proprietary and confidential' is not by
itself sufficient to bar its production."
Novomoskvovsk Joint Stock Co. "Azot" v.
Revson, No. 95 CIV. 5399 (BSJ), 1996 WL 282085, at *1
(S.D.N.Y. May 28, 1996).
objections to Interrogatory Nos. 9 and 19 and Production
Request No. 104 are overruled. She shall respond to the
Interrogatories and produce responsive information.
Request for Production No. 105.
Request 105: Musante objects to producing her retainer
agreement on grounds of relevance, privilege and attorney
[A] long and unbroken line of cases in this Circuit have
established that “in the absence of special
circumstances, fee arrangements do not fall within the
attorney-client privilege because they are not the kinds of
disclosures that would not have been made absent the
privilege and their disclosure does not incapacitate the
attorney from rendering legal advice.”
Torres v. Toback, Bernstein & Resiss LLP, 278
F.R.D. 321, 322 (E.D.N.Y. 2012)(quoting Vingelli v.
United States, 992 F.2d 449, 452 (2d Cir. 1993) and
holding that retainer agreement between a debt collection
firm and its client was not subject to attorney-client
privilege, where identity of firm's client was not
secret, nothing of confidential nature would be revealed by
production of agreement, and firm had failed to identify any
other special circumstances warranting application of
privilege). See also Williams v. Rushmore Loan Mgmt.
Servs. LLC, 2016 U.S. Dist. LEXIS 22807, *6 (D. Conn.
February 16, 2016)(requiring production of a redacted version
of retainer agreement, along ...