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Dominion Resources Services, Inc. v. Alstom Power, Inc.

United States District Court, D. Connecticut

July 31, 2017




         Plaintiffs Dominion Resources, Inc., Dominion Energy, Inc., Dominion Generation Corporation, and Dominion Technical Solutions, Inc. (collectively referred to herein as “Dominion”) have filed a motion to quash a subpoena and for a protective order. [Doc. #84]. Defendant Alstom Power, Inc. (referred to herein as “Alstom”) has filed a memorandum in opposition. [Doc. #91]. For the reasons set forth below, the Court GRANTS Dominion's Motion to Quash, and GRANTS, in part, and DENIES, in part, Dominion's Motion for a Protective Order. [Doc. #84].


         Rule 26(b)(1) of the Federal Rules of Civil Procedure sets forth the scope and limitations of permissible discovery:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1). “The party resisting discovery bears the burden of showing why discovery should be denied.” Cole v. Towers Perrin Forster & Crosby, 256 F.R.D. 79, 80 (D. Conn. 2009).

         Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, “[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including ... forbidding the disclosure or discovery[.]” Fed.R.Civ.P. 26(c)(1)(A). “Rule 26(c) confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984).

         A court “must quash or modify a subpoena that ... requires disclosure of privileged or other protected matter, if no exception or waiver applies; or ... subjects a person to undue burden.” Fed.R.Civ.P. 45(d)(3)(A)(iii)-(iv). “The burden of persuasion in a motion to quash a subpoena is borne by the movant.” Travelers Indem. Co. v. Metro. Life Ins. Co., 228 F.R.D. 111, 113 (D. Conn. 2005) (citations omitted); see also Dove v. Atl. Capital Corp., 963 F.2d 15, 19 (2d Cir. 1992) (“Where the discovery is relevant, the burden is upon the party seeking non-disclosure or a protective order to show good cause.”).


         On May 3, 2017, Alstom served a subpoena at the office of Dominion's lead counsel, Attorney Anthony Mirenda, commanding him to testify at a deposition on June 6, 2017. See Doc. #86-3 at 1. Dominion requested additional information regarding the topics upon which Alstom sought to depose Attorney Mirenda, and Alstom responded as follows:

For example, we would ask Mr. Mirenda questions at his deposition about the intent of the language that he used in his September 2009 notice of claims, [and] whether there were any verbal communications with Alstom regarding the terms of this notice[;] the intent of the language used in the December 2009 Tolling Agreement, [and] whether there were any verbal communications with Alstom regarding the terms of the Tolling Agreement[;] The intent of the language used in the February 2015 [Memoranda of Understanding (“MOUs”)], [and] whether there were any verbal communications with Alstom regarding the terms of these MOUs[;] and the terms of Mr. Mirenda's firm's retention to pursue these claims against Alstom on behalf of Dominion or Aegis, including the date on which the retention agreement was confirmed and the payment terms of the agreement (i.e., whether hourly rate or contingency and payment of litigation expenses).

Doc. #86-2 at 1.[1]

         Thereafter, Dominion timely moved to quash the subpoena, and has requested that the Court enter a protective order precluding Alstom “from obtaining discovery on the subjects sought to be covered in the deposition of Attorney Mirenda.” Doc. #84-1 at 1. Dominion argues that good cause exists for a protective order, because (1) the information sought is not relevant to the claims, and (2) depositions of opposing counsel are disfavored. See Doc. #84 at 2. Dominion specifically argues that Alstom has not established a need to depose Attorney Mirenda; a deposition risks invading the attorney-client privilege and work product protection; and the information Alstom seeks is either already in its possession or readily available from other sources. See Doc. #85 at 4. Alstom opposes Dominion's motion, arguing, inter alia, that the information sought is relevant and discoverable; the deposition is the most “expedient” and “only realistically available approach” for discovering the information; and the prior production of documents does not foreclose the need to depose Attorney Mirenda. Doc. #91 at 26.

         While “depositions of opposing counsel are disfavored, ” United States v. Yonkers Bd. of Educ., 946 F.2d 180, 185 (2d Cir. 1991), “the disfavor with which the practice of seeking discovery from adversary counsel is regarded is not a talisman for the resolution of all controversies of this nature.” In re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 71 (2d Cir. 2003) (citation omitted). Thus, in determining whether a deposition of opposing counsel is appropriate, the Court takes a “flexible approach” and considers several factors, including “the need to depose the lawyer, the lawyer's role in connection with the matter on which discovery is sought and in relation to the pending litigation, the risk of encountering privilege and work-product issues, and the extent of discovery already conducted.” Id., 350 F.3d at 72. Consideration of these factors, and any other relevant facts and circumstances, assists the Court in determining “whether the proposed deposition would entail an inappropriate burden or hardship.” Id. Further, “[t]hese factors may, in some circumstances, be especially appropriate to consider in determining whether interrogatories should be used at least initially and sometimes in lieu of a deposition.” Id.

         The topics of inquiry Alstom seeks to pursue can be divided into two general categories: (1) information regarding the notice of claims, tolling agreement, and MOUs, (hereinafter, collectively, “the Documents”) and (2) information regarding the retention of Attorney Mirenda's firm. The Court analyzes these two categories of inquiry separately, by applying the Friedman factors to each.

         A. Notice of Claims, Tolling Agreement, and MOUs (“the Documents”)

         In its email clarifying its request to depose Attorney Mirenda regarding the Documents, Alstom stated that it sought two types of information: (1) “the intent of the language” used, and (2) “whether there were any verbal communications with Alstom regarding the terms” of each document. Doc. #86-2 at 1. The analysis of the Friedman factors differs slightly as applied to these two categories of information, in particular, as to the question of the risk of raising privilege issues. However, the Court will address them generally together.

         1. Ne ...

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