United States District Court, D. Connecticut
RULING ON MOTION TO QUASH AND FOR A PROTECTIVE ORDER
SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE
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].
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).
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
“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.”).
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.
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.
“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.
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.
Notice of Claims, Tolling Agreement, and MOUs (“the
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.