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Mahon v. Chicago Title Ins. Co.

United States District Court, D. Connecticut

August 4, 2017

DEBORAH MAHON, on behalf of herself and all others similarly situated



         Plaintiff Deborah Mahon (“plaintiff”) has filed a Motion to Compel seeking the production of a number of documents withheld on the basis of privilege. [Doc. #196]. Plaintiff also seeks to compel testimony regarding these documents. See Id. Defendant Chicago Title Insurance Company (“defendant”) has submitted opposition to plaintiff's motion, and plaintiff has filed a reply. [Docs. ##202, 203]. Defendant has filed a Motion for a Protective Order, seeking protection from producing a witness to testify about the documents in question pending resolution of plaintiff's motion to compel. [Doc. #198]. Plaintiff has filed a memorandum in opposition to defendant's motion, and defendant has filed a reply. [Docs. ##204, 205]. For the reasons set forth herein, the Court GRANTS plaintiff's Motion to Compel, and DENIES as moot defendant's Motion for a Protective Order.


         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). Nevertheless, the advisory committee's notes to the recent amendment of Rule 26 explain that

[a] party claiming that a request is important to resolve the issues should be able to explain the ways in which the underlying information bears on the issues as that party understands them. The court's responsibility, using all the information provided by the parties, is to consider these and all the other factors in reaching a case-specific determination of the appropriate scope of discovery.

Williams v. Rushmore Loan Mgmt. Servs., LLC, No. 3:15CV673(RNC), 2016 WL 4083598, at *4 (D. Conn. Feb. 16, 2016) (quoting Fed.R.Civ.P. 26 advisory committee's note to 2015 amendment).

         A protective order may be issued by the Court pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, which provides, in relevant part: “The 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). “Where the discovery is relevant, the burden is upon the party seeking non-disclosure or a protective order to show good cause.” Dove v. Atl. Capital Corp., 963 F.2d 15, 19 (2d Cir. 1992).


         The Court assumes familiarity with the underlying facts of this class action, which relate to title insurance refinance rates. Accordingly, the Court will discuss only those facts that are relevant to the disposition of the motions before it.

         Plaintiff served her First Set of Interrogatories and Requests for Production on September 10, 2009. See generally Doc. #197-3. Request for Production No. 17 sought: “Any and all documents constituting communication by, between or among Defendants and/or any of their Affiliates or Agents on the one hand and the Connecticut Insurance Department on the other hand that discuss, mention or refer in any way to the Refinance Rate.” Doc. #197-3 at 20. Defendant initially objected to the request on the grounds that it pertained to merits discovery. After commencement of discovery on the merits of plaintiff's claims, defendant asserted additional objections, and stated that, notwithstanding the objections, defendant was “not withholding any document that is responsive, non-privileged, and consistent with [defendant's] non-objectionable interpretation of this Discovery Request.” Doc. #197-5 at 16. Defendant claims that documents potentially responsive to this request had been previously identified in a privilege log dated August 2, 2010, which was supplemented on September 22, 2010. See Doc. #202 at 6; Doc. #202-1 at 24-55.

         Defendant served supplemental privilege logs on April 27, 2017, and May 30, 2017. See Doc. #202-1 at 66-121. These logs list additional documents that defendant has determined are responsive to Request 17. See Doc. #196 at 2; Doc. #197-6 at 3. From these logs, plaintiff identifies thirty documents that were withheld as privileged solely on the basis of section 38a-15(g) of the Connecticut General Statutes. See Doc. #197-1. According to the parties, each of these documents pertains to a market conduct examination of defendant that was conducted by the Connecticut Insurance Department (“CID”) in 2010. The relevance of these documents is not in dispute; rather, the controversy arises over whether these documents are privileged, and therefore protected from discovery.


         At issue before the Court is whether section 38a-15(g) of the Connecticut General Statutes creates an evidentiary privilege that precludes discovery of documents in federal civil litigation that are otherwise relevant to plaintiff's claims. This appears to present a matter of first impression. The Court is not aware of any case interpreting section 38a-15(g), and neither party has drawn the Court's attention to any Connecticut case on point. Thus, the Court will determine whether a privilege is implicated by examining the plain language of the statute itself, and will take guidance from courts in other jurisdictions in which similar questions have arisen. See Pineman v. Oechslin, 488 A.2d 803, 807 (Conn. 1985) (stating that, when presented with a question of first impression, the Supreme Court of Connecticut will “look to the various approaches adopted by other courts that have been confronted with similar questions” for guidance); Monti v. Wenkert, 947 A.2d 261, 274 (Conn. 2008) (same).

         A. Applicable Law

         Where “a federal court's subject-matter jurisdiction is premised on diversity of citizenship, the court must apply state law to privilege issues.” Safeco Ins. Co. of Am. v. Vecsey, 259 F.R.D. 23, 27-28 (D. Conn. 2009) (quotation marks and citation omitted) (footnote omitted); see also Fed.R.Evid. 501 (“[I]n a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.”). Here, the subject matter jurisdiction of this Court is based on the diversity of the parties, and Connecticut state law supplies the rule of decision for the claims before the Court. Accordingly, the Court will apply Connecticut law to address the privilege issue before it.

         B. Connecticut General Statutes §38a-15(g)

         Under Connecticut law, “the burden of establishing immunity from discovery rests with the party asserting the privilege.” Babcock v. Bridgeport Hosp., 742 A.2d 322, 355 (Conn. 1999) (quotation marks and citations omitted). Defendant has designated the documents in question as “privileged” under section 38a-15(g) of the Connecticut General Statutes. In response to plaintiff's motion to compel, defendant argues that this statute creates a privilege that precludes discovery of the documents that plaintiff seeks. Plaintiff contends, inter alia, that although the statute deems the documents confidential, it does not create a privilege.[1] Thus, plaintiff argues, the documents are discoverable, and their production should be compelled.

         Title 38a of the Connecticut General Statutes governs insurance and insurance companies. Section 38a-15 authorizes the commissioner of insurance to undertake a “market conduct examination” and prescribes procedures for how the examination is to be carried out. See Conn. Gen. Stat. §38a-15(a). The statute provides that insurance companies and other entities “shall produce the books and papers, in its or their possession, relating to its business or affairs, and any other person may be required to produce any book or paper in such person's custody, deemed to be relevant ...

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