United States District Court, D. Connecticut
DEBORAH MAHON, on behalf of herself and all others similarly situated
CHICAGO TITLE INS. CO.
RULING ON PLAINTIFF'S MOTION TO COMPEL [DOC.
#196] AND DEFENDANT'S MOTION FOR PROTECTIVE ORDER [DOC.
SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE.
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
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).
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).
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
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.
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.
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 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.
Connecticut General Statutes §38a-15(g)
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. Thus, plaintiff argues, the
documents are discoverable, and their production should be
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 ...