United States District Court, D. Connecticut
RULING ON MOTION TO COMPEL RESPONSES TO DEPOSITION
QUESTIONS [DOC. #106]
SARAH A. L. MERRIAM, UNITED STATES MAGISTRATE JUDGE
before the Court is a motion by plaintiff Ice Cube Building,
LLC (“plaintiff”) seeking to compel further
deposition testimony from the corporate representative of
defendant Scottsdale Insurance Company
(“defendant”). [Doc. #106]. Defendant has filed a
memorandum in opposition to plaintiff's motion [Doc.
#108],  to which plaintiff has filed a reply [Doc.
#111]. On May 8, 2019, Judge Kari A. Dooley referred
plaintiff's motion to compel to the undersigned. [Doc.
#107]. For the reasons articulated below, the Court
GRANTS plaintiff's Motion to Compel
Responses to Deposition Questions. [Doc.
Court presumes general familiarity with the background of
this insurance coverage dispute. However, the Court will
briefly address the procedural and factual background as
relevant to the pending motion to compel.
owns real property located in Groton, Connecticut, which, at
all times relevant hereto, was insured by a commercial
property insurance policy issued by defendant. See Doc. #1,
Complaint at ¶1, ¶3. Plaintiff alleges: “On
or about January 8, 2016, and days and weeks thereafter,
while said policy was in full force and effect, a snow and/or
ice storm caused damage to the Plaintiff's
property.” Id. at ¶4. Plaintiff
thereafter filed a claim with defendant for the alleged
property damage. See Id. at ¶6. On October 25,
2016, defendant partially denied plaintiff's claim for
coverage, stating, inter alia, that there was a
“payable loss of $10, 050.60.” Doc. #106-1 at
On March 10, 2017, defendant issued payment to plaintiff for
that amount. See Doc. #106 at 3. On March 27, 2017, defendant
issued an additional payment to plaintiff in the amount of
$16, 863.33. See Id. This litigation eventually
December 5, 2018, defendant filed a Motion for Protective
Order Against Deposing Scottsdale's Corporate
Representative. [Doc. #61]. In that motion, defendant
contended that plaintiff's Rule 30(b)(6) notice was
“invalid on its face” and sought
“irrelevant and overbroad testimony.”
Id. at 1. On December 26, 2018, plaintiff filed a
memorandum in opposition to plaintiff's motion. [Doc.
#68]. On February 11, 2019, Judge Dooley issued an order
granting, in part, and denying, in part, defendant's
motion for protective order. [Doc. #82]. In pertinent part,
Judge Dooley ordered: “The Defendant shall produce for
deposition the representative who is most knowledgeable
regarding the handling, processing, adjusting and denial of
the Plaintiff's claims under the policy or policies at
issue in this litigation.” Id. at 2.
March 15, 2019, plaintiff's counsel deposed
defendant's 30(b)(6) representative, Leslie Scappucci.
See Docs. #106 at 3, #108 at 3; see also Doc. #108-4.
Defendant concedes that during her deposition, “Ms.
Scappucci was directed not to answer questions about: (1)
Scottsdale's internal communications after it denied
coverage, and (2) hypothetical questions.” Doc. #108 at
3. Plaintiff contends that defense counsel improperly
instructed Ms. Scappucci not to answer those questions, and
seeks an order compelling her testimony as to certain limited
areas of inquiry. See generally Doc. #106 at 5-12. Defendant
responds, inter alia: “Plaintiff should not be
permitted to inquire about topics beyond the scope of inquiry
permitted in the Court's order or about topics which are
not discoverable under the law.” Doc. #108 at 4.
of the Federal Rules of Civil Procedure governs depositions
by oral examination, including objections lodged during the
course of a deposition. Generally, “[a]n objection at
the time of the examination ... must be noted on the record,
but the examination still proceeds; the testimony is taken
subject to any objection.” Fed.R.Civ.P. 30(c)(2).
Counsel “may instruct a deponent not to answer only
when necessary to preserve a privilege, to enforce a
limitation ordered by the court, or to present a motion under
Rule 30(d)(3).” Id.; see also Kelley v.
City of Hamden, No. 3:15CV00977(AWT)(SALM), 2016 WL
5348568, at *2 (D. Conn. Sept. 23, 2016) (“A deponent
may only refuse to testify under three circumstances: to
preserve a privilege; to enforce a Court ordered limitation;
or to present a motion under Rule 30(d)(3).”).
seeks to compel five areas of testimony concerning: (1)
conversations between Ms. Scappucci and her supervisor, April
Hanson, about plaintiff's claim, see Doc. #106 at 6-7;
(2) conversations between Ms. Scappucci and defendant's
Technical Resource Director, Robert McKenzie, about
plaintiff's claim, see Id. at 7-8; (3)
conversations between Ms. Scappucci and her supervisor, Craig
Rickets, about plaintiff's claim, see Id. at 9;
(4) conversations between Ms. Scappucci and Director of
Claims, Bill Hoover, about plaintiff's claim, see
Id. at 9-10; and (5) the inspection of the property
by defendant's estimator, Phillip D. Crowder, his
estimate, and the due diligence conducted by defendant to
understand that estimate, see Id. at 10-12.
Plaintiff contends that these areas of questioning/potential
testimony do not implicate the work-product doctrine because
any conversations were had outside the presence of coverage
counsel, and by their very nature, are not tangible documents
or things. See generally Doc. #106 at 5-12.
response, defendant contends: (1) post-denial communications
are outside the scope of Judge Dooley's February 11,
2019, Order, see Doc. #108 at 4-5; (2) defendant's
post-denial communications are not relevant, see Id.
at 6-7; (3) post-denial communications are protected from
disclosure pursuant to the work-product doctrine, see
Id. at 5-6; and (4) specific lines of questioning
raised by plaintiff's counsel are “improper[,
]” Id. at 8.
reply, plaintiff asserts: (1) defendant continued to handle,
process, and adjust plaintiff's claim after the issuance
of the partial denial; (2)defendant's post-denial
communications are relevant; and (3) the questions posed to
Ms. Scappucci were not hypothetical. See Doc. #111 at 2-6.
The Court addresses the parties' arguments in turn.
Scope of Judge Dooley's Order
contends that the Court should not permit counsel for
plaintiff to inquire into post-denial communications because
they are outside the scope of inquiry permitted by Judge
Dooley's February 11, 2019, Order. See Doc. #108 at 4.
Plaintiff asserts in reply that defendant's position is
“unreasonable and not supported” by Judge
Dooley's Order, because “Defendant's conduct
after its partial denial letter demonstrates that it
continued to investigate the Plaintiff's claim and engage
in activities which can clearly be characterized as
‘handling, processing and adjusting' the
plaintiff's claims.” Doc. #111 at 3.
claim that post-denial communications are not within the
scope of Judge Dooley's Order is mistaken. It is
perfectly reasonable to believe that conversations between or
among defendants' employees, relating to the
“handling, processing, adjusting, and denial of the
Plaintiff's claims[, ]” could have occurred after
the initial partial denial of coverage. Doc. #82 at 2. Thus,
post-denial communications could reasonably ...