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Ice Cube Building, LLC v. Scottsdale Insurance Co.

United States District Court, D. Connecticut

May 31, 2019

ICE CUBE BUILDING, LLC
v.
SCOTTSDALE INSURANCE COMPANY

          RULING ON MOTION TO COMPEL RESPONSES TO DEPOSITION QUESTIONS [DOC. #106]

          HON. SARAH A. L. MERRIAM, UNITED STATES MAGISTRATE JUDGE

         Pending 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], [1] 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. #106].

         A. Background

         The Court presumes general familiarity with the background of this insurance coverage dispute.[2] However, the Court will briefly address the procedural and factual background as relevant to the pending motion to compel.

         Plaintiff 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 3.[3] 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 ensued.

         On 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.

         On 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.

         B. Applicable Law

         Rule 30 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).”).

         C. Discussion

         Plaintiff 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.

         In 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.[4]

         In 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.

         1. The Scope of Judge Dooley's Order

         Defendant 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.

         Defendant's 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 ...


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