Main Street America Assurance Co. v. Savalle

          RULING ON DEFENDANT WINAKOR’S MOTION FOR PROTECTIVE ORDER [Doc. #51]

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

         Pending before the Court is a motion by defendant Lee Winakor (“Winakor”) seeking the entry of “a protective order from the continued taking of his deposition by counsel or the co-defendant, Vincent Savalle to the extent any such questions exceed the scope of the notice of claim to the Plaintiff by the Defendant, Vincent Savalle or the allegations set forth in the complaint in an action entitled Lee Winakor vs. Vincent Savalle[.]” Doc. #51 at 1 (sic). Alternatively, Winakor moves for an order terminating his deposition pursuant to Rule 30(d)(3)(B). See Id. Defendant Vincent Savalle (“Savalle”) has filed a memorandum in opposition to Winakor’s motion. [Doc. #55]. For the reasons stated below, the Court GRANTS, in part, and DENIES, in part, Winakor’s Motion for a Protective Order [Doc. #51]. The motion is GRANTED as to Winakor’s request for a protective order, and DENIED as to Winakor’s request for an order terminating his deposition.

         I. Background

         Plaintiff Main Street America Assurance Company (“Main Street”) brings this action seeking a declaration of its rights and obligations under a “Businessowners Policy” issued to Savalle. See generally Doc. #19, Amended Complaint. Specifically, Main Street seeks a declaration that it is not obligated to defend or pay the claims Winakor, Savalle’s co-defendant here, brought against Savalle in state court. See generally Id. Winakor obtained a judgment in the state court against defendant Savalle as a result of Savalle’s alleged faulty workmanship at Winakor’s property. See Id. at ¶5, ¶¶12-16. That judgment is currently being appealed. See Doc. #27 at 6.

         Main Street asserts that Savalle failed to provide notice of Winakor’s lawsuit, and that the claims asserted against Savalle by Winakor in the underlying state court litigation are not covered by the policy at issue. See Id. at ¶¶17-19, ¶¶23-26, ¶¶31-35, ¶¶40-45. Savalle has filed a counterclaim against Main Street alleging, inter alia, that his office manager telephoned plaintiff’s agent, Marcus Insurance, “to advise it of the Winakor lawsuit ... on July 22, 2015, at the defendant Savalle’s direction[.]” Doc. #20 at 5. As stated in the parties’ Rule 26(f) report, Savalle contends that Main Street “breached its duty to defend him, to his substantial cost, and that [Main Street’s] breach bars it from the protection of the terms of the policy[.]” Doc. #25 at 2-3.

         Winakor represents that he has been named as a defendant in this lawsuit because “to the extent [Main Street] may have to make a payment to Savalle, Winakor has an interest in the outcome of the litigation.” Doc. #51 at 2.

         II. Discussion

         Counsel for Main Street deposed Winakor on August 26, 2019, for approximately 1 hour and 45 minutes. See Id. Winakor represents that during his direct examination, counsel for Main Street focused on “when Winakor gave notice to Savalle of the claims, if he ever notified Savalle’s carrier of the claim and what the nature of the claims were.” Id. The Court’s review of Winakor’s deposition transcript generally confirms that representation. See generally Doc. #51-2, August 26, 2019, Deposition of Lee Winakor (hereinafter the “Winakor Tr.”).^[1]

         Immediately after Main Street’s deposition of Winakor concluded, counsel for Savalle began his cross-examination of Winakor. See Doc. #51 at 3. Counsel for Winakor represents that at the outset of that cross-examination, he advised Savalle’s attorney that “if he was going to try and re-litigate the underlying action that [counsel] would advise his client not to answer the questions and would terminate the exam and move for a protective order.” Id. Although counsel for Savalle began the cross-examination with questions “appropriate for the subject matter of the litigation[, ]” Winakor asserts that Savalle’s attorney then “began asking questions which had no bearing on the claims presented by this case and moreover were not even remotely calculated to lead to admissible evidence.” Id. Winakor asserts that Savalle “is attempting to re-litigate the underlying cause of action” and “should not be allowed the opportunity to correct what he now sees as the failing of his original trial attorney.” Id. at 4. Winakor accordingly requests that the Court terminate his deposition pursuant to Rule 30(d)(3), or enter a protective order “limiting the scope of the deposition to questions related to notice and the allegations contained in the original complaint but not facts or evidence adduced at trial.” Id. at 4-5.

         Savalle generally responds that “Winakor’s narrow construction of the scope of discovery is not warranted either by an applicable rule, or by the course of discovery in this case.” Doc. #55 at 1. Savalle also appears to assert that counsel for Winakor improperly terminated the deposition. See Id. at 2-3.

         A. Motion for Protective Order

         The Court first considers Winakor’s request for a protective order.

         1. Applicable Law

         Rule 26(b)(1) of the Federal Rules of Civil Procedure sets forth the scope and ...