United States District Court, D. Connecticut
RULING ON DEFENDANT SAVALLE'S RENEWED MOTION TO
QUASH SUBPOENA TO TERI DAVIS [DOC. #63]
SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE.
before the Court is a renewed motion by defendant Vincent
Savalle (“Savalle”) seeking to quash a subpoena
issued by plaintiff Main Street America Assurance Company
(“Main Street”) to non-party Teri Davis. [Doc.
#63]. Main Street has filed an objection to Savalle's
renewed motion to quash. [Doc. #67]. For the reasons stated
below, the Court DENIES Savalle's
renewed motion to quash subpoena to Teri Davis [Doc.
Street brings this action seeking a declaration of its rights
and obligations under a “Businessowners Policy”
issued to Savalle. See generally Doc. #19.
Specifically, Main Street seeks a declaration that it is not
obligated to defend or pay the claims Lee Winakor
(“Winakor”), Savalle's co-defendant here,
brought against Savalle in state court. See
generally Id. Winakor obtained a judgment in the
state court against 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
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 Doc. #19
at ¶¶17-19, ¶¶23-26, ¶¶31-35,
¶¶40-45. Savalle has filed a counterclaim against
Main Street alleging, inter alia, that Teri Davis telephoned
Main Street's agent, Marcus Insurance, “to advise
it of the Winakor lawsuit ... on July 22, 2015, at the
defendant Savalle's direction[.]” Doc. #27 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.
September 4, 2019, Main Street noticed the issuance of a
subpoena to non-party Teri Davis (“Davis”),
commanding her to appear and testify at a deposition, and to
produce the documents identified on Schedule A to the
subpoena. See Doc. #63-1.
Any and all documents, records, correspondence, memorandum,
notes and/or logs regarding the insurance you obtained for or
on behalf of Vincent Savalle from 2010 to the present; the
work Vincent Savalle performed at 217 Ledgen Wood Road (now
known as 24 Island Road) in North Stonington, Connecticut;
the lawsuit captioned Lee Winakor v. Vincent Savalle, New
London Superior Court, Civil Action No. KNL-CV15-6024218-S;
or the instant litigation captioned Main Street America
Assurance Co. v. Vincent Savalle, et al., including but not
limited to correspondence between you, on the one side, and
the following individuals/entities on the other side:
Attorney James Lee, Attorney Frank Liberty, Charles G. Marcus
Agency, Inc., Main Street America Assurance Company, and/or
Karl Butzgy. You are further commanded to bring any
notations, diaries, logs, notes, notations, records,
memorandum regarding such communications and/or oral
conversations or meetings with such individuals/entities.
Doc. #63-1 at 6 (sic). The subpoena noticed Davis'
deposition for September 20, 2019, at 1:30PM. See
Id. at 3.
September 13, 2019, Savalle filed a motion to quash the
subpoena. [Doc. #54]. On September 16, 2019, Judge Janet C.
Hall referred that motion to the undersigned. [Doc. #56]. On
the same date, the Court denied Savalle's motion, without
prejudice to re-filing, for failure to comply with the Local
Rules. See Doc. #58. The Court ordered counsel for
Savalle and counsel for Main Street to engage in a further
meet-and-confer conference. See Id. To the
extent that counsel were unable to resolve the dispute
presented in Savalle's motion to quash, then Savalle was
to re-file his motion by October 4, 2019. See
Id. In accordance with that Order, Savalle timely
re-filed the motion to quash on October 4, 2019. [Doc. #63].
Main Street filed an objection to Savalle's motion on
October 10, 2019. [Doc. #67].
to Rule 45 [of the Federal Rules of Civil Procedure], any
party may serve a subpoena commanding a non-party to produce
designated documents.” Crespo v. Beauton, No.
3:15CV412(WWE)(WIG), 2016 WL 259637, at *2 (D. Conn. Jan. 21,
2016) (citation and quotation marks omitted). Rule 45 also
permits a party to “serve a subpoena commanding a
nonparty ‘to attend and testify[.]'”
Weinstein v. Univ. of Conn., No. 3:11CV1906(WWE),
2012 WL 3443340, at *2 (D. Conn. Aug. 15, 2012) (quoting
Fed.R.Civ.P. 45(a)(1)(A)(iii)). “Rule 45 subpoenas are
subject to the relevance requirements set forth in Rule
26(b).” Crespo, 2016 WL 259637, at *2.
Rule of Civil Procedure “45(d)(3) provides that the
court should quash a subpoena, upon a party's timely
motion, when it requires disclosure of privileged
information. The burden of persuasion in a motion to quash a
subpoena issued in the course of civil litigation is borne by
the movant.” Dukes v. NYCERS, 331 F.R.D. 464,
469 (S.D.N.Y. 2019) (citation and quotation marks omitted);
see also Travelers Indem. Co. v. Metro. Life Ins.
Co., 228 F.R.D. 111, 113 (D. Conn. 2005) (“The
burden of persuasion in a motion to quash a subpoena is borne
by the movant.”).
Savalle moves to quash the subpoena served on Davis because
it “expressly seeks communications protected by the
attorney-client privilege.” Doc. #63 at 1. Main Street
responds that Savalle “has failed to meet his burden to
show that the information and documents sought... are
protected by attorney-client privilege.” Doc. #67 at 1.
Main Street also challenges the sufficiency of Savalle's
privilege log. See Id. at 1-3. With respect
to the privilege log, Savalle notes “a sub-dispute of
the disagreement over the sufficiency of the logs is whether
[Main Street] must at this point make a showing of relevance
for its insistence on viewing these communications, or
whether it need not meet that burden until [Savalle] has made
a stronger showing that they are privileged.” Doc. #63
at 3. Before addressing the substance of Savalle's
primary argument, i.e., the applicability of the
attorney-client privilege, the Court briefly addresses the
issue of relevance.
motion thinly suggests that the documents and information
sought by the subpoena are not relevant to the claims and
defenses in this matter. See Doc. #63 at 3. Savalle,
however, does not develop that argument. It is not surprising
then, that Main Street does not address the relevance of the
documents and information sought by the subpoena in its
as previously noted, Rule 45 subpoenas are subject to Rule
26's relevance requirement. See Crespo, 2016 WL
259637, at *2. The Court, however, does not reach the issue
of relevance for two reasons. First, defendant Savalle does
not sufficiently develop any argument directed to the
relevance of the documents and/or testimony sought. “It
is not enough to merely mention a possible argument in the
most skeletal way, leaving the court to do counsel's
work, create the ossature for the argument, and put flesh on
its bones.” United States v. Zannino, 895 F.2d
1, 17 (1st Cir. 1990). Second, Savalle does not have standing
to challenge the subpoena on the grounds of relevance.
See Universitas Educ., LLC v. Nova Grp., Inc., No.
11CV1590(LTS)(HBP), 2013 WL 57892, at *5 (S.D.N.Y. Jan. 4,
2013) (“A party lacks standing to challenge subpoenas
issued to non-parties on the grounds of relevancy or undue
burden.”); accord A & R Body Specialty &
Collision Works, Inc. v. Progressive Cas. Ins. Co., No.
3:07CV929(WWE)(HBF), 2013 WL 6511934, at *2 (D. Conn. Dec.
the Court turns to the question of the applicability of the
attorney-client privilege to the documents and information
sought by Main Street's subpoena. However, before
reaching the substance of that issue, the Court must first
consider whether state substantive ...