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Main Street America Assurance Co. v. Savalle

United States District Court, D. Connecticut

November 5, 2019

MAIN STREET AMERICA ASSURANCE COMPANY
v.
VINCENT SAVALLE and LEE WINAKOR

          RULING ON DEFENDANT SAVALLE'S RENEWED MOTION TO QUASH SUBPOENA TO TERI DAVIS [DOC. #63]

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

         Pending 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. #63].

         I. Background

         Main 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 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 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.

         On 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.

         Schedule A seeks:

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.

         On 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].

         II. Applicable Law

         “Pursuant 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.

         Federal 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.”).

         III. Discussion

         Defendant 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.

         A. Relevance

         Savalle's 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 opposition.

         Regardless, 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. 12, 2013).

         Accordingly, 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 ...


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