RULING ON PENDING DISCOVERY ISSUES REGARDING DEPOSITIONS
JOAN GLAZER MARGOLIS, Magistrate Judge.
The factual and procedural history behind this litigation is set forth in considerable detail in this Magistrate Judge's Ruling on Pending Discovery Issues, filed January 27, 2017 (Dkt. #191)["January 2017 Discovery Ruling"], familiarity with which is presumed.
On January 23, 2017, defendant Travelers forwarded to this Magistrate Judge a letter (Dkt. #197)
In its letters, dated January 23 and February 6, 2017, defendant Travelers seeks a protective order to preclude plaintiffs from deposing the following five individuals:
(1) Sonia Waisman, who is and has been since 2003 representing Travelers in the parallel coverage action between the parties in the Superior Court for the County of Los Angeles ["California Action"], set for trial on June 20, 2017;
(2) Nancy Brownstein, former in-house counsel who advised defendant regarding plaintiffs' claims asserted in the California Action and this lawsuit, until she left defendant in 2015;
(3) James Vitelli, current in-house counsel who is and has been advising defendant regarding claims asserted in the California Action and this action after Attorney Brownstein left;
(4) Leonard Bieringer, defendant's Associate General Counsel; and
(5) Stephen Sennott, defendant's former employee who testified in
A. DEPOSITIONS OF THE FOUR ATTORNEYS AND SUBPOENA TO ATTORNEY WAISMAN
Travelers seeks a protective order regarding the depositions of these four attorneys because depositions of attorneys generally are disfavored in the Second Circuit; among the several non-exclusive factors that courts should consider are "the need to depose the lawyer, the lawyer's role in connection with the matter on which discovery is sought and in relation to the pending litigation, the risk of encountering privilege and work-product issues, and the extent of discovery already conducted." (Dkt. #197, at 1-2, Dkt. #199, at 3-4,
Travelers argues that deposition testimony in the California action revealed that Attorneys Waisman and Brownstein provided legal advice to Erin Jacques, the author of Travelers' 2009 reservation of rights letter reflecting what plaintiffs allege is a change in coverage position. (Dkt. #199, at 3-4). Accordingly, Travelers asserts that "encountering attorney-client privilege and work product issues during their depositions is a certainty." (
As to the subpoena of Attorney Waisman, Travelers argues that it should be quashed because the document requests are unduly burdensome and harassing, calls for documents clearly protected by attorney-client privilege and work product doctrine, and is not reasonably calculated to lead to the discovery of admissible evidence. (Dkt. #199, at 4).
Plaintiffs respond that each of these witnesses has non-privileged factual information that is relevant to plaintiffs' bad faith claim. (Dkt. #200, at 1). Plaintiffs argue that they are entitled to depose Attorneys Brownstein and Waisman because both are listed in defendant's Rule 26(a) disclosures as individuals possessing discoverable information to support its defenses, as required by FED. R. CIV. P. 26(a)(1)(A)(I). (Dkt. #198, at 1-2; Dkt. #200, at 1). Plaintiffs further argue that all four attorneys are "fact witnesses who . . . are or were involved in the claims handling related to [p]lainitffs' XN policies." (Dkt. #198, at 3). According to plaintiffs, Attorneys Brownstein, Bieringer and Vitelli work or worked in defendant's Special Liability Group ["SLG"], a special claims handling unit created by Travelers to handle,
With respect to Attorneys Brownstein and Waisman, plaintiffs are entitled to take their depositions for the obvious reason that these two attorneys are listed, with two other employees (Jacques and Mazzapica), in defendant's Rule 26(a) Disclosures as fact witnesses involved in the drafting, review and approval of the January 9, 2009 correspondence from defendant to plaintiffs. (Dkt. #198, Exh. A). Defendant cannot bar plaintiffs from deposing two attorneys that it designated as fact witnesses, and plaintiffs rightly note that Travelers has provided no authority to support that a party may "prevent its opponent from taking testimony of a witness disclosed by the party in its Rule 26(a) disclosures." (Dkt. #200, at 1). Defendant, however, remains entitled to assert the attorney client privilege or work product doctrine if and when any individual question strays from discoverable and non-privileged information.
With respect to Attorneys Bieringer and Vitelli, plaintiffs, at this time, are precluded from deposing them at this time,
A secondary issue has arisen regarding defendant's and Attorney Waisman's objections to the document requests served upon Attorney Waisman, and defendant's failure to provide a privilege log when it objected to the document request in its entirety. (Dkt. #197, at 4; Dkt. #199, at 2, 4; Dkt. #200, at 5).
B. DEPOSITION AND SUBPOENA TO SENNOTT
Travelers argues that there is good cause for a protective order precluding the deposition of Sennott because he has already been deposed by plaintiffs' counsel in the California Action and because his deposition would inevitably reveal privileged information due to his assistance of Travelers in litigation matters. (Dkt. #199, at 5-6). Travelers also notes that Sennott's wife is in ill health and a deposition would impose personal hardship on the deponent. (Dkt. #197, at 5; Dkt. #199, at 6). Travelers argues that the document subpoena is unduly burdensome and harassing because of its overly broad scope in seeking information that Travelers argues is irrelevant to the subject matter of this case. (Dkt. #199, at 6).
Plaintiffs respond that key facts have developed since their previous deposition of Sennott, and that they have offered to be extremely flexible in deposing Sennott due to his personal hardship. (
Plaintiffs are entitled to depose Sennott, who clearly has direct knowledge of the underlying facts of this case, but given his family situation, the following restrictions are imposed: (1) if defendant executes a stipulation that permits Sennott's deposition testimony and trial testimony in California to be incorporated by reference into this lawsuit, then plaintiffs' counsel here is limited to any questions that were not raised in the California lawsuit;
This is not a Recommended Ruling, but a ruling on a non-dispositive motion, the standard of review of which is specified in 28 U.S.C. § 636; FED. R. CIV. P. 6(a) & 72; and Rule 72.2 of the Local Rules for United States Magistrate Judges. As such, it is an order of the Court unless reversed or modified by the District Judge upon timely made objection.
The exhibits have not been docketed, as some are protected by a court order.
These exhibits similarly have not been docketed as some are marked as confidential.
Two days later, on February 10, 2017, defendant forwarded its third letter on these issues, with three additional exhibits. (Dkt. #201). The parties are not permitted unfettered access to this judicial officer. The exhibits similarly have not been docketed as they include deposition transcripts.