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Case 3:12-cv-01658-JCH Document 48 Filed 04/02/13 Page 1 of 9



UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT














:
BRISTOL HEIGHTS ASSOCIATES, :
:
LLC


:
: CIV. NO. 3:12CV01658 (JCH)
v.
:


:
CHICAGO TITLE INS. CO.

:


































RULING DEFENDANT’S MOTION TO QUASH SUBPEONAS, FOR PROTECTIVE

ORDER AND FOR AWARD OF EXPENSES



Defendant, Chicago Title Insurance Company (“Chicago

Title”), moves this Court pursuant to Rule 26(c)(1) & (3) and

Rule 45(c)(3) of the Federal Rules of Civil Procedure to enter a

protective order and to quash two subpoenas served by plaintiff,

Bristol Heights Associates, LLC (“Bristol Heights”) on Chicago

Title’s trial counsel in the pending Connecticut state court

action: Chicago Title Ins. Inc. Co. v. Bristol Heights Assocs.,

LLC, X02 UWY-CV07-402047 (“State Court Action”); and in Bristol

Height’s appeal of the judgment in that action before the

Connecticut Appellate Court (Case no. AC 34040). Oral argument

was held on March 26, 2013.



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Case 3:12-cv-01658-JCH Document 48 Filed 04/02/13 Page 2 of 9

I.

BACKGROUND

This case is the fourth litigation between the parties

regarding a dispute arising from the same transaction and set

of facts. That dispute concerns: (1) an owner’s title

insurance policy underwritten by Chicago Title for a parcel of

real property located in Bristol, Connecticut, owned by

Bristol Heights; (2) the tax liens filed against the Property

by the City of Bristol; (3) the plaintiff’s payment of the

taxes secured by the liens; and (4) the plaintiff’s claim

under the Policy for recovery of the tax payment.

In this action, Bristol Heights claims that Chicago Title

had an obligation to bring an action against Lewis Volpicella,

the grantor of the deed for the Property, to enforce the

warranty of title given in the deed. [Compl. Count One:

Negligence ¶¶8, 11-13; Count Two: Breach of Contract ¶¶11-13].

Chicago Title denies these claims and asserts affirmative

defenses of res judicata, discharge of contract by plaintiff’s

breach, statute of limitations, contributory negligence and

failure to mitigate. [Doc. #13]. Defendant “maintains that as

a result of Bristol Height’s actions it had no such

obligation, particularly so after Bristol Heights executed and

delivered a release to Mr. Volpicella for any claims under the

warranty deed.” [Doc. #36 at 1].

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Case 3:12-cv-01658-JCH Document 48 Filed 04/02/13 Page 3 of 9

II.

DISCUSSION

A.

Fed. R. Civ. P. 26(c)(1)(A)

Defendant’s motion is granted pursuant to Fed. R. Civ. P.

26(c)(1)(A).

The Federal Rules of Civil Procedure provide that parties

may obtain discovery, including by oral depositions, “regarding

any matter, not privileged, that is relevant to the claim or

defense of any party” and that “[r]elevant information need not

be admissible.” Fed. R. Civ. P. 26(b)(1). However a district

court may limit:

The frequency or extent of the use of discovery
methods otherwise permitted under [the federal]
rules . . . if it determines that: (i) the
discovery sought is unreasonably cumulative or
duplicative, or is obtainable from some other
source that is more convenient, less burdensome,
or less expensive; (ii) the party seeking
discovery has had ample opportunity by discovery
in the action to obtain the information sought;
or (iii) the burden or expense of the proposed
discovery outweighs its likely benefit, taking
into account the needs of the case, the amount in
controversy, the parties' resources, the
importance of the issues at stake in the
litigation, and the importance of the proposed
discovery in resolving the issues.


Fed. R. Civ. P. 26(b)(2).



In In re Subpoena Issued to Dennis Friedman, 350 F.3d 65,

72 (2d Cir. 2003), the Second Circuit stated that “the standards

set forth in Rule 26 require a flexible approach to lawyer

depositions whereby the judicial officer supervising discovery

takes into consideration all of the relevant facts and

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Case 3:12-cv-01658-JCH Document 48 Filed 04/02/13 Page 4 of 9

circumstances to determine whether the proposed deposition would

entail an inappropriate burden or hardship.” The Second Circuit

suggested several non-exclusive factors that courts should

consider when analyzing whether the proposed deposition of an

attorney-witness is appropriate. These considerations include

“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.” Id.

Plaintiff has provided no basis for deposing Chicago

Title’s state trial counsel except to state that it “needs to

depose Attys. Girard and O’Hanlan about matters that only they

can testify to . . . .” Doc. #37 at 3]. Bristol Heights contends

that, “there is simply no obligation that a lawyer must inform

their opponent of their intended subjects or questions in

advance” of the deposition. [Doc. #37 at 5]. In its moving

papers, Chicago Title represented that Bristol Heights offered

to forego the depositions if the parties could agree on an

“acceptable fact stipulation that Chicago Title never brought a

claim concerning its rights and obligations to sue [Lew]

Volpicella for breach of warranty.” [Doc. #26-2 at 11]. Chicago



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Case 3:12-cv-01658-JCH Document 48 Filed 04/02/13 Page 5 of 9

Title admitted this fact in its Rule 26(f) report.1 When closely

questioned by the Court at oral argument, counsel for Bristol

Heights stated that the depositions were intended to test the

“candor” and “credibility” of Attorneys Girard and O’Hanlan,

without articulating what, if any, testimony the attorneys might

offer that cannot be obtained from their client Chicago Title.

The Court finds that plaintiff has failed to articulate any

basis for questioning trial counsel regarding Chicago Title’s

litigation strategy that would not be protected under the

attorney client privilege or work product doctrine. See Hickman

v. Taylor, 329 U.S. 495, 511-12 (1947) (the burden rests on the

person seeking the discovery to “establish adequate reasons to

justify production.”).

Defendant argues that, to the extent that Bristol Heights

seeks to question Attorneys Girard and O’Hanlan regarding

defendant’s affirmative defenses of collateral estoppel and res

judicata, these questions would also be protected by the

attorney-client privilege. [Leventhal Aff. ¶8 (stating that Att.

Zimmerman “did not understand the basis for two of the

affirmative defenses filed in this action by Chicago Title, res


1 Chicago Title argues, and the Court agrees, that it is
undisputed that Chicago Title has never sued Mr. Volpicella on
behalf of Bristol Heights; nevertheless, a request for admission
under Rule 36 can resolve this matter without deposing Attorneys
Girard and O’Hanlan. [Doc. #39 at 5].

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Case 3:12-cv-01658-JCH Document 48 Filed 04/02/13 Page 6 of 9

judicata and collateral estoppel, and needed to question Mssrs.

O’Hanlan and Girard on those issues.”). Bristol Heights did not

pursue this argument in its opposition brief or at oral

argument. Accordingly, the Court finds this argument waived.

Defendant argues on summary judgment that Chicago Title

could not maintain any action against Mr. Volpicella for breach

of warranty because Bristol Heights had released Mr. Volpicella

from any claims under the warranty deed. In plaintiff’s Motion

to Defer Consideration of Defendant’s Motion for Summary

Judgment [Doc. #41], Bristol Heights contends that, “discovery

is needed to learn of the extent of collusion by Mr. Volpicella

with Chicago Title against Bristol Heights, which discovery may

also give rise to additional claims of civil conspiracy and

tortious interference.” 2 [Doc. #41 at 1 (emphasis added)].

Specifically, Bristol Heights claims Attorneys Girard and

O’Hanlan, and possibly other witnesses, “will have information

relevant to the issue of whether Mr. Volpicella induced Bristol

Heights into giving him a release by fraud or else violated its


2 Indeed, in the Motion to Defer, plaintiff states that
“[d]iscovery in the form of the depositions that are the subject
of Chicago Title’s pending motion to quash will also enable
Bristol Heights to obtain testimony that would bear on the
Court’s analysis of Chicago Title’s res judicata defense.” [Doc.
#41 at 2]. As stated, Bristol Heights did not raise this
argument in its opposition brief, or state how these witnesses
would be qualified to provide testimony on the subject.

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Case 3:12-cv-01658-JCH Document 48 Filed 04/02/13 Page 7 of 9

terms or spirit by colluding with Chicago Title against Bristol

Heights.” Id. at 2 (emphasis added). Plaintiff added that, “the

witnesses in question are experienced litigators and their

testimony as to what claims were and were not brought by Chicago

Title in its declaratory judgment action can bear on this

Court’s consideration of Chicago Title’s present res judicata

defense.”3 Id. Plaintiff further states in the Motion to Defer

that its “efforts to obtain this discovery has been obstructed

by Chicago Title’s filing of a motion to quash.” Id. at 3.

(emphasis added)]. In an affidavit appended to the Motion to

Defer, Attorney Bruce Matzkin avers that the “[d]epositions of

Attys. Edward O’Hanlan and Christopher Girard . . . are

necessary to learn the extent of Mr. Volpicella’s collusion

against Bristol Heights, which could give rise to a claim of

civil conspiracy against him and Chicago Title. Also any

evidence that Chicago Title knew of Mr. Volpicella’s agreement

with Bristol Heights and tortiously interfered with it would

likely come out in the course of discovery.” [Matzkin Aff. ¶16

(emphasis added)].4 Plaintiff did not offer anything in support


3 Plaintiff can easily ascertain from the relevant pleadings
“what claims were and were not brought.” Any inquiry into
attorney or client decision making about what claims to pursue
would invade the privilege.
4 On summary judgment, defendant argues, “[r]egardless of who the
plaintiff would be Chicago Title could not maintain any action
against Mr. Volpicella. Bristol Heights had released Mr.

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Case 3:12-cv-01658-JCH Document 48 Filed 04/02/13 Page 8 of 9

of this legal theory to justify examination of Attorneys Girard

and O’Hanlan.

In weighing the Friedman factors, the Court finds that

plaintiff has failed to articulate any basis for deposing

Attorneys Girard and O’Hanlan. Accordingly, the Motion to

Quash, for Protective Order and an Award for Expenses is

GRANTED.

B.

Fed. R. Civ. P. 45(b)(1)

Defendant’s Motion to Quash is also GRANTED pursuant to

Fed. R. Civ. P. 45(b)(1) for failure to tender a witness fee

simultaneously with the subpoenas. Without a fee, they are

invalid and unenforceable.

III.

CONCLUSION

For the reasons stated, defendant’s Motion to Quash

Subpoenas, for Protective Order and an Award of Expenses [Doc.

#26] is GRANTED. Defendant will file a Motion for Award of

Expenses with supporting documentation within fourteen days.

This is not a recommended ruling. This is a ruling on

discovery which is reviewable pursuant to the "clearly

erroneous" statutory standard of review. 28 U.S.C. '636


Volpicella and for Chicago Title to thereafter sue him would be
vexatious, it would be in violation of Fed. R. Civ. P. 11, and
would be subject to immediate determination in favor of Mr.
Volpicella by the presiding court.” [Doc. #36-2 at 9].

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Case 3:12-cv-01658-JCH Document 48 Filed 04/02/13 Page 9 of 9

(b)(1)(A); Fed. R. Civ. P. 6(a), 6(e) and 72(a); and Rule 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 motion timely made.

SO ORDERED at Bridgeport this 28th day of March 2013.

























____/s/____________________

HOLLY B. FITZSIMMONS

UNITED STATES MAGISTRATE JUDGE











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