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, :
: CIV. NO. 3:12CV01658 (JCH)
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.
Case 3:12-cv-01658-JCH Document 48 Filed 04/02/13 Page 2 of 9
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].
Case 3:12-cv-01658-JCH Document 48 Filed 04/02/13 Page 3 of 9
Fed. R. Civ. P. 26(c)(1)(A)
Defendant’s motion is granted pursuant to Fed. R. Civ. P.
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
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
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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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
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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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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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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of this legal theory to justify examination of Attorneys Girard
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
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.
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].
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.
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE