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Jowite L.P. v. Federal Insurance Co.

United States District Court, D. Maryland

April 5, 2019

Jowite Ltd. Partnership
v.
Federal Insurance Co.

          Stephanie A. Gallagher, United States Magistrate Judge

         Dear Counsel:

         This matter has been referred to me for all proceedings, by consent of the parties. ECF 13-15, 17. Plaintiff Jowite Limited Partnership (“Jowite”) filed this lawsuit against Defendant Federal Insurance Company, alleging breach of contract relating to the insurance policy covering Jowite's building. ECF 1. Presently pending are two discovery disputes.[1] On February 27, 2019, Jowite filed a Motion to Modify Subpoenas and for Protective Order. ECF 32. Defendant has filed a Response, ECF 34, and Jowite has filed a Reply, ECF 39. On March 12, 2019, Jowite submitted a letter outlining separate discovery disputes relating to several pieces of evidence it requested from Defendant. ECF 36. Defendant submitted a response letter, ECF 38, and Jowite submitted a reply, ECF 41. I find that no hearing is necessary. See Loc. R. 105.6 (D. Md. 2018). For the following reasons, Jowite's motion, ECF 32, is GRANTED in part and DENIED in part. Jowite's requests in its letter of March 12, 2019, ECF 36, are also GRANTED in part and DENIED in part.

         I. BACKGROUND

         Jowite owns rental housing consisting of three apartment building located at 406 Moton Street in Easton, Maryland (“Jowite property”), for low- and moderate-income residents. ECF 24 ¶¶ 6-7. Jowite maintained an insurance policy with Defendant, covering building and personal property coverage, as well as coverage for loss of business income and debris removal in case of demolition. Id. ¶ 8. T.M. Associates, which managed the Jowite property, arranged for an inspection of the one of the Jowite buildings by Done Right, LLC, whose written report of March 2, 2017, found significant damage to the foundation and recommended demolition of the building. Id. ¶ 13. On or about July 18, 2017, an insurance claim was filed with Defendant relating to the damage to the foundation. ECF 36-4 at 1. The adjuster for Jowite's claim was John Little, an employee of Chubb.[2] On July 26, 2017, Little sent a “reservation of rights” letter to T.M. Associates, which noted that the “initial file review and policy analysis revealed some potential coverage reservations with regards to the long-term and reoccurring ground and structural settling.” ECF 38-9 at 3. Defendant then arranged for an inspection by Nicholas Palumbo, an engineer employed by Building Envelope Consultants and Scientists. Id.; ECF 24 ¶ 14. Palumbo issued an initial report on August 8, 2017, confirming the significant damage to the foundation, and conducted a second inspection on August 27, 2017. ECF 36-4 at 2.

         At some point in the claim process, Jowite contacted Harvey Goodman of the public adjusting firm Goodman-Gable-Gould for assistance in adjusting the claim. ECF 38 at 2. Goodman notified Defendant of his representation of Jowite on August 8, 2017. ECF 38-10. Two days later, in an email correspondence, Goodman forwarded Defendant some Maryland caselaw to support Jowite's claim for coverage, saying the cases “were previously provided to [Goodman] by counsel.” ECF 38-11 at 4.

         After its investigation, Defendant denied coverage by letter dated December 28, 2017, claiming that the losses suffered by Jowite were excluded from coverage under the policy. ECF 36-4. Defendant has identified at least five exclusions in the policy that it claims bar coverage: settling, wear and tear, planning design, materials or maintenance, acts or decisions, and inherent vice/latent defect. Id. at 4-6, ECF 36-5 at 2. Each of those five exclusions contain an exception clause, and the parties' disagreement is essentially whether the damage to the Jowite property falls into an exception to those exclusion clauses.

         II. JOWITE'S MOTION TO MODIFY SUBPOENAS AND FOR PROTECTIVE ORDER

         Jowite has filed a motion to modify two subpoenas Defendant issued to third-parties, and to request a protective order. ECF 32.[3] Generally, a party to a suit may challenge a subpoena issued to a nonparty only if “the party claims some personal right or privilege in the information sought by the subpoena.” Fangman v. Genuine Title, LLC, Civil Action No. RDB-14-0081, 2016 WL 560483, at *3 (D. Md. Feb. 12, 2016) (quoting United States v. Idema, 118 F. App'x, 740, 744 (4th Cir. 2005) (unpublished per curiam opinion)); CineTel Films, Inc. v. Does 1-1, 052, 853 F.Supp.2d 545, 554 (D. Md. 2012). Here, Jowite's claims of work product protection and privacy interest in its tax returns are enough to satisfy its standing requirement to challenge the subpoenas.

         Federal Rule of Civil Procedure 45(d)(3)(A) directs courts to quash or modify a subpoena that, inter alia, “requires disclosure of privileged or other protected matter, if no exception or waiver applies” or “subjects a person to undue burden.” Fed.R.Civ.P. 45(d)(3)(A)(iii)-(iv). Rule 26(c)(1) permits “[a] party or any person from whom discovery is sought” to seek a protective order, and courts may, “for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed.R.Civ.P. 26(c)(1). “This undue burden category encompasses situations where the subpoena seeks information irrelevant to the case.” U.S. Home Corp. v. Settlers Crossing, LLC, No. DKC-08-1863, 2013 WL 5530282, at *7 (D. Md. Oct. 3, 2013) (quotations and citations omitted). “Thus, if the discovery sought has no bearing on an issue of material fact-i.e., if it is not relevant-a protective order is proper.” Id. (quotations and citations omitted). Where a protective order is sought, the moving party bears the burden of establishing good cause. Webb v. Green Tree Servicing LLC, 283 F.R.D. 276, 278 (D. Md. 2012). “Normally, in determining good cause, a court will balance the interest of a party in obtaining the information versus the interest of his opponent in keeping the information confidential or in not requiring its production.” UAI Tech., Inc. v. Valutech, Inc., 122 F.R.D. 188, 191 (M.D. N.C. 1988) (citing Farnworth v. Procter & Gamble Co., 758 F.2d 1545 (11th Cir. 1985)). In other words, “the Court must weigh the need for the information versus the harm in producing it.” A Helping Hand, LLC v. Balt. Cnty., Md., 295 F.Supp.2d 585, 592 (D. Md. 2003) (quoting UAI Tech., 122 F.R.D. at 191). The standard for issuance of a protective order is high. Minter v. Wells Fargo Bank, N.A., 258 F.R.D. 118, 125 (D. Md. 2009). However, trial courts have broad discretion to decide “when a protective order is appropriate and what degree of protection is required.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984).

         a. Rauch Subpoena

          On February 1, 2019, Defendant issued a subpoena and notice of deposition duces tecum to Rauch, Inc. (“Rauch”), an engineering and architecture firm that provided services to Jowite. ECF 32-1 at 2; ECF 32-2. Jowite objects to the subpoena on the grounds that it seeks irrelevant information and information that is protected work product.

         i. Irrelevant Information Regarding Other Properties

         Jowite objects to the second request in the subpoena to produce “[a]ny and all communication [sic] between Rauch, Inc. and Jowite Limited Partnership, the Parkway Apartments, Alvin Lapidus, their attorneys or insurance carriers.” ECF 32-2 at 6. The Jowite property is owned by Jowite Limited Partnership. ECF 32-1 at 5. The Parkway Apartments are next to the Jowite property, and are owned by Easton Parkway Limited Partnership. Id. Alvin Lapidus is the managing member of both the Jowite and Easton Parkway Limited Partnerships. Id. Defendant argues “any geological, structural, or other settlement issues pertaining to the Parkway Apartments, and Alvin Lapidus's knowledge of the same, would be directly relevant to litigation involving the same issues literally next door.” ECF 34 at 7. Because Jowite and Easton Parkway are distinct properties, owned by distinct partnerships, evidence related to the Easton Parkway properties would not help decide the issues in this case, particularly when the settling issues at the Jowite property became known and what efforts were taken to address those issues. To the extent that Rauch has “commingled, ” by writing reports or other communications covering both the Jowite and Easton Parkway properties, ECF 34 at 7, it should be able to produce all records relevant to Jowite, regardless ...


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