United States District Court, D. Maryland
Jowite Ltd. Partnership
Federal Insurance Co.
Stephanie A. Gallagher, United States Magistrate Judge
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. 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.
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. 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
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.
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.
JOWITE'S MOTION TO MODIFY SUBPOENAS AND FOR PROTECTIVE
has filed a motion to modify two subpoenas Defendant issued
to third-parties, and to request a protective order. ECF
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.
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).
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.
Irrelevant Information Regarding Other Properties
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 ...