Jalowsky v. Provident Life and Accident Insurance Company et al
Filing
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ORDERED that the defendants' motion, filed on March 12, 2020, to quash asubpoena and for protective order is GRANTED in PART. (Doc. 247 ) The documentsubpoena to Friedman/Rubin, PLLP for documents subject to the protective order in Biliack v. The Paul Revere Life Insurance Co.; et al. CV 16-3631-PHX-DJH is QUASHED. Signed by Magistrate Judge Leslie A Bowman on 6/18/2020. (MCO)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Herbert Jalowsky, M.D., an individual,
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Plaintiff,
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vs.
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Provident Life and Accident Insurance)
Co., a Tennessee corporation; Unum)
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Group, a Delaware corporation,
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Defendants.
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_________________________________ )
No. CV 18-279-TUC-CKJ (LAB)
ORDER
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Pending before the court is the defendants’ motion, filed on March 12, 2020, to quash
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a subpoena and for a protective order. (Doc. 247) The plaintiff filed a response on March
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17, 2020. (Doc. 261) The defendants filed a reply on March 26, 2020. (Doc. 279)
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This is an insurance bad faith action in which the plaintiff, Jalowsky, alleges that the
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defendants misclassified his disability as being due to a sickness rather than an injury
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thereby reducing his benefits. (Doc. 17) In the pending motion, the defendants move,
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pursuant to Fed.R.Civ.P. 45, to quash a subpoena the plaintiff intends to issue against his
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own counsels’ law firm for documents that the defendant Unum Group disclosed in a
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previous lawsuit, subject to a protective order. (Doc. 247)
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The plaintiff’s counsels’ law firm is currently in possession of documents that it
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received in the normal course of discovery from the defendant Unum Group in a prior
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lawsuit, Biliack v. The Paul Revere Life Insurance Co.; et al. CV 16-3631-PHX-DJH. (Doc.
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247, p. 2) Those documents were disclosed pursuant to a protective order issued by the
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Biliack court in October of 2017. Id. The protective order specifies that material designated
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“confidential,” as was the material here, may be used only in connection with the case at bar,
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and may not be disclosed for other purposes. Id., pp. 2-3.
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After the time for discovery in this case passed, the plaintiff’s counsel sought
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permission from the defendants to use those same documents in the pending action. Id., p.
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3. The defendants denied permission. Id. Subsequently, the plaintiff filed a “Notice of
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Intent to Issue Document Subpoena (F.R.C.P. 45(a)(4))” indicating that he intends to
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subpoena his own counsels’ law firm for the documents that are subject to the protective
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order in Biliack. (Doc. 221-2, p. 2)
On March 12, 2020, the defendants filed the pending motion, pursuant to Fed.R.Civ.P.
45, to quash the noticed subpoena and for a protective order. (Doc. 247)
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Rule 45 reads in pertinent part as follows:
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On timely motion, the court for the district where compliance is required must
quash or modify a subpoena that:
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(iii) requires disclosure of privileged or other protected matter, if no exception
or waiver applies . . . .
Fed. R. Civ. P. 45(d)(3)(A).
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In this case, the documents designated by the noticed subpoena are subject to a
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protective order issued by the Biliack court. No exception or waiver appears to apply.
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Accordingly, the defendants’ motion to quash pursuant to Rule 45(d)(3)(A)(iii) should be
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granted. See, e.g., Savant Sys., LLC v. Crestron Elecs., Inc., 2012 WL 987404, at *4 (E.D.
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Pa. 2012) (granting motion to quash subpoena for documents subject to stipulated protective
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order in a different lawsuit). The defendants also move for a protective order, but its brief
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does not address that issue other than to say that the documents are currently subject to a
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protective order in Biliack.
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Jalowsky argues in his response that the documents he seeks are relevant to the
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pending action. (Doc. 261, pp. 1-3) That might be so, but their relevance does not constitute
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an exception to the protective order pursuant to which they were originally disclosed.
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Jalowsky further maintains that the defendants knew that his law firm possessed the
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documents and that he intended to use those documents in the pending action. (Doc. 261,
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p. 3) Again, he fails to explain why those facts constitute an exception to or a waiver of the
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Rule.
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Jalowsky notes that on previous occasions, Unum Group (Unum) permitted a third
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party to disclose documents to him subject to the protective order in the pending case. It is
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not clear, however, why Jalowsky believes that Unum’s previous cooperation acts as some
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sort of waiver of its right to insist that the Biliack protective order be enforced here. He does
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not, for example, argue that Unum’s previous actions were part of an intentional ruse
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designed to sandbag him once it was too late to seek the documents through normal
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discovery.
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Jalowsky asserts that the documents are part of his counsels’ “composite knowledge,”
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and “Unum is incapable of eliminating that knowledge. . . .” (Doc. 261, p. 4) The court
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agrees; knowledge cannot be eliminated. And counsel could have used that knowledge, for
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example, by crafting a specific subpoena duces tecum and serving it on Unum. Counsel did
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not do that. Instead, counsel chose to subpoena the documents in a manner that violates Rule
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45(d)(3)(A)(iii).
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Finally, Jalowsky states that if the documents are disclosed, he is willing to take them
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subject to the protective order in this action. He has not, however, “cited any authority for
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the proposition that the existence of another protective order constitutes the type of
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‘exception’ contemplated by Rule 45(d)(3)(A)(iii).” Savant Sys., LLC v. Crestron Elecs.,
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Inc., 2012 WL 987404, at *4 (E.D. Pa. 2012).
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IT IS ORDERED that the defendants’ motion, filed on March 12, 2020, to quash a
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subpoena and for protective order is GRANTED in PART. (Doc. 247)
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subpoena to Friedman/Rubin, PLLP for documents subject to the protective order in Biliack
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v. The Paul Revere Life Insurance Co.; et al. CV 16-3631-PHX-DJH is QUASHED.
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DATED this 18th day of June, 2020.
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The document
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