Church Mutual Insurance Company v. Coutu et al

Filing 126

ORDER by Magistrate Judge Nina Y. Wang on 9/25/2017. IT IS ORDERED that: Interested Party Keith Frankl's Motion to Quash Subpoena to Non-Party Keith Frankl and/or the Frankl Law Firm, P.C. 91 is GRANTED IN PART and DENIED IN PART; and Defendants' Motion to Quash Pursuant to Fed.R.Civ.P. 45(d)(3)(B) of Subpoena Duces Tecum to the Frankl Law Firm and For Protective Order 92 is GRANTED. (nywlc2, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-00209-RM-NYW
CHURCH MUTUAL INSURANCE COMPANY, a Wisconsin corporation,
Plaintiff,
v.
PHILLIP MARSHALL COUTU, an individual,
POWER ADJUSTERS, INC., a Colorado corporation,
JUDAH LEON BENSUSAN, an individual, and
ATLANTIS CLAIMS SERVICES, LLC, a Florida limited liability company,
Defendants.

ORDER
Magistrate Judge Nina Y. Wang
This matter is before the court on two related motions:
(1)

Motion to Quash Subpoena to Non-Party Keith Frankl and/or the Frankl Law

Firm, P.C. (the “Frankl Motion”) filed by Interested Party Keith Frankl [#91, 1 filed July 14,
2017]; and
(2)

Motion to Quash Pursuant to Fed.R.Civ.P. 45(d)(3)(B) of Subpoena Duces Tecum

to the Frankl Law Firm and For Protective Order (the “Defendants’ Motion”) filed by
Defendants Phillip Marshall Coutu (“Mr. Coutu”), Power Adjusters, Inc. (“Power Adjusters”),
Judah Leon Bensusan (“Mr. Bensusan”), and Atlantis Claims Services, LLC’s (“Atlantis”)
(collectively, “Defendants”) [#92, filed July 14, 2017].
1

[#_] is an example of a convention this court uses when referring to documents in the instant
matter, whereas [ECF. No. _] is a convention the court uses to refer to documents in other
proceedings. Further, when citing to a transcript, this court uses the ECF docket number, but
cites to the page and line numbers as assigned in the original transcript.

The undersigned considers the Motions pursuant to 28 U.S.C. § 636(b), the Order
Referring Case dated March 30, 2017 [#33], and the memorandum dated July 17, 2017 [#93].
Upon careful review of the Motions and associated briefing, the entire case file, and applicable
law, this court GRANTS IN PART and DENIES IN PART the Frankl Motion and GRANTS the
Defendants’ Motion for the reasons stated herein.
BACKGROUND
This court has discussed the background of this case in its prior Orders, see e.g., [#103;
#120], and does so here only as it pertains to the instant Motions. Plaintiff Church Mutual
Insurance Company (“Plaintiff” or “Church Mutual”) initiated this action by filing its Complaint
in this District on January 23, 2017. [#1]. Plaintiff’s Complaint alleged two claims against the
Defendants: (1) civil conspiracy and (2) fraudulent concealment. [Id.]. The events giving rise
to Plaintiff’s Complaint involved an appraisal award issued to one of Church Mutual’s
policyholders for repairs completed to the policyholder’s roof following a hailstorm. [Id.].
Plaintiff alleged that Defendants conspired to unlawfully inflate the cost of repairs needed for
their own economic gains, as each had a stake in a higher appraisal award. [Id.].
Following several extensions of time to answer or otherwise respond to Plaintiff’s
Complaint, and pursuant to this court’s Order [#46], Plaintiff filed its First Amended Complaint
(“FAC”) on April 25, 2017, and asserts the following claims: (1) civil conspiracy against all
Defendants (“Claim I”); (2) fraudulent concealment against all Defendants (“Claim II”); (3)
federal civil violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”)
against all Defendants (“Claim III”); (4) federal civil RICO conspiracy against Messrs. Coutu
and Bensusan (“Claim IV”); and (5) state civil violations of the Colorado Organized Crime
Control Act (“COCCA”) against Messrs. Coutu and Bensusan (“Claim V”). [#49]. On June 5,

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2017, Defendants filed a Joint Motion to Dismiss all five of Church Mutual’s claims [#65],
which the undersigned recommended granting in part and denying in part [#120]. Specifically,
this court recommended dismissing Plaintiff’s RICO and COCCA claims (Claims III-V) for
failure to state a claim. See [id.]. Also on June 5, 2017, Defendants filed a Motion to Stay
discovery.

[#64]. This court denied the Motion to Stay and directed the Parties to limit

discovery to the “Montview matter and the relationships between the four Defendants.” See
[#103 at 7]. This included formal discovery of information held by John Kezer, related to the
adjustment of the Montview claim and his relationship to Defendants and other entities
controlled by Defendants, as well as “third party subpoenas only to the extent that they relate to
these specific issues and after an agreement by the Parties or a ruling of this court that the
discovery sought is not obtainable from Defendants.” [Id. at 8].
On July 14, 2017, Defendants and Mr. Frankl filed the instant Motions, seeking to quash
a subpoena duces tecum (the “Subpoena”) Plaintiff served on Mr. Frankl and the Frankl Law
Firm.

See [#91; #92]. The Subpoena requests twenty-eight (28) categories of documents

regarding Mr. Frankl and the Frankl Law Firm’s representation of Defendants or their
association with Defendants. See [#91-1]. These include:
1. Produce all contracts, including but not limited to, engagement letters, fee
agreements, contingent fee agreements, between You and Philip Coutu, Leon
Bensusan, Power Adjusters, Inc., Atlantis Claims Services, LLC, Rooftop
Restoration, Inc., Rooftop Roofing, Inc., and/or the Affiliated Coutu Entities.
2. Produce all contracts, between and/or among, any combination of the following:
Philip Coutu, Leon Bensusan, Power Adjusters, Inc., Atlantis Claims Services, LLC,
Rooftop Restoration, Inc., Rooftop Roofing, Inc., John Kezer, Jones & Keller, P.C.,
and/or the Affiliated Coutu Entities.
3. Produce all contracts, between Philip Coutu, Leon Bensusan, Power Adjusters, Inc.,
Atlantis Claims Services, LLC, Rooftop Restoration, Inc., Rooftop Roofing, Inc.,
and/or the Affiliated Coutu Entities, on the hand [sic], and policyholders presented
by Philip Coutu, Leon Bensusan, Power Adjusters, Inc., Atlantis Claims Services,
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LLC, Rooftop Restoration, Inc., Rooftop Roofing, Inc., and/or the Affiliated Coutu
Entities, on the other hand.
4. Produce all communications, including but not limited to, written correspondences
and email, between Philip Coutu and Leon Bensusan related to any insurance claim,
any demand for an appraisal, any nomination of an appraiser or umpire, and/o any
appraisal award.
5. Produce all communications, including but not limited to, written correspondences
and email, between Philip Coutu, on the one hand, and Garrett Kurtt or his company
Ecoblast, LLC on the other, related to any demand for appraisal, any nomination of
an appraiser or umpire, and/or any appraisal award.
6. Produce all demand letters, including but not limited to, correspondence threatening
appraisal, threatening complaints to the Division of Insurance or otherwise
threatening claims for breach of contract, bad faith breach of contract, and/or
violation of C.R.S. §§ 10-3-1115 and -1116, which are related to insurance claims
made on behalf of Philip Coutu, Leon Bensusan, Power Adjusters, Inc., Atlantis
Claims Services, LLC, Rooftop Restoration, Inc., Rooftop Roofing, Inc., and/or the
Affiliated Coutu Entities.
7. Produce all demand letters, including but not limited to, correspondence threatening
appraisal, threatening complaints to the Division of Insurance or otherwise
threatening claims for breach of contract, bad faith breach of contract, and/or
violation of C.R.S. §§ 10-3-1115 and -1116, which are related to insurance claims
made on behalf of policyholders represented by Philip Coutu, Leon Bensusan, Power
Adjusters, Inc., Atlantis Claims Services, LLC, Rooftop Restoration, Inc., Rooftop
Roofing, Inc., and/or the Affiliated Coutu Entities.
8. Produce all complaints, answers, third-party complaints, pleadings containing counter
claims, pleadings containing cross claims, motions to intervene, and motions to
quash, filed on behalf of Philip Coutu, Leon Bensusan, Power Adjusters, Inc.,
Atlantis Claims Services, LLC, Rooftop Restoration, Inc., Rooftop Roofing, Inc.,
and/or the Affiliated Coutu Entities.
9. Produce all complaints, answers, third-party complaints, pleadings containing counter
claims, pleadings containing cross claims, motions to intervene, and motions to
quash, filed on behalf of policyholders represented by Philip Coutu, Leon Bensusan,
Power Adjusters, Inc., Atlantis Claims Services, LLC, Rooftop Restoration, Inc.,
Rooftop Roofing, Inc., and/or the Affiliated Coutu Entities.
10. Produce all demands for appraisal in insurance claims made on behalf of Philip
Coutu, Leon Bensusan, Power Adjusters, Inc., Atlantis Claims Services, LLC,
Rooftop Restoration, Inc., Rooftop Roofing, Inc., and/or the Affiliated Coutu
Entities.

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11. Produce all demands for appraisal in insurance claims made on behalf of
policyholders represented by Philip Coutu, Leon Bensusan, Power Adjsuters, Inc.,
Atlantis Claims Services, LLC, Rooftop Restoration, Inc., Rooftop Roofing, Inc.,
and/or the Affiliated Coutu Entities.
12. Produce all correspondence appointing Leon Bensusan and/or Atlantis Claims
Services, LLC to serve as an appraiser in insurance claims made on behalf of Philip
Coutu, Power Adjusters, Inc., Rooftop Restoration, Inc., Rooftop Roofing, Inc.,
and/or the Affiliated Coutu Entities.
13. Produce all correspondence appointing Garrett Kurtt and/or Ecoblast LLC to serve as
an appraiser in insurance claims made on behalf of Philip Coutu, Power Adjusters,
Inc., Rooftop Restoration, Inc., Rooftop Roofing, Inc., and/or the Affiliated Coutu
Entities.
14. Produce all correspondence appointing Leon Bensusan and/or Atlantis Claims
Services, LLC, to serve as an appraiser in insurance claims made on behalf of
policyholders represented by Philip Coutu, Power Adjusters, Inc., Rooftop
Restoration, Inc., Rooftop Roofing, Inc., and/or the Affiliated Coutu Entities.
15. Produce all correspondence appointing Garrett Kurtt and/or Ecoblast LLC to serve as
an appraiser in insurance claims made on behalf of policyholders represented by
Philip Coutu, Power Adjusters, Inc., Rooftop Restoration, Inc., Rooftop Roofing, Inc.,
and/or the Affiliated Coutu Entities.
16. Produce all correspondence disclosing any financial or personal interest of Leon
Bensusan and/or Atlantis Claims Services, LLC, in the outcome of any appraisal.
17. Produce all correspondence disclosing any financial or personal interest of Garrett
Kurtt or Ecoblast LLC, in the outcome of any appraisal.
18. Produce all correspondence disclosing any current or previous relationship between
Leon Bensusan and/or Atlantis Claims Services, LLC, on the one hand, and a party to
any agreement to appraise, a party to any appraisal proceeding, their counsel or
representatives, including licensed public adjusters, a witness, another appraiser, or
the umpire, on the other hand.
19. Produce all correspondence nominating John Kezer and/or Jones & Keller, P.C., to
serve as an umpire in insurance claims made on behalf of Philip Coutu, Leon
Bensusan, Power Adjusters, Inc., Atlantis Claims Services, LLC, Rooftop
Restoration, Inc., Rooftop Roofing, Inc., and/or the Affiliated Coutu Entities.
20. Produce all correspondence nominating John Kezer and/or Jones & Keller, P.C., to
serve as an umpire in insurance claims made on behalf of policyholders represented
by Philip Coutu, Leon Bensusan, Power Adjusters, Inc., Atlantis Claims Services,

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LLC, Rooftop Restoration, Inc., Rooftop Roofing, Inc., and/or the Affiliated Coutu
Entities.
21. Produce all correspondence disclosing any financial or personal interest of John
Kezer and/or Jones & Keller, P.C., in the outcome of any appraisal.
22. Produce all correspondence disclosing any current or previous relationship between
John Kezer and/or Jones & Keller, P.C., on the one hand, and a party to any
agreement to appraise, a party to any appraisal proceeding, their counsel or
representatives, including licensed public adjusters, a witness, another appraiser, or
the umpire, on the other hand.
23. Produce all appraisal awards that resulted from insurance claims made on behalf of
Philip Coutu, Leon Bensusan, Power Adjusters, Inc., Atlantis Claims Services, LLC,
Rooftop Restoration, Inc., Rooftop Roofing, Inc., and/or the Affiliated Coutu
Entities.
24. Produce all appraisal awards that resulted from insurance claims made on behalf of
policyholders represented by Philip Coutu, Leon Bensusan, Power Adjusters, Inc.,
Atlantis Claims Services, LLC, Rooftop Restoration, Inc., Rooftop Roofing, Inc.,
and/or the Affiliated Coutu Entities.
25. Produce all appraisal awards from insurance claims where Leon Bensusan and/or
Atlantis Claims Services, LLC, served as an appraiser.
26. Produce all appraisal awards from insurance claims where John Kezer and/or Jones &
Keller, P.C., served as an umpire.
27. Produce all settlement agreements, including but not limited to settlement agreements
made in pre-litigation matters, in insurance claims made on behalf of Philip Coutu,
Leon Bensusan, Power Adjusters, Inc., Atlantis Claims Services, LLC, Rooftop
Restoration, Inc., Rooftop Roofing, Inc., and/or the Affiliated Coutu Entities.
28. Produce all settlement agreements, including but not limited to settlement agreements
made in pre-litigation matters, in insurance claims made on behalf of policyholders
represented by Philip Coutu, Leon Bensusan, Power Adjusters, Inc., Atlantis Claims
Services, LLC, Rooftop Restoration, Inc., Rooftop Roofing, Inc., and/or the
Affiliated Coutu Entities.
Mr. Frankl contends that the subpoena seeks an enormous amount of overly broad
documents relating to sensitive client information that is irrelevant to this action. See [#91 at 2–
3].

Similarly, Defendants assert that the subpoena is overbroad, and seeks documents

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implicating the attorney-client privilege, many of which that are irrelevant. 2 See [#92 at 2–3].
Plaintiff argues that the subpoena requests only relevant information, and production of these
documents will not burden Mr. Frankl or the Frankl Law Firm. [#111]. Because the Motions are
ripe for resolution, the court turns to the Parties’ arguments below.
LEGAL STANDARDS
I.

Rule 26(b)(1)
Rule 26(b)(1) of the Federal Rules of Civil Procedure defines the scope of permissible

discovery in this action. Fed. R. Civ. P. 26(b)(1). The Rule permits discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense and proportional to the
needs of the case. Id. In considering whether the discovery sought is proportional, the court
weighs the importance of the discovery to the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the parties’ resources, the
importance of discovery in resolving the issues, and whether the burden or expense of the
proposed discovery outweighs its likely benefit. Id.
This scope for discovery does not include all information “reasonably calculated to lead
to admissible evidence.” The amendments to Rule 26 effective December 1, 2015, purposefully
removed that phrase. See In re Bard Filters Products Liability Litig., 317 F.R.D. 562, 564 (D.
Ariz. 2016). As explained by the Bard court, the Advisory Committee on the Federal Rules of
Civil Procedure was concerned that the phrase had been used incorrectly by parties and courts to
define the scope of discovery, which “might swallow any other limitation on the scope of
2

As an initial matter, a “party generally lacks standing to challenge a subpoena issued to a nonparty absent a claim of privilege or a proprietary interest in the subpoenaed matter.” United
States v. Tucker, 249 F.R.D. 58, 60 n. 3 (S.D.N.Y. 2008). Here, however, Mr. Frankl and the
Frankl Law Firm initially represented Mr. Bensusan and Atlantis, but soon withdrew from this
matter. Further, the Subpoena requests documents relating to Mr. Frankl and the Frankl Law
Firm’s representation of Defendants in prior lawsuits; thus, the court finds that Defendants have
adequate standing to challenge the Subpoena on the basis of privilege and that the Subpoena
implicates their interests in maintaining certain documents as confidential.
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discovery.” Id. (citing Fed. R. Civ. P. 26 advisory committee’s notes to 2015 amendment). The
applicable test is whether the evidence sought is relevant to any party’s claim or defense, and
proportional to the needs of the case. Id. Rule 401 of the Federal Rules of Evidence defines
relevant evidence as “evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more or less probable than it would be without
the evidence.” Fed. R. Evid. 401.
II.

Rule 45
A subpoena served on a third party pursuant to Rule 45 of the Federal Rules of Civil

Procedure is considered discovery within the meaning of the Federal Rules of Civil Procedure.
Rice v. U.S., 164 F.R.D. 556, 556–57 (N.D. Okla. 1995). Accordingly, a subpoena is bounded
by the same standards that govern discovery between the parties – to be enforceable, a subpoena
must seek information that is relevant to a party’s claims or defenses, and are proportional to the
needs of the case. Fed. R. Civ. P. 26(b)(1). In addition, discovery conducted pursuant to a Rule
45 subpoena must be concluded by the deadline specified in the court’s Scheduling Order. Grant
v. Otis Elevator Co., 199 F.R.D. 673, 675 (N.D. Okla. 2001); Rice, 164 F.R.D. at 558.
On a timely motion, the court must quash or modify a subpoena that, inter alia: (1) fails
to allow a reasonable time to comply; (2) requires the disclosure of privileged or other protected
matter, if no exception or waiver applies; (3) subjects a person to undue burden; or (4) requires
the disclosure of a trade secret or other confidential research, development, or commercial
information. Fed. R. Civ. P. 45(d)(3)(A), (d)(3)(B).
ANALYSIS
As mentioned, this court recently issued a Recommendation on Defendants’ Joint Motion
to Dismiss. In that Recommendation, this court concluded that Plaintiff’s FAC plausibly alleged

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a fraudulent concealment and civil conspiracy claim against the named Defendants, based on
their concealment and/or nondisclosure of their financial ties and interests in the Montview
Appraisal Award. [#120]. This court, however, also determined that Plaintiff had failed to
allege sufficient facts to support their RICO and COCCA claims. [Id.]. Specifically, the FAC
failed to contain adequate factual allegations necessary to establish two predicate acts of mail or
wire fraud. [Id. at 35–38].
I.

Relevance to Fraudulent Concealment/Civil Conspiracy Claims
With this court’s Recommendation in mind, 3 based on a review of the Subpoena, this

court agrees that the Subpoena seeks a wide swath of information that is not relevant to Church
Mutual’s claims for fraudulent concealment and civil conspiracy, and, therefore, should be
quashed. To that end, there is no allegation by Church Mutual that Mr. Frankl or the Frankl Law
Firm were and/or are implicit in the alleged fraudulent scheme involving the adjustment of the
claim for Montview. [#49]. Mr. Frankl and the Frankl Law Firm are not alleged to have been
involved in Mr. Coutu’s urging of Montview to issue a written demand for appraisal. [Id.]. Nor
does Plaintiff allege involvement by Mr. Frankl or the Frankl Law Firm in negotiating or
facilitating any business relationship between Mr. Coutu, Power Adjusters, Mr. Bensusan, and/or
Atlantis. [Id.]. And based on this court’s review of the docket from the related litigation of
Montview Boulevard Presbyterian Church v. Church Mutual Ins. Co., Case No. 14-cv-1635MSK-KMT, neither Mr. Frankl nor the Frankl Law Firm represented in that action either
Montview or any of the named Defendants in this matter, including Mr. Kezer. Plaintiff has
simply failed to establish the necessary nexus under Rule 26(b)(1) to persuade this court that the
3

This court acknowledges that the time for the Parties to file objections to the Recommendation
has yet to lapse, and the presiding judge, the Honorable Raymond P. Moore, may decline to
adopt the Recommendation. Nevertheless, this court finds that the best course of action in
managing discovery at this juncture is to proceed by accounting for the Recommendation.
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Subpoena as served is relevant to its claims for fraudulent concealment or civil conspiracy. See
Thompson v. Jiffy Lube Int’l, Inc., No. 05-1203-WEB, 2007 WL 608343, at *8 n. 20 (D. Kan.
Feb. 22, 2007) (holding that when the relevance of a discovery request or device is not apparent
on the face of the request or device itself, the proponent of discovery bears the burden of making
an initial, rebuttable showing of relevance).
II.

Plaintiff Cannot Use Discovery to Bolster Its RICO/COCCA Claims
In addition, Plaintiff cannot use discovery in an attempt to bolster and/or amend its RICO

and COCCA claims.

Case law is clear that judges are trusted to prevent discovery from

becoming “fishing expeditions or an undirected rummaging for evidence of some unknown
wrongdoing.” See Cuomo v. The Clearing House Ass’n, L.L.C., 557 U.S. 519, 531 (2009). Even
assuming that Judge Moore declines to adopt the Recommendation and permits Plaintiff’s RICO
and COCCA claims as currently pled to go forward, the FAC still fails to allege facts that would
allow this court to determine that the Subpoena as served is proportionate to the claims. The
FAC provides several bad faith lawsuits where Messrs. Coutu and Bensusan acted as the public
adjuster and appraiser, respectively, but never mentions Mr. Frankl’s or the Frankl Law Firm’s
connection to those bad faith lawsuits. Nor does the FAC allege that Mr. Frankl or the Frankl
Law Firm was otherwise complicit in facilitating the business enterprise(s) involving
Defendants.

While this court understands the nature of Church Mutual’s request, the fact

remains that there is no allegation as to any involvement by Mr. Frankl and the Frankl Law Firm
in those underlying suits. Moreover, this court made clear in its Recommendation that it was
insufficient to infer the necessary predicate acts under Plaintiff’s RICO and COCCA claims.
Accordingly, Plaintiff has failed to persuade this court how, particularly given the pending
Recommendation, the information sought is relevant to its remaining claims.

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III.

The Subpoena as Written is Overbroad
Finally, even if this court were to find that the Subpoena topics were relevant to

Plaintiff’s claims, it would still conclude that the Subpoena, as served, contains topics that are
overly broad and implicate the production of numerous documents. 4 Though Plaintiff seeks
information relating to the named Defendants and Mr. Kezer, all of whom were involved in the
Montview appraisal, the information sought by the Subpoena well exceeds the bounds of its
remaining claims—fraudulent concealment and civil conspiracy arising from the Montview
appraisal or this court’s Order on the Motion to Stay. Cf. [#103 at 8 (“Plaintiff must defer
seeking discovery related to any other insurance claim, and Defendants need not produce any
discovery regarding the adjustment of other insurance claims, except as to information that
reflects the relationship and financial arrangements between the Defendants.”)].
For instance, the Subpoena seeks production of “all communications, including but not
limited to, written correspondence and email, between Philip Coutu, on the one hand, and Garret
Kurtt or his company Ecoblast, LLC on the other, related to any demand for appraisal, any
nomination of an appraiser or umpire, and/or any appraisal award,” without any indication from
the Subpoena or the FAC how Mr. Kurtt or his company Ecoblast, LLC are involved with the
claims asserted. While Plaintiff argues in its response that there is a “second category of cases
4

Mr. Frankl and the Frankl Law Firm and Defendants also invoke the attorney-client privilege
and the work product doctrine as barriers to production. See e.g. [#91 at 5; #92 at 3]. But as
acknowledged by Frankl’s Motion to Quash, the topics appear to be crafted to avoid privileged
communications. [#91 at 5; #91-1]. Indeed, underlying non-privileged communications may be
discoverable even when attorney advice as to the communication is privileged. See Oasis Int’l
Waters, Inc. v. United States, 110 Fed. Cl. 87, 97 (2013) (explaining, “the [attorney-client]
privilege [] does not shield all information that a client divulges to an attorney, or vice versa, but
rather is limited to instances where legal advice is sought or rendered.” (internal quotation marks
and citations omitted)). And this court has been provided no information, other than bald
assertions, to determine whether the privileged communications are of such volume that a
privilege log would be unreasonable – which are insufficient under Rule 45(e)(2). Nevertheless,
because this court finds, as a preliminary matter, that the Subpoenas are not proportionate to the
claims asserted by Plaintiff, it does not resolve any issues related to privilege.
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that is relevant to prove the breadth and depth of the relationship between and among
Defendants,” naming Ecoblast LLC v. Rooftop Restoration, (El Paso County, 14CV31781) [#111
at 6], this court does not find the description of this “second category of cases” illustrative.
Similarly, it seeks the production of “all contracts, including but not limited to engagement
letters, fee agreements, contingent fee agreements,” between Mr. Frankl and the Frankl Law
Firm with not only the named Defendants, but also numerous additional “Affiliated Coutu
Entities,” without regard to the subject matter of the engagement or whether such engagements
even involve any insurance claims. [#91-1 at 8]. It also seeks “all correspondence disclosing
any current or previous relationship between John Kezer and/or Jones & Keller, P.C. on one
hand, and a party to any agreement to appraise, a party to any appraisal proceeding, their counsel
or representatives, including licensed public adjusters, a witness, another appraiser, or the umpire
on the other hand.” [Id. at 10]. The mere fact that Mr. Coutu and Mr. Bensusan may have been
involved in a single insurance claim, without more, does not necessarily throw open all of their
contracts, correspondence, and insurance claims.
This court’s conclusion does not foreclose the issuance of a narrower third-party
subpoena in this matter, once the issues related to the scope of the claims as raised by the
Recommendation are resolved and the Subpoena topics are more narrowly-tailored. However,
this court is disinclined to provide a discussion as to each of the enumerated topics’ broadness in
an attempt to narrow the Subpoena. See Tiberi v. CIGNA Ins. Co., 40 F.3d 110, 112 (4th Cir.
1994) (“Though modification of an overbroad subpoena might be preferable to quashing, courts
are not required to use that lesser remedy first.”). Indeed, Plaintiff is and has been represented
by more than able counsel since the inception of this action. See United States v. Davis, 622 F.
App’x. 758, 759 (10th Cir. 2015) (“[I]t is not this court's duty, after all, to make arguments for a

12

litigant that he has not made for himself”); Phillips v. Hillcrest Med. Ctr., 244 F.3d 790, 800 n.10
(10th Cir. 2001) (observing that the court has no obligation to make arguments or perform
research on behalf of litigants).
Finally, while this court agrees that the Subpoena should be quashed, Mr. Frankl and the
Frankl Law Firm’s request for fees already incurred in attempting to respond to the Subpoena is
DENIED. None of the Parties or non-parties involved in this Subpoena had the benefit of this
court’s ruling on the Motions to Dismiss prior to the issuance of the Subpoena and, thus, this
court could not provide meaningful guidance as to the Subpoena topics. In addition, this court
notes that even Mr. Frankl and the Frankl Law Firm acknowledge that, at least on their face, the
topics are crafted to avoid privileged documents. See Alberts v. HCA Inc., 405 B.R. 498, 502–03
(D.D.C. 2009) (explaining, “[t]he mere fact, however, that a disputed subpoena is ultimately
deemed unwarranted does not, standing alone, demand the imposition of sanctions[,]” and noting
that fees may be warranted where the subpoena is issued in bad faith). Accordingly, this court
concludes that costs and fees are not warranted at this juncture.
CONCLUSION
For the reasons set forth herein, IT IS ORDERED that:
(1)

Interested Party Keith Frankl’s Motion to Quash Subpoena to Non-Party Keith

Frankl and/or the Frankl Law Firm, P.C. [#91] is GRANTED IN PART and DENIED IN
PART; and
(2)

Defendants’ Motion to Quash Pursuant to Fed.R.Civ.P. 45(d)(3)(B) of Subpoena

Duces Tecum to the Frankl Law Firm and For Protective Order [#92] is GRANTED.

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DATED: September 25, 2017

BY THE COURT:

s/Nina Y. Wang__________
United States Magistrate Judge

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