A & R Body Specialty et al v. Progressive Ins Group Co et al

Filing 365

ORDER denying 332 Motion to Quash Subpoena and for Protective Order by John M. Parese. Signed by Judge Holly B. Fitzsimmons on 11/14/2013. (Katz, Samantha)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
A&R BODY SPECIALTY AND
COLLISION WORKS, INC.,
FAMILY GARAGE, INC. and
THE AUTO BODY ASSOCIATION
OF CONNECTICUT on Behalf
of Themselves and all
Others Similarly Situated,
v.
PROGRESSIVE CASUALTY
INSURANCE COMPANY and
PROGRESSIVE DIRECT INSURANCE
COMPANY.

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CIV. NO. 3:07CV929 (WWE)

RULING ON MOTION TO QUASH SUBPOENA AND FOR PROTECTIVE ORDER
[DOC. # 332]
Non-party

John

M.

Parese,

general

legal

counsel

to

plaintiff, Auto Body Association of Connecticut, moves for an
order quashing the subpoena served by defendants, Progressive
Casualty

Insurance

Company

and

Progressive

Direct

Insurance

Company (“Progressive”), and moves for a protective order. [Doc.
# 332]. For the reasons that follow, the motion to quash and the
motion for protective order are DENIED.
Background
This action is brought by plaintiffs, A&R Body Specialty,
Family Garage and the Auto Body Association of Connecticut
(“ABAC”), on behalf of themselves and all other licensed auto
body repairers in the State of Connecticut who have performed
repairs during the class period for any person with automobile
insurance from Progressive.

Plaintiffs allege that defendants

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illegally suppressed labor rates paid to auto body repair shops
and illegally steered their insured to a network of preferred
body shops it controls under its direct repair program. In
Counts I and II, plaintiffs seek recovery under the Connecticut
Unfair Trade Practices Act (“CUTPA”).

In Count III, plaintiffs

seek to recover under the Connecticut Unfair Sales Practice Act,
and in Count IV plaintiffs claim tortious interference with
business expectancy. [Doc. # 172].
John Parese has been counsel for ABAC since 2007, and “has
had communications with [ABAC] and its members about legal
matters.” [Doc. # 332, Mt. to Quash, at 2-3].

Mr. Parese has

already produced 2,114 non-privileged documents pursuant to a
subpoena duces tecum. [Doc. # 345-1, Kochis Aff., at ¶6].
Progressive now seeks to depose Mr. Parese pursuant to a
subpoena ad testificandum. [Doc. # 345-5].

On October 17, 2013,

the Court held a telephone conference on the record regarding
the motion to quash.
Legal Standard
Parties may obtain discovery regarding any non-privileged
matter that is relevant to the subject matter involved in the
pending litigation. Fed. R. Civ. P. 26(b)(1). The information
sought need not be admissible at trial as long as the discovery
appears reasonably calculated to lead to the discovery of
admissible evidence. Fed. R. Civ. P. 26(b)(1).

Upon timely

motion, a Court must quash or modify a subpoena that “requires
disclosure of privileged or other protected matter, if no
exception or waiver applies; or subjects a person to undue
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burden.”

Fed. R. Civ. P. 45(c)(3)(A)(iii)-(iv).

Notwithstanding the breadth of the discovery rules, the
district courts are afforded discretion under Rule 26(c) to
issue protective orders limiting the scope of discovery. Dove v.
Atlantic Capital Corp., 963 F.2d 15, 19 (2d Cir. 1992) (“[t]he
grant and nature of protection is singularly within the
discretion of the district court...”). When the party seeking
the protective order demonstrates good cause, the court “may
make any order which justice requires to protect a party or
person from annoyance, embarrassment, oppression, or undue
burden or expense, including ... that the disclosure or
discovery not be had.” Fed. R. Civ. P. 26(c)(1). “The party
resisting discovery bears the burden of showing why discovery
should be denied.” Chamberlain v. Farmington Sav. Bank, 247
F.R.D. 288, 289 (D. Conn. 2007) (citing Blankenship v. Hearst
Corp., 519 F.2d 418, 429 (9th Cir. 1975)).
Discussion
Mr. Parese argues that the Court should quash the subpoena
and issue a protective order because the testimony sought by
Progressive is not discoverable pursuant to the attorney-client
privilege, work product doctrine, and protections afforded by
Federal Rule of Civil Procedure 26(b)(4).

Progressive argues

that Mr. Parese has not met his burden to quash the subpoena,
that Progressive seeks relevant and non-privileged testimony,
and that Progressive would be prejudiced if the Court grants the
motion to quash.
After reviewing the parties’ briefs, and having heard

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argument during the October 17, 2013 telephone conference, the
Court finds that Progressive seeks testimony that would not be
protected by the attorney-client privilege or work product
doctrine.

As discussed on the record, Progressive seeks areas

of testimony that are not privileged, and highly probative of
central issues in this case. For example, Progressive seeks
information that is not in the already produced documents, such
as what occurred during meetings between Mr. Parese and various
regulatory agencies.

The Court further agrees with Progressive

that Mr. Parese’s sought testimony is highly relevant to this
litigation, as demonstrated by the documents he produced
relating to steering and suppression of labor rates.

The Court

further accepts Progressive’s position that it only seeks nonprivileged testimony from Mr. Parese, and that it does not
anticipate any privilege issues to arise.

As such, and based

on the record before the Court, the motion to quash and for
protective order [Doc. # 332] is DENIED.
Nevertheless, the Court urges the parties to ensure that
protections are in place to prevent the disclosure of privileged
information.

The Court suggests the parties coordinate the

deposition of Mr. Parese to occur on a date when the Court is
available to address objections, and/or to conduct the
deposition at the courthouse.

As always, the parties may

contact the Court for a telephone conference should any further
disputes arise.
This is not a Recommended Ruling. This is a discovery
ruling or order which is reviewable pursuant to the “clearly
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erroneous” statutory standard of review. 28 U.S.C. §
636(b)(1)(A); Fed. R. Civ. P. 72(a); and D. Conn. L. Civ. R.
72.2. 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 14th day of November 2013.

_______/s/________________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

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