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

Filing 369

DISCOVERY RULING re: discovery disputes raised in plaintiffs' 9/12/2013 letter brief. See attached ruling. Signed by Judge Holly B. Fitzsimmons on 11/26/2013.(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)

DISCOVERY RULING
Plaintiffs, 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, submitted a letter brief dated September 12, 2013,
outlining various discovery disputes, and seeking various forms
of relief.

Defendants, Progressive Casualty Insurance Company

and Progressive Direct Insurance Company, responded via letter
brief dated November 5, 2013.
I.

BACKGROUND
This action is brought by plaintiffs, A&R Body Specialty,

Family Garage and the Auto Body Association of Connecticut, 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 illegally
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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].
II.

Discussion

1. Deposition Discovery
a. 30(b)(6) Depositions
Plaintiffs raise concerns with defendants’ designation of
30(b)(6) witnesses.

Plaintiffs allege that several of them,

including Kelly Crowe, have displayed lack of knowledge about
the topics for which the witnesses were designated.

Plaintiffs

seek an order requiring defendants to designate another 30(b)(6)
witness in lieu of Kelly Crowe to testify about matters in the
claims control department (“topic 2”). Defendants represent that
they have agreed to produce Manishi Bhatt, an employee in
Progressive’s claims control department, as a second witness to
testify regarding topic 2.

Accordingly, in light of defendants’

representation, plaintiff’s request for an order requiring
defendants to designate another witness under the March 12, 2013
deposition notice is DENIED AS MOOT.

The parties shall confer

and set a mutually agreeable date and time for Mr. Manishi’s
30(b)(6) deposition.
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Plaintiffs also contend that defendants’ counsel has
engaged in disruptive conduct by regularly objecting at 30(b)(6)
depositions on the grounds that questions are outside the scope
of the topics designated in the 30(b)(6) notices. Plaintiffs
request that the Court instruct defendants’ counsel “to refrain
from objecting at the 30(b)(6) depositions on the grounds that
questions may or may not be within the scope of designated
topics, where the witnesses obviously have personal knowledge
regarding the issues in the case.”

Defendants argue that

plaintiffs mischaracterize counsel’s conduct, and that
defendants’ counsel never instructed a Progressive witness not
to answer a question, or otherwise restricted testimony based on
scope.

Defendants further contend that counsel is not only

permitted to object to scope during a 30(b)(6) depositions, but
has an obligation to do so under the Federal Rules of Civil
Procedure.
Courts in the Second Circuit, and others, have recognized
a party’s right to object during a 30(b)(6) deposition where
matters fall outside the scope of the 30(b)(6) notice. See,
e.g., Meyer Corp. U.S. v. Alfay Designs, Inc., No. CV 2010
3647(CBA)(MDG), 2012 WL 3536987, at *5 (noting that a party “is
permitted to object to a question as beyond the scope of the
[30(b)(6)] notice in order to preserve for the record that the
deponent is answering such a question in an individual, not
corporate capacity[…].”).

Indeed, “[a]n objection at the time

of examination […] must be noted on the record, but the
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examination still proceeds; the testimony is taken subject to
any objection.”

Fed. R. Civ. P. 30(c)(2). Although plaintiffs

argue that “personal knowledge of the witness as employees… is
corporate knowledge”, plaintiffs fail to cite binding authority
in support of this position.
Circuit have noted otherwise.

In fact, courts in the Second
See, e.g., Falchenberg v. New

York State Dep’t of Ed., 642 F. Supp. 2d 156, 165 (S.D.N.Y.
2008) (citing cases) (“Questions and answers exceeding the scope
of the 30(b)(6) notice will not bind the corporation, but are
merely treated as the answers of the individual deponent.”);
Krasney v. Nationwide Mut. Ins. Co., No.3:06 CV 1164(JBA), 2007
WL 4365677, at *2 (D. Conn. Dec. 11, 2007)(quoting United States
v. Taylor, 166 F.R.D. 356, 361 (M.D.N.C.), aff’d, 166 F.R.D. 367
(M.D.N.C. 1996)) (“The testimony elicited at the Rule 30(b)(6)
deposition represents knowledge of the corporation, not of the
individual deponents.

The designated witness is speaking for

the corporation, and this testimony must be distinguished from
that of a mere corporate employee whose deposition is not
considered that of the corporation and whose presence must be
obtained by subpoena.”).
Accordingly, the Court declines to enter plaintiffs’
requested instruction on the current record.

Nevertheless,

defendants are reminded to use good faith in making such
objections, and additionally to abide by the mandates of Rule
30(c)(2) that “[a]n objection must be stated concisely in a
nonargumentative and nonsuggestive manner.”
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Fed. R. Civ. P.

30(c)(2).

To the extent that defendants’ objections are

interfering with and/or obstructing the deposition, plaintiff
may make an application to the Court for additional time in
which to complete the 30(b)(6) depositions.

Additionally, the

parties are encouraged to schedule such depositions at a time
when the Court is available to address defendants’ objections.
b. Incomplete Depositions
Plaintiffs next seek the continued depositions of
Christopher Marinan, Progressive’s east zone PD process manager
and former state manager for the State of Connecticut, and Chris
Andreoli, claims process manager for corporate shop relations
and customer choice.

Plaintiffs deposed Mr. Marinan and Mr.

Andreoli for a single day each.

Plaintiffs seek an order

compelling Mr. Marinan and Mr. Andreoli’s appearance for a
second day of depositions in light of these deponents’
responsibilities, breadth of document production, and importance
of topics for which they have knowledge. Defendants argue that
plaintiffs’ request should be denied because these witnesses
have already testified for over seven hours, and because
plaintiffs have not put forth sufficient evidence supporting the
continuation of these depositions.

The Court will defer ruling

on this request until it has been further briefed.

Accordingly,

plaintiffs shall file a motion to compel the additional
testimony of Mr. Marinan and Mr. Andreoli, to which defendants
shall file a response.
defendants’ response.

Plaintiffs may file a reply to
Nevertheless, the parties are encouraged
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to confer and attempt to resolve this issue without the need for
further Court intervention.
c. Obstructionist Conduct
Plaintiffs also allege that defendants’ witnesses have
engaged in obstructionist conduct, which has “thwarted
plaintiffs’ ability to obtain meaningful testimony on topics
critical to the prosecution of Plaintiffs’ case.”

Plaintiffs

seek “[a]n order reaffirming that intentional lack of
recollection, witnesses not responding to writings authored
and/or received by them, and excessively lengthy review of
documents all contribute to obstruction to the deposition
process and said practices shall not continue in the matter.”
Defendants submit that plaintiffs’ allegations are unsupported.
Defendants also argue that where the majority of documents and
business practices at issue are from 2007 to 2009, it is not
unreasonable for a witness not to recall specifics from that
time period.

The Court declines to enter plaintiffs’ requested

order on the record before it. Again, to the extent that this
alleged conduct is interfering with and/or obstructing the
depositions, plaintiffs may make an application to the Court for
additional time in which to complete these depositions.
Additionally, the parties are encouraged to schedule these
depositions at a time when the Court is available to address the
any alleged improper conduct.

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2. Supplementation of Document Production
Plaintiffs next seek an order requiring defendants to
supplement its document production from July 31, 2011 through
the present date.

Plaintiffs contend that the evidence produced

by defendants “has become stale”, and that plaintiffs will be
prejudiced if forced to rely on such stale documents at trial.
Defendants object to plaintiffs’ request on the grounds that
plaintiffs have failed to offer justifiable grounds for the
supplementation, and that supplemental production is unduly
burdensome.

Defendants further request that if the Court orders

supplemental production, that plaintiffs bear the resulting
costs.

In light of the arguments of the parties, and

defendants’ representations with respect to its burden, the
Court will require formal briefing on this issue.

Accordingly,

Plaintiffs shall file a motion to compel supplementation of
document production.

Defendants shall file a response thereto,

to which plaintiffs may reply.

Although the Court’s requests

may be falling on deaf ears, the parties are nevertheless again
encouraged to confer and attempt to resolve this issue without
the need of further Court intervention.
3. Third-Party Subpoenas
Plaintiffs next take issue with defendants’ third-party
discovery.

As of plaintiffs’ September 12, 2013 letter,

defendants “served no less than 51 third-party subpoenas.”
Plaintiffs argue that these subpoenas “have little or nothing
to do with the merits of the case, but rather have to do with
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looking for alleged document deficiencies, character evidence
relating to the named Plaintiffs, or into matters that are not
related to the core issues of the case.”

Plaintiffs further

argue that the numerous third-party subpoenas create an obvious
burden on both plaintiffs and the third parties.

Plaintiffs

request that for each outstanding subpoena, the Court requires
defendants to make a proffer of the reasons for the subpoenaed
materials before permitting any further discovery to take place
regarding these subpoenas.

Defendants argue that plaintiffs do

not have standing to make such a request.

Defendants further

argue that the third-party subpoenas “relate to central issues
in this litigation and key Progressive defenses.”
At present, and from the information provided to the Court,
seventeen (17) third-party subpoenas remain outstanding.
Although the Court is mindful of the extensive discovery
conducted to date, as well as the difficulties encountered
during the course of discovery, the Court will not limit
defendants’ use of third party subpoenas on the present record.
Plaintiffs have failed to articulate the extent of their claimed
burden with respect to the outstanding subpoenas, which would
justify the entry of the requested order.

Additionally,

plaintiffs do not have standing to object to the third-party
subpoenas unless plaintiffs have a personal right or privilege
regarding the subject matter of subpoenas.

Lanford v. Chrysler

Motors Corp., 513 F.2d 1121, 1126 (2d Cir. 1975) (“In the
absence of a claim of privilege a party usually does not have
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standing to object to a subpoena directed to a non-party
witness.”).
Should any of the third-parties object to the subpoenas,
they are of course free to file a motion for protective order
and/or motion to quash.

Plaintiffs too may file these motion(s)

to the extent that plaintiffs’ have a personal right or
privilege regarding the subject matter of the outstanding
subpoenas.
4. Kehmna, Connecticut Insurance Association Discovery
Finally, plaintiffs seek guidance related to the issues
raised with respect to plaintiffs’ subpoenas issued to thirdparties Robert Kehmna and the Connecticut Insurance
Association.

The Court finds plaintiffs’ request MOOT in light

of the Court’s prior rulings on these issues. [See Doc. ## 363364].
This is not a Recommended Ruling. This is a discovery
ruling or order which is reviewable pursuant to the “clearly
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 26th day of November, 2013.

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

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