Mahon v. Chicago Title Ins Co, et al
RULING. For the reasons set forth in the attached Ruling, plaintiff's 196 MOTION to Compel is GRANTED, and defendant's 198 MOTION for Protective Order is DENIED as moot. Signed by Judge Sarah A. L. Merriam on 8/4/2017. (Kaczmarek, S.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DEBORAH MAHON, on behalf of
herself and all others
CHICAGO TITLE INS. CO.
Civil No. 3:09CV00690(AWT)
August 4, 2017
RULING ON PLAINTIFF’S MOTION TO COMPEL [DOC. #196] AND
DEFENDANT’S MOTION FOR PROTECTIVE ORDER [DOC. #198]
Plaintiff Deborah Mahon (“plaintiff”) has filed a Motion to
Compel seeking the production of a number of documents withheld
on the basis of privilege. [Doc. #196]. Plaintiff also seeks to
compel testimony regarding these documents. See id. Defendant
Chicago Title Insurance Company (“defendant”) has submitted
opposition to plaintiff’s motion, and plaintiff has filed a
reply. [Docs. ##202, 203]. Defendant has filed a Motion for a
Protective Order, seeking protection from producing a witness to
testify about the documents in question pending resolution of
plaintiff’s motion to compel. [Doc. #198]. Plaintiff has filed a
memorandum in opposition to defendant’s motion, and defendant
has filed a reply. [Docs. ##204, 205]. For the reasons set forth
herein, the Court GRANTS plaintiff’s Motion to Compel, and
DENIES as moot defendant’s Motion for a Protective Order.
~ 1 ~
Rule 26(b)(1) of the Federal Rules of Civil Procedure sets
forth the scope and limitations of permissible discovery:
Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense
and proportional to the needs of the case, considering
the importance of the issues at stake in the action, the
amount in controversy, the parties’ relative access to
relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information within this
scope of discovery need not be admissible in evidence to
Fed. R. Civ. P. 26(b)(1). “The party resisting discovery bears
the burden of showing why discovery should be denied.” Cole v.
Towers Perrin Forster & Crosby, 256 F.R.D. 79, 80 (D. Conn.
2009). Nevertheless, the advisory committee’s notes to the
recent amendment of Rule 26 explain that
[a] party claiming that a request is important to resolve
the issues should be able to explain the ways in which
the underlying information bears on the issues as that
party understands them. The court’s responsibility,
using all the information provided by the parties, is to
consider these and all the other factors in reaching a
case-specific determination of the appropriate scope of
Williams v. Rushmore Loan Mgmt. Servs., LLC, No. 3:15CV673(RNC),
2016 WL 4083598, at *4 (D. Conn. Feb. 16, 2016) (quoting Fed. R.
Civ. P. 26 advisory committee’s note to 2015 amendment).
A protective order may be issued by the Court pursuant to
Rule 26(c) of the Federal Rules of Civil Procedure, which
~ 2 ~
provides, in relevant part: “The court may, for good cause,
issue an order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense, including
... forbidding the disclosure or discovery[.]” Fed. R. Civ. P.
26(c)(1)(A). “Rule 26(c) confers broad discretion on the trial
court 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). “Where the discovery is
relevant, the burden is upon the party seeking non-disclosure or
a protective order to show good cause.” Dove v. Atl. Capital
Corp., 963 F.2d 15, 19 (2d Cir. 1992).
The Court assumes familiarity with the underlying facts of
this class action, which relate to title insurance refinance
rates. Accordingly, the Court will discuss only those facts that
are relevant to the disposition of the motions before it.
Plaintiff served her First Set of Interrogatories and
Requests for Production on September 10, 2009. See generally
Doc. #197-3. Request for Production No. 17 sought: “Any and all
documents constituting communication by, between or among
Defendants and/or any of their Affiliates or Agents on the one
hand and the Connecticut Insurance Department on the other hand
that discuss, mention or refer in any way to the Refinance
Rate.” Doc. #197-3 at 20. Defendant initially objected to the
~ 3 ~
request on the grounds that it pertained to merits discovery.
After commencement of discovery on the merits of plaintiff’s
claims, defendant asserted additional objections, and stated
that, notwithstanding the objections, defendant was “not
withholding any document that is responsive, non-privileged, and
consistent with [defendant’s] non-objectionable interpretation
of this Discovery Request.” Doc. #197-5 at 16. Defendant claims
that documents potentially responsive to this request had been
previously identified in a privilege log dated August 2, 2010,
which was supplemented on September 22, 2010. See Doc. #202 at
6; Doc. #202-1 at 24-55.
Defendant served supplemental privilege logs on April 27,
2017, and May 30, 2017. See Doc. #202-1 at 66-121. These logs
list additional documents that defendant has determined are
responsive to Request 17. See Doc. #196 at 2; Doc. #197-6 at 3.
From these logs, plaintiff identifies thirty documents that were
withheld as privileged solely on the basis of section 38a-15(g)
of the Connecticut General Statutes. See Doc. #197-1. According
to the parties, each of these documents pertains to a market
conduct examination of defendant that was conducted by the
Connecticut Insurance Department (“CID”) in 2010. The relevance
of these documents is not in dispute; rather, the controversy
arises over whether these documents are privileged, and
therefore protected from discovery.
~ 4 ~
At issue before the Court is whether section 38a-15(g) of
the Connecticut General Statutes creates an evidentiary
privilege that precludes discovery of documents in federal civil
litigation that are otherwise relevant to plaintiff’s claims.
This appears to present a matter of first impression. The Court
is not aware of any case interpreting section 38a-15(g), and
neither party has drawn the Court’s attention to any Connecticut
case on point. Thus, the Court will determine whether a
privilege is implicated by examining the plain language of the
statute itself, and will take guidance from courts in other
jurisdictions in which similar questions have arisen. See
Pineman v. Oechslin, 488 A.2d 803, 807 (Conn. 1985) (stating
that, when presented with a question of first impression, the
Supreme Court of Connecticut will “look to the various
approaches adopted by other courts that have been confronted
with similar questions” for guidance); Monti v. Wenkert, 947
A.2d 261, 274 (Conn. 2008) (same).
Where “a federal court’s subject-matter jurisdiction is
premised on diversity of citizenship, the court must apply state
law to privilege issues.” Safeco Ins. Co. of Am. v. Vecsey, 259
F.R.D. 23, 27–28 (D. Conn. 2009) (quotation marks and citation
omitted) (footnote omitted); see also Fed. R. Evid. 501 (“[I]n a
~ 5 ~
civil case, state law governs privilege regarding a claim or
defense for which state law supplies the rule of decision.”).
Here, the subject matter jurisdiction of this Court is based on
the diversity of the parties, and Connecticut state law supplies
the rule of decision for the claims before the Court.
Accordingly, the Court will apply Connecticut law to address the
privilege issue before it.
Connecticut General Statutes §38a-15(g)
Under Connecticut law, “the burden of establishing immunity
from discovery rests with the party asserting the privilege.”
Babcock v. Bridgeport Hosp., 742 A.2d 322, 355 (Conn. 1999)
(quotation marks and citations omitted). Defendant has
designated the documents in question as “privileged” under
section 38a-15(g) of the Connecticut General Statutes. In
response to plaintiff’s motion to compel, defendant argues that
this statute creates a privilege that precludes discovery of the
documents that plaintiff seeks. Plaintiff contends, inter alia,
that although the statute deems the documents confidential, it
does not create a privilege.1 Thus, plaintiff argues, the
Plaintiff also argues that defendant waived its right to object
to the production of these documents because defendant failed to
disclose the existence of these documents until April 2017, and
previously agreed to the discovery of any such communications.
See Doc. #196 at 1-2. Defendant denies these contentions. The
Court need not resolve this dispute, however, because the Court
determines that the documents are not absolutely privileged
under the statute in question and are therefore discoverable.
~ 6 ~
documents are discoverable, and their production should be
Title 38a of the Connecticut General Statutes governs
insurance and insurance companies. Section 38a-15 authorizes the
commissioner of insurance to undertake a “market conduct
examination” and prescribes procedures for how the examination
is to be carried out. See Conn. Gen. Stat. §38a-15(a). The
statute provides that insurance companies and other entities
“shall produce the books and papers, in its or their possession,
relating to its business or affairs, and any other person may be
required to produce any book or paper in such person’s custody,
deemed to be relevant to the examination, for the inspection of
the commissioner, the commissioner’s actuary or examiners, when
required.” Conn. Gen. Stat. §38a-15(b).
Subsection (g) of section 38a-15 provides, in relevant
All workpapers, recorded information, documents and
copies thereof produced by, obtained by or disclosed to
the commissioner or any other person in the course of an
examination made under the authority of this section
shall be confidential, shall not be subject to subpoena
and shall not be made public by the commissioner or any
other person, except to the extent provided in
subsection (f) of this section.
Conn. Gen. Stat. §38a-15(g).2
Subsection (f) provides:
~ 7 ~
In Connecticut, both legislative enactments and precedent
guide statutory interpretation.
General Statutes §1–2z ... instructs us that our
fundamental objective is to ascertain and give effect to
the apparent intent of the legislature. In other words,
we seek to determine, in a reasoned manner, the meaning
of the statutory language as applied to the facts of the
case, including the question of whether the language
actually does apply. In seeking to determine that
meaning §1–2z directs us first to consider the text of
the statute itself and its relationship to other
statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable
results, extratextual evidence of the meaning of the
statute shall not be considered. When a statute is not
plain and unambiguous, we also look for interpretive
guidance to the legislative history and circumstances
surrounding its enactment, to the legislative policy it
was designed to implement, and to its relationship to
existing legislation and common law principles governing
the same general subject matter.
State v. Orr, 969 A.2d 750, 757–58 (Conn. 2009) (quotation marks
and citations omitted). “As with any issue of statutory
interpretation, [the Court’s] initial guide is the language of
Nothing in this section shall be construed to prevent or
prohibit the commissioner from disclosing at any time
the content or results of an examination report or a
preliminary examination report or any matter relating to
such report, to (1) the insurance regulatory officials
of this state or any other state or country, (2) law
enforcement officials of this or any other state, or (3)
any agency of this or any other state or of the federal
government, provided such officials or agency receiving
the report or matters relating to the report agrees, in
writing, to hold such report or matters confidential.
Conn. Gen. Stat. §38a-15(f).
~ 8 ~
the statute itself.” Babcock, 742 A.2d at 341–42 (quotation
marks and citation omitted). Further, “statutes relating to the
same subject matter may be looked to for guidance in reaching an
understanding of the meaning of a statutory term.” Doe v. Inst.
of Living, Inc., 392 A.2d 491, 495 (Conn. 1978) (citations
Thus, in determining whether the documents in question are
privileged from disclosure under section 38a-15(g), the Court
looks first to the language of the statute, viewed in relation
to other sections of Title 38a. From this analysis, the Court
finds that there is no express grant of privilege in section
First, the Court observes that subsection (g) expressly
protects documents encompassed by this section from being
subject to a subpoena; there is no mention of protection from
disclosure through discovery. In stark contrast, however, other
sections of Title 38a include explicit protection of certain
documents from disclosure in discovery and from admission into
evidence in civil actions, in addition to protection from
subpoena. See, e.g., Conn. Gen. Stat. §38a-137(a) (providing
that documents shall not be subject to discovery or admissible
in evidence in any civil action); Conn. Gen. Stat. §38a142(h)(1) (same); Conn. Gen. Stat. §38a-78(b)(8)(A) (same).
~ 9 ~
Next, while section 38a-15(g) states that the documents
shall be “confidential,” the statute does not provide in express
terms that the documents at issue are subject to an evidentiary
privilege. Certainly, confidentiality is akin to a privilege;
however, “[a] non-disclosure or confidentiality provision in a
statute may not always create an evidentiary privilege,
especially if the legislature did not explicitly create an
evidentiary privilege.” Van Emrik v. Chemung Cty. Dep’t of Soc.
Servs., 121 F.R.D. 22, 25 (W.D.N.Y. 1988) (quotation marks and
citation omitted); see also Amtrust N. Am., Inc. v. Safebuilt
Ins. Servs., Inc., 186 F. Supp. 3d 278, 284 (S.D.N.Y. 2016)
(finding that while a Montana insurance statute “provides that
the documents are confidential, [it] does not expressly create a
privilege”). Again, the provision of confidentiality, only, in
section 38a-15(g) is in contrast to the language of other
sections of Title 38a that specifically provide that certain
documents shall be “confidential by law and privileged[.]” Conn.
Gen. Stat. §38a-137(a) (emphasis added); see also Conn. Gen.
Stat. §38a-78(b)(8)(A); Conn. Gen. Stat. §38a-142(h)(1).
Connecticut courts employ the well-established canon of
statutory construction that inclusio unius est exclusion
alterius. See, e.g., Marrocco v. Giardino, 767 A.2d 720, 732
(Conn. 2001). This canon supports a finding that the absence of
specific language regarding privilege and protection from
~ 10 ~
discovery in section 38a-15(g), in contrast to the inclusion of
such language in other statutes in Title 38a, is indicative of
legislative intent. Cf. Crochiere v. Bd. of Educ. of Town of
Enfield, 630 A.2d 1027, 1042 (Conn. 1993).
The sentence structure of the statute provides further
evidence that there is no express privilege created. As
previously indicated, the statute states that the records “shall
be confidential, shall not be subject to subpoena and shall not
be made public[.]” Conn. Gen. Stat. §38a-15(g). The statute thus
provides that the documents shall be confidential and also not
subject to subpoena. In other words, the legislature determined
that designating the documents as confidential would not
automatically protect them from being subject to disclosure by
subpoena. This suggests that potential disclosure of the
documents -- by subpoena or by other means –- is not prohibited
merely by the confidential designation of these documents. See
Orr, 969 A.2d at 759–60 (“The legislature, by virtue of its
explicit provision for both confidentiality and limited
disclosure, clearly indicated that it did not consider the word
‘confidential’ to include the possibility of disclosure and that
all communications and records are confidential, regardless of
their potential for disclosure.” (footnote omitted)). Thus, it
is clear from the plain language of the statute, viewed in
~ 11 ~
context, that there is no express grant of privilege or
prohibition against disclosure by discovery.
The Court next considers the purpose and focus of the
statute as expressed in its plain language. Defendant argues
that subsection (g) prohibits the examined company from
releasing the documents in question. In support of this
argument, defendant points to the language “any other person”
and argues that defendant is encompassed in the definition of
“person.” Section 38a-1 of the Connecticut General Statutes
defines a person as “an individual, a corporation, a
partnership, a limited liability company, an association, a
joint stock company, a business trust, an unincorporated
organization or other legal entity.” Conn. Gen. Stat. §38a1(14).3
“Statutes must be read as a whole.” United States v. Atl.
Research Corp., 551 U.S. 128, 135 (2007) (quotation marks and
citation omitted). There are two references to “any other
person” in subsection (g): first, in reference to the origin of
the records at issue, and second, in reference to a prohibition
Section 38a-1 has been amended, effective July 1, 2017. The
amended version of the statute makes no changes to the
definition of a person, but does change the numbering of the
subsections. Thus, effective July 1, 2017, the definition of a
person is found at section 38a-1(16). See INSURANCE PRODUCERS—
SURPLUS LINES INSURANCE, 2017 Conn. Legis. Serv. P.A. 17-125
~ 12 ~
against disclosure to the public. See Conn. Gen. Stat. §38-15(g)
(“All workpapers, recorded information, documents and copies
thereof produced by, obtained by or disclosed to the
commissioner or any other person in the course of an examination
... shall not be made public by the commissioner or any other
person[.]” (emphases added)). “[T]he commissioner” immediately
precedes each reference to “any other person,” and the first
reference is immediately followed by “in the course of an
examination.” Read as a whole, the statute’s language compels
the conclusion that “any other person” relates to any other
person working with the commissioner, in the course of a market
conduct examination. See Heritage Healthcare Servs., Inc. v.
Beacon Mut. Ins. Co., No. PC 02-7016, 2007 WL 1234481 (R.I.
Super. Ct., April 17, 2007) (“Although section 5(f) does refer
to ‘the director or any other person,’ this merely recognizes
the fact that the Director may contract with other persons to
assist in the examinations process.”); see also United States v.
Atl. Research Corp., 551 U.S. at 136 (determining that the
phrase “any other person” was limited by a prior reference in
To the extent the plain language of the statute is
ambiguous, the Court considers the limited legislative history
available, which supports this analysis. The legislative history
suggests that the confidentiality provisions of the bill were
~ 13 ~
directed at the insurance commissioner and the CID, not at the
examined companies. The bill represented an apparent expansion
of the CID’s power to perform market conduct examinations, and
the CID provided testimony in support of the bill indicating
that the bill “makes the Department’s authority clear to protect
confidential information it gathers through” the examinations.
See SB-159, J.F. Rep., at 1 (Conn., Mar. 31, 2016).4 The Joint
Favorable Report of the Insurance and Real Estate Committee
states that the bill was raised on behalf of the Department of
Insurance. See id. The bill “clearly states the authority of the
Department of Insurance to conduct market examinations” and
“provides for statutory confidentiality of information obtained
by the examination process[.]” Id.
The debate on the Senate floor and the Office of
Legislative Research report on the Public Act both suggest that
the bill was aimed at ensuring that the CID would be empowered
to engage in market conduct examinations in accordance with
national standards. See 59 S. Proc., Pt. 1, 2016 Sess., p. 99101, remarks of Senators Crisco and Kelly; Report of the
Connecticut Office of Legislative Research (“O.L.R.”), P.A. 16-
Senate Bill 159 was eventually added to another insurancerelated bill, Senate Bill 368, as an amendment, and that entire
bill became Public Act 16-213, which enacted the relevant
portions of Conn. Gen. Stat. 38a-15. See 59 S. Proc., Pt. 1,
2016 Sess., p. 99-100, remarks of Senator Crisco.
~ 14 ~
213, at 1. The O.L.R. Report states that the Act “makes
examination workpapers confidential[.]” P.A. 16-213 O.L.R.
Report at 1.
This limited history is not particularly persuasive, but it
supports the Court’s interpretation of section 38a-15(g) to
protect documents related to market conduct examinations in the
CID’s control from disclosure by the CID or the Commissioner.
Construing the statute to apply to the examined company would
yield untenable results. Any document provided to the CID during
the course of a market conduct examination would become
privileged, by sheer virtue of its disclosure during the
investigation. Thus, ordinary business records could be shielded
from disclosure in a civil action, if they had been previously
provided in some form to the CID. Had the legislature intended
this outcome, it would have expressly provided for it. Cf. Kumah
v. Brown, 58 A.3d 247, 254 (Conn. 2013) (“If, however, the
legislature had intended to do [that], for whatever reason, it
likely would have said so expressly[.]”).
Further, the Court does not agree with defendant that the
“act of producing those documents for possible use in a civil
trial would make them public.” Doc. #202 at 9. If disclosed
through the course of discovery, the documents at issue would be
subject to the parties’ stipulated Protective Order, which
governs any confidential material disclosed during the course of
~ 15 ~
the litigation, and “strictly” limits “access to and use of”
such material. Doc. #46 at 1, 3. The Protective Order should
allay any concerns the defendant has that this information would
become available to the public at large.
Case Law from Other Jurisdictions
The Court’s interpretation of the Connecticut statute is in
accord with interpretations of similar statutes in other
jurisdictions. In Amtrust, the Court interpreted a Montana state
statute pertaining to examinations conducted by Montana’s
Commissioner of Securities and Insurance (“CSI”). See Amtrust,
186 F. Supp. 3d at 282. The Montana statute provides that
all examination reports, preliminary examination
reports or results, working papers, recorded
information, documents, and their copies produced
by, obtained by, or disclosed to the commissioner
or any other person in the course of an examination
made under this section are confidential, are not
subject to subpoena, and may not be made public by
the commissioner or an employee or agent of the
commissioner without the written consent of the
company or upon court order.
Id.; Mont. Code. Ann. §33-28-108(3). The defendants in Amtrust
argued that the Montana statute creates an evidentiary privilege
that precludes disclosure of certain documents subject to this
statute. See Amtrust, 186 F. Supp. 3d at 282.
In finding that the documents were not privileged in
discovery under the Montana statute, the Amtrust court observed
that courts in other jurisdictions have “largely declined to
~ 16 ~
recognized an insurance-examination privilege[.]” Id. at 283.5
The Court held that a literal interpretation of the statute
“would provide sweeping protections to almost any record that
played any part in a CSI examination. Ordinary business records,
and copies of those records in the company’s control, that were
exchanged in the course of an examination would receive
protection, even if the records were relevant to pending
litigation and otherwise discoverable.” Id. The Court therefore
interpreted the Montana statute “to protect documents in the
possession of CSI — not the examined company.” Id. at 284.
The Southern District of West Virginia adopted a similar
approach in Miller v. Liberty Mut. Fire Ins. Co., No.
2:03CV2325, 2004 WL 897086 (S.D.W. Va. Apr. 27, 2004). In
Miller, at issue was whether section 33-2-19(l)(4) of the West
Virginia Code expressly excepted from discovery certain
documents regarding complaints required by law to be maintained
by the insurance company. See id. at *3-*4. By law, an insurance
company is required to maintain a record of all complaints
received since the date of the last examination by the Insurance
Commissioner. See id. at *3. The defendant insurance company
The Amtrust court also noted that the Montana insurance
commissioner had agreed “to a deposition and not object[ed] to
any of the questions posed” and found this “further evidence
that no privilege is implicated[.]” Id.
~ 17 ~
argued that section 33-2-19(l)(4) protected this record of
complaints from disclosure. See id. The statute at issue states,
in relevant part:
All working papers, recorded information, documents and
copies thereof produced by, obtained by or disclosed to
the commissioner or any other person in the course of an
examination, analysis or review made under this section
must be given confidential treatment and are not subject
to subpoena and may not be made public by the
commissioner or any other person, except to the extent
provided in subdivision (5), subsection (i) of this
Id. at *3; W. Va. Code §33-2-9(l)(4). The Court found that while
the statute requires the insurance commissioner to keep the
records at issue confidential, the statute does not “extend a
blanket protection of confidentiality to insurance company
records.” Miller, 2004 WL 897086 at *4. The Court continued:
“The documents are simply records of the insurance company; a
party may seek to obtain them from the insurance company, but
not from the Insurance Commissioner.” Id.
The Superior Court of Rhode Island has also considered
whether certain materials are privileged from disclosure under
Rhode Island’s examination statute. See Heritage Healthcare
Servs., Inc., 2007 WL 1234481. The statute at issue, section 2713.1-5(f) of the General Laws of Rhode Island, provides:
All working papers, recorded information, documents, and
copies of them produced by, obtained by, or disclosed to
the director or any other person in the course of an
examination made under this chapter must be given
confidential treatment and are not subject to subpoena
~ 18 ~
and may not be made public by the director or any other
Heritage Healthcare Servs., 2007 WL 1234481; 27 R.I. Gen. Laws
§27-13.1-5. The Court found that the statute applies only to
disclosure of documents by the Rhode Island Department of
Business Regulation (“DBR”) and its agents. See Heritage
Healthcare Servs., 2007 WL 1234481. To find otherwise, the Court
stated, would “allow [defendant] to assert a privilege with
respect to every document reviewed or disclosed to DBR, even if
they otherwise would not be privileged.” Id. The Court reasoned:
The statute is designed to assure companies such as
[defendant] that they will not suffer harm from
disclosure by entities over which they have no control,
so that they will be encouraged to cooperate with DBR
during an examination. This rationale simply has no
application to the case where the Plaintiff seeks
disclosure directly from the examined company.
In Maple Creek Commons Homeowners Ass’n v. State Farm Fire
& Cas. Co., No. 1:08CV00475(TWP), 2012 WL 14022, at *2 (S.D.
Ind. Jan. 4, 2012), plaintiff sought production of a draft
report from the Indiana Department of Insurance’s market conduct
examination of the defendant insurance company. The defendant
contended that the draft report was privileged under Indiana
Code section 27-1-3.1-15, which stated, in relevant part:
All working papers, recorded information, documents, and
copies thereof produced by, obtained by, or disclosed to
the commissioner or any other person in the course of an
examination under this chapter ... are confidential for
~ 19 ~
the purposes of IC 5–14–3–4, are not subject to subpoena,
and may not be made public by the commissioner or any
other person, except to the extent provided in section
14 of this chapter.
Id. at *2; Ind. Code §27-1-3.1-15. In finding that the Indiana
law permitted discovery of the draft report, the Court reasoned
that a previously issued protective order would prevent
disclosure of the draft report to the public, and that while the
statute protected the documents from subpoena, it did not
prevent disclosure pursuant to court order. See Maple Creek
Commons Homeowners Ass’n, 2012 WL 14022, at *3-*4.
In each of the above cases, the Court found that the
statute at issue did not provide an evidentiary privilege
shielding documents in possession of the defendant insurance
company from production during discovery. In each of these
cases, the statute at issue is similar to section 38a-15(g). The
Court finds the reasoning in each of these cases persuasive.
Defendant cites to Gallimore v. State Farm Fire & Cas. Ins.
Co., 102 Cal. App. 4th 1388, 1395 (2002), in support of its
argument that policy reasons dictate that a privilege should
attach to the documents in question. In Gallimore, the
California Fourth District Court of Appeal did not reach the
issue of privilege; rather, the Gallimore court noted the trial
court’s determination of privilege, but reversed the decision on
other grounds. See id. at 1394 n.6; 1400. The Court observed
~ 20 ~
that defendant “may well be correct that plaintiff is relying on
evidentiary matter that is both confidential and privileged and
perhaps inadmissible to prove the allegations of the complaint.”
Id. at 1400 (emphasis added). The Court did not, however, make a
finding that any privilege attached.
The Northern District of Illinois relied on Gallimore in
Rowe v. Bankers Life & Cas. Co., No. 09CV491, 2011 WL 1897181,
at *5 (N.D. Ill. May 18, 2011), to determine that the California
statute at issue protects similar documents from disclosure
under a privilege. These cases go against the weight of
authority across jurisdictions. As the Amtrust Court stated: “If
this Court were interpreting the California statute, Gallimore
would carry great weight, as it did for the Rowe court. But the
California statute is not at issue here and, in any event, the
Court does not find the California trial court’s reasoning to be
persuasive.” Amtrust, 186 F. Supp. 3d at 287.
For the reasons set forth above, the documents related to
the market conduct examination in the possession and control of
defendant are not privileged under section 38a-15(g) of the
Connecticut General Statutes such that they are protected from
disclosure in civil discovery. Accordingly, the Court GRANTS
plaintiff’s Motion to Compel. [Doc. #196]. Defendant shall
produce those documents identified in Exhibit A to plaintiff’s
~ 21 ~
Motion to Compel forthwith, and no later than August 14, 2017.
Defendant shall also produce a witness to testify regarding
Topic No. 4 of plaintiff’s Notice to Produce. See Doc. #198-2 at
11. In light of the above, the Court DENIES AS MOOT defendant’s
Motion for Protective Order. [Doc. #198].
This is not a Recommended Ruling. This is an order
regarding discovery which is reviewable pursuant to the “clearly
erroneous” statutory standard of review. See 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 New Haven, Connecticut, this 4th day of
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE
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