Musante v. USI Insurance Services LLC

Filing 81

ORDER: Defendant's 48 Motion to Compel is granted in part and denied in part. See attached ruling. Signed by Judge Donna F. Martinez on 07/27/2017. (Greenspoon, L.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
HEATHER MUSANTE,
Plaintiff,
v.
USI INSURANCE SERVICES, LLC,
Defendant.

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CASE NO.

3:16cv00799(RNC)

RULING ON DEFENDANT’S MOTION TO COMPEL
The plaintiff, Heather Musante (“Musante”), brings this action
pursuant to Title VII the Civil Rights Act of 1964, 42 U.S.C.
2000e-5(f) and the Civil Rights Act of 1991, 42 U.S.C. 1981a,
against defendant USI Insurance Services, LLC (“USI”), alleging
claims of gender discrimination, retaliation, wrongful discharge in
violation of public policy and unjust enrichment.

Musante also

seeks a declaratory judgment that the 2 year non-solicitation
agreement she signed with USI’s predecessor is unenforceable.
Pending before the court is USI’s motion to compel.
#48.)1

The court heard oral argument on July 21, 2017.

(Doc.

The court

rules as follows:
A.

Interrogatory Nos. 14 and 15 and Production Request 87.
1. Interrogatory No. 14: The motion to compel a response to

Interrogatory No. 14 is granted in part.

Musante shall identify

any internist, therapist, oncologist and/or ob/gyn with whom she
treated from 2002 to the present. She shall execute the requested

1

U.S. District Judge Robert N. Chatigny referred the motion to
the undersigned. See doc. #50.

records authorization for each practitioner whom she identifies
pursuant to this ruling.
2. Interrogatory No. 15:

The motion to compel a response to

Interrogatory No. 15 is granted.

Musante shall identify every

pharmacy from which she purchased medication from 2002 to the
present, and provide an executed authorization for USI to obtain
the pharmacy records.
3. Request for Production No. 87:

The motion to compel a

response to Production Request No. 87 is granted in part.

To the

extent Musante and/or her counsel already possess copies of any
records regarding any of the practitioners or pharmacies identified
in response to Interrogatory Nos. 14 and 15, Musante shall produce
them.

If she does not possess all of such records from 2002 to the

present, she shall produce the documents she has in her possession
or control, but she need not request copies of records she does not
possess.

The authorizations the court has ordered Musante to

execute in response to Interrogatory Nos. 14 and 15 will permit USI
to obtain the necessary records.
B. Interrogatory Nos. 9 and 19 and Request for Production No. 104.
In Interrogatory Nos. 9 and 19, and Request for Production No.
104,

USI

seeks

information

regarding

Musante’s

subsequent

employment, compensation and benefits. Musante objected on grounds
of relevance, burden and that the information sought is “sensitive,
confidential,

and

personal

financial

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information.”

Musante

provided a partial response, subject to those objections, in which
she identified her annual salary at her new employer, but not

her

total compensation, which she indicated is based upon “business
brought

in

to

the

company”

and

“new

business

generated

and

retained.”
The information is relevant to Musante’s damages claims and
her duty to mitigate damages. She has made no showing as to the
nature and extent of the actual burden she would face in responding
to USI’s requests.

"Under well-settled law, the party resisting

production bears the responsibility of establishing undue burden."
Michanczyk v. Metropolitan Life Ins. Co., No. 3:05CV1903, 2007 WL
926911, at *2 (D. Conn. Mar. 26, 2007).

See, e.g., In re

Application of Bloomfield Inv. Res. Corp., 315 F.R.D. 165, 168
(S.D.N.Y.

2016)

(overruling

burdensomeness

objection

where

objecting party did not "present particularized evidence in their
briefing that production of the . . . records would be unduly
burdensome or costly, such as an affidavit of a person with
knowledge of the record keeping system explaining in detail the
basis of the objection").
Further, although Musante claims the information requested is
sensitive, confidential and/or proprietary, she has made no showing
to support this argument.

"The mere fact that [a party] deems

these items to be proprietary does not (by itself) render them to
be proprietary."

Demutis v. Sally Beauty Supply LLC, No. 09CV92A,

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2010 WL 1038679, at *3 (W.D.N.Y. Mar. 19, 2010).

"[M]erely

labeling the material 'proprietary and confidential' is not by
itself sufficient to bar its production."

Novomoskvovsk Joint

Stock Co. "Azot" v. Revson, No. 95 CIV. 5399 (BSJ), 1996 WL 282085,
at *1 (S.D.N.Y. May 28, 1996).
Musante’s objections to Interrogatory Nos. 9 and 19 and
Production Request No. 104 are overruled. She shall respond to the
Interrogatories and produce responsive information.
C.

Request for Production No. 105.
Production Request 105: Musante objects to producing her

retainer agreement on grounds of relevance, privilege and attorney
work product.
[A] long and unbroken line of cases in this
Circuit have established that “in the absence
of special circumstances, fee arrangements do
not fall within the attorney-client privilege
because they are not the kinds of disclosures
that would not have been made absent the
privilege and their disclosure does not
incapacitate the attorney from rendering
legal advice.”
Torres v. Toback,Bernstein & Resiss LLP, 278 F.R.D. 321, 322
(E.D.N.Y. 2012)(quoting Vingelli v. United States, 992 F.2d
449,452 (2d Cir. 1993) and holding that retainer agreement
between a debt collection firm and its client was not subject to
attorney-client privilege, where identity of firm’s client was
not secret, nothing of confidential nature would be revealed by
production of agreement, and firm had failed to identify any
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other special circumstances warranting application of privilege).
See also Williams v. Rushmore Loan Mgmt. Servs. LLC, 2016 U.S.
Dist. LEXIS 22807, *6 (D. Conn. February 16, 2016)(requiring
production of a redacted version of retainer agreement, along
with in camera inspection of the portion claimed to contain
privileged information regarding discussions between attorney and
client regarding legal strategy).
In her brief, Musante does not argue that the retainer
agreement is privileged.

Rather, she indicates, without

asserting any legal bases, that her counsel "prefers not to
disclose the specific fee agreement until it becomes necessary."
and "respectfully requests deferring disclosure of plaintiff's
retainer agreement until it becomes necessary to submit a fee
petition to the court.” (Doc. #62 at 10.)
The objection is overruled.

The retainer agreement is not

privileged and there is no basis upon which to defer its
production.

Musante shall produce a copy of the retainer

agreement.
CONCLUSION
The defendant USI’s Motion to Compel [48] is GRANTED in part
as set forth above.

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 Rule 72.2 of the Local
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Rules for Magistrate Judges.

As such, it is an order of the

court unless reversed or modified by the district judge upon
motion timely made.
SO ORDERED at Hartford, Connecticut this 27th day of July,
2017.
___________/s/________________
Donna F. Martinez
United States Magistrate Judge

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