U-Haul Co. of Pennsylvania v. Utica Mutual Insurance Company et al

Filing 81

MEMORANDUM ORDER Granting 52 MOTION for Protective Order Regarding Deposition of Troy B. Froderman, Esq.; Granting in Part and Denying in Part 59 MOTION to Compel Return of Documents; and Granting 73 MOTION to Compel Discovery of Maintenance Records (see Memorandum Order for further details). Signed by Judge Richard G. Andrews on 3/28/2012. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

U-HAUL CO. OF PENNSYLVANIA
Plaintiff,
Civil Action No. 11-510-RGA

v.

UTICA MUTUAL INSURANCE
COMPANY and REPUBLIC
FRANKLIN INSURANCE COMPANY,
Defendants.

MEMORANDUM ORDER
The Court having considered PlaintiffU-Haul Co. of Pennsylvania's Motion for
Protective Order Regarding Deposition of Troy B. Froderman, Esq. (D.I. 52), Defendants'
Motion to Compel Return of Documents Pursuant to Fed. R. Civ. P. 26(b)(5)(B) and Fed. R.
Evid. 502(B) (D.I. 59), and Defendants' Motion to Compel Discovery Pursuant to Fed. R. Civ. P.
37(a)(3)(B) (D.I. 73), as well as the papers filed in connection therewith;
IT IS HEREBY ORDERED, for the reasons discussed below, that:
1.

PlaintiffU-Haul Co. of Pennsylvania's Motion for Protective Order Regarding

Deposition of Troy B. Froderman, Esq. is GRANTED. Defendants seek to depose Mr.
Froderman to elicit testimony concerning the underlying litigation and related mediation.
Because Mr. Froderman has represented that he was not retained to represent Plaintiff or Mak's
Corporation d/b/a Kirkwood Shell ("Kirkwood") during the underlying litigation or the related
mediation, Mr. Froderman's deposition is not reasonably calculated to lead to the discovery of

admissible evidence.
2.

Defendants' Motion to Compel Return of Documents Pursuant to Fed. R. Civ. P.

26(b)(5)(B) and Fed. R. Evid. 502(B) is GRANTED IN PART and DENIED IN PART. The
motion is granted in part as to the portion of the claims note that Plaintiff concedes is privileged.

See proposed redactions at D.l. 72 at 2. The motion is denied in part as to the portion of the
claims note quoted by Defendants in their Reply in Support of Defendants' Motion to Compel
Return of Documents. Defendants failed to file their Reply under seal and, therefore, have

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waived any claim of attorney-client privilege over that portion of the claims note quoted in the

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Reply.

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3.

Plaintiff similarly failed to file its Response to Defendants' Motion to Compel

Return of Documents Pursuant to Fed. R. Civ. P. 26(b)(5)(B) and Fed. R. Evid. 502(B) under
seal even though that Response contains otherwise privileged information belonging to
Defendants. The Court, therefore, will place the Response under seal. Plaintiff is hereby
directed to file a redacted version of its Response within 7 days in accordance with section G of
the Administrative Procedures Governing Filing and Service by Electronic Means.
4.

Defendants' Motion to Compel Discovery Pursuant to Fed. R. Civ. P. 37(a)(3)(B)

is GRANTED. Maintenance records for the U-Haul trailer at issue in the underlying litigation
from 2008 to the present are relevant to the extent that they will assist Defendants' expert in
determining the scope of the physical examination of the trailer.

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Entered this

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day of March 2012.

istrict Judge