Arbella Mutual Insurance Company v. Penn Plax, Inc.

Filing 74

Magistrate Judge Judith G. Dein: ORDER entered granting in part and denying in part 64 Plaintiff's Motion to Compel Hanover Insurance Company to Produce Documents in Response to Rule 45 Subpoena Duces Tecum. (Dambrosio, Jolyne)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

ARBELLA MUTUAL INSURANCE
COMPANY, as subrogee of Mark
Rubenstein and Lisa Rubenstein,
Plaintiff,
v.
PENN PLAX, INC.,
Defendant.

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CIVIL ACTION
NO. 15-12928-JGD

ORDER ON PLAINTIFF’S MOTION TO COMPEL
March 23, 2018
DEIN, U.S.M.J.

This matter is before the court on plaintiff’s “Motion to Compel Non-Party, Hanover
Insurance Company’s, Further Response to Rule 45 Subpoena Duces Tecum.” (Docket No. 64).
Therein, plaintiff contends that documents in the possession of defendant’s insurer, Hanover
Insurance Co. (“Hanover”), have been improperly withheld from production in this subrogation
action. In addition to the orders made during oral argument on February 20, 2018, the court
agreed to review documents from Hanover’s claim file that were being withheld on the grounds
of relevancy and work product privilege. The court has completed its in camera review, and
hereby Orders that the documents have been appropriately withheld and do not need to be
produced.
The documents span the time period of May 27, 2014 (the date of the first notice of
loss) to June 30, 2015 (the date of notice of suit). They consist of notes by Hanover personnel

regarding the handling of the claim, and include the mental impressions and opinions of,
primarily, Hanover’s claims adjuster. The documents establish that litigation was anticipated
from the outset, seemingly by both Hanover and Arbella. They do not contain any facts or
investigation about the cause of the fire.
With the exception noted below, the documents are irrelevant to this litigation and/or
are protected by the work-product doctrine. Arbella cannot demonstrate a substantial need for
the materials. The documents were appropriately withheld. See Fed. R. Civ. P. 26(b)(3); Mass.
R. Civ. P. 26(b)(3). See generally Lobel v. Woodland Golf Club of Auburndale, Civil Action No.
15-13803-FDS, 2016 WL 7410776, at *1-2 (D. Mass. Dec. 22, 2016) (discussing parameters of
work product doctrine).
Included in the documents are some reproductions of email communications between
Hanover and Arbella’s adjuster, Jenny Ellis. This court assumes that these emails have
otherwise been produced. If they have not, Hanover should produce them forthwith as they
are not privileged.
In accordance with the orders made in open court and this order, Hanover’s Motion to
Compel (Docket No. 64) is allowed in part and denied in part. If the parties have been unable to
resolve any other issues raised at the hearing, Hanover shall file another motion.
SO ORDERED.
/ s / Judith Gail Dein
Judith Gail Dein
United States Magistrate Judge