Moonbeam Capital Investments, LLC et al v. Integrated Construction Solutions, Inc.

Filing 52

ORDER GRANTING in part and denying in part Defendant's 44 Motion to Quash--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MOONBEAM CAPITAL
INVESTMENTS, LLC, and
TRAVELERS INDEMNITY
COMPANY,

Case No. 2:18-cv-12606
District Judge Gershwin A. Drain
Magistrate Judge Anthony P. Patti

Plaintiffs,
v.
INTEGRATED
CONSTRUCTION SOLUTIONS,
INC.
Defendant.
_________________________/
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT
INTEGRATED CONSTRUCTION SOLUTIONS INC.’S MOTION TO
QUASH PLAINTIFFS’ SUBPOENA OF PAUL IZZO (ECF 44)
This matter came before the Court for consideration of Defendant Integrated
Construction Solutions, Inc.’s motion to quash Plaintiffs’ subpoena of Paul Izzo
(ECF 44), Plaintiffs’ response (ECF 48), and Defendant’s reply (ECF 51). Judge
Drain referred this motion to me for hearing and determination (ECF 45), and a
hearing was held on October 8, 2019, at which counsel appeared and the Court
entertained oral argument regarding Defendant’s motion.
Upon consideration of the motion papers and oral argument, and for all of
the reasons stated on the record by the Court, which are hereby incorporated by
reference as though fully restated herein, Defendant’s motion to quash Plaintiffs’

subpoena of Paul Izzo (ECF 44) is GRANTED IN PART AND DENIED IN
PART as follows:
(1) Defendant no longer offers Izzo as an expert witness, but does
designate him for the following stated purposes: (a) as a records
custodian, and (b) as a fact witness to testify that Plaintiffs never
allowed him to examine the mirror in the bathroom where the incident
allegedly occurred. (ECF 44 at Page ID No. 1407; Defendant’s
Witness List, ECF 44-2 at Page ID No. 1424.) Accordingly, to the
extent Defendant requests that the Court quash the entire subpoena,
Defendant’s motion is DENIED, as he is not entirely an expert “who
is not expected to be called as a witness at trial.” Fed. R. Civ. P.
26(b)(4)(D). See Essex Builders Group, Inc. v. Amerisure Ins. Co.,
235 F.R.D. 703, 705 (M.D. Fla. 2006) (“It is possible for a witness to
wear two hats: one as a specially employed expert in anticipation of
litigation and one as an ordinary witness.”); In re Shell Oil Refinery,
134 F.R.D. 148, 150 (E.D. La. 1990) (ruling that an employee could
be deposed regarding facts and opinions held before being specially
employed as an expert in anticipation of litigation). But to the extent
Defendant requests that the Court limit the scope of the subpoena,
Defendant’s motion is GRANTED.
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(2) Plaintiffs may depose Izzo, but the questions asked must be limited to
the purposes for which he is being offered as a witness, including his
role as a records custodian and whether he was given the opportunity
to examine the mirror in the bathroom.

(3) The deposition must be no longer than 2 ½ hours.

(4) Plaintiffs may also question Izzo regarding all of the photographs
taken by him which have been produced by Defendant, subject to the
parameter that the questions be limited to the purposes for which he is
being offered as a witness. Questions may include when and under
what circumstances the photographs were taken, and what the
photographs depict. They may also relate to authentication of both the
photographs themselves and the content written thereon.

(5) Pursuant to Fed. R. Civ. P. 26(b)(4)(D), Plaintiffs may NOT,
however, question Izzo about: his expertise, the investigative
assignments given him, any facts conveyed to him by Defendant or its
counsel, any testing or experiments performed, any opinions requested
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of or provided by him, any reports made, or any communications
between him and counsel (which would be protected by the work
product doctrine and/or attorney-client privilege). Further, Plaintiffs
may not question Izzo regarding the significance of the photographic
content, or his cause and origin opinions.

(6) Izzo’s deposition must be taken on or before October 22, 2019. If the
witness’s schedule prevents the parties from setting a date within that
timeframe, the parties are expected to cooperate on selecting a date.

Finally, no costs are awarded for the reasons stated on the record, i.e.,
because no party fully prevailed and because a ruling from the Court was needed
from both parties. Defendant reserves the right to file motions in limine regarding
the admissibility of the photographs discussed above, as the Court is not ruling on
their admissibility here. See Fed. R. Civ. P. 26(b)(1) (“Information within this
scope of discovery need not be admissible in evidence to be discoverable.”)
IT IS SO ORDERED.
Dated: October 10, 2019

s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE

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