Allstate Insurance Company v. Papanek

Filing 164

ORDER GRANTING DEFENDANTS MOTION TO QUASH (DOC. 147). Signed by Magistrate Judge Michael J. Newman on 3/16/2018. (dm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
ALLSTATE INSURANCE COMPANY,
Plaintiff,

Case No. 3:15-cv-240

vs.
MELISSA PAPANEK, et al.,

Magistrate Judge Michael J. Newman
(Consent Case)

Defendants.
______________________________________________________________________________
ORDER GRANTING DEFENDANTS’ MOTION TO QUASH (DOC. 147)
______________________________________________________________________________
This civil case is before the Court on the motion to quash filed by Defendants and
counterclaimants Melissa Papanek (“Papanek”) and The Phoenix Insurance & Financial Group,
LLC (“Phoenix”) (hereinafter referred to collectively as “Defendants”). Doc. 147. Plaintiff
Allstate Insurance Company filed a memorandum in opposition and, thereafter, Defendants filed
a reply. Docs. 150, 162. Prior to the filing of Defendants’ motion to quash, the Court heard
argument by counsel during an informal discovery dispute conference on March 5, 2018. 1 The
Court has carefully considered all of the foregoing, and Defendants’ motion is now ripe.
This case, originally filed on July 6, 2015, see doc. 1, arises from a former business
relationship between Plaintiff and a former Allstate Exclusive Insurance Agency operated by
Defendant Melissa Papanek. See generally doc. 22. From October 2008 until October 2014,
Melissa Papanek operated the Papanek Agency as an Allstate Exclusive Agency under an
exclusive agency agreement with Allstate. Id. at PageID 253-54. Michael Papanek -- Melissa
Papanek’s father -- worked for the Papanek Agency. Id. To work at the Papanek Agency,

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The Court will address the other discovery issues presented by the parties during that conference
by separate Order. The other issues concern discovery requested well in advance of the discovery
deadline.

Michael Papanek was required to -- and did -- sign a confidentiality and non-compete agreement
with Allstate. Id.
Plaintiff alleges that, on September 1, 2014, it made the business decision to terminate
the exclusive agency agreement with Melissa Papanek and her agency effective, ultimately, on
October 31, 2014.2 Id. at PageID 261. Plaintiff alleges, inter alia, that upon termination of
Melissa Papanek’s agency relationship with Plaintiff on October 31, 2014, the Papaneks began a
new business named Phoenix and have used Plaintiff’s confidential information to improperly
solicit customers to purchase competing insurance products from Phoenix -- actions that
allegedly violate Defendants’ agreement(s) with Plaintiff. Doc. 22 at PageID 261. Defendants
assert counterclaims against Plaintiff alleging, inter alia, that Plaintiff impeded Melissa
Papanek’s efforts to sell her book of business, and improperly ceased making required payments
to her. Doc. 33 at PageID 410.
Now before the Court is Defendants’ motion to quash a subpoena issued to R.L. Emmons
& Associates (“Emmons”), an entity Defendants employed as an investigator to investigate
issues in this litigation. See doc. 147-1 at PageID 2963. That subpoena was issued by Plaintiff’s
attorney on February 21, 2018, and the subpoena directs the production of document by Emmons
on March 20, 2018 in Columbus, Ohio. Id. Defendants argue that the information sought by
Plaintiff is not discoverable because it is protected by the work product privilege. Doc. 147.
Plaintiff -- now aware of the fact that Emmons was an investigator employed by Defendants -concedes that certain information sought by the subpoena is subject to work product protection
and withdraws its requests for certain information. See doc. 150 at PageID 2980. However,
Plaintiff continues to seek production of the following pursuant to the subpoena:

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The notice originally provided by Allstate provided that the agreement would terminate on
December 1, 2014. Doc. 22 at PageID 261. Allstate later decided to move the termination date up to
October 31. Id.
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All documents, pictures, surveillance, recordings, statements, or the like
collected by Emmons;
All documents or communications exchanged with any Allstate Exclusive
Agents (current or former);
All documents or communications exchanged with any Allstateemployees (current or former);
All documents or communications exchanged with any Allstate
customer(s); and
All documents or communications exchanged with any other persons
interviewed or contacted by Emmons.
Id. at PageID 2982.
The Court finds that the subpoena must be quashed for reasons other than those advanced
by Defendants.3 Notably, the discovery deadline in this case expired on February 28, 2018. See
doc. 131 at PageID 2847. While Plaintiff issued the subpoena prior to the expiration of that
deadline, the production requested would otherwise occur weeks after the expiration of such
deadline. Doc. 147-1 at PageID 2963. As specifically stated by General Order No. Day 12-01,
the discovery deadline “requires completion of requested discovery, not its initiation.”4
Accordingly, discovery requests “must be served sufficiently in advance of the discovery cut-off
that the responding party will have the full amount of time to respond” prior to the expiration of
discovery. Id. In addition, the Court’s General Order states that “[p]arties who undertake to
extend discovery beyond the cut-off date do so at the risk the Court may not permit its
completion prior to trial” and, in fact, “[t]here will be no supervision or intervention by the Court
. . . after the discovery cut-off date, without a showing of extreme circumstances.” Id.

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In its memorandum in opposition, Plaintiff argues that it is entitled to depose Dick Emmons, a
private investigator with the Emmons firm. Doc. 150 at PageID 2982-83. To the extent Plaintiff has
subpoenaed Emmons for deposition, such subpoena shall also be QUASHED.
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In addition to the Court’s General Order, the parties in this case were specifically advised of the
prohibition of conducting discovery after the discovery deadline by Orders issued in this case. See doc.
16 at PageID 125; doc. 90 at PageID 839.
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“[A] subpoena issued pursuant to Fed. R. Civ. P. 45 is considered to be a discovery
device in the Sixth Circuit, and accordingly, must adhere to the deadlines of a court’s scheduling
order.” Miami Valley Fair Hous. Ctr., Inc. v. Connor Grp., No. 3:10CV00083, 2011 WL
13157347, at *3 (S.D. Ohio July 21, 2011). Courts act within their sound discretion in quashing
a subpoena where the discovery sought would not be produced until after expiration of the
discovery deadline. Cf. Thomas v. City of Cleveland, 57 F. App’x 652, 654 (6th Cir. 2003);
Buhrmaster v. Overnite Transp. Co., 61 F.3d 461, 464 (6th Cir. 1995); Fields v. Runyon, No. 953987, 1996 WL 599820, at *2 (6th Cir. Oct. 17, 1996).
Based on the foregoing, an in the absence of extreme circumstances presented by
Plaintiff, the undersigned GRANTS Defendants’ motion to quash. If appropriate, the Court will
entertain from Defendants a motion for payment of expenses under Fed. R. Civ. P. 37(a)(5) if
made within 14 days from the entry of this Order.
IT IS SO ORDERED.

Date:

March 16, 2018

s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge

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