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McDonnel Group, LLC v. Starr Surplus Lines Insurance Co.

United States District Court, E.D. Louisiana

April 4, 2019

MCDONNEL GROUP, LLC
v.
STARR SURPLUS LINES INSURANCE COMPANY, ET AL.

         SECTION: “H” (2)

          ORDER AND REASONS

          JANE TRICHE MILAZZO UNITED STATES DISTRICT JUDGE

         Before the Court is Defendants’ Motion (Doc. 101) appealing (1) a November 28, 2018 Order by Magistrate Judge Wilkinson that denied Defendants’ motion to enforce a subpoena duces tecum and (2) a January 2, 2019 Order by Judge Wilkinson that denied Defendants’ motion for reconsideration of the Court’s refusal to enforce the subpoena duces tecum. For the following reasons, the Motion is DENIED.

         BACKGROUND

         This insurance coverage dispute arises out of construction delays caused by water damage during the restoration of the Jung Hotel in downtown New Orleans. In 2014, Intervenor Plaintiff Jung, L.L.C. (“Jung”) hired Plaintiff McDonnel Group, L.L.C. (“McDonnel”) to oversee the renovation of the Jung Hotel. The agreement between Jung and McDonnel required McDonnel to purchase builder’s risk insurance policies on the renovation project. Pursuant to that agreement, McDonnel obtained insurance policies with Defendants Starr Surplus Lines Insurance Company (“Starr”) and Lexington Insurance Company (“Lexington”). Each policy covered 50% of the renovation project, and together the two policies insured the project in its entirety.

         McDonnel alleges that it incurred costs during the hotel renovation covered by its insurance policies with Defendants for which Defendants have refused to fully reimburse McDonnel. Intervenor Jung argues that it qualifies as an additional insured under McDonnel’s policies with Defendants and that Defendants also must reimburse Jung delay-related losses it suffered during the renovation.

         The parties in this suit have been engaged in discovery for months, and the process has been contentious. The discovery dispute at issue here involves a subpoena duces tecum served by Defendants on J. Caldarera & Co., Inc. on June 11, 2018.[1] J. Caldarera & Co. employs Joe Caldarera, an insurance claims consultant hired by Plaintiff McDonnel. The subpoena requested that Caldarera produce numerous records that he had created or relied on during his consultations with McDonnel regarding the hotel renovation project.[2]

         On November 9, 2018, Defendants filed a motion to enforce the subpoena.[3] Defendants argued that Caldarera had produced some, but not all, of the records requested in the subpoena; that he had waived any objection to the subpoena; and that they were entitled to an order from the Court enforcing the subpoena. McDonnel opposed the motion, which was referred to Magistrate Judge Wilkinson.

         On November 28, 2018, Judge Wilkinson denied Defendants’ motion to enforce the subpoena.[4] Judge Wilkinson’s Order read, in relevant part:

The subject subpoena was served on plaintiff’s expert witness. The subpoena is overly broad in that it includes materials that are protected from discovery or disclosure by Fed. R. Civ. P. 26(b)(4)(A)-(C). In addition, when considered against the backdrop of the required disclosures the expert must make pursuant to Fed. R. Civ. P. 26(a)(2), the opportunity to depose testifying experts pursuant to Fed. R. Civ. P. 26(b)(4)(A), and the other expert materials that have already been produced through defendants’ discovery requests sent directly to plaintiff, several of which are virtually identical to the subject requests delivered to plaintiff’s expert, including those addressed above, I find that the additional discovery sought through this motion is unreasonably cumulative and duplicative and that defendants have had and will have through expert deposition ample opportunity through other discovery in the case to obtain this information. Fed. R. Civ. P. 26(b)(C)(i) and (ii).

         Defendants on December 12, 2018, filed a motion for reconsideration of the order that denied Defendants’ request to enforce the subpoena.[5] On January 2, 2019, Judge Wilkinson denied the Motion for Reconsideration. Defendants now appeal both Judge Wilkinson’s initial denial of Defendants’ request to enforce the subpoena duces tecum and Judge Wilkinson’s denial of Defendants’ request for reconsideration. Plaintiff opposes this appeal.

         LEGAL STANDARD

         With the consent of the presiding district judge, a magistrate judge may adjudicate non-dispositive pre-trial motions.[6] A magistrate judge is afforded broad discretion in resolving such motions.[7] A party aggrieved by the magistrate judge’s ruling may appeal to the district judge within fourteen days after service of the ruling.[8] A district judge may modify or set aside any part of the magistrate judge’s order that is “clearly erroneous or is contrary to law.”[9]“An order is clearly erroneous if the court ‘is left with the definite and firm conviction that a mistake has been committed.’”[10] An order is “‘contrary to law’ only if it fails to apply or misapplies relevant statutes, case law, or rules of procedure.”[11]

         LAW ...


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