Albert D. Seeno Construction Company v. Aspen Insurance UK Limited

Opinion

1 2 3 6 7 ALBERT D. SEENO CONSTRUCTION Case No. 17-cv-03765-SI COMPANY, et al., 8 Plaintiffs, ORDER RE: DISCOVERY 9 v. Re: Dkt. No. 98 10 ASPEN INSURANCE UK LIMITED, 11 Defendant. 12 13 The parties dispute whether plaintiffs may take the deposition of Greg Schopf. Mr. Schopf 14 is an attorney who sent several letters on behalf of Aspen regarding two construction defect claims 15 that were tendered under plaintiffs’ policies. Plaintiffs assert that Mr. Schopf was acting as a claims 16 examiner when he sent the letters to plaintiffs’ insurance broker because Mr. Schopf investigated 17 coverage issues and announced Aspen’s position. Plaintiffs contend that the positions Mr. Schopf 18 took in the letters were unreasonable, and they wish to question Mr. Schopf about the basis for 19 various statements that he made in the letters. 20 Aspen describes Mr. Schopf as its coverage counsel, and contends that his communications 21 with Aspen are protected under the attorney-client privilege. Aspen does not contend that the facts 22 contained in Mr. Schopf’s letters to plaintiffs’ broker are confidential. Rather, Aspen asserts that 23 Mr. Schopf’s deposition is unnecessary because plaintiffs took the deposition of Aspen’s corporate 24 designee regarding Mr. Schopf’s role and the claims handling of the two construction defect matters. 25 Aspen also contends that plaintiffs can argue that the statements in Mr. Schopf’s letters were 26 unreasonable without taking his deposition. 27 The Court concludes that plaintiffs are entitled to take a limited deposition of Mr. Schopf 1 the underlying facts reflected in Mr. Schopf’s letters to plaintiffs’ broker. See In re Subpoena of 2 Curran, No. 3:04-MC-039-M, 2004 WL 2099870, at *6 (N.D. Tex. Sept. 20, 2004) (holding 3 insurance coverage counsel’s letters to plaintiff setting forth partial acceptance and partial rejection 4 of claim were not protected by attorney-client privilege). The Court is mindful that depositions of 5 counsel are disfavored and will not be permitted when the information is available from other 6 sources “less intrusive into the adversarial process.” Jd. at *8. Here, plaintiffs assert that when they 7 questioned Aspen’s Rule 30(b)(6) deponent about Mr. Schopf’s role in claims handling, the 8 corporate designee “would not even agree that Schopf had stated a position in either email, 9 contending he was only asking questions,” and that the witness testified that Aspen had not spoken 10 with Schopf to prepare for deposition. Dkt. No. 98 at 2.! Accordingly, the Court will permit 11 plaintiffs to take a deposition that is focused on the facts underlying Mr. Schopf’s letters to plaintiffs’ 12 broker. However, plaintiffs may not question Mr. Schopf about any attorney-client communications

& 13 || between Mr. Schopf and Aspen.”

= 17 Dated: November 8, 2019 SUSAN ILLSTON Z 18 United States District Judge 19 20 21 22 23 24 25 ' The parties did not provide the Court with any excerpts from the corporate designee’s 26 deposition, nor did Aspen submit a declaration from Mr. Schopf describing the nature of his work for Aspen. 27 > Aspen states in the parties’ joint letter that if plaintiffs depose Mr. Schopf, Aspen would 2g || be permitted to depose plaintiffs’ counsel. Among other issues, the deadline for fact discovery has closed and it does not appear that Aspen noticed any such deposition prior to the deadline.