Opinion
Civil Action No. 91-5436 (DRD).
October 24, 2000
Raymond S. Mastrangelo, Esq., McELROY, DEUTSCH MULVANEY, Morristown, NJ, Attorney for Third-Party Defendant, North River Insurance Co.
Thomas E. Redburn, Jr., Esq., LOWENSTEIN SANDLER PC, Roseland, NJ, Attorney for Third-Party Plaintiff, Cosan Chemical Corporation.
OPINION
This matter is before the court on third-party defendant North River Insurance Co.'s ("North River") motion under Federal Rule of Civil Procedure 45(c)(3)(A)(iv) to quash a subpoena duces tecum served upon North River by third-party plaintiff Cosan Chemical Corporation ("Cosan"). For the reasons set forth hereinafter, North River's motion to quash is denied, and North River, according to the terms of the Order implementing this Opinion, is ordered to produce and permit the inspection and copying of those documents the production, inspection, and copying of which Cosan commanded in its subpoena duces tecum.
BACKGROUND
The factual and procedural background of this insurance-coverage dispute has been recited in prior opinions, including the Opinion filed with the Clerk of the Court on August 26, 1999 denying North River's motion for summary judgment against Cosan. See Opinion, filed 8/26/99, at 2-5, Exhibit F to Certification of Thomas E. Redburn, Jr. in Opposition to Motion To Quash Subpoena Duces Tecum ("Redburn Certification"), filed 10/13/00. Accordingly, only those facts and details of procedural history necessary to disposition of North River's instant motion to quash will be recited herein.
This is an insurance-coverage dispute in which Cosan seeks defense and indemnity from North River for costs Cosan incurred in the investigation and remediation of environmental contamination at Cosan's former facility and adjoining properties in Clifton, New Jersey. Cosan alleges that North River issued an insurance policy, ML-178602, to Cosan that provided comprehensive general liability coverage and umbrella liability coverage from June 6, 1975 through July 6, 1978 ("the coverage period"). However, while Cosan has discovered secondary evidence of the policy's existence, neither party so far has been able to locate a copy of the actual policy itself.
On June 20, 1997, Magistrate Judge Chesler issued the first of a series of case management orders in this case ("CMO I"), in which he ordered "that prior to July 10, 1997, the carriers [North River] produce any policies in existence and secondary evidence of policies including underwriting and claims files for any insurance policies issued to Cosan Chemical Corporation. CMO I, entered on the docket 6/20/97, para. 5, at 2, Ex. B to Redburn Certification. On September 19, 1997, Magistrate Judge Chesler issued the second case management order in this case ("CMO II"), in which he ordered "that carriers [North River] that ha[d] not already done so, pursuant to CMO I, produce any policies in existence and secondary evidence of policies, including underwriting and claims files in their possession for any insurance policies issued to Cosan Chemical Corporation," and further ordered "that discovery related to missing policies be completed for motion practice before the next status conference." CMO II, entered on the docket 9/22/97, paras. 4, 5, at 2.
On October 15, 1997, Cosan served upon North River its first request for production of documents directed to missing insurance policies, wherein it requested, inter alia, "[e]ach document that you [North River] used, generated, or reviewed in the course of underwriting any liability insurance policies sold to Cosan." Cosan's First Set of Interrogatories and Document Demands on Missing Policies, 10/15/97, request no. 4, at 19, Ex. B. to Redburn Certification.
Before it received North River's responses to its request for production of documents, Cosan discovered in its business records part of a so-called "commercial package" or "COMPAC" standard insurance policy used by the Crum Forster Insurance Companies, one of which companies was North River. This fragment comprised a cover page and four pages of conditions and definitions. COMPAC policy fragment, contained in Ex. B. to Certification of Raymond S. Mastrangelo in Support of Motion To Quash ("Mastrangelo Certification"), filed 9/21/00.
Armed with the COMPAC policy fragment, Cosan took the depositions of Roger Prickett, North River's designated witness, and Roger Quigley, North River's corporate designee regarding the existence of the alleged policy and underwriting procedures. When asked about the COMPAC policy fragment, Mr. Prickett opined that the policy was used by Crum Forster "in connection with primary insurance policies," but could confirm neither that the policy had been used during the coverage period nor that the policy had ever been used in New Jersey. Deposition of Roger L. Prickett, 10/9/98, at 39, Ex.C to Mastrangelo Certification. He noted that the policy fragment was not a complete insurance policy, as it was missing, inter alia, a declarations page, a conditions provision, and endorsements to the policy. Prickett Dep. at 40.
Mr. Quigley testified that the COMPAC policy fragment was part of a "multi-peril policy" that had been used by North River in preparing insurance policies providing primary liability coverage (as opposed to excess or "umbrella" liability coverage). Deposition of Roger A. Quigley, 12/18/98, at 12, Ex. E to Redburn Certification. He further testified that the policy fragment was missing "coverage parts," "grants of coverage," exclusions, and insuring agreements. Quigley Dep. at 12. Finally, he testified that North River would have used the full insurance form evidenced by the policy fragment in preparing insurance policies bearing the "ML" or "multi-peril" prefix during the coverage period — the very type of policy by which Cosan alleges it was covered. Id. at 10, 13; see supra p. 2.
By virtue of Magistrate Judge Pisano's case management order ("CMO V"), entered on the docket of this Court on September 2, 1998, discovery in this action was closed on October 15, 1998.
On September 6, 2000, Cosan served upon North River a subpoena duces tecum in which it commanded North River to produce, for inspection and copying and for use as evidence at trial, true copies of all documents in North River's possession, custody, or control that discuss, refer to, relate to, or otherwise constitute the following:
1. Any specimen of a COMPAC multiperil policy form providing comprehensive general liability coverage issued between 1975 and 1978;
2. Any specimen of an umbrella liability form issued between 1975 and 1978, which was issued as part of a COMPAC multiperil policy form; and,
3. Any specimen of an umbrella liability form issued betwen 1975 and 1978, which was not issued as part of a COMPAC multiperil policy form.
Cosan's Subpoena Duces Tecum, served on North River on 9/6/00, Schedule A, at 5, Ex. G to Redburn Certification. The subpoena commanded North River to produce these documents to this Court by 9:00 a.m. on September 19, 2000. Subpoena at 2.
On September 21, 2000, two days after the time for compliance with the command of the subpoena had come and gone, North River filed a notice of motion to quash the subpoena.
This Court has adjourned trial of this action to December 7, 2000.
DISCUSSION
North River moves to quash Cosan's subpoena duces tecum, under Federal Rule of Civil Procedure 45(c)(3)(A)(iv), on the grounds that it is unduly burdensome. North River also moves to quash the subpoena on the grounds that it is untimely, as it was served upon North River after discovery closed on October 15, 1998. North River's arguments are unavailing.
Cosan's Subpoena Does Not Unduly Burden North River
North River bears the burdens of production and persuasion on its motion to quash. E.g. Leanders v. Yassai ( In re Yassai), 225 B.R. 478, 483-84 (Bankr. C.D. Cal. 1998) (citing FED. R. CIV. P. 45(c)(3)(A)(iv) and collecting cases); see United States v. Int'l Bus. Machs. Corp., 83 F.R.D. 97, 104 (S.D.N.Y. 1979) (denying motion to quash under equivalent "unreasonable and oppressive" standard of former FED. R. CIV. P. 45(b)). The burden is a heavy one; North River must establish that compliance with the command of the subpoena would be unreasonable and oppressive. In re Yassai, 225 B.R. at 484. This North River has not done.North River has presented no real evidence that compliance with the command of the subpoena would subject it to unreasonable and oppressive cost, labor, or inconvenience. Indeed, the subpoena's command for production, inspection, and copying of three categories of specimen policies is suitably specific and narrowly tailored to Cosan's evidentiary needs. There is little question that the specimen policies are potentially relevant to proving that Cosan was in fact covered by an insurance policy issued to North River. The COMPAC policy fragment is, according to the uncontroverted deposition testimony of Messrs. Prickett and Quigley, see supra p. 4, incomplete; the specimen policies Cosan seeks would flesh out the full terms of the multi-peril and umbrella insurance policies North River was writing during the coverage period. Finally, North River is under a continuing, affirmative obligation, imposed upon it by outstanding orders of this court, to produce these specimen policies for inspection and copying.
North River's Motion To Quash Was Untimely Filed and Therefore Is Denied
Federal Rule of Civil Procedure 45(c)(3)(A)(iv) provides that "[o]n timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it subjects a person to undue burden." FED. R. CIV. P. 45(c)(3)(A)(iv) (1991). Though, surprisingly, there is a dearth of caselaw construing the timely-motion requirement of Rule 45(c)(3)(A) in se (and not vis-à-vis Rule 45(c)(2)(B)), at least two courts have recognized that the timely-motion standard, made applicable to motions to quash for the first time by the 1991 amendments creating Rule 45(c)(3)(A), preserves and perpetuates the pre-1991 requirement of former Rule 45(b) that a motion to quash be made "promptly and in any event at or before the time specified in the subpoena for compliance therewith." Nova Biomedical Corp. v. i-Stat Corp., 182 F.R.D. 419, 422 (S.D.N.Y. 1998); In re Ecam Publ'ns, Inc., 131 B.R. 556, 558 n. 1, 559 (Bankr. S.D.N.Y. 1991) ( dictum; construing language of then-proposed 1991 amendment creating Rule 45(c)(3)(A) before amendment took effect). North River filed its motion to quash on September 21, 2000, two days after September 19, 2000, the date on which North River was commanded by Cosan to produce for inspection and copying the specimen policies categorized in the subpoena. North River's motion to quash is untimely and therefore is denied.North River argues that Cosan's subpoena itself was untimely, as it was served upon North River after discovery had closed. This argument is unavailing in this case because North River is under a continuing, affirmative obligation to produce the specimen policies sought in the subpoena by the terms of Cosan's first request for production of documents, see supra p. 3, and, even more specifically, by the terms of CMO I and II, see supra p. 3, which case management orders have never been modified by subsequent orders and are still controlling. FED. R. CIV. P. 16(e) (as amended 1993). Cosan's subpoena, while perhaps supererogatory, was properly served upon North River and should not be quashed.