United States District Court, W.D. Washington, Seattle
ORDER DENYING DEFENDANT'S MOTION TO QUASH TRIAL SUBPOENA
JOHN C. COUGHENOUR, District Judge.
This matter comes before the Court on Defendant Allstate Insurance Company's Motion to Quash the Trial Subpoena to Rick Wathen (Dkt. No. 98), Plaintiff's response (Dkt. No. 100), and Allstate's reply (Dkt. No. 102).
Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby DENIES the motion for the reasons explained herein.
This case arises out of Plaintiff Shelmina Babai's claim to Defendant Allstate Insurance Company (Allstate) after discovering water damage in her home. (Dkt. No. 1, Ex. A.) After an initial investigation, Allstate denied Plaintiff's claim on February 1, 2012. (Dkt. No. 1, Ex. A at 3.) Subsequently, Plaintiff retained Mr. Donovan as counsel, and on June 12, 2012, sent Allstate a letter challenging the denial of coverage. (Id. at 4; Dkt. No. 27-3, Ex. B at 8.) Allstate similarly retained counsel, including Rick Wathen, after the denial of coverage. (Dkt. No. 102 at 2.)
Several email and letter correspondences between Mr. Wathen and Mr. Donovan during the period of June 20, 2012 to August 1, 2012 demonstrate the reopening of the investigation and reconsideration of Plaintiff's claim after the initial denial of coverage and are relevant to the issue before the Court. In an email on June 20, Mr. Wathen coordinated the inspection of Plaintiff's property by an engineer. (Dkt. No. 101, Ex. 3 at 2-3.) Mr. Wathen inquired into the cause of the loss to Plaintiff's property on June 22 (Dkt. No. 101, Ex. 3 at 2) and July 19 (Dkt. 101, Ex. 4), and whether Plaintiff had completed repairs to the property on June 26. (Dkt. No. 101, Ex. 3 at 1). In a letter on August 1, Mr. Wathen sent a copy of the insurance policy, a copy of a Washington State Supreme Court case, and further inquired into the cause of the loss and Plaintiff's theory of coverage so that "[p]rior to making Allstate's final coverage determination.... Allstate [could] investigate and respond accordingly." (Dkt. No 101, Ex. 6.) Mr. Donovan responded to Mr. Wathen's inquiries by email on June 20 and 26 (Dkt. No. 101, Ex. 3), and by letter on July 20 (Dkt. No. 202, Ex. 5) and August 31 (Dkt. No. 101, Ex. 7).
The case was originally set to go to trial on May 5, 2014. (Dkt. No. 49.) The Court vacated that trial date in light of a request for additional briefing. (Dkt. No. 78.) On October 8, 2014, the Court granted summary judgment for Plaintiff on two issues. (Dkt. No. 91.) Jury trial is now set for May 4, 2015 to address the remaining issues. (Dkt. No. 93.)
On February 17, 2015, Plaintiff served a subpoena on Mr. Wathen, requiring that he testify at trial. (Dkt. No. 99, Ex. A.) Allstate now moves to quash the subpoena. (Dkt. No. 98.) Allstate previously submitted these arguments as a motion in limine on April 7, 2014 (Dkt. No. 66), which the Court terminated in light of the Court's order vacating the May 5, 2014 trial date. (Dkt. Nos. 78; 84.)
A. Standard for Quashing Subpoenas Under Fed.R.Civ.P. 45(d)(3)(A)
The Court must quash or modify a subpoena that, inter alia, "requires disclosure of privileged or other protected matter, if no exception or waiver applies" or "subjects a person to undue burden." Fed.R.Civ.P. 45(d)(3)(A)(iii), (iv).
Allstate presents several arguments for quashing the trial subpoena to Mr. Wathen. First, Allstate argues that the subpoena would require Mr. Wathen to testify regarding information protected by the work product doctrine and the attorney-client privilege. Second, Allstate argues that the disqualification of Mr. Wathen as counsel would constitute an undue burden. Lastly, Allstate argues that the correspondence between Mr. Wathen and Mr. Donovan is not relevant to Plaintiff's bad faith and extra-contractual claims. In addition, Allstate asserts that if the Court requires Mr. Wathen to testify, it must also allow Allstate to call Mr. Donovan as a witness because the relevant correspondence occurred between the two individuals.
B. Disclosure of Privileged or Other Protected Matter under Rule 45(3)(A)(iii)
Allstate attempts to invoke the protection of the work product doctrine and attorney client privilege to protect Mr. Wathen's testimony on the basis that his work on Plaintiff's claim occurred after the February 1, 2012 denial of coverage and after Plaintiff retained ...