United States District Court, D. South Carolina, Charleston Division
C. NORTON, UNITED STATES DISTRICT JUDGE.
following matter is before the court on defendant State Farm
Mutual Automobile Insurance Company's (“State
Farm”) motion to compel. ECF No. 12. For the reasons
set forth below, the court grants State Farm's motion to
instant action arises out of an insurance dispute between
plaintiffs AOH Occupational Health LLC (“AOH”)
and Ken Jones, M.D. (“Dr. Jones, ” together with
AOH, “plaintiffs”), and State Farm. On September
28, 2012, Dr. Jones allegedly performed an unauthorized
examination on patient Gerald F. Davis (“Davis”).
Compl. ¶¶ 5-7. Davis filed suit against AOH and Dr.
Jones in the Court of Common Pleas for Charleston County,
bringing claims for assault and battery, intentional
infliction of emotional distress, vicarious liability, and
failure to supervise (the “Underlying Action”).
Underlying Compl. ¶¶ 18-32. At the time of the
alleged incident, plaintiffs held an insurance policy with
State Farm, which they believe provides coverage for defense
and indemnification in the Underlying Action. Compl.
¶¶ 6, 7. However, State Farm refused to defend or
indemnify plaintiffs in the Underlying Action. Id.
¶ 8. On May 11, 2016, plaintiffs filed the instant
action in the Court of Common Pleas for Charleston County,
bringing claims for breach of contract, bad faith refusal of
benefits, and declaratory judgment. Id. ¶¶
South Carolina Medical Malpractice Liability Insurance Joint
Underwriting Association (“JUA”) also provided
plaintiffs with liability coverage at the time of the
incident alleged in the Underlying Action. Def.'s First
Mot. 2-3. JUA initially provided plaintiffs with a defense in
the Underlying Action, but later withdrew coverage after the
state court ruled that the claims sounded in assault and
battery, not medical malpractice. Id.
to this action, State Farm served a subpoena against JUA
seeking production of: (1) the plaintiffs' policy with
JUA, (2) correspondence between JUA and either plaintiffs or
plaintiffs' attorney in the Underlying Action, John
Blincow (“Blincow”), (3) all notes or documents
in JUA's claim file concerning JUA's liability
coverage in the Underlying Action, and (4) all bills for
attorney's fees and other records of payment associated
with the Underlying Action. Def.'s Mot. Ex. A, Subpoena.
JUA's counsel responded with a letter outlining JUA's
objections to the subpoena. Def.'s Mot. Ex. B, Objections
to Subpoena. JUA did not produce any documents or provide any
privilege log in its response.
Farm filed a motion to compel on November 4, 2016, seeking to
compel JUA's compliance with the subpoena. ECF No. 12.
JUA responded to this motion on November 21, 2016, ECF No.
14, and State Farm filed a reply on November 23, 2016. ECF
No. 17. The motion is now ripe for the court's review.
Federal Rules of Civil Procedure provide that a party
“may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense
and proportional to the needs of the case.”
Fed.R.Civ.P. 26(b)(1). “Information within this scope
of discovery need not be admissible in evidence to be
discoverable.” Id. “The court may, for
good cause, issue an order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or
expense.” Fed.R.Civ.P. 26(c)(1). “The scope and
conduct of discovery are within the sound discretion of the
district court.” Columbus-Am. Discovery Grp. v.
Atl. Mut. Ins. Co., 56 F.3d 556, 568 n.16 (4th Cir.
1995) (citing Erdmann v. Preferred Research, Inc. of
Ga., 852 F.2d 788, 792 (4th Cir. 1988)).
Federal Rule of Civil Procedure 45, a party may serve a
subpoena for the production of discoverable material on a
nonparty to the litigation, and the nonparty may contest the
subpoena in turn. The scope of discovery for subpoena duces
tecum issued pursuant to Rule 45 is the same as the scope of
a discovery under Rule 26. Castle v. Jallah, 142
F.R.D. 618, 620 (E.D. Va. 1992). “[T]he burden of proof
is with the party objecting to the discovery to establish
that the challenged production should not be
permitted.” HDSherer LLC v. Nat. Molecular Testing
Corp., 292 F.R.D. 305, 308 (D.S.C. 2013). A nonparty who
seeks to withhold subpoenaed information on the basis of any
privilege must (1) expressly assert the claimed privileged
and (2) describe the nature of the withheld information
“in a manner that, without revealing information itself
privileged or protected, will enable the parties to assess
the claim.” Fed.R.Civ.P. 45(e)(2)(A).
Farm moves to compel JUA's compliance with the subpoena
for information regarding JUA's coverage obligations in
the Underlying Action. JUA objects to State Farms requests on
the grounds that (1) the information sought is irrelevant,
and (2) any correspondence between JUA and Blincow, or
billing records with respect to Blincow's representation
of the AOH and Dr. Jones in ...