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Lead GHR Enterprises Inc v. American States Insurance Co.

United States District Court, N.D. Texas, Dallas Division

December 14, 2017

LEAD GHR ENTERPRISES, INC. formerly d/b/a GOLDEN HILLS RESORT, Plaintiff,
v.
AMERICAN STATES INSURANCE COMPANY, Defendant.

          MEMORANDUM OPINION AND ORDER.

         Non-Party Haag Engineering Co. (“Haag”) has filed a Motion to Quash Deposition Subpoena [Dkt. No. 1] (the “Motion to Quash”) under Federal Rule of Civil Procedure 45, seeking to quash or modify a subpoena (the “Subpoena”) issued by Plaintiff Lead GHR Enterprises, Inc. (“Lead GHR”) in connection with the case Lead GHR Enterprises, Inc., formerly d/b/a Golden Hills Resort v. American States Insurance Company, Civil Action No. 16-5026, pending in the United States District Court for the District of South Dakota, Western Division (the “South Dakota Lawsuit”). The Subpoena commands the deposition of a corporate representative of Haag under Federal Rule of Civil Procedure 30(b)(6). See Dkt. No. 1-1 at 12-17. Haag “requests the Court enter an order quashing Lead GHR's subpoena or, alternatively, modifying the subpoena to permit discovery of information relevant to the underlying dispute.” Dkt. No. 1 at 1.

         Chief Judge Barbara M. G. Lynn has referred the Motion to Quash to the undersigned United States magistrate judge for hearing, if necessary, and determination under 28 U.S.C. § 636(b). See Dkt. No. 2.

         Lead GHR filed a response, see Dkt. No. 5, and Haag filed a reply, see Dkt. No. 6.

         Background

         The Subpoena was properly issued by the United States District Court for the District of South Dakota, Western Division under Federal Rule of Civil Procedure 45(a), as the court where the South Dakota Lawsuit is pending. See Fed. R. Civ. P. 45(a)(2) (“Issuing Court. A subpoena must issue from the court where the action is pending.”).

         The Subpoena commands Haag “that pursuant to Rule 45 and Rule 30(b)(6) of the Federal Rules of Civil Procedure, Plaintiff Lead GHR Enterprises Inc., will take the deposition of Haag Engineering Co., upon oral examination before an officer authorized to administer oath on December 4, 2017 at 9:00 a.m. in the offices of STEVEN C. LAIRD, 1119 Pennsylvania Ave, Fort Worth, TX 76104, or at another time and place that is agreeable to all parties.” Dkt. No. 1-1 at 12.

         Because the Subpoena requires compliance in Fort Worth, Haag properly filed its Motion to Quash in this Court, which, as required by Rule 45(d)(3), is the court in the district where compliance with the Subpoena is required. See Fed. R. Civ. P. 45(d)(3)(A); accord CSS, Inc. v. Herrington, No. 3:17-mc-71-N-BN, 2017 WL 4750707 (N.D. Tex. Oct. 20, 2017).

         The Subpoena further advises that “[t]he topics upon which inquiry will be made are set forth in Exhibit A of this subpoena, ” which provides:

         DEFINITIONS:

         1. As used herein, the tem'. “Lead GHR” refers to Plaintiff Lead GHR Enterprises, as well as its agents, employees, representatives, principals and managers. “Lead GHR” shall also refer to any parent, subsidiary, or related corporation.

         2. As used herein the tem]. “Defendant” or “American States” shall mean Defendant American States Insurance Company, and any parent, subsidiary, or affiliate entity.

         3. As used herein, the term “You” and “Your” shall mean Haag Engineering Co. (hereinafter “Haag”).

         4. As used herein, the term “Damage(s)” shall mean the damages claimed by Plaintiff as a result of the Event, as defined herein.

         5. As used herein the term “Event” shall mean the wall collapse that occurred on October 10, 2010.

         6. As used herein, the term “Retaining Wall” shall mean the collapsed wall that is the subject of this lawsuit.

         7. As used herein, the term “Building” and/or “Hotel” shall mean the building formerly known as the Golden Hills Resort.

         8. As used herein, the term “Document” includes all information in written, recorded, graphic, or electronic form, including writings, drawings, graphs, charts, photographs, tapes, recordings, e-mails, computer records, computer, computer diaries, motion picture or videotapes.

         DEPOSITION TOPICS

1. With respect to the Retaining Wall and Building:
a. The Haag employee or employees who inspected the Retaining Wall and Building after the October 10, 2010 collapse;
b. All information communicated to Haag about Lead GHR or the Retaining Wall and Building prior to the inspection done on October 29, 2010;
c. All information communicated to Haag about Lead GHR or the Retaining Wall and Building after the inspection done on October 29, 2010;
d. All information communicated by Haag about Lead GHR or the Retaining Wall and Building at any time.
2. With respect to the Event:
a. Any measurements, notes, memoranda, reports, drafts, emails, correspondence, calculations, photographs, videos, or graphs prepared or created by Haag employees in conjunction with the inspection done on October 29, 2010.
b. Any conclusions drawn by Haag employees about the Event, and the basis for each such conclusion.
3. Haag employees, David Teasdale and Tim Strasser.
a. Any continuing education required by Haag for David Teasdale and Tim Strasser.
b. Any information related to performance reviews or promotions/reprimands for David Teasdale and Tim Strasser from 2008 to 2012.
4. The documentation retention policies and practices of Haag.
5. Your relationship with Defendant and Liberty Mutual Insurance Company (“Liberty”), and its subsidiaries, in the State of South Dakota.
a. Number of claims in which Defendant or Liberty retained Haag in South Dakota since 2009.
b. The percentage of claims in South Dakota since 2009 in which, on behalf of Defendant or Liberty, Haag issued an engineering report.
c. Your knowledge or understanding of South Dakota state licensing requirements for Engineers.
6. Your professional relationship with Defendant and Liberty generally.
a. Any workshops, training materials, speeches, or advertising provided by you directly to Defendant or Liberty from 2008 to 2011.
b. Any solicitations or discounts offered by Haag to Defendant or Liberty from 2008 to 2012.
c. Any instances, since 2008, in which a moratorium was placed on Haag from performing engineering services on behalf of Defendant or Liberty, and the circumstances surrounding such moratorium.
d. Any instances, since 2008, in which Defendant or Liberty has alleged that Haag or its employees have committed fraud, negligence, or professional malpractice.
7. Your professional relationship with other insurance carriers, such as State Farm Insurance Company and All State Insurance Company.
a. Any instances, from 2005 to 2010, in which a moratorium was placed on Haag from performing engineering services on behalf of any insurance company, and the circumstances surrounding such moratorium. b. Any instances, from 2005 to 2010, in which any insurance company which has retained Haag's professional services has alleged that Haag or its employees have committed fraud, negligence, or professional malpractice.

Dkt. No. 1-1 at 15-17. Lead GHR has since withdrawn Topics 3(b) and 4. See Dkt. No. 5 at 9-10.

         Haag explains that its Motion to Quash “relates to Lead GHR's subpoena served on Haag in connection with an insurance dispute currently pending before the United States District Court for the District of South Dakota, ” in which “Lead GHR has asserted several first-party claims against Defendant American States Insurance Company (‘American States') based on American States' alleged failure to pay full policy benefits under a property insurance policy” and “Lead GHR contends American States did not pay for all damage caused by a defective retaining wall located near a hotel it owns.” Dkt. No. 1 at 1-2 (footnote omitted). Haag further explains that

it is a forensic engineering and consulting firm which provides failure, extent of damage, and repair analysis to a wide variety of clients. While Haag consults on projects located throughout the ...

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