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Zoological Society of Buffalo, Inc. v. Carvedrock, LLC

United States District Court, Second Circuit

October 15, 2013

ZOOLOGICAL SOCIETY OF BUFFALO, INC., Plaintiff,
v.
CARVEDROCK, LLC and BURLINGTON INSURANCE COMPANY, Defendants.

DECISION AND ORDER

H. KENNETH SCHROEDER, Jr., Magistrate Judge.

This case was referred to the undersigned by the Hon. Richard J. Arcara, in accordance with 28 U.S.C. ยง 636(b), for all pretrial matters and to hear and report upon dispositive motions. Dkt. #29.

Currently before the Court is nonparty Travelers Indemnity Company's ("Travelers'"), motion for a protective order and to quash a subpoena served upon it by defendant Burlington Insurance Company ("Burlington"), as well as a request for costs and attorneys' fees (Dkt. #62), and Burlington's motion to compel compliance with the subpoena and for costs and attorneys' fees. Dkt. #68. For the reasons set forth below, the motion to compel is denied, the protective order is granted, the subpoena is quashed and attorneys' fees are awarded to Travelers.

BACKGROUND

As set forth in the complaint in the underlying state action, Oldread v. Carved Rock, LLC and Buffalo Zoological Society of Buffalo, Inc., Index No. 2009-4772 (N.Y. Sup.Ct., Erie Cty), David Oldread was injured while working as a laborer on the construction of the South American Rainforest exhibit at the Zoological Society of Buffalo, Inc. ("Buffalo Zoo"), on April 16, 2008. Carvedrock, LLC ("Carvedrock"), is a specialty concrete company incorporated in the State of Washington, which was working on the project under a subcontract with the general contractor, Manning Squires Henning ("MSH").

Travelers, as the insurer of the Buffalo Zoo and MSH, tendered the defense and indemnification of Mr. Oldread's personal injury action to Carvedrock's insurance carrier, Burlington, on the ground that the contract between MSH and Carvedrock required Carvedrock to name MSH and the Buffalo Zoo as additional insureds. Dkt. #1, p.89. Burlington disclaimed coverage. Dkt. #1, p.93. As a result, the Buffalo Zoo commenced this action seeking a declaration of rights under the Burlington policy. Dkt. #1.

On January 29, 2013, Burlington issued a subpoena to Travelers requesting documents and seeking deposition testimony regarding the following topics:

1. insurance policies issued by Burlington to Carvedrock;
2. insurance policies issued by Travelers to the Buffalo Zoo;
3. documents and communications between or among Travelers, the Buffalo Zoo and Carved Rock pertaining to the Oldread litigation;
4. documents and communications between or among Carved Rock, MSH and the Buffalo Zoo pertaining to the scope of work to be performed for the Buffalo Zoo;
5. documents and communications between or among Carved Rock, Burlington, the Buffalo Zoo, Travelers and/or MSH pertaining to the Oldread litigation, including insurance coverage;
6. documents and communications between or among Travelers and other persons or entities regarding the Oldread ...

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