United States District Court, W.D. New York
DECISION AND ORDER
KENNETH SCHROEDER, JR. United States Magistrate Judge.
matter was referred to the undersigned by the Hon. Richard J.
Arcara, in accordance with 28 U.S.C. § 636(b), for all
pretrial matters and to hear and report upon dispositive
motions. Dkt. #5.
before the Court is defendant's motion to compel. Dkt.
#33. For the following reasons, the motion is denied.
Sidell was injured during the course of his employment at a
construction site at 2155 Eggert Road in Amherst, New York on
August 30, 2007. Dkt. #33-1, ¶ 3. Selective Insurance
Company of America's (“Selective”), insured
Kainos Partners, LLC, pursuant to a commercial insurance
policy in effect on August 30, 2007. Dkt. #33-1, ¶ 5.
28, 2010, Mr. Sidell and his wife commenced suit in New York
State Supreme Court, County of Erie, pursuant to New York
State Labor Law, seeking damages for personal injury and loss
of consortium against, inter alia, Kainos Partners,
LLC and Kainos Eggert Road, LLC (“Kainos”). Dkt.
#33-1, ¶ 4.
internal claims notes indicate that on August 25, 2010,
Selective became aware of contact information for Pat
Cosentino, who previously worked for Kainos. Dkt. #38. The
claims notes indicate that a representative from Selective
called and spoke with Pat. He confirmed that all of the
Kainos entities have gone bankrupt and the partners have
dispersed. He will attempt to reach out to some people to try
and identify a better contact as he is not able to help me
with regard to this property.
letter dated August 30, 2010, Selective denied coverage to
Kainos because, inter alia, the location where Mr.
Sidell was injured was not listed as a covered location on
the policy and because Selective had not received timely
notice of the incident. Dkt. #33-1, ¶ 6.
obtained a default judgment against Kainos in New York State
Supreme Court, County of Erie and commenced this declaratory
judgment action against Selective, claiming that the
disclaimer of coverage was improper. Dkt. #33-1, ¶¶
9 & 10.
October 27, 2016, one day before the deadline for completion
of discovery set forth in this Court's Amended Case
Management Order, Selective served plaintiffs with a Third
Notice to Produce seeking copies of any and all statements of
Kainos. Dkt. #33-4. By letter dated November 21, 2016,
Selective reminded plaintiffs that their response to the
Third Notice to Produce was outstanding. Dkt. #33-1, ¶
20. On December 21, 2016, Selective sent another letter
requesting a response to the Third Notice to Produce as well
as any correspondence between plaintiff's counsel and any
of the underlying defendants or their carriers which may have
been sent prior to commencement of the underlying litigation.
letter dated December 22, 2016, plaintiffs responded that the
only communications between plaintiffs' counsel and a
defendant or its insurer prior to commencement of the
personal injury action were two disclaimer letters issued by
Selective. Dkt. #33-6, p.3. Plaintiffs further responded that
the Third Notice to Produce was untimely and objected to the
disclosure of any statements of Kainos on the grounds that
“any such statement[s] constitute attorney work product
and/or materials prepared exclusively and solely in
anticipation of litigation.” Dkt. #33-6. Selective
filed this motion to compel disclosure of any such
statements, and an opportunity to depose the individual(s)
providing such statements, on December 28, 2016. Dkt. #33.
December 29, 2016, plaintiffs disclosed an affidavit from
Patrick Cosentino dated October 11, 2016. Dkt. #37. Mr.
Cosentino affirms that he was employed by Kainos as its
Director of Operations in the Buffalo area on the date of Mr.
Sidell's injury but neither he “nor anyone else
from Kainos to [his] knowledge was present on that site on
August 30, 2007.” Dkt. #37, ¶¶ 1-2. Mr.
Cosentino further affirms that he did not learn of the
incident until after the Summons and Complaint was filed in
the personal injury action sometime during the second half of
August, 2010 and that he “know[s] of no person