United States District Court, W.D. New York
DECISION AND ORDER
HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT JUDGE.
Netherlands Insurance Company and Excelsior Insurance Company
have appealed Magistrate Judge Leslie G. Foschio's
Decision and Order (Docket No. 52), which denied their motion
to compel the deposition of Plaintiff's counsel, Brian P.
Crosby, Esq., and which granted the Plaintiff's
cross-motion to quash the Defendants' subpoena for Mr.
Crosby's deposition. For the reasons stated below, Judge
Foschio's Decision and Order is affirmed.
Court recites only those facts relevant to its resolution of
insurance coverage dispute arises out of the “severe
and permanent injuries” Michael Lombardo sustained
after windows, weighing at least 300 pounds, fell on his leg
during a construction project at Niagara County Community
College (NCCC). See Docket No. 37-2 at 2-3.
filed a complaint in Niagara County Supreme Court against
Niagara County, NCCC, and NCCC's Board of Trustees.
During the resulting bench trial, Lombardo's attorney
announced, in open court, that he and Mr. Crosby-counsel for
the defendants in the underlying action-had reached “an
accommodation”: Lombardo would “drop as [his]
targeted defendant Niagara County Community College and its
Board of Trustees” in exchange for Niagara County's
acknowledgment that it owned the property on which Lombardo
had been injured. Docket No. 48 at 8-9. At the end of the
trial, Lombardo was awarded $7.25 million in damages. Docket
No. 37-2 at 9. Following the verdict, however, the parties
agreed to settle the case for $5.5 million, with Niagara
County to pay, in total, $3.5 million of that amount.
See Docket No. 42-3 at 2.
County then filed the complaint in this case, which seeks a
declaratory judgment regarding insurance coverage for the
underlying lawsuit and settlement. During discovery, the
Defendants issued a subpoena for Mr. Crosby's deposition.
See Docket No. 37-8. The Plaintiff objected (Docket
No. 37-9), the Defendants moved to compel (Docket No. 37),
and the Plaintiff filed a cross-motion to quash. See
Docket No. 41.
Foschio filed a Decision and Order denying the
Defendants' motion to compel and granting the
Plaintiff's cross-motion to quash. Judge Foschio first
concluded that the “Defendants' requested
deposition of Crosby seeks irrelevant evidence to the issue
of whether Defendants' purported disclaimer under the GCL
and related UE policies is valid.” Docket No. 52 at 11.
In the alternative, Judge Foschio concluded that the subpoena
must be quashed because it sought information protected by
the attorney work product doctrine. See Id. at
11-17. And, finally, Judge Foschio rejected the
Defendants' “alternative request to enforce the
subpoena in order to obtain information from Crosby relevant
to the reasonableness of the Settlement.” Id.
Standard of review
district court may reverse a magistrate judge's
non-dispositive order, such as the one at issue here, only
when that order is “clearly erroneous or contrary to
law.” 28 U.S.C. § 636(b)(1)(A). A non-dispositive
order is clearly erroneous “only if, ” after
“considering the entirety of the evidence, ” the
reviewing court “is left with the definite and firm
conviction that a mistake has been committed.”
Centro De La Comunidad Hispana De Locust Valley v. Town
of Oyster Bay, 954 F.Supp.2d 127, 139 (E.D.N.Y. 2013)
(quotation marks omitted). And a non-dispositive order is
contrary to law if the order “fails to apply or
misapplies relevant statutes, case law, or rules of
procedure.” Id. (quotation marks omitted).
“This standard is highly deferential.”
Id. (quotation marks omitted). Thus, a district
court may not reject a magistrate judge's non-dispositive
order “merely because the [district] court would have
decided the matter differently.” Rubin v.
Valincenti Advisory Svcs., Inc., 471 F.Supp.2d 329, 333
The Defendants' arguments on appeal
Defendants argue that Judge Foschio's Decision and Order
is “clearly erroneous or contrary to law” for
four reasons. The Court addresses each argument in turn.
the Defendants argue that Judge Foschio “erred in
determining that former plaintiff Niagara County Community
College (‘NCCC') qualifies as an additional insured
under the policies at issue.” Docket No. 54 at 1. This
claim is based on a footnote in Judge Foschio's Decision
and Order which states that, “[c]ontrary to
Defendants' assertion, NCCC is an additional ...