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Millennium Laboratories, Inc. v. Allied World Assurance Company Inc.

United States District Court, E.D. California

April 17, 2014

In Re Ryan Uehling Millennium Laboratories, Inc., Plaintiff,
v.
Allied World Assurance Company (U.S.) Inc., Defendants. Pending in the United States District Court for the Southern District of California as Case No. 3: 12-cv-2280-H-KSC

ORDER DENYING ALLIED WORLD ASSURANCE COMPANY (U.S.) INC.'S MOTION TO COMPEL

BARBARA A. McAULIFFE, Magistrate Judge.

I. INTRODUCTION

Currently before the Court is Allied World Assurance Company (U.S.) Inc.'s ("Allied World") Motion to Compel Ryan Uehling to Answer Deposition Questions and Produce Documents. (Doc. 13.) The parties filed their Joint Discovery Statement on March 28, 2014. (Doc. 29.) A hearing was held on April 4, 2014. (Doc. 33.) Counsel Robert Wiygul and Phillip Wilson appeared telephonically for Allied World. Counsel Stephanie Borchers and Donald Fishbach appeared in person for Ryan Uehling. Counsel Vincent Herron appeared telephonically for Millennium Laboratories, Inc. ("Millennium"). Having considered the parties' Joint Discovery Statement, arguments presented at the April 4, 2014 hearing, and the entire record in this case, the Court issues the following Order.

I. BACKGROUND

A. The Underlying Coverage Action

Allied World's motion arises out of an insurance coverage action, Millennium Laboratories, Inc. v. Allied World Assurance Company (U.S.) Inc., No. 12-2280-H-KSC (the "Coverage Action"), which is proceeding in the United States District Court for the Southern District of California. The Coverage Action involves a dispute regarding a Forcefield Healthcare Organizations Directors and Officers Liability Policy (the "Policy") issued by Allied World to Millennium for the policy period December 1, 2011, to December 1, 2012. In the Coverage Action, Millennium seeks payment of costs it has incurred in responding to an investigation by the United States Department of Justice (the "DOJ Investigation").

Ryan Uehling is not a party to the Coverage Action. However, Allied World and Millennium suspect Uehling, a former employee of Millennium, is a relator in a qui tam action against Millennium, currently under seal somewhere in the United States. Allied World believes Uehling possesses information concerning the timing, nature, and existence of the DOJ's Investigation, which in turn would bear upon the Coverage Action.

To defend against Millennium's claim that the DOJ Investigation is covered by the Policy, Allied World has sought discovery from Uehling regarding, among other things, (1) the scope and nature of the DOJ Investigation and (2) the scope and nature of certain qui tam and private actions pre-dating the inception of the Policy (the "Prior Actions") that Allied World contends are closely related to the DOJ Investigation. Allied World argues this information is necessary to determine the applicability of certain exclusions from the Policy or whether the investigation falls within the policy period. The scope and nature of the DOJ Investigation are also relevant to determining what limit of liability would apply if the DOJ Investigation is in fact covered.

B. The Discovery Requests at Issue

Allied World served document and deposition subpoenas on Uehling in the Coverage Action and deposed him on January 20, 2014 in this District. On February 14, 2014, Allied World commenced the present action by filing a motion to compel Uehling to answer deposition questions he had refused to answer on January 20, 2014, and to produce documents responsive to Allied World's document subpoena. The parties met and conferred and narrowed the issues for this Motion. The deposition questions at issue, and Uehling's responses, are as follows:

1. Information Concerning Uehling's Involvement in Litigation Against Millennium

Allied World's question: "Are you currently involved or have you in the past been involved in any action filed against Millennium?"

Uehling's response/objection: Attorney client/privilege and "statutory privilege." (Uehling Dep. 59:20-22; 60:25-61:4, January 20, 2013, Wiygul Decl., Ex. 1.)

2. Allied World's Request For a Hard Drive Containing Information Uehling Provided to the Department of Justice

Allied World also served a document subpoena for on Uehing requesting "all documents that [Uehling or any agent or representative of Uehling] provided to the DOJ... related to any... investigation or potential investigation" of Millennium and "all communications and/or correspondence between the DOJ... and [Uehling or any agent or representative of Uehling] related to any such investigation or potential investigation." See Wiygul Decl., Ex. 2. Specifically, Allied World moves to compel Uehling to produce a copy of ...


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