United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING DEFENDANT'S MOTION TO QUASH THE
SUBPOENA ISSUED TO DEFENDANT'S EXPERT CHENARD &
OSBORN, INC. [#14]
Gershwin A. Drain United States District Court Judge.
Moonbeam Capital Investments, LLC (“Moonbeam”)
and Travelers Indemnity Company (“Travelers”)
filed the present complaint against Defendant Integrated
Construction Solutions, Inc. (“ICS”) alleging
negligence. Before the Court is Defendant's Motion to
Quash the subpoena that Plaintiffs issued to Defendant's
expert, Chenard and Osborn, Inc. (“Chenard”).
Dkt. No. 14. For the reasons discussed below, the Court will
grant Defendant's Motion.
Moonbeam operates a Radisson Hotel in Farmington Hills,
Michigan. Dkt. No. 1, pg. 3 (Pg. ID 3). Sometime before
February 16, 2017, Travelers issued a property insurance
policy to Moonbeam that covered Moonbeam's Radisson
Hotel. Id. Prior to February 16, 2017, Moonbeam and
ICS entered into an agreement for constructions services
where ICS performed various construction services at the
Radisson, including renovation of certain bathrooms.
Id. On February 16, 2017, a 75-pound mirror
installed by ICS fell off of the wall and severed a water
line beneath it. Id. This caused severe water damage
throughout the hotel. Id. Moonbeam made a claim to
Travelers for the loss and damage caused by the incident.
Id. at pg. 4 (Pg. ID 4). Travelers made a payment to
Moonbeam in the amount of $374, 420.39. Id.
Plaintiffs Moonbeam and Travelers then brought suit against
ICS for the amount of Travelers' payments to Moonbeam to
asserts that its insurer retained Chenard & Osborn Inc.
on ICS's behalf as an expert to investigate the loss in
anticipation of litigation. Dkt. No. 14, pg. 5 (Pg. ID 53).
ICS disclosed Chenard's initial reports and photos to
Moonbeam, subject to a privilege log. Id. After this
disclosure, Plaintiffs issued a subpoena to Chenard
requesting it to produce its entire investigation file.
Id. Defendant ICS then filed the present Motion to
Quash on January 24, 2019, seeking to quash Plaintiffs'
subpoena. Dkt. No. 14. Plaintiffs opposed the Motion on
February 5, 2019. Dkt. No. 16. Defendant replied on February
12, 2019. Dkt. No. 17.
Civ. P. 45(3) governs quashing a subpoena. Under the Rule,
district courts must quash or modify subpoenas that
“(i) fail to allow a reasonable time to comply; (ii)
require a person to comply beyond the geographical limits
specified in Rule 45(c); (iii) require disclosure of
privileged or other protected matter, if no exception or
waiver applies; or (iv) subject a person to undue
assert that ICS does not have standing to ask this Court to
quash a subpoena directed to third-party Chenard. Dkt. No.
16, pg. 12 (Pg. ID 149). ICS argues that it has standing
because it is asserting an interest in maintaining the
privileged information contained in the documents. Dkt. No.
17, pg. 2 n.1 (Pg. ID 267).
does not have standing to move to quash a subpoena directed
to a third party absent a claim of privilege or interest.
See Llanez-Garcia, 735 F.3d 483, 498-99 (6th Cir.
2013). Here, Defendant ICS is claiming a privilege in
Chenard's documents because they were allegedly created
in anticipation of litigation and are work product.
Therefore, this Court finds that Defendant has standing to
move this Court to quash Plaintiffs' subpoena.
asserts that draft reports and communications are protected
by Fed.R.Civ.P. 26(b)(4)(B) and (C). Rule 26(b)(4)(B) states:
“[r]ules 26(b)(3)(A) and (B) protect drafts of any
report or disclosure required under Rule 26(a)(2), regardless