MAIN STREET AMERICA ASSURANCE COMPANY v. Lee Winakor, Defendant. (2021)

SUMMARY ORDER

Defendant Vincent Savalle originally sought a writ of mandamus to overturn a November 5, 2019 order of the United States District Court for the District of Connecticut denying his motion to quash a September 4, 2019 subpoena served by his insurer, plaintiff Main Street America Assurance Company (“Main Street”), on a nonparty witness to the extent that the subpoena called for production of information and materials as to which Savalle asserted attorney-client-privilege confidentiality. We proceeded to treat the mandamus petition as an appeal and sought further briefing, see In re Vincent Savalle, No. 19-3940 (2d Cir. Feb. 18, 2020) (“Savalle I”), because, under our case law at the time, the denial of such a motion to quash was immediately appealable under the collateral order doctrine, see, e.g., In re Grand Jury Proceedings, 219 F.3d 175, 182 n.3 (2d Cir. 2000); In re Katz, 623 F.2d 122, 124-25 (2d Cir. 1980), which made mandamus an inappropriate remedy, see, e.g., Helstoski v. Meanor, 442 U.S. 500, 505-06, 99 S.Ct. 2445, 61 L.Ed.2d 30 (1979). After we issued our Savalle I order, but before the matter could be resolved, this Court ruled in another case that a party cannot immediately appeal the denial of a motion to quash a subpoena that calls for the production of information from a nonparty witness based on the party's assertion of privilege. See Rosner v. United States, 958 F.3d 163, 165 (2d Cir. 2020). As the Rosner decision has become the law of this Circuit, we dismiss the appeal in the present matter for lack of appellate jurisdiction; and we reinstate Savalle's petition for a writ of mandamus. See, e.g., Kensington International Ltd. v. Republic of Congo, 461 F.3d 238, 242 (2d Cir. 2006).

To the extent pertinent to the petition, Main Street is suing Savalle for a declaratory judgment asserting that it has no duty to defend Savalle against claims for allegedly defective construction work brought by his customer, defendant Lee Winakor, or to indemnify Savalle if the defense is unsuccessful, arguing in part that Savalle failed to give Main Street timely notice of Winakor's claims as required by the policy. Savalle asserts that Main Street was timely informed of Winakor's claims on Savalle's behalf by one Terri Davis. During discovery, Main Street subpoenaed Davis for, inter alia, all communications relating to Winakor's suit, including email communications between Davis and Savalle's attorneys. Savalle moved to quash the subpoena, stating that he personally does not use electronic mail or a computer, and that Davis was his agent for electronic communications. Savalle thus asserted that the hundreds of emails exchanged between his attorneys and Davis are protected by his attorney-client privilege. Rejecting Savalle's arguments, the district court found that Savalle had not adduced sufficient evidence about Davis's role or the contents of the communications to demonstrate that attorney-client privilege should apply. Savalle then sought mandamus review.

The writ of mandamus is a “ ‘drastic and extraordinary remedy,’ ” In re Roman Catholic Diocese of Albany, New York, Inc., 745 F.3d 30, 35 (2d Cir. 2014) (quoting Cheney v. U.S. District Court for District of Columbia, 542 U.S. 367, 380, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004)), which is granted “only in ‘exceptional circumstances amounting to a judicial usurpation of power, or a clear abuse of discretion,’ ” SEC v. Rajaratnam, 622 F.3d 159, 169 (2d Cir. 2010) (quoting Cheney, 542 U.S. at 380, 124 S.Ct. 2576). We will not grant mandamus to overturn pretrial discovery orders unless the “discovery question is of extraordinary significance or there is extreme need for reversal of the district court's mandate before the case goes to judgment.” In re SEC ex rel. Glotzer, 374 F.3d 184, 187 (2d Cir. 2004) (internal quotation marks omitted). To obtain mandamus relief from a discovery order that involves privilege, a party must show that “(i) the petition raises an issue of importance and of first impression; (ii) the [party's] privilege will be lost if review must await final judgment; and (iii) immediate resolution will avoid the development of discovery practices or doctrine undermining the privilege.” In re Sims, 534 F.3d 117, 128-29 (2d Cir. 2008) (internal quotation marks omitted). “The second factor--loss of the petitioner's privilege if review must await final judgment--is normally present when the privilege is meant to protect the confidentiality of a communication” because “a remedy after final judgment cannot unsay the confidential information that has been revealed,” id. at 129 (internal quotation marks omitted); but that factor alone cannot be dispositive.

In the present case, while a remedy after final judgment could not undo the disclosure of such confidential information in response to Main Street's subpoena, Savalle has not demonstrated exceptional circumstances amounting to a judicial usurpation of power or a clear abuse of discretion. Nor has he shown that the district court's decision raises a novel, important issue or that mandamus is needed to avoid the development of detrimental discovery practices.

We have considered all of Savalle's arguments challenging the district court's order and have found them insufficient to meet the exacting standards for the issuance of a writ of mandamus. For the foregoing reasons, the appeal is dismissed, and the petition for a writ of mandamus is denied.