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Benecard Services, Inc. v. Allied World Specialty Insurance Co.

United States District Court, D. New Jersey

April 17, 2017

BENECARD SERVICES, INC., Plaintiff,
v.
ALLIED WORLD SPECIALTY INSURANCE COMPANY et al, Defendants.

          MEMORANDUM OPINION

          TONIANNE J. BONGIOVANNI United States Magistrate Judge

         This matter comes before the Court upon Plaintiff Benecard Services, Inc.'s (“Plaintiff”) motion for a protective order (1) striking the subpoena's document request demanding irrelevant and privileged material; and (2) allowing Plaintiff to conduct a pre-production privilege review of Wells Fargo's remaining responsive documents. (Docket Entry No. 85). Defendants Allied World Specialty Insurance Company (“Allied”) and Atlantic Specialty Insurance Company (“Atlantic”) oppose Plaintiff's motion. (Docket Entry Nos. 90 and 91). The Court has fully reviewed and considered all arguments made in support of and in opposition to Plaintiff's motion. The Court considers same without oral argument pursuant to L.Civ.R. 78.1(b). For the reasons set forth more fully below, Plaintiff's motion is DENIED.

         I. Background and Procedural History

         Plaintiff filed its complaint against Defendants Allied World Specialty Insurance Company, Atlantic Specialty Insurance Company and RSUI Indemnity Company on December 14, 2015 and amended its complaint to add Defendants Travelers Property Casualty Company of America (“Travelers”) and Ace Property and Casualty Insurance Company (“Ace”) on September 28, 2016. Plaintiff seeks “(i) a declaratory judgment that [Defendants] must provide coverage for defense and indemnity costs arising from the now-settled lawsuit against Plaintiff, Smart Insurance Company v. Benecard Services, Inc., Civil Action No. 1:15-CV-04384, filed in the United States District Court for the Southern District of New York (“Smart Action”); (ii) compensatory and consequential damages arising from Allied's, Travelers' and Atlantic Specialty's breaches of their insurance policies; and (iii) consequential damages arising from Allied's, ACE's and Atlantic Specialty's bad faith conduct toward plaintiff.” (Pl.'s Br. in Supp. of Mot. at 1-2).

         The instant motion involves a subpoena duces tecum (“subpoena”) served by Allied on non-party Wells Fargo Insurance Services USA, Inc. (“Wells Fargo”) on August 19, 2016. Wells Fargo facilitated Allied's sale of its D&O insurance policy to Plaintiff.

         Allied's subpoena demands the following documents from Wells Fargo:

1. Wells Fargo's complete file related to the application for, negotiation of and procurement of any errors and omissions, directors and officers/management liability and general liability insurance policies on behalf of Plaintiff since 2010 (“Request 1”).
2. Any documents related to, referring to, or concerning any of the policies and any predecessor or renewal policies purchased by Plaintiff since 2010 (“Request 2”).
3. Any documents in Wells Fargo's possession regarding the Smart Action and/or Plaintiff's pursuit of insurance coverage for the Smart Action (“Request 3”).
4. Any and all communications between Wells Fargo and Plaintiff regarding insurance since 2010 (“Request 4”).
5. Any and all communications between Wells Fargo and Plaintiff or any of its insurers regarding the Smart Action (“Request 5”).
6. Any and all communications between Wells Fargo and any individuals employed at the law firms of McCarter & English, LLP or DLA Piper regarding the policies and/or the Smart Action (“Request 6”).
7. Any and all documents in Wells Fargo's possession regarding the scope of coverage to be provided under the errors and omissions and directors and officers/management ...

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