2 0 -613, 19-3940

Main Street Am erica v. Savalle

1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 S U M M A R Y O R D E R 4 5 RULINGS BY SUMMARY ORDER D O NOT HAVE PRECEDENTIAL EFFECT. 6 C ITATION TO A SU M M A RY ORDER FILED O N OR A FTER JANUARY 1, 2007, IS 7 P E RM I T T E D AN D I S G O VE R N E D B Y FE D E R

A L RU L E O F A P P E L L A T E P RO C E D U RE 8 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY O RDER 9 I N A DOCUMENT FILED W ITH THIS COURT, A PARTY MUST C ITE EITHER THE 10 FEDERAL APPENDIX OR AN E LECTR ONIC DATABASE (WITH THE NOTATION 11 "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A 12 C OPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 13 At a stated Term of the United States Court of Appeals for the Second Circuit, held at the 14 T hurgood Marshall United States Courthouse, 4 0 Foley Square, in the City of New York 15 o n

the 22nd day of February, two thousand twenty-one.

16 P resent: AMALYA L. KEARSE, 17 GUIDO CALABRESI, 18 SUSAN L. CARNEY, 19 Circuit Judges

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_ __________________________________________________ 21 Main Street Am erica Assurance Com pany, 22 Plaintiff-Appellee , 23 - v. - Nos. 20-613, 19-3940 24 V incent Savalle, 25 Defendant-Appellant , 26 L ee W inakor, 27 Defendant

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_ _____________________________________________________ 29 F or Plaintiff-Appellee Kelly E. Petter, Hassett & Donnelly, Hartford, CT. 30 F or Defendant-Appellant Jam es H. Lee, Fairfield, CT. 31 F or Defendant Paul M. Geraghty, Geraghty & Bonnano, New London, CT.1 Appeal from an order of the United States District Court for the D istrict of 2 C onnecticut (Hall, J. , Merriam , M.J. ). 3 Upon due consideration , it is hereby ORDERED that the appeal is 4 D I SM I SSED; the m andam u s petition that was originally filed and dism issed is 5 REINSTATED but is DENIED; the stay of proceedings in the district court is LIFTED. 6 D ef en d ant V in cent S av al l e o rig in ally so u ght a writ o f m a n d am u s to o v ertu

rn 7 a Novem

b er 5, 2 019 o rder o f th e United States District Court for the District of 8 C onnecticut denying his m otion to qu a sh a Septem ber 4 , 2019 subpoena served by his 9 insurer, plaintiff Main Street Am erica Assurance Com p any ("Main Street"), on a nonparty 10 w itness to the extent that the subpoena called for production of inform ation and m aterials 11 as to which Savalle asserted attorney-client-privile g e c o n fidentiality. W e proceeded to 12 treat the m andam u s petition as an appeal and sought f urther b riefing, see In re Vincent 13 S

a valle , No. 19-3940 (2d Cir. F eb. 18, 2020) (" Savalle I "), because, under our case law at 14 the tim e, the denial of suc h a mo t ion to quash was imm ediately appealable under the 15 collateral order doctrine, see , e.g. , In re Grand Jury Proc ee di ngs , 219 F.3d 175, 182 n.3 16 (2d Cir. 2000); In re Katz , 623 F.2d 122, 124-25 (2d C ir. 1980), which m ade m andam us 17 an inappropriate rem edy, see , e . g. , He l s toski v. Meanor , 442 U.S. 500, 505-06 (1979). 18 A fter we issued our Savalle I order, but before the m atter co u l d b e r e solved, this Court 19 ruled in another case that a party cannot imm ediately appeal the denial of a m otion to quash 20 a subpoena that calls for the p roduction o f inform ation from a n onparty witness based on 21 the party' s assertion of privilege. See Rosner v. United States , 958 F.3d 163, 165 (2d Cir. 22 2 0 20). As the Rosner d ecision has becom e the law of this Circuit, we dism iss the appeal 23 in the p resent m atter for lack of appellate jurisdiction; and we reinstate Savalle' s p etition

21 f

or a writ of m andam

us. See , e.g. , Kensington International Ltd. v. Republic of Congo , 461 2 F .3d 238, 242 (2d Cir. 2006). 3 To the extent pertinent to the petition, Main Street is suing Sav a l le for a 4 de claratory judgm ent asserting that it has no duty to defend Savalle against claim s fo r 5 allegedly defective construction work broug ht by his custom er, d efendant Lee W inakor, 6 o r to indemnify Savalle if th e d efense is unsuccessful, arguing in part that Savalle failed 7 to give Main Street tim ely notice of W inakor' s claim s as required by the policy. Savalle 8 asserts that Main Street was tim ely informe d o f W inakor' s claim s on Savalle' s behalf by 9 o n e Terri Davis. During discovery, Main Street subpoenaed D avis for, inter alia , all 10 c o m

m un ication s r e l ati ng to Wi n ako r' s suit, in cludin g e m ail co m m un ication s b etw een D av is 11 and Savalle' s attorneys. Savalle m oved to quash the subpoena, stating that he personally 12 do e s n ot use electronic m ail or a com puter, and that Davis was his agent for electron i c 13 com

m unications. Savalle thus asserted that the hundreds o f em ails exchanged between his 14 attorneys and Davis are p rotected by his attorney-c lient p rivilege. Rejecting Savalle' s 15 argum ents, the district court found that Savalle h ad not adduced sufficient evidence about 16 D avis' s role or the contents of the comm unications to demonstrate that attorney-client 17 p rivilege should apply. Sav alle then sought m andam us review. 18 The writ of m an dam us is a "' drastic and extraordinary rem edy,' " In re 19 R oman Catholic Diocese o f A lb a n y, Ne w Y ork, Inc. , 745 F.3d 30, 35 (2d Cir. 2014) 20 (quoting Cheney v. U.S. District Court for D istrict of Columbia , 542 U.S. 3 67, 380 (2004)), 21 which is granted "only in ' exceptional circum stances am ounting to a judicial usurpation of 22 p o wer, or a cle ar abuse of discretion,' " SEC v. Rajaratnam , 6 22 F.3d 159, 169 (2d Cir. 23 2 0 10) (quoting Cheney , 5 42 U.S. at 380). W e will not grant m andam us to overturn pretrial

31 discovery orders unless th e " discovery question is of extraordinary significance or there 2 is extrem e need f or reversal of the dis trict court' s m andate b efore the case g oes to 3 judgm ent." In re SEC ex rel. Glotzer , 374 F.3d 1 84, 187 (2d Cir. 2004) (internal quotation 4 m arks om itted). To obtain m andam us relief from a discovery order that involves p rivilege, 5 a party m

ust show that "(i) the petition raises an issue o f i mp o rt ance and o f first 6 im

pression; (ii) the [party' s] privilege will be lost if review m ust await final judgm ent; and 7 (iii) imm ediate resolution w ill avoid the developm ent of discovery practices or doctrine 8 un derm ining the p r iv i l eg e . " In re Sims , 534 F.3d 117, 128-29 (2d Cir. 2008) (internal 9 q u otation m arks om itted). "The second factor--loss of the petitioner' s privilege if review 10 m

ust await f

inal judgm ent--is norm ally present when the privilege is m eant to protect the 11 confidentiality of a comm unication" because "a rem edy after final judgm ent cannot unsay 12 the confidential inform ation that has been revealed," id. at 129 (internal quotation m arks 13 o mitted); but that factor alone cannot be dispositive. 14 In the present case, while a rem edy after final judgm ent could not undo the 15 disclosure of such confidential inform ation in response to Main Street' s subpoena, Savalle 16 h as n ot demo n s tr ated exceptional circum stances am ounting to a judicial usurpation of 17 p o wer or a clear abuse of discretion. Nor has he shown that the district c o urt ' s decision 18 raises a novel, im p ortant issue o r th at mandam us is needed to avoid the developm ent of 19 d etrim ental discovery practices.

41 W e have considered all of Savalle' s argum ents cha l l e ng ing the district 2 court 's o r d e r and have found them insufficient to m eet the exacting standards for the 3 issuance of a writ of m andam us. For the f

oregoing reasons, the appeal is dism issed, and 4 the petition for a writ of mandamus is denied.

5 FOR THE COURT: 6 CATHERINE O' HAGAN W OLFE, C lerk of Court

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