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G & V Farms, LLC v. Hartford Fire Insurance Company and Varick M. Warren

September 29, 2011

G & V FARMS, LLC, PLAINTIFF,
v.
HARTFORD FIRE INSURANCE COMPANY AND VARICK M. WARREN, DEFENDANTS.



The opinion of the court was delivered by: Judge Jones

Magistrate Judge Carlson

MEMORANDUM OPINION

I. INTRODUCTION

Plaintiff G&V Farms, LLC ("G&V") brought this action against its insurer, Hartford Fire Insurance Company ("Hartford"), seeking to recover for losses allegedly caused by theft and other dishonest acts of Varick M. Warren, a former member and employee of G&V. Now pending before the Court is G&V's motion to compel Defendant Warren to respond more fully to document requests and interrogatories that G&V has propounded as part of its discovery in support of its claims. (Doc. 53) In the motion and supporting brief (Doc. 57), Plaintiff asserts that Warren has failed entirely to respond to the requests or interrogatories, and Plaintiff anticipates that Warren has tacitly invoked his right under the Fifth Amendment to refrain from giving self-incriminating statements or testimony.

For his part, Warren acknowledges that he is invoking his Fifth Amendment right to avoid self-incrimination with respect to some of the discovery requests at issue, but indicates that he is prepared to fully respond to other requests to which he has not yet provided an answer or response. Moreover, Warren suggests that he may be prepared to answer some of the questions put to him in the form of interrogatories if those questions were presented during an oral deposition.

Upon consideration of the parties' briefs, we will direct that Warren provide full and complete responses to those discovery requests to which there is no objection or privilege asserted, and to which Warren has represented he stands ready to answer. However, we will not compel Warren to provide answers to each document request or interrogatory to the extent that Warren can articulate a reasonable apprehension that by providing answers or furnishing documents he may be waiving his right to avoid giving self-incriminating testimony as part of the discovery in this civil action.

Instead, with respect to the disputed interrogatories, we will direct Warren either to answer all of the interrogatories propounded upon him, or to clearly assert the privilege with respect only to those interrogatories that he reasonably believes call on him to provide potentially incriminating responses, and submit to the Court a particularized explanation of the basis for claiming the privilege and why he has a reasonable apprehension of self-incrimination.

With respect to Plaintiff's document requests, we will direct that Warren submit to the Court all documents within his possession that he believes may be responsive to Documents Request Nos. 4, 5, and 14-25, and which he reasonably believes he is entitled to withhold from production pursuant to the privilege against self-incrimination. In addition, as to each document that Warren believes, if produced by him, would compromise his rights afforded by the Fifth Amendment, he will be required to submit a written statement explaining why his production of the documents would amount to a violation of the privilege asserted. Thereafter, the Court will review the submissions and statement and determine whether Mr. Warren has a legitimate basis to claim a Fifth Amendment privilege with respect to each document.

II. STATEMENT OF THE CASE

On or about April 17, 2006, Verdelli Holdings, LLC, the David and Susan Gill Family Trust, and Varick Warren formed a Pennsylvania limited liability company called G&V Farms, LLC. The company was in the business of processing and wholesaling primarily organic produce, and maintained operations in Harrisburg, Pennsylvania, and Newburgh, New York. G&V was operated so that the Verdellis and Gills acted as the financiers of the company, by supplying the initial capital investment, equipment, and processing facility, while Varick Warren was to provide operational expertise, knowledge, and access to relevant markets. According to G&V, after the business became operational, Warren was appointed as the General Manager of G&V's office in Newburgh, New York, and was granted broad discretion with respect to the company's operations.

Hartford issued G&V a Special Multi-Flex Insurance Policy, with policy number 16 UUN AF6846, which was effective from May 1, 2007, to May 1, 2008 (the "Policy"). The Policy contained the following relevant exclusions:

PROPERTY CHOICE COVERED CAUSES OF LOSS AND EXCLUSIONS

B. SPECIFIC EXCLUSIONS

********

6. Dishonest Acts

We will not pay for loss or damage caused by, resulting from, or arising out of dishonest or criminal acts by you, any of your partners, members, officers, managers, employees, directors, trustees, authorized representatives or anyone else to whom you entrust the property for any purpose;

(1) acting alone or in collusion with others; or

(2) whether or not occurring during the hours of employment.

PROPERTY CHOICE COMMON CRIME COVERAGES FORM (BUSINESS CRIME)

E. Exclusions

1. This insurance does not ...


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