Opinion
KNLCV166028015S
06-02-2017
Lydia Brady et al. v. Christopher Burton
UNPUBLISHED OPINION
OPINION
Leeland J. Cole-Chu, J.
In this recently filed suit, the plaintiffs, Lydia Brady and her son Elijah Brady, a minor, seek damages for injuries allegedly sustained in a motor vehicle collision at the intersection of Valley View Road and Harris Road in Sterling, Connecticut, on July 23, 2016. The plaintiff Lydia Brady, with her son as a passenger, entered the intersection from Harris Road and the defendant, Christopher Burton, entered the intersection from Valley View Road. From the police report submitted by the defendant with his brief on the present motion (#110) it appears that there was a stop sign for traffic on Harris Road where it intersected with Valley View Road, and there was no stop sign for the defendant. The police report concludes, " [b]ased upon the evidence on scene to include [the defendant's] explanation, [plaintiff Lydia Brady] was found at fault for the accident and issued an infraction for violation CGS 14-245; Failure to Grant Right of Way at an Intersection." (#110, Ex. A).
The defendant's deposition was scheduled several times, most recently for December 9, 2016. On December 7, 2016, after the defendant informed the plaintiffs that he refused to be deposed until the plaintiffs first produce to him " the data and information [plaintiffs' counsel] obtained from [the defendant's vehicle's] blackbox, " the plaintiffs filed the present motion for an order compelling the defendant to appear and submit to deposition without production of the " [blackbox] data and information." The defendant filed an opposing brief dated December 15, 2016 (#110), to which the plaintiffs replied on January 18, 2017 (#113). From a conference by telephone with both plaintiffs' and defendant's counsel on December 7, 2016, the motion and briefs, and oral argument on February 14, 2017, the court finds the following facts.
" Blackbox" is a vernacular term used by both parties and, here, by the court to mean a recording device which is standard equipment in certain vehicles, particularly including the one driven by the defendant. The purpose, and the allegedly actual function, of that recording device was to record, constantly and automatically, certain data about the operation of the vehicle the defendant was driving, including its speed, at least up to the instant the vehicle struck the plaintiffs' vehicle.
The defendant's vehicle was " totaled" in the collision. The defendant voluntarily surrendered title to his vehicle without gathering any data from its blackbox. Before initiating this lawsuit, plaintiffs' counsel, as part of his investigation of the speed of the defendant's vehicle and the accuracy of the defendant's statement about his speed immediately before the collision, located that vehicle and obtained its blackbox data. Plaintiffs' counsel informed defendant's counsel of the existence of such data. The defendant's counsel informed plaintiffs' counsel that the defendant would not be deposed unless plaintiffs' counsel first produced the blackbox data.
In this suit, the plaintiffs claim that the collision was due to the defendant's negligence in numerous particulars, including driving at an unreasonable rate of speed. The defendant claims that the collision was entirely the plaintiff Lydia Brady's fault. Lydia Brady did get a citation for failure to yield right of way, but the police report says that citation was " [b]ased upon the evidence on scene to include [the defendant's] explanation . . ." (#110, Ex. A.)
Although the defendant should have moved for a protective order, rather than simply refusing to submit to the deposition, the court will analyze the issues presented not only because the standoff over the defendant's deposition requires doing so, but also because the issues appear novel in this state. Given the speed and trajectory of technological changes in highway vehicles, standard discovery requests are likely, eventually, to include blackbox data where such data are available. But no such rule or form now applies. Moreover, because the present question concerns the order of discovery, it is not simply resolved by permitting non-standard interrogatories and requests for production. In particular, not having been written or uttered by any human witness, the blackbox data are not a " statement, " as defined in Practice Book § 13-1(a)(1).
Present discovery requests which could easily be amended include plaintiffs' Practice Book Form 201 (#4 [observers could be mechanical], #6 and/or #17) and defendants' Form 202 (#30, #32 and #35). It seems obvious that public policy and the rules of court should encourage, if not require, parties to do what the defendant did not do in this case: preserve blackbox data and make it available when it is discoverable under law. See Practice Book § 13-2.
The plaintiffs claim that the blackbox data are a matter for expert disclosure in the due course of this lawsuit. The court rejects that claim. Though expert skill may be required to download and decipher data from a vehicle's blackbox, the court sees no basis for the deciphered facts to be a matter of opinion, lay or expert.
For the reasons which follow, Practice Book § 13-3(c) does not apply, except by analogy. First, the blackbox data are not a surveillance recording within the meaning of § 13-3(c). Though the defendant is the requesting party; see § 13-3(c); the blackbox data are not a recording of him: he was not the subject of the recording. Blackbox data are claimed, in general, to be a recording only of the operation of a machine--in this case, the vehicle operated by the defendant. Nor are the blackbox data of the subject collision, like a surveillance camera's recording. Although the court agrees with the plaintiff that the blackbox data are somewhat analogous to a surveillance video of the defendant, there are important differences. See Race v. Wal-Mart Stores, Inc., Superior Court, judicial district of Hartford, Docket No. CV-12-6030536-S (November 29, 2012) (55 Conn.L.Rptr. 39, 40, ) (store video not surveillance within meaning of § 13-3(c)).
Nor is the blackbox data " of" the defendant in the sense that he intentionally made the recording or, since he surrendered his vehicle without getting the data, in the sense that it belongs to him.
Nor are the blackbox data the plaintiffs' attorney's work product. Work product is defined in § 13-3(a) as " documents and tangible things otherwise discoverable under Section 13-2 and prepared in anticipation of litigation or for trial by or for another party or by or for that party's representative . . ." (Emphasis added.) The blackbox data were not prepared in anticipation of litigation or for trial, let alone so prepared by or for the plaintiffs or any representative of the plaintiffs.
Navigating new technological and legal terrain, the court's analysis is guided by fundamental principles of discovery and fairness. A core principle is that discovery is to make a trial " less a game of blind man's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practical extent." U.S. v. Procter & Gamble Co., 356 U.S. 677, 682, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958). In rulings on discovery, the court's discretion is broad. See Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., 249 Conn. 36, 51, 730 A.2d 51 (1999) (trial court may make such orders concerning discovery as the ends of justice require).
These principles do not mean all facts must be disclosed as soon as they are known. Absent settlement or waiver by the defendant, the blackbox data will be disclosed well before trial. " [T]he fullest practical extent" considers public policy, which in turn considers human nature. See U.S. v. Procter & Gamble Co., supra, 356 U.S. 677 (" [o]nly strong public policies weigh against disclosure"). The law of privileges and rules, such as § 13-3, which limit or delay disclosure, reflect public policy and concerns of fairness. In particular, the fact that the blackbox data are not work product does not mean that the plaintiffs must produce the data before the defendant's deposition. The blackbox, with all its data, was essentially abandoned by the defendant and obtained, not prepared, by plaintiffs' counsel. The court cannot find that the data were obtained in anticipation of litigation, since to do so would be to conclude that the plaintiffs were going to sue the defendant no matter what the blackbox data showed. The blackbox data are not, legally or equitably speaking, the property of the defendant, and equity will not assist him in changing his mind about his choice or relieving him of the consequences of that choice.
The defendant does not claim that the plaintiffs' attorney did this in any improper manner, let alone illegally.
The decision in Race v. Wal-Mart Stores, Inc., supra, cited by the defendant, is an erudite ruling that a store video was not a surveillance video because it was not a " recording [by another] of the requesting party" --and, therefore, had to be disclosed before the plaintiff's deposition. See § 13-3(c); Race v. Wal-Mart Stores, Inc., supra, 55 Conn.L.Rptr. 39, . Race and similar cases do not suggest, let alone require, that result here. Race is distinguishable because its facts are substantially different, particularly because the subject here is electronically stored data, not a video recording. If the subject were a video recording of the road in front of the defendant's vehicle, the analogy would be closer, but the distinction would remain that it was not recorded by or for another party, let alone by a party adverse to the defendant.
The court assumes that the defendant will testify truthfully, to the best of his ability. See Fisher, Brown & Co. v. Fielding, 67 Conn. 91, 103, 34 A. 714 (1895) (it is presumed that the law has been obeyed). He has nothing to fear from doing so, with or without the blackbox data. But if the blackbox data are substantially inconsistent with his statement to the investigating police officer, or with his deposition testimony unaided by review of such data, it would be inequitable to require production of the blackbox data--data which the defendant was apparently content to have destroyed--before he is deposed and, thus, to permit him to conform his testimony to those data or to try to extricate himself from any difficulty caused by a substantially inconsistent statement.
For the foregoing reasons, the plaintiffs' motion to compel the deposition of the defendant without prior production of the blackbox data from the vehicle, which the defendant used to own, is granted. Scheduling of the deposition shall be in accordance with the Practice Book. See Practice Book § 13-32.