Opinion
FBTCV196083124S
09-18-2019
Robert COOPER v. BRICK AND WOOD, LLC et al.
UNPUBLISHED OPINION
OPINION
STEWART, J.
Defendants Brick and Wood, LLC, Clara Cavalli and Michael Cavalli move to seal Clara Cavalli’s objections and answers to Plaintiff Robert Cooper’s second set of requests for admission. The defendants argue that the requests are based on transcriptions of recordings the plaintiff made surreptitiously and that the answers and objections to those requests should be sealed because (1) they violate the confidentiality agreement the plaintiff signed while he was employed by Brick and Wood, (2) they violate Clara Cavalli’s privacy interests, and (3) Request no. 14, which is based on a recording of a telephone conversation without consent, is inadmissible in evidence pursuant to General Statutes § 52-184a and is in violation of General Statutes § 52-570d. The plaintiff argues that none of these reasons override the public’s interest and that therefore the court should deny the motion to seal. For the reasons that follow, this court grants in part and denies in part the motion to seal.
I. Practice Book § 11-20A Applies to Request for Admission Responses
Motions to seal are governed by Practice Book § 11-20A. Subsection (a) of that section provides that there is a presumption that documents filed with the court shall be available to the public. Pursuant to Practice Book § 13-23, answers and objections to requests for admissions are filed with the court. This court may seal those answers and objections only if this court concludes "that such an order is necessary to preserve an interest which is determined to override the public’s interest in viewing" those answers and objections. Practice Book § 11-20A(c). Moreover, this court must first consider whether there are reasonable alternatives to sealing the document and must make sure that any order is no broader than necessary to protect the overriding interest. Id. In the event that the court issues an order granting the motion to seal, the court must meet the requirements for such an order that are set out in subsection (d).
Our Supreme Court held that Section 11-20A "codifies the common-law presumption of public access to judicial documents, meaning any document filed with the court that the court reasonably could rely on in support of its adjudicatory function." Rosado v. Bridgeport Roman Catholic Diocesan Corp, 292 Conn. 1, 30, 970 A.2d 656, cert. denied, sub nom Roman Catholic Diocesan Corp. v. The New York Times Company, 558 U.S. 991, 130 S.Ct. 500 (2009). That common-law presumption is based on this rationale: "[p]ublic monitoring of the judicial process through open court proceedings and records enhances confidence in the judicial system by ensuring that justice is administered equitably and in accordance with established procedures." Id. at 34-35. The court observed, however, that the presumption is not absolute. Id. at 35. The presumption can be outweighed by countervailing concerns, and the presumption does not apply to those documents that are not judicial documents. Id. at 36.
"Raw discovery" was cited by the court as an example of documents that are not judicial documents subject to the presumption of public access. Id. The court explained that discovery proceedings are not open to the public and that parties are required to disclose a wide range of information in discovery that ultimately may have little or no impact on judicial action. Id. The court ultimately concluded that the language "filed with the court" in Practice Book § 11-20A signifies judicial documents. Id. at 44.
Responses and objections to requests for admission are not "raw discovery." Unlike responses to interrogatories and requests for production and deposition transcripts, they are filed with the court. They also can have a significant impact on judicial action and a court could reasonably rely on them. Accordingly, they are judicial documents subject to the presumption of public access.
II. The Defendants Have Not Overcome the Presumption of Public Access as to Recordings of Face-to-Face Conversations with the Plaintiff
The defendants have not met their burden of overcoming this presumption for Requests nos. 1-13. Their first argument is that the references to the content of recordings in these requests for admissions violate the confidentiality agreement that the plaintiff signed while he worked for Brick and Wood. The defendants have attached the confidentiality agreement as Exhibit A to their memorandum in support of their motion to seal (no. 141.00), and the court has reviewed it. The confidentiality agreement defines "confidential information" broadly, and it includes "all other information related to the business and activities of Brick and Wood, including clients, suppliers, and financial information." The confidentiality agreement prevents the plaintiff from disclosing confidential information. It authorizes Brick and Wood to enforce any violations by applying to a court for injunctive relief. No such action for injunctive relief has been brought to the court’s attention.
The parties have not alerted the court to nor has research revealed a published Connecticut court decision on whether a confidentiality agreement signed as a condition of employment in and of itself provides an overriding interest that outweighs the presumption of public access. The plaintiff points out that Practice Book § 11-20A(c) explicitly provides: "[a]n agreement of the parties to seal or limit the disclosure of documents on file with the court or filed in connection with a court proceeding shall not constitute a sufficient basis for the issuance of such an order." The cases interpreting this provision typically have considered confidentiality agreements and protective orders entered into as part of the litigation, and have held that their mere existence does not support a motion to seal. See, e.g., Moynahan & Minella, LLC v. Minnella, Tramuta & Edwards, LLC, Superior Court, judicial district of Waterbury, Docket No. CV-14-6023977 (May 7, 2015, Brazzel-Massaro, J.) (60 Conn.L.Rptr. 300); New Breed Logistics, Inc. v. CT INDY N.H. TT, LLC, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV-08-4018089 (July 29, 2011, Brazzel-Massaro, J.).
The principal topic of the recordings here is the plaintiff’s claim that Brick and Wood used waiters and waitresses’ tips to pay the plaintiff’s salary. At oral argument, the defendants conceded that that allegation is already public. It has been the topic in litigation with other employees, and references to that topic appear in the pleadings already on file in this case. Indeed, the defendants attach to their reply memorandum (no. 153.00) excerpts of Clara Cavalli’s deposition transcript in which she is questioned about this allegation. The plaintiff argues that this topic does not even fit within the terms of the confidentiality agreement. The defendants claim that allowing the public to have access to the requests for admission answers could harm Brick and Wood’s competitive standing. The defendants do not explain how the references from the recordings that are in the requests for admission could cause harm to Brick and Wood’s business interests beyond any harm that was caused by previous filings in this and other litigation, much less how that harm overrides the presumption of public access. "When a company argues that the disclosure will impact its competitive standing it must specify how disclosure will inflict harm of the business and establish that the harm is sufficient to justify withholding court records from public examination." New Breed Logistics, Inc. v. CT INDY N.H. TT, LLC, supra, Docket No. CV-08-4018089. See also Moynahan & Minella, LLC v. Minnella, Tramuta & Edwards, LLC, supra, Docket No. CV-14-6023977 (denying a motion to seal where there were only conclusory allegations and no evidence that release of the information would have a negative impact on their business). This court agrees with the reasoning of these cases and holds that the defendants have not established that any harm to the business of Brick and Wood would outweigh the presumption of public access.
The defendants’ reliance on Bridgeport Harbour Place I, LLC v. Ganim, Superior Court, judicial district of Waterbury, Docket No. CV-04-0184523 (June 11, 2008, Stevens, J.), for the proposition that courts may seal material that would harm competitive standing is misplaced. Although that decision quoted language to that effect when it was explaining that the presumption of public access is not absolute, the material at issue in that case had nothing to do with protecting business information. Instead, the court considered and ultimately sealed part of a trial exhibit marked for identification only that was a Federal Bureau of Investigation 302 witness interview summary. The court, which issued its decision prior to the Supreme Court’s decision in Rosado, supra, observed that the interview summary was comparable to pretrial discovery. It also found that the risk that disclosure of those summaries would have a chilling effect on future witnesses interviewed as part of criminal investigations outweighed the presumption of public access. By contrast, the defendants here have not come forward with any such countervailing interest that would warrant sealing the answers and objections to the requests for admission.
The court also is aware that our Supreme Court, in Perricone v. Perricone, 292 Conn. 187, 972 A.2d 666 (2009) enforced a confidentiality agreement entered into by the parties in litigation and made an order of the court. The court specifically held that the order, which was designed to protect the value of the plaintiff’s business for the benefit of both parties to a dissolution action, could prevent the wife from speaking to the press and the public. Id. at 211 n.23, 221-22. It also concluded that the enforcement of the order did not implicate the public policy favoring open court proceedings because the wife’s contemplated speech did not concern court proceedings or court files. Id. at 216, 222. The court specifically noted that there were no motions to seal in the litigation. Id. at 216 n.28. Therefore, the holding in Perricone v. Perricone does not support the defendants’ argument to seal here.
Similarly, National Abortion Federation v. Center for Medical Progress, 2016 WL 454082 (N.D.Cal. Feb. 5, 2016), aff’d, 685 Fed.Appx. 623 (March 29, 2017), cert. denied, 138 S.Ct. 1438 (2018), relied upon by the defendants, did not involve a motion to seal. The court in that case granted a preliminary injunction to prevent the release and publication of the content of surreptitious video recordings made in violation of confidentiality agreements the parties had signed with each other. Id. at *2. Although the court weighed the enforcement of the confidentiality agreements against the public interest, that public interest was in the issue of abortion. Id. at *23. The court specifically rejected the argument that the video recordings showed criminal wrongdoing. Id. at *19. As noted above, the defendants in this case have not sought an injunction to bar the release of the content of the recordings.
The defendants also argue that because the January 8, 2018 recording was made in Clara Cavalli’s home, her privacy rights are implicated. As was the case with the alleged competitive injury to Brick and Wood, the defendants have not set forth with specificity how any privacy rights would be injured or why preventing such injury should outweigh the public’s right to access to the courts. Therefore, the court will not grant the motion to seal on that basis. The court denies the motion to seal as to Requests nos. 1-13, all of which refer to recordings made face-to-face.
III. The Defendants Have Met Their Burden as to Telephonically Recorded Conversations
Finally, the defendants argue that recordings made on January 8, 2018 and January 11, 2018 of telephone conversations between the plaintiff and Clara Cavalli are inadmissible in evidence pursuant to General Statutes § 52-184a and are in violation of General Statutes § 52-570d. The defendants are correct that recordings of telephone conversations without the consent of both parties are inadmissible pursuant to General Statutes § 52-184a. They also are correct that such recordings violate General Statutes § 52-570d(a) and that none of the exceptions in subsection (b) apply here. Subsection (c) creates a private cause of action for such a violation, but the defendants have not availed themselves of that. Section 52-570d does not address sealing recordings that violate its terms and therefore it sheds no further light on whether to grant a motion to seal here.
Section 52-184a warrants further consideration. The defendants cite several cases that held that illegal telephone recordings cannot be introduced into evidence. Two of those cases went further and held that the parties could not use those recordings during the discovery process. Simonson v. Simonson, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. FA-15-6025703 (April 15, 2016, Colin, J.) (62 Conn.L.Rptr. 156); Finerty v. Finerty, Superior Court, judicial district of Fairfield, Docket No. FA-92-0294678 (November 24, 1992, Bassick, J.) . The court in Finerty also granted a motion to seal, but that decision predated the change in the Practice Book that led to Section 11-20A. Moreover, in both of those cases, neither party was aware that the telephone conversation was being recorded.
The court finds that there are two decisions that are more relevant because they involved recordings made with the knowledge of one participant. Fischer v. Ulysses Partners, LLC, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV-15-6024901 (August 3, 2016, Lee, J.) (62 Conn.L.Rptr. 777); Robinson v. Robinson, Superior Court, judicial district of Hartford, Docket No. CV-04-0832546 (April 4, 2005, Lavine, J.) (39 Conn.L.Rptr. 55). Both of those cases held that the recordings could be used in depositions because depositions are not court proceedings. Indeed, Practice Book § 13-2 provides that it shall not be ground for objection to discovery that "the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." This court agrees that the fact that a telephone recording is not admissible in evidence does not preclude its use during discovery.
That finding, however, does not address whether the answer and objection to Request no. 14 should be filed under seal. As noted earlier, responses to requests for admission are not "raw discovery," and unlike discovery, they are required to be filed with the court. The parties have not identified and research has not revealed a Connecticut case addressing this precise issue. The court concludes, based on the statutes providing that telephone recordings without the consent of all parties are illegal and inadmissible, that there is an interest in preventing the content of those recordings from appearing on the public record and that that interest overrides the presumption of public access. Therefore, the court grants the motion to seal the answer and objection to Request no. 14 because it arises out of a telephone conversation between the plaintiff and Clara Cavalli that was recorded without Cavalli’s consent.
The court is mindful that Section 11-20A(c) requires the court to consider reasonable alternatives and that its order shall be no broader than necessary to protect the overriding interest. As to those requirements, the court notes that it is limiting its order to seal to a single answer and objection to a request for admission that quotes the content of a recorded telephone conversation. The order does not apply to those answers and objections to requests that quote the content of recordings of face-to-face conversations, which do not violate a statute and are not deemed inadmissible evidence. The court has considered alternatives, but in light of the overriding interest, the best option is for a redacted version of the answers and objections of the requests for admission to be filed and for the full version to remain lodged with the clerk of the court.
CONCLUSION
The court grants the motion to seal only insofar as it relates to a request for admission derived from a telephone conversation recorded without consent that is in violation of General Statutes § 52-570d and is inadmissible pursuant to General Statutes § 52-184a. The court orders the defendants to file a redacted version of the answers and objections to the requests for admissions that fully sets forth the answers and objections to Requests nos. 1-13 and redacts only the answer and objection to Request no. 14. The full set of answers and objections should be lodged with the clerk of the court.