Opinion
No. CV07-4027644S
November 21, 2007
MEMORANDUM OF DECISION
Pursuant to General Statutes Sec. 52-156a, Michael Mancini, a minor, through his mother and next friend, Nancy Cummings Mancini, has brought this petition seeking to perpetuate testimony regarding a proposed civil action which has not yet been filed. The petitioner alleges that he sustained serious personal injuries in a one-car motor vehicle accident "which was or may have been proximately caused by the availability and/or serving of alcohol to minors on or about April 17 and 18, 2001, on the premises of Mark and Jennifer Tower and Ben Chronchio," the proposed defendants, in Guilford. He contends that in addition to the Towers and Chronchio, there are two other potential witnesses named Catherine O'Mara and John Belanger who may have information which could help establish whether the petitioner has a viable cause of action against the Towers and Chronchio based on their having served alcohol to minors.
General Statutes Sec. 52-156a provides:
(1) A person who desires to perpetuate testimony regarding any matter that may be cognizable in the Superior Court may file a verified petition in the superior court for the judicial district of the residence of any expected adverse party. The petition shall be entitled in the name of the petitioner and shall show: (A) That the petitioner expects to be a party to an action cognizable in the superior court but is presently unable to bring it or cause it to be brought, (B) the subject matter of the expected action and the petitioner's interest therein, (C) the facts which the petitioner desires to establish by the proposed testimony and the reasons for desiring to perpetuate it, (D) the names or a description of the persons the petitioner expects will be adverse parties and their addresses so far as known, and (E) the names and addresses of the persons to be examined and the substance of the testimony which the petitioner expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition, for the purpose of perpetuating their testimony. (2) The petitioner shall thereafter serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition. At least twenty days before the date of hearing the notice shall be served in the manner provided by section 52-57; but if such service cannot with due diligence be made upon any expected adverse party named in the petition, the court may make such order as is just for service by publication or otherwise, and shall appoint, for persons not served in the manner provided by section 52-57, an attorney who shall represent them, and, in case they are not otherwise represented, shall cross-examine the deponent. (3) If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose depositions may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written interrogatories. The depositions may then be taken in accordance with this section; and the court may make orders for the production of documents and things and the entry upon land for inspection and other purposes, and for the physical or mental examination of persons. For the purpose of applying this section to depositions for perpetuating testimony, each reference in this section to the court in which the action is pending shall be deemed to refer to the court in which the petition for such deposition was filed. (4) If a deposition to perpetuate testimony is taken under this section, it may be used in any action involving the same subject matter subsequently brought in the Superior Court.
The proposed defendants have objected to the use of this procedure in this case and have argued the normal discovery methods available to the plaintiff, should he choose to bring an action against the proposed defendants, are more than adequate to provide him with the information that he seeks. They further contend that to require the proposed defendants to be deposed based only on the limited allegations of a bill of discovery, rather than a formal complaint, places them at a significant disadvantage in that, inter alia, they, and perhaps other potential witnesses who might be favorable to the plaintiff, are the only ones to be deposed, whereas they as potential defendants have no rights to conduct their own discovery. Finally, they argue that the plaintiff has not established probable cause to justify this prelitigation intrusion.
The petitioner's problem, however, is even more basic. General Statutes Sec. 52-156a clearly authorizes the pre-suit taking of depositions of potential adverse parties. It does so, however, for the sole specific purpose of "perpetuating," i.e. preserving or prolonging the existence of, their testimony, and the statute authorizes the court to allow the taking of such depositions only in order to prevent a "failure or delay of justice." Indeed, nowhere in the statute is the word "discovery" even mentioned, nor is there any suggestion that the uses to which this procedure may be put might include attempts by a would-be plaintiff to determine in advance whether he has a cause of action, unless it can be established that a failure or delay of justice would ensue absent the opportunity to conduct such depositions.
At oral argument on this matter, the plaintiff alleged that his attorney has been frustrated in his efforts to obtain information from the Guilford Police Department, that the proposed defendants and other witnesses have no desire to speak with his attorney, and that his only means of obtaining information upon which he could determine whether or not to bring claims against the proposed defendant is by conducting depositions before bringing a lawsuit. He introduced no evidence on these subjects, however, and his attorney's representations do not take the place of evidence. Nor did he present any evidence suggesting that there would be a "failure or delay of justice" if he were to conduct his depositions in the ordinary course of litigation after serving a complaint. Finally, the plaintiff has given the court no reason to perceive a need to "perpetuate" testimony. He has not alleged that the witnesses are near death, or about to leave the state, or at risk of a decline of memory or other faculties before a lawsuit could be brought such that their testimony would be lost. In short, he has introduced no evidence at all on the issues that might establish his entitlement to the relief which he seeks.
Although the petitioner appears to seek relief solely under the statute, he would fare no better were this presented as a bill of discovery in equity. The law controlling bills of discovery in general has been well articulated by the Supreme Court in Berger v. Cuomo, 230 Conn. 1 (1994). The Court stated: "The bill of discovery is an independent action in equity for discovery, and is designed to obtain evidence for use in an action other than the one in which discovery is sought . . . As a power to enforce discovery, the bill is within the inherent power of a court of equity that has been a procedural tool in use for centuries . . . The bill is well recognized and may be entertained notwithstanding the statutes and rules of court relative to discovery . . . Furthermore, because a pure bill of discovery is favored in equity, it should be granted unless there is some well founded objection against the exercise of the court's discretion . . . To sustain the bill, the petitioner must demonstrate that what he seeks to discover is material and necessary for proof of, or is needed to aid in proof of or in defense of, another action already brought or about to be brought . . . Although the petitioner must also show that he has no other adequate means of enforcing discovery of the desired material, the availability of other remedies . . . for obtaining information [does] not require the denial of the equitable relief . . . sought . . . This is because a remedy is adequate only if it is one which is specific and adapted to securing the relief sought conveniently, effectively and completely. The remedy is designed to give facility to proof. Discovery is confined to facts material to the plaintiff cause of action and does not afford an open invitation to delve into the defendant's affairs . . . A plaintiff must be able to demonstrate good faith as well as probable cause that the information sought is both material and necessary to his action . . . A plaintiff should describe with such details as may be reasonably available the material he seeks . . . and should not be allowed to indulge a hope that a thorough ransacking of any information and material which the defendant may possess would turn up evidence helpful to his case . . . What is reasonably necessary and what the terms of the judgment require call for the exercise of the trial court's discretion . . . The plaintiff who brings a bill of discovery must demonstrate by detailed facts that there is probable cause to bring a potential cause of action. Probable cause is the knowledge of facts sufficient to justify a reasonable man in the belief that he has reasonable grounds for presenting an action . . . Its existence or nonexistence is determined by the court on the facts found . . . Moreover, the plaintiff who seeks discovery in equity must demonstrate more than a mere suspicion; he must also show that there is some describable sense of wrong. The plaintiff need not, however, state each claim with technical precision; he need only set forth facts that fairly indicate that he has some potential cause of action . . ." (Citations omitted; internal quotation marks omitted.) Id., 230 Conn. at 5-8.
A petitioner "who seeks discovery in equity must demonstrate more than a mere suspicion; he must also show that there is some describable sense of wrong." Berger, supra, at 7; see also, Caddle Co. v. Drubner, 64 Conn.App. 69 (2001). The petitioner here has failed to introduce evidence as to any describable sense of wrong. The verified petition states only that he seeks to determine, from the depositions he proposes to take, whether alcohol was served to minors at the Tower/Chronchio residence prior to the accident in which he was injured, but the petition fails to articulate a single fact that tends to support a conclusion that alcohol was actually served there. The petition reflects a suspicion, and nothing more, and it is therefore insufficient to grant a bill of discovery and, in particular, the right to depose potential defendants and witnesses before the action has been instituted. It would be entirely improper for this court to circumvent the normal orderly procedures of discovery based solely on the petitioner's suspicion that evidence is being kept from him in such a manner. See, also, Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 804 A.2d 823 (2002).
In sum, granting this petition would not "prevent a failure or delay of justice," a prerequisite for relief under General Statutes § 52-156a(3). The court sees nothing of substance that distinguishes this case from any other in which the plaintiff thinks he may have a cause of action but lacks all the information he needs to prove his case before commencing his lawsuit. The petition is therefore dismissed.