Opinion
No. CV 08 4017238
June 19, 2008
MEMORANDUM OF DECISION
Charles Lowe has brought this petition pursuant to General Statutes Sec. 52-156a with regard to a proposed civil action which has not yet been filed. The petitioner states that he expects to be a party in a civil action, the subject matter of which will be the collection of sums owed by the respondent, D M Screw Machine Products, LLC, under the terms of an equipment lease between the parties. The petitioner seeks a court order authorizing him to take pre-suit depositions of persons for the purpose of "perpetuating their testimony" in contemplation of a lawsuit. The respondent has objected to the granting of any orders on the ground that the petitioner's request amounts to a "fishing expedition."
General Statutes § 52-156a(a) provides in relevant part as follows: "(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 petitioners 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.
(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.
General Statutes Sec. 52-156a authorizes the taking of pre-litigation depositions of "any expected adverse party" "for the purpose of perpetuating their testimony." The statute further authorizes the court order to allow the taking of such depositions "[i]f the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice."
At oral argument, the petitioner argued that his only means of obtaining the information needed to determine whether or not to bring the action against the proposed defendant is by conducting the requested depositions before bringing the lawsuit. However, the petitioner presented no evidence suggesting that there would be a "failure or delay of justice" if he were required to conduct his depositions in the ordinary course of litigation after serving a complaint. Moreover, the petitioner has not offered any reason why the testimony sought needs to be "perpetuated." There is no allegation that there is any risk that the proposed deponents may leave the state or that the condition of their health is such that their testimony may be lost before a lawsuit can be brought.
In In Re Petition of Christensen, 25 Conn.Sup. 271, 274, 202 A.2d 834 (1964), the court denied a bill of discovery to take a deposition prior to the filing of suit. The Christensen court stated that "the procedure amounts, in substance, to discovery before suit. It is a use which should not be permitted to be abused by broad fishing expeditions to enable a party to ascertain whether or not he has a cause of action or to assist him in framing a complaint. It should be carefully limited to situations . . . where the ends of justice clearly require its use." Id.
The court in Christensen further stated that "[t]here appears no reason why the petitioner cannot immediately commence suit on whatever cause of action be claims and therein proceed in the usual manner. He has demonstrated no unusual circumstance which, in view of the objections of the respondent, justifies the extraordinary order which he seeks. To grant such a petition as this would open the door to an unlimited process of permitting depositions before suit for the purpose of determining whether a cause of action does exist and even developing a cause of action. The deposition being taken before suit and before issues are framed, it would be impossible to determine questions of relevancy or materiality." In Re Petition of Christensen, supra, 25 Conn.Sup. 274.
At oral argument the petitioner claimed that the court should order the depositions in the interest of judicial economy. If the courts were to grant such petitions freely without requiring strict adherence to the statutory prerequisites it is not inconceivable that such action would lead to a significant increase in the number of contested matters involving multiple stages of hearings and other proceedings. Moreover, the petitioner seeks an extraordinary proceeding in which an "expected adverse party" would be required to submit to a deposition without the concomitant right to depose the petitioner.
Although the petitioner seeks a statutory order, the statute has its origins in equitable proceedings. 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 v. Cuomo, 230 Conn. 1, 7, 644 A.2d 333 (1994); see also, Cadle Co. v. Drubner, 64 Conn.App. 69 (2001). In the present matter, the petitioner has offered only conclusory allegations that he believes, or more aptly suspects, that he is owed additional rental sums under the terms of an inartfully drafted equipment lease.
As stated by Judge Silbert in denying a similar petition brought under the same statute: "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." In Re Michael Mancini, No. CV07-4027644S 2007 Ct.Sup. 19976, 44 Conn. L. Rptr. 533 (Nov. 21, 2007).
The petitioner seeks a statutory proceeding for which the statutory prerequisites have not been satisfied. Accordingly, the petition is denied.