Opinion
No. CV 04-0832546
April 4, 2005
MEMORANDUM OF DECISION ON PLAINTIFFS' MOTION TO ALLOW AUDIO CASSETTE TO BE PLAYED IN DEPOSITION DATED FEBRUARY 1, 2005
Pursuant to a February 1, 2005, motion, plaintiffs seek the Court's permission to play an audio cassette recording of a deponent, Attorney Bruce Bergman.
To summarize and simplify, plaintiffs in this case allege that the defendant tortiously and negligently interfered with a business expectancy. Plaintiffs claim that a rap star, Master P, offered the rap group Fort Knox a record deal with his record label, New No Limit Records. According to the plaintiffs, the defendant expressed an interest in helping the group invest the money they would make from the record deal. But, plaintiffs allege, without plaintiffs' knowledge or consent, defendant telephoned Master P's attorney and told him that the contract being offered was a "Mickey Mouse" contract because, among other things, it lacked a signing bonus. Plaintiffs further claim that due to the defendant's actions, Master P and his attorneys decided to cancel the record deal with Fort Knox.
According to plaintiffs' February 1, 2005 motion, a deposition of Bruce Bergman, an attorney, was taken on December 7, 2004. During the deposition, the motion recites, Attorney Bergman was asked several questions regarding a telephone conversation which took place in October 2003 with plaintiff, Delone Robinson. Attorney Bergman was defendant's attorney when the conversation was recorded. The telephone call was initiated in South Carolina by Delone Robinson and was taped by Delone Robinson. Plaintiffs assert that statements made by Attorney Bergman on the tape recording are contradictory to answers he gave at deposition. Plaintiffs wish to use the tape to impeach Attorney Bergman's testimony. The parties agree that taping the call was not unlawful under South Carolina law, but would have been unlawful under Connecticut law. The recording was made, according to Attorney Bergman's affidavit dated February 9, 2005, without his knowledge or consent.
The defendant argues that plaintiff should not be permitted to pursue the questioning of Attorney Bergman, claiming that the audio cassette in question was obtained illegally. Pursuant to Connecticut General Statutes § 52-570d, claims defendant, a person is precluded from recording an oral private telephone conversation in Connecticut unless all parties to the conversation consent in writing, or on the recording itself, to the conversation being recorded.
This statute, defendant notes, provides civil remedies against the party violating it. Additionally defendant notes that Section 52-184a states that "No evidence obtained illegally by the use of an electronic device is admissible in any court of this state." According to defendant, decisions of various Superior Court judges support his position. Defendant specifically cites the decisions of Judge Wiese in Tarbox v. Tarbox, 2004 WL 1326824; 37 Conn. Law Rptr. 187; Judge Gallagher in Lord v. Lord, 2002 WL 31125621; 33 Conn. L. Rptr. 88; and Judge Bassick in Finerty v. Finerty, 1992 WL 361504 ( 8 Conn. L. Rptr. 28). See also Rivera v. Rivera, 15 Conn.App. 529 (1988). Permitting the deponent to be questioned based on unlawfully obtained evidence, defendant claims, would be akin to allowing "the fruit of the poisonous tree" into evidence in a criminal case. Defendant also argues that there is a question about the authenticity of the tape and that a copy of the tape should not be admitted. Defendant raises no claim of privilege. He does, however, assert that plaintiffs seek to question Attorney Bergman about essentially irrelevant matters.
Plaintiffs reply that under our rules of practice, even illegally obtained evidence may be admitted, and that, in any event, the broad scope of discovery permits the use of the audio tape at a deposition. Plaintiffs also argue that the deponent can authenticate the tape and that a copy is admissible. Plaintiffs claim they seek to question Attorney Bergman only about matters reasonably calculated to lead to the discovery of admissible evidence.
The Court concludes that the plaintiffs' arguments are more persuasive, for the following reasons.
First, Section 52-184a states that no evidence obtained illegally by use of an electronic device is admissible in any court of this state. It does not say that unlawfully obtained evidence may not be used during the course of discovery. It is clear that the scope of what is admissible at trial, and what may be inquired into during discovery, are substantially different. Discovery shall be permitted, pursuant to Section 13-2, if "the disclosure would be of assistance in the prosecution or defense of the action and if it can be provided by the disclosing party with substantially greater facility than it could otherwise be obtained by the party seeking disclosure." Section 13-2 goes on to state: "It shall not be ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." (Emphasis added.) The most sensible reading of Section 52-184a would apply that section to courtroom proceedings — such as trials, pretrial hearings, applications for prejudgment remedies, motions for summary judgment, and similar proceedings in court which, typically, involve the taking and evaluation of evidence in the presence of, or by, a judge or judicial officer.
Second, while it is true that Section 52-184a embodies a policy a central goal of which is to protect the privacy of persons located in Connecticut, a competing bedrock goal of the civil justice system is to permit litigants to obtain all available evidence in support of their claims. As plaintiffs argue, if the witness is not permitted to testify at deposition as to a conversation which would otherwise be discoverable, plaintiffs are being deprived of the opportunity to obtain potentially significant evidence.
Third, and related, the appropriate remedy for the improper recording of a conversation is not necessarily to prohibit discovery. As plaintiffs note, suppression of evidence is constitutionally mandated in criminal cases, not civil ones, when evidence is unlawfully obtained or seized. The proper remedy under the present circumstances, when one's rights are alleged to have been violated, is to seek redress in the appropriate criminal or civil forum. If the deponent believes he has a cause of action under Section 52-570d for damages, costs and attorneys fees, then he is free to pursue it. Likewise, if he believes a criminal act has occurred, he is free to bring his view to the attention of the proper prosecutorial authorities.
Finally, the cases cited by defendant — apparently all stemming from domestic situations — do not provide strong support for his argument. Judge Wiese's decision in Tarbox v. Tarbox concerned an attempt to introduce surreptitiously recorded conversations into evidence at a prejudgment remedy proceeding. In Lord v. Lord, Judge Gallagher ruled on a motion for summary judgment in a civil case. In Finerty v. Finerty, Judge Bassick indicated that he had reviewed the deposition of the deponent and that "any further inquiry of the deponent is not likely to add to any further admissible evidence." "To permit the plaintiff to inquire further is to infringe upon the deponent's rights of privacy and constitutes harassment," stated Judge Bassick.
There is no such similar record in the instant case. The record in this case, including representations made by plaintiffs' counsel at oral argument on March 28, 2005, persuades the Court that the questioning of the deponent is being undertaken in a good faith attempt to further discovery — and not for the purpose of harassment. If the record were otherwise, this decision might be otherwise. If the proceedings at any future deposition indicate that the questioning is not appropriate or outside the bounds of proper discovery, the Court is available to decide any subsequent resulting motions.
The Court rejects defendant's arguments concerning authentication of the tape. The deponent can authenticate it. Additionally, there is no reason why a copy of the tape cannot be used to question a witness at a deposition.
For all of the above reasons, the Plaintiffs' February 1, 2005 Motion to Allow Audio Cassette to be Played in Deposition is granted; Defendant's February 9, 2005 Motion for Protective Order and Objection to Plaintiffs' Motion to Allow Audio Cassette to be Played in Deposition Dated February 1, 2005, is denied and/or overruled.
Douglas S. Lavine Judge, Superior Court