Opinion
No. FST CV 02 0190181
May 31, 2005
MEMORANDUM OF DECISION RE DISCOVERY
The plaintiffs, Irene Sanford, Robert Peterson and Gretchen Pulvermann, as executrix of the estate of Mary Jane Watson, have sued the defendant, Watson B. Metcalfe, for bringing a suit against them in the United States District Court for Connecticut. The plaintiffs allege that this suit was brought by the defendant without probable cause and with a malicious intent to "vex" and "trouble" them.
By way of background, the defendant contested the admission to probate of a will of Mary Jane Watson, deceased. The Probate Court for the district of Greenwich admitted the will and the defendant, Metcalfe, claiming to be a beneficiary under a prior will, appealed to this court, which dismissed the appeal because it had not been timely filed pursuant to General Statutes § 45a-187(a). The defendant then filed a new appeal to this court based on the accidental failure of suit statute, General Statutes § 52-592(a), which this court ruled was not applicable to probate appeals. The defendant appealed to the Appellate Court, which affirmed the decision in Metcalfe v. Sanford, 81 Conn.App. 96, 837 A.2d 894 (2004). Upon the granting of certification, the Supreme Court affirmed the Appellate Court's decision in Metcalfe v. Sanford, 271 Conn. 531, 858 A.2d 757 (2004).
In September 2001, the defendant in this case commenced an action in the federal district court (Civil Action No. 3:01 CV 1789), which was dismissed for lack of jurisdiction, lack of standing, and the inapplicability of both General Statutes § 42-110b, the Connecticut Unfair Trade Practices Act (CUTPA), and the theory of tortious interference with business expectancies.
The defendant answered the complaint in this present action by including a special defense that he brought suit in the federal court "on the advice of counsel and [it] was asserted with probable cause." Pursuant to General Statutes § 52-568, the plaintiffs subsequently cited Attorney Miles McDonald and his law firm, Ivey, Barnum and O'Mara, into the case as defendants, as they were the attorneys representing the defendant when he brought suit in the federal court.
General Statutes § 52-568(1) permits a party to a civil action who has been wrongfully sued to recover enhanced damages on the ground of vexatious litigation. Under Connecticut case law, "[a]dvice of counsel is a complete defense to an action of . . . vexatious suit when it is shown that the defendant . . . instituted [his] civil action relying in good faith on such advice, given after a full and fair statement of all facts within [his] knowledge, or which [he] was charged with knowing. The fact that the attorney's advice was unsound or erroneous will not affect the result." (Internal quotation marks omitted.) Shea v. Chase Manhattan Bank, N.A., 84 Conn.App. 624, 830-31, 781 A.2d 352 (2001).
General Statutes § 52-568 provides: "Any person who commences and prosecutes any civil action or complaint against another, in his own name or the name of others, or asserts defense to any civil action or complaint commenced and prosecuted by another (1) without probable cause, shall pay such other person double damages, or (2) without probable cause, and with a malicious intent unjustly to vex and trouble such other person, shall pay him treble damages."
The plaintiffs have noticed the deposition of the defendant Metcalfe, a resident of Florida, to be taken in Stamford. The plaintiffs also seek the production of certain documents pertaining to legal advice given him by the defendant attorneys. The defendant Metcalfe has filed motion #123 for a protective order relative to the place of deposition and also concerning the scope of documents to be brought to the deposition.
The plaintiffs requested the production of all documents and communications between Metcalfe, the defendant, and his attorneys relating to the estate of Mary Jane Watson, deceased including the probate court proceedings and the appeals therefrom to this court.
In terms of the place of deposition, Practice Book. § 13-29 provides that a defendant such as Metcalfe, who is not a resident of this state, and is not personally served in this state, may be deposed "at any place within thirty miles of the defendant's residence or within the county of his or her residence or at such other place as is fixed by order of the judicial authority." Thus, this, defendant cannot be ordered to appear at a deposition in this state.
The defendant Metcalfe claims that the information sought by the plaintiff violates the attorney-client privilege. Practice Book § 13-2 provides, in relevant part, that a party "may obtain . . . discovery of information . . . material to the subject matter involved in the pending action, which are not privileged . . ." "Any party may be compelled by notice to give a deposition . . . The giving of the notice prescribed by [Practice Book § 13-27], unless modified by the court, constitutes an order to the deponent to appear at the time and place designated in the notice and to submit to examination and cross-examination as permitted at trial . . . All questions, including those objected to, are to be answered . . . unless the objecting party procures from the court a protective order precluding or limiting the scope or disclosure of discovery . . ." (Citations omitted.) Pavlinko v. Yale-New Haven Hospital, 192 Conn. 138, 143, 470 A.2d 246 (1984).
The Appellate Court has recognized, however, that the duty to answer all questions at a deposition is subordinate to the "attorney-client privilege." Gebbie v. Cadle Co., 49 Conn.App. 265, 274 n. 7, 714 A.2d 678 (1998). Connecticut has long recognized the attorney-client privilege. Doyle v. Reeves, 112 Conn. 521, 523, 152 A. 882 (1931). The confidentiality of attorney-client communications is also recognized by Connecticut's Rules of Professional Conduct, Rule 1.6. In general, communications between client and attorney are privileged when made in confidence for the purpose of seeking legal advice. Dietter v. Dietter, 54 Conn.App. 481, 503, 737 A.2d 926 (1999). The attorney-client privilege must be strictly construed. Ullmann v. State, 230 Conn. 698, 712, 647 A.2d 324 (1994). "A trial court should honor the privilege if and only if [t]he injury that would inure to the [attorney-client] relation by the disclosure of the communicatio[n] [is] greater than the benefit thereby gained for the correct disposal of litigation." (Citation omitted; internal quotation marks omitted.) State v. Cascone, 195 Conn. 183, 189, 487 A.2d 186 (1985).
"[T]he attorney-client privilege implicitly is waived when the holder of the privilege has placed the privileged communications in issue. [B]ecause of the important public policy considerations that necessitated the creation of the attorney-client privilege [however] the `at issue' or implied waiver, exception is invoked only when the contents of the legal advice is integral to the outcome of the legal claims of the action . . . Such is the case when a party specifically pleads reliance on an attorney's advice as an element of a . . . defense . . . In those instances the party has waived the right to confidentiality by placing the content of the attorney's advice directly at issue because the issue cannot be determined without an examination of that advice." (Citation omitted; internal quotation marks omitted.) Hutchinson v. Farm Family Casualty Insurance Co., 273 Conn. 33, 39, 867 A.2d 1 (2005).
In light of the limited scope of the attorney-client privilege and the need for a balancing of the competing interests, it would be inappropriate in this case to grant a protective order barring any and all inquiries which are in any way related to the attorney-client relationship between the defendant client and his attorneys.
Thus, the deponent is not obliged to come to Connecticut for his deposition and the attorney-client privilege does not apply to his special defense of "advice of counsel." A protective order does hereby issue, however, restricting inquiry to the advice surrounding the suit in the federal court which is the basis for the pending vexatious litigation action against the deponent. Any inquiry involving legal advice on other matters, including, without limiting the generality of the foregoing, probate proceedings, involving the estate of Mary Jane Watson, deceased, and the appeal therefrom, is subject to the attorney-client privilege and need not be answered.
William B. Lewis, J.T.R.