Opinion
No. CV 98 007 78 28
March 6, 2006
MEMORANDUM OF DECISION MOTIONS #221, 222, 230 231
I
The issue is whether this court should grant the defendant's motions to quash and for protective order as to the subpoenas duces tecum that the plaintiffs directed to the defendant and to his former attorney, Neil Silberblatt. The defendant has not shown good cause for the motions to be granted because he expressly waived the attorney client privilege between himself and Silberblatt, and since that waiver they have both testified as to aspects of that relationship, thereby impliedly waiving the privilege as to the matters related thereto. Therefore, this court denies the defendant's motions to quash as to these matters.
In 1998, the plaintiffs, Sharon Motor Lodge, Inc. and its two officers Yoke Kiew Chau and Chia Peng Chiang, commenced this action against the defendant, Allan Y. Tai, an attorney who represented them in the purchase of the Sharon Motor Lodge. In their complaint the plaintiffs allege that, after they purchased the motor lodge, it sustained physical damage as a result of flooding, and that the defendant committed malpractice by failing to conduct a title search that would have included an inquiry into whether the property was located in a flood zone, in failing to recommend that they obtain a professional inspection of the septic system and pool on the premises, and by not disclosing that he was not licensed to practice in Connecticut and was not knowledgeable as to Connecticut real estate law and procedures.
According to the record, after litigation began, the parties entered into nonbinding mediation in which United States Magistrate Judge Owen Eagan acted as the mediator. The parties signed a confidentiality agreement, as they were required to do in order to enter into a mediation. Silberblatt represented the defendant at the mediation sessions. The parties disagree as to whether Silberblatt was authorized to settle the case, and if so, for what amount. The plaintiffs allege that Silberblatt represented that he had authority to settle, and that, at the second mediation session, on May 23, 2001 the parties reached a settlement in the amount of $365,000. The defendant disagrees, contending that his attorney did not have authority to enter into a settlement on behalf of his malpractice insurance carrier and that, therefore, the parties did not reach a settlement.
On July 13, 2001, the plaintiffs filed a motion for judgment on the settlement in the amount of $365,000 plus interest. In August 2001, they filed a motion for determination in which they asked the court to determine whether an agreement had been reached, and sought the disclosure of the results of the mediation sessions from the mediator. The court granted the motion for determination on December 3, 2001, to the extent that it allowed the parties to direct two interrogatories to the mediator. Sharon Motor Lodge, Inc. v. Tai, Superior Court, judicial district of Litchfield, Docket No. CV 98 0077828 (December 3, 2001, Cremins, J.) ( 30 Conn. L. Rptr. 753, 755). The mediator answered the interrogatories, indicating that he thought the parties had reached an agreement to settle the case for $365,000. An evidentiary hearing followed on May 16, 2002, in which the defendant argued that the mediator's understanding of the settlement was the result of a miscommunication, and both Silberblatt and a representative of his malpractice insurance carrier denied that they had reached a settlement with the plaintiffs.
In the meantime, on July 16, 2001, the plaintiffs filed a request to amend their initial complaint to add five counts in which they allege that the parties reached a settlement agreement and the defendant breached the agreement. The defendant filed an objection to the request to amend, which was overruled by the court, Pickard, J.
In August and September 2005, respectively, the plaintiffs served the defendant and Silberblatt with subpoenas notifying them that the plaintiffs intended to depose them and directing Silberblatt to produce various documents at his deposition. Presently before the court are the two motions that the defendant filed on October 3, 2005, pursuant to Practice Book § 13-5, in which he asks the court to quash the subpoenas and to enter protective orders relieving him and Silberblatt from their obligations to testify at the depositions. The plaintiffs filed separate objections to each motion. The court held a hearing on the motions on November 9, 2005.
III
"Our rules of practice provide guidelines to facilitate the discovery of information relevant to a pending suit." Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 139, 491 A.2d 389 (1985). "The discovery rules are designed to facilitate trial proceedings and to make a trial less a game of blindman's [buff] and more a fair contest with the basic issues and facts disclosed to the fullest [practicable] extent." (Internal quotation marks omitted.) Vitone v. Waterbury Hospital, 88 Conn.App. 347, 357, 869 A.2d 672 (2005).
The scope of discovery is defined in Practice Book § 13-2 as follows: "In any civil action where the judicial authority finds it reasonably probable that evidence outside the record will be required, a party may obtain in accordance with the provisions of this chapter discovery of information . . . material to the subject matter involved in the pending action, which [is] not privileged, whether the discovery or disclosure relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, and which [is] within the knowledge, possession or power of the . . . person to whom the discovery is addressed. Discovery shall be permitted if the disclosure sought would be of assistance in the prosecution or defense of the action . . ."
In Connecticut, the courts have "long recognized that the granting or denial of a discovery request rests in the sound discretion of the [trial] court . . ." (Internal quotation marks omitted.) Olson v. Accessory Controls Equipment Corp., 254 Conn. 145, 156, 757 A.2d 14 (2004). "The court's discretion applies to decisions concerning whether the information is material [or] privileged . . . as stated in ['13-2]." Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 59-60, 459 A.2d 503 (1983). "That discretion is limited, however, by the provisions of the rules pertaining to discovery; Practice Book §§ 217-21 [now §§ 13-2 to 13-5] . . ." Id., 57-58.
As to depositions, Practice Book § 13-26 provides in relevant part: "[A]ny party who has appeared in a civil action . . . may, at any time after the commencement of the action . . . in accordance with the procedures set forth in this chapter, take the testimony of any person, including a party, by deposition upon oral examination. The attendance of witnesses may be compelled by subpoena as provided in Section 13-28. The attendance of a party deponent . . . may be compelled by notice to the named person or such person's attorney in accordance with the requirements of Section 13-27 (a)." Regarding the production of documents at a deposition, Practice Book § 13-28(c) provides, in relevant part: "A subpoena issued for the taking of a deposition may command the person to whom it is directed to produce and permit inspection and copying of designated books, papers, documents or tangible things which constitute or contain matters within the scope of examination permitted by Sections 13-2 through 13-5 . . ."
IV
The defendant moves to quash and for a protective order as to the subpoena duces tecum issued to Silberblatt on the following grounds: (1) the plaintiffs failed to comply with the provision of Practice Book § 13-28(c) in that they did not serve the subpoena at least fifteen days before the deposition was scheduled to be taken; (2) the plaintiffs failed to comply with Practice Book § 13-29(d) in that they did not set the location for the deposition in the county where Silberblatt resides or within thirty miles thereof; (3) the documents that the plaintiffs seek are protected from disclosure under the attorney-client privilege and the attorney work product doctrine; (4) the documents are protected from disclosure under the mediation privilege found in General Statutes § 52-235d; and (5) the documents are also protected from discovery under § 4-8(a) of the Connecticut Code of Evidence in that they pertain to an offer of settlement. In opposition to the defendant's motion, the plaintiffs argue that: (1) the defendant does not have standing to contest the subpoena under § 13-5 because he is not the party from whom discovery is sought; (2) if the defendant does have standing, he has not shown good cause for the court to grant his motion to quash or issue a protective order because he previously waived the attorney-client privilege in relation to Silberblatt in writing; (3) to the extent that this waiver is insufficient, he has not met his burden of showing that the documents that the plaintiffs seek are privileged in that both he and Silberblatt previously testified as to the matter at issue; and (4) § 4-8(a) does not apply to discovery requests and does not place limitations on matters that pertain to the issue of whether the parties entered into a settlement.
The defendant also argues that the plaintiffs are engaging in discovery beyond the time limit the parties agreed upon in their discovery schedule. This argument is now moot because, on November 9, 2005, the court, Bozzuto, J., granted the plaintiffs' motion to enlarge these time limits.
The first consideration is the plaintiffs' contention that the defendant does not have standing to raise arguments pertaining to the subpoena they issued to Silberblatt. Two sections of the rules of practice appear to apply to this issue. The defendant brought his motion pursuant to § 13-5, which provides in relevant part: "Upon motion by a party from whom discovery is sought, and for good cause shown, the judicial authority may make any order which justice requires to protect a party from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions . . ." (Emphasis added.) The other relevant section is § 13-28, which provides in relevant part: "(d) The person to whom a subpoena is directed may, within fifteen days after the service thereof . . . serve upon the issuing authority designated in the subpoena written objection to the inspection or copying of any or all of the designated materials . . . (e) The court in which the cause is pending . . . may, upon motion made promptly . . . (1) quash or modify the subpoena if it is unreasonable and oppressive or if it seeks the production of materials not subject to production under the provisions of subsection (c) of this section . . ." (Emphasis added.)
This language implies that only the person to whom a discovery request is directed can seek a protective order. Nevertheless, in Cahn v. Cahn, 26 Conn. 720, 728, 603 A.2d 759 (1992), aff'd on other grounds, 225 Conn. 666, 626 A.2d 296 (1993), the Appellate Court concluded that under § 13-5, a party can file a motion seeking a protective order regarding the deposition of a nonparty witness if the motion is premised on the need to protect the party's interests. In that case, the motion was proper because the party premised it on the need to "protect the [party] from the `undue burden' of having to attend a deposition in New York, which is a valid reason under Practice Book § 221 [now § 13-5]." By logical extension, a party may seek a protective order regarding a subpoena issued to a nonparty witness under §§ 13-5 or 13-28(d) and (e) if the party does so on the basis of the need to protect the party's own interests, as enumerated in these sections. "The Superior Court has interpreted the Cahn decision to stand for the proposition that where a party seeks to protect itself from harm due to the subpoena of a nonparty, it has standing to seek a protective order." (Internal quotation marks omitted.) Smith v. Rossi, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 03 0399819 (July 21, 2004, Doherty, J.) ( 37 Conn. L. Rptr. 505, 506).
This requirement disposes of the defendant's first two arguments. Specifically, the defendant fails to allege that or how his interests were harmed by the plaintiffs' failure to serve the subpoena on Silberblatt at least fifteen days before the date of the deposition, as required by § 13-28(c), or by designating a location for the deposition that was not within thirty miles of Silberblatt's residence, as required by § 13-29(d). In this regard, the defendant does not have standing to contest the subpoena.
Practice Book § 13-28(c) provides in relevant part: "A subpoena issued for the taking of a deposition may command the person to whom it is directed to produce and permit inspection and copying of designated books, papers, documents or tangible things which constitute or contain matters within the scope of the examination permitted by Sections 13-2 through 13-5. Unless otherwise ordered by the court or agreed upon in writing by the parties, any subpoena issued to a person commanding the production of documents or other tangible thing at a deposition shall not direct compliance within less than fifteen days from the date of service thereof."
Practice Book § 13-29(d) provides in relevant part: "A nonparty deponent may be compelled by subpoena served within this state to give a deposition at a place within the county of his or her residence or within thirty miles of the nonparty deponent's residence; or if a nonresident of this state within any county in this state in which he or she is personally served, or at such other place as is fixed by order of the judicial authority."
On the other hand, the defendant has standing to move for protection from the subpoena on the basis that it seeks privileged information in that he, as the holder of such privileges, has an interest that may be harmed. See Smith v. Rossi, supra, 37 Conn. L. Rptr. 506 (party has standing to file motion to quash subpoena directed to his physicians seeking disclosure of his medical records); and Kowalonek v. Bryant Lane, Inc., Superior Court, judicial district of Danbury, Docket No. CV 96 0324942 (April 11, 2000, Moraghan, J.) (plaintiff appears to have standing to move for a protective order regarding deposition of her former attorney).
See Shew v. Freedom of Information Commission, 245 Conn. 149, 158 n. 11, 714 A.2d 664 (1998) ("It is axiomatic that the [attorney-client] privilege belongs to the client." [Internal quotation marks omitted.]).
The next issue is whether, as to the defendant's claims of privilege, he has met his burden of demonstrating "good cause" under § 13-5 for the court to grant his motion. In this context, "[c]ourts have defined good cause as a sound basis or legitimate need to take action . . . Good cause must be based upon a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statement . . . Whether or not good cause exists for entry of a protective order must depend on the facts and circumstances of a particular case." (Citations omitted; internal quotation marks omitted.) Longwood Engineered Products, Inc. v. Polyneer, Inc., Superior Court, judicial district of Windham at Putnam, Docket No. CV 04 0072627 (September 7, 2004, Potter, J.).
In the subpoena, the plaintiffs requested that Silberblatt provide them with the following four categories of documents: (1) all correspondence between the defendant and Silberblatt concerning this action; (2) all correspondence sent by the defendant to Silberblatt authorizing a settlement of this action; (3) all correspondence between Silberblatt and the defendant's malpractice insurance carrier concerning settlement of this action; and (4) all correspondence between the defendant and his malpractice insurance carrier concerning settlement of this action. The plaintiffs do not dispute that the documents they seek from Silberblatt contain communications that would be protected from disclosure pursuant to the attorney-client or the attorney work product privileges. Instead they assert that the defendant cannot use either privilege to shield these documents from disclosure because he has expressly and impliedly waived the privileges.
"The power to waive the attorney-client privilege rests with the client or with his attorney acting with his authority." Gebbie v. Cadle Co., 49 Conn.App. 265, 274, 714 A.2d 678 (1998). "Generally, [the voluntary] disclosure of confidential communications or attorney work product to a third party, such as an adversary in litigation, constitutes a waiver of [the] privilege as to those items." (Internal quotation marks omitted.) Harp v. King, 266 Conn. 747, 767, 835 A.2d 953 (2003). The plaintiffs have provided the court with a letter that the defendant sent to Silberblatt dated May 13, 2002, in which the defendant expressly stated that he was "waiving attorney client privilege in regard to you and your law firm in this matter. I am doing this so that you may testify at the May 16, 2002 hearing this matter." (Exhibit A to the plaintiffs' objection to defendant's motion to quash.) Although the defendant did not specifically limit his express waiver to any particular issues, a limitation may be implied in that the waiver was for the purpose of allowing Silberblatt to testify at a hearing on the issue of whether the parties had entered into a settlement at the mediation sessions in 2001. Thus, the defendant expressly waived his attorney-client and attorney work product privileges as to communications and work product pertaining to this issue.
Moreover, a party can impliedly waive a privilege by his conduct. Specifically, "[i]f the holder of the [attorney-client] privilege fails to claim his privilege by objecting to disclosure by himself or another witness when he has an opportunity to do so, he waives his privilege as to communications so disclosed . . . This result is reached because once the confidence protected has been breached, the privilege has no valid continuing office to perform." (Citations omitted; internal quotation marks omitted.) Gebbie v. Cadle Co., supra, 49 Conn.App. 274. Furthermore, as the court noted, once a party waives a privilege as to particular information, the party has "waived the privilege as to that information for all time." Id. "The `at issue,' or implied waiver, exception [to attorney-client privilege] is invoked when the contents of the legal advice is integral to the outcome of the legal claims of the action. Such is the case when [ inter alia] a party voluntarily testifies regarding portions of the attorney-client communications, or specifically places at issue, in some other manner, the attorney-client relationship. In those instances the party has waived the right to confidentiality . . ." Metropolitan Life Ins. Co. v. Aetna Casualty Surety Co., 245 Conn. 36, 53, 730 A.2d 51 (1999).
Here, it is undisputed that both the defendant and Silberblatt testified at the hearing on May 16, 2002, as to their communications regarding the settlement discussions between the parties. Thus, the defendant has, by implication, waived his claims of privilege as to the issues to which he and Silberblatt testified.
The defendant does not provide evidence or authority for his contention that the documents the plaintiffs seek are exempt from disclosure under General Statutes § 52-235d in that they pertain to the mediation sessions. Recently, in ruling of the plaintiffs' motion to depose the mediator, this court addressed this privilege and the scope of its exception that allows for disclosure "as a result of circumstances in which a court finds that the interest of justice outweighs the need for confidentiality, consistent with the principles of law." General Statutes § 52-235d(b)(4). Such circumstances exist here, where the plaintiffs claim that the defendant breached an agreement reached in the mediation sessions, the defendant denies this claim, and both the defendant and Silberblatt have already voluntarily testified regarding this issue. Thus, the defendant's claim of privilege must fail.
General Statutes § 52-235d provides: "(a) As used in this section, "mediation" means a process, or any part of a process, which is not court-ordered, in which a person not affiliated with either party to a lawsuit facilitates communication between such parties and, without deciding the legal issues in dispute or imposing a resolution to the legal issues, which assists the parties in understanding and resolving the legal dispute of the parties. (b) Except as provided in this section, by agreement of the parties or in furtherance of settlement discussions, a person not affiliated with either party to a lawsuit, an attorney for one of the parties or any other participant in a mediation shall not voluntarily disclose or, through discovery or compulsory process, be required to disclose any oral or written communication received or obtained during the course of a mediation, unless (1) each of the parties agrees in writing to such disclosure, (2) the disclosure is necessary to enforce a written agreement that came out of the mediation, (3) the disclosure is required by statute or regulation, or by any court, after notice to all parties to the mediation, or (4) the disclosure is required as a result of circumstances in which a court finds that the interest of justice outweighs the need for confidentiality, consistent with the principles of law. (c) Any disclosure made in violation of any provision of this section shall not be admissible in any proceeding. (d) Nothing in this section shall prevent (1) the discovery or admissibility of any evidence that is otherwise discoverable merely because such evidence was presented during the course of the mediation, or (2) the disclosure of information for research or educational purposes done in cooperation with dispute resolution programs provided the parties and specific issues in controversy are not identifiable."
Lastly, as to the defendant's contention that the plaintiffs are seeking disclosure of documents that are exempt from disclosure under § 4-8(a) of the Connecticut Code of Evidence, it is noted that this provision applies to the admissibility of evidence, not to discovery. Its purpose "is to preclude the admission of settlement offers between parties who are opposing parties at the trial in which the evidence of the settlement is sought to be introduced." PSE Consulting, Inc. v. Frank Mercede Sons, Inc., 267 Conn. 279, 332, 838 A.2d 135 (2004). As § 13-2 expressly provides, "[i]t 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." See Sanderson v. Steve Snyder Enterprises, Inc., supra, 196 Conn. 139 ("allowable scope of inquiry at a discovery deposition clearly exceeds the boundaries of admissible evidence"). Thus, "requested nonprivileged material is discoverable as long as it is calculated to lead to the discovery of admissible evidence." Vargas v. Yale-New Haven Hospital, Inc., 47 Conn.Sup. 1, 3, 768 A.2d 967 (2000) ( 27 Conn. L. Rptr. 135). As such, defendant's argument that the subject documents are exempt from discovery must fail.
Connecticut Code of Evidence § 4-8(a) provides: "(a) General rule. Evidence of an offer to compromise or settle a disputed claim is inadmissible on the issues of liability and the amount of the claim."
In conclusion, because the defendant has already waived the attorney-client and attorney work product privileges that pertain to the issue of whether the parties reached a settlement at the mediation sessions in 2001, he has not shown good cause for the court to grant his motion to quash or for a protective order as to the documents that relate thereto. The defendant's motion to quash the subpoena issued to Silberblatt is denied.
As to the remaining documents listed in the subpoena, it is arguable that the defendant, as "the party seeking to assert the privilege" has not met his burden of "proving each element of the privilege, by a fair preponderance of the evidence . . ." PSE Consulting, Inc. v. Frank Mercede Sons, Inc., supra, 267 Conn. 330. Nevertheless, the plaintiffs do not dispute the defendant's assertion that the documents contain privileged communications, nor have they have not presented any evidence that the defendant waived the privileges other than as detailed above. The court grants the defendant's motion as to these documents.
V
The defendant moves to quash the subpoena and for a protective order regarding the subpoena issued to him for his deposition on the following grounds: (1) he anticipates that the plaintiffs will ask questions about information protected by the attorney-client privilege and the attorney work product doctrine; (2) the plaintiffs are seeking to discover information that is protected by the mediation privilege found in General Statutes § 52-235d and pertains to evidence of an offer to compromise or settle a disputed claim; and (3) allowing the plaintiffs to depose him would be unduly burdensome and unfair in that the plaintiffs have already deposed him. In opposition to the defendant's motion, the plaintiffs argue that: (1) the defendant has not satisfied the requirement of Practice Book § 13-5 of showing good cause for the court to grant his motion because the defendant expressly waived his attorney-client privilege as to Silberblatt; (2) to the extent that this waiver is insufficient to overcome the privilege, the information they seek is subject to the at issue exception to the privilege; (3) the information they seek is not undiscoverable or inadmissible under § 4-8(a); and (4) because they added new counts to their complaint since they last deposed the defendant, and because he had not provided them with discovery for the plaintiffs to depose him again regarding those claims, it would not be unduly burdensome or unfair.
The defendant also argues that the plaintiffs are engaging in discovery beyond the time limit the parties agreed upon in their discovery schedule. This argument is now moot because, on November 9, 2005, the court, Bozzuto, J., granted the plaintiffs' motion to enlarge these time limits.
VI
As previously detailed, the defendant has waived the attorney-client privilege and attorney work product privileges as to the issue of whether the parties reached a settlement at the mediation sessions in 2001. For the reasons stated above, such information is also excepted from the mediation privileged found in General Statutes § 52-235d(b) under subsection (4) thereof, and is not shielded from discovery by § 4-8(a) of the Connecticut Code of Evidence.
Lastly, the court considers the defendant's assertion that it would be unduly burdensome and unfair to allow the plaintiffs to depose him, because they have already done so. According to the parties, the plaintiffs previously deposed the defendant in 1998 and 1999, at which time the plaintiff's claims against him pertained to his alleged malpractice. This was well before he allegedly engaged in the conduct that gives rise to the claims they added to the amended complaint regarding the 2001 mediation sessions. Thus, the plaintiffs have not previously deposed him as to their amended claims. The defendant has not cited authority for the proposition that a party is prohibited from engaging in further discovery after it has amended its pleadings to add additional claims or defenses, nor is the court aware of any such authority.
Indeed, it is noted that § 13-2 provides that "[d]iscovery shall be permitted if the disclosure sought would be of assistance in the prosecution or defense of the action . . ." (Emphasis added.) The Supreme Court has characterized this as a "mandatory provisions" that limits the trial court's discretion in ruling on discovery requests. Standard Tallow Corp. v. Jowdy, supra, 190 Conn. 58. Accordingly, as the court explained, "[a] complete denial of discovery . . . is seldom within the court's discretion unless the court finds that one or more of the limitations on discovery expressed [in the rules of practice] applies." Id., 60. The defendant has not shown good cause for the court to grant his motion to quash or for a protective order as to his deposition as to the issues relating to whether the parties entered into a settlement agreement at the mediation sessions in 2001 and his motion is denied.
VII
The defendant has not shown good cause for either of the motions to be granted because he expressly waived the attorney-client privilege between himself and Silberblatt, and since that waiver they have both testified as to aspects of that relationship, thereby impliedly waiving the privilege as to the matters related thereto. This court denies both of the defendant's motions to quash.
SO ORDERED.