Opinion
No. CV 06 5001979
October 31, 2007
MEMORANDUM OF DECISION
Motion to Compel, #113; Motion for Protective Order, #114
On June 14, 2007, the defendant, John Maturo, filed a motion to compel the production of a personal diary that the plaintiff, Jacqueline Tower, kept, before and after the motor vehicle accident involved in the present case. At her deposition on May 23, 2007, the plaintiff stated that she wrote about the accident and her injuries, pain and headaches in her diary. On June 28, 2007, in response to the defendant's motion to compel, the plaintiff filed an objection and a motion for a protective order.
Practice Book § 13-2 provides in relevant part: "In any civil action . . . where the judicial authority finds it reasonably probable that evidence outside the record will be required, a party may obtain . . . production . . . of . . . documents material to the subject matter involved in the pending action, which are not privileged . . . and which are within the knowledge, possession or power of the party . . . to whom the discovery is addressed. Discovery shall be permitted if the disclosure sought would be of assistance in the . . . 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." With respect to requests for production, Practice Book § 13-9 provides in relevant part: "[A]ny party may serve . . . upon any other party a request to afford the party submitting the request the opportunity to inspect, copy, photograph or otherwise reproduce designated documents (including, but not limited to, writings, drawings, graphs, charts, photographs and phonograph records) . . . In all personal injury actions alleging liability based on the operation or ownership of a motor vehicle . . . the requests for production shall be limited to those set forth in Forms 204, 205 and/or 206 of the rules of practice . . ." Form 205 includes the following request for production: "(10) A copy of any nonprivileged statement . . . of any party in this lawsuit concerning this action or its subject matter." Practice Book § 13-1 indicates that "statement" means "a written statement in the handwriting of the person making it" and "party" means "a person named as a party in the action . . ."
"[T]he purpose of the rules of discovery is to make a trial less a game of blindman's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent." (Internal quotation marks omitted.) Tessmann v. Tiger Lee Construction Co., 228 Conn. 42, 50, 634 A.2d 870 (1993). "Our legal system, while not perfect, is effective because it fundamentally relies upon the interplay of zealous advocates, neutral judicial officers, and impartial finders of fact . . . A jury trial, unlike dueling press releases, involves a search for the truth . . . The need to develop all relevant facts in the adversary system is both fundamental and comprehensive . . . The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence . . ." (Citations omitted; internal quotation marks omitted.) Simpson v. University of Colorado, 220 F.R.D. 354, 356 (D.Colo. 2004). Pursuant to "Practice Book § 13-14(a) . . . a trial court may, on motion [to compel production], make such order as the ends of justice require." (Internal quotations omitted.) Cavolick v. DeSimone, 88 Conn.App. 638, 653, 870 A.2d 1147, cert. denied, 274 Conn. 906, 876 A.2d 1198 (2005). With regard to motions for protective orders, Practice Book § 13-5 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 . . ." [T]he granting or denial of a discovery request rests in the sound discretion of the court . . ." (Internal quotation marks omitted.) Cavolick v. DeSimone, supra, 653-54.
In Tracanna v. Midstate Medical Center, Superior Court, judicial district of New Haven, Docket No. CV 00 0443739 (June 12, 2001, Lager, J.), the defendants "moved for an order compelling the [plaintiffs] to produce all notes, diaries and/or journals taken by the plaintiff-mother . . . regarding the plaintiff-minor . . . regarding his overall condition and the care and treatment he received." (Internal quotation marks omitted.) The plaintiffs opposed "production of the notes, claiming they were prepared in anticipation of litigation and fall within the provisions of Practice Book § 13-3." Id. The court, Lager J., concluded that the plaintiffs had failed to meet their burden of demonstrating that the materials in question constituted work product and granted the defendants' motion for order. Id. It is noteworthy that the court had "offered the plaintiffs an opportunity to submit [the] notes for the court's in camera review, but that offer was declined." Id.
Similarly, in Kroha v. LaMonica, Superior Court, complex litigation docket at Waterbury. Docket No. X02 CV 98 0160366 (January 3, 2001, Sheldon, J.), a defendant filed a motion to compel the production of any journal that the plaintiff had maintained about the events at issue in the case, which concerned medical malpractice. The plaintiff opposed the motion and insisted that the journal "was protected from disclosure by the attorney-client privilege and the work product doctrine." Id. Significantly, the court, Sheldon, J., "with the parties' agreement, inspected the journal in camera" before ultimately concluding that the journal was "protected from disclosure under the attorney-client privilege." Id.
Although research within Connecticut case law has not revealed any cases involving the privacy concerns at issue in the present discovery dispute, New York case law provides helpful guidance. In Faragiano v. Concord, 294 App.Div.2d 893, 894, 741 N.Y.S2d 369 (2002), the court held that the trial court had "abused its discretion in granting that part of [the] plaintiffs' cross motion seeking to compel the [t]own to disclose the unredacted diary of a former employee of the [t]own without first reviewing the diary in camera. The [trial] court previously had ordered disclosure of the diary, with `any privileged, or personal, non-work related entries that have nothing to do with the occurrence herein to be redacted.' A redacted diary was provided and, in . . . seeking disclosure of the unredacted diary, [the] plaintiffs raised valid questions concerning the nature of the redactions . . . [T]he [trial] court should have reviewed the diary in camera to determine whether full disclosure [was] required and to [have minimized] the intrusion into [the] privacy of the [t]own's former employee . . ."
At a hearing the plaintiff testified that she has moved several times since the taking of the deposition. She claims that she has searched for and has been unable to locate the diary. The court accepts the plaintiff's explanation as credible. The court will however enter the following order. In the event that the plaintiff locates the missing diary she is to promptly notify her attorney, who is to bring the discovery to the attention of the defendant and the court. The court will conduct an in camera inspection of those portions of the diary created after the date of the accident. The court will determine whether any redactions were proper and necessary and the disclosure of the redacted diary will be ordered.
The Court