Susan DeRosa et al. v. Karen V. Warner, M.D. et al. (2011)

RULING ON DEFENDANT'S OBJECTION TO PLANTIFF'S REQUEST FOR PRODUCTION AT DEPOSITION OF KAREN V. WARNER, M.D. (# 194)

The defendant objects to paragraphs 2, 4 and 6 of the Request for Production dated December 13, 2010 appended to the Notice of Continuation of Deposition of the same date.   The court (Robinson, J.) previously sustained the defendant's objection to identical requests for production.   See entry # 164.   The plaintiffs maintain that Dr. Warner's deposition testimony on January 29, 2010 entitle them to the broad production requested in paragraph 2, 4 and 6 because Dr. Warner stated that she believed a written employment agreement with Comprehensive Pain and Headache Treatment Center, LLC, outlined her “duties and responsibilities with respect to the practice” and that this testimony was not before the court when it ruled on the prior objection (# 164).   The defendant notes, however, that Dr. Warner also testified on January 29, 2010 that she was not given any employee handbook “or list of procedures of any sort like that.”

Practice Book § 13-2 permits discovery of “documents material to the subject matter involved in the pending action, which are not privileged ․ which are within the ․ possession or power of the party ․ to whom the discovery is addressed.”   The defendant maintains that the requested production in paragraph 2 is privileged information within the purview of the personnel files act, General Statutes § 31-128f, and for which she refuses to consent to provide access or authorization.   The personnel files act protects information contained in employment records if the employee objects to disclosure.   Such records may contain information that is subject to a qualified privilege.  See Miron v. University of New Haven Police Department, 284 Conn. 35, 45, 931 A.2d 847 (2007).   In light of the “strong policy reasons for maintaining the confidentiality of personnel files,” State v. Januszewski, 182 Conn. 142, 171, 438 A.2d 679 (1980), disclosure is allowed only upon a request that is “carefully tailored to a legitimate and demonstrated need for such information in any given case.”  Id., 173.   The overbroad request in paragraph 2 is insufficient to meet this test and the statutory exception contained in § 31-128f(2) does not apply because the court declines to order disclosure.   Further, the plaintiffs have failed to demonstrate a need for the information contained in any written employment agreement entered into by the defendant Warner or that the agreement would be material to their claims.

The defendant maintains that the requests in paragraphs 4 and 6 are overbroad and burdensome and not material to the plaintiffs' claims against Dr. Warner of medical negligence and failure to obtain informed consent.  (Second Revised Amended Complaint ¶¶ 1, 2, 5).   These are appropriate objections to these requests which have not been narrowed in any way since the court previously sustained objections to them.   Although the court's discretion is limited by the liberal language of Practice Book § 13-2 that “[d]iscovery shall be permitted if the disclosure would be of assistance in the prosecution ․ of the action,” the court has discretion to determine that discovery requests are not material or not within the disclosing party's possession or power, see Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 59-60, 459 A.2d 503 (1983), and the court so concludes with respect to paragraphs 4 and 6.

Finally, the defendant maintains that the request in paragraph 6 seeks information protected by the attorney client privilege and the work product doctrine.   In response to the request, the defendant indicated she “will produce her complete medical file” including non-privileged correspondence in that file and indicated that she otherwise does not possess non-privileged correspondence.   A requesting party bears a heavy burden in seeking information that is claimed to be subject to the attorney client privilege or to be work product.   With limited exceptions not applicable here, “a party's need-even if compelling-cannot destroy the attorney-client privilege.”  Hutchinson v. Farm Family, 273 Conn. 33, 44, 867 A.2d 1 (2005).  “[M]ere need and relevance are not a sufficient basis to waive the privilege.”  Gould, Larson, Bennet, Wells & McDonald, P.C. v. Panico, 273 Conn. 315, 328, 869 A.2d 563 (2005).   With respect to information claimed to be work product, Practice Book § 13-3(a) requires a showing of “substantial need” and inability “without due hardship to obtain the substantial equivalent of the materials by other means.”   The plaintiffs fail to meet this high standard.

For the foregoing reasons, the defendant's objection is sustained in its entirety.

LINDA K. LAGER, JUDGE

Lager, Linda K., J.