John Contillo, Sr. et al. v. Patrick Doherty, M.D. et al. (2011)

Cosgrove, Emmet L., J. Opinion TitleMEMORANDUM OF DECISION RE NO. 117 On January 24, the parties appeared at short calendar to argue motion for protective order # 117.   This is a medical malpractice action where the plaintiffs served notices of deposition on the defendant doctors at the time they filed their complaint.   The defendants seek a protective order to prevent the depositions from occurring before they can complete discovery and depose the plaintiff.   In Downs v. Trias, Superior Court, complex litigation docket at Waterbury, Docket No. X10 CV 07 5009295 (August 6, 2008, Scholl, J.) (46 Conn. L. Rptr. 39), the court allowed the plaintiffs to take the deposition of the defendant doctor on the plaintiffs' motion to compel.   The court allowed the depositions based on the fact that, under the Practice Book, depositions may be taken in the order they are noticed.   Additionally, the court noted that the Practice Book does not have a rule of priority regarding depositions.   The court noted, however, that a party is free to seek a protective order if the timing of the deposition is unfair and the defendant did not seek a protective order in that case.   In Mason v. Sachs, Superior Court, judicial district of Litchfield, Docket No. CV 94 0064853 (March 22, 1995, Pickett, J.), the court granted the defendant's protective order to prevent a deposition on the ground that the defendant was entitled to discovery of certain medical records before his deposition.   Additionally, the court allowed the defendant to depose the plaintiff prior to the defendant's deposition.   In Engleman v. Madhuribakhru, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 03 082610 (January 21, 2004, Bear, J.), the court also required discovery and the plaintiff's depositions to be completed before the defendant's deposition.   In Engleman, the court sustained the defendant's objection to the plaintiff's motion to compel.   Finally, in Darby v. Chelouche, Superior Court, judicial district of New Haven, Docket No. CV 03 0476232 (December 2, 2003, Skolnick, J.) (36 Conn. L. Rptr. 93), the court allowed the deposition of the defendant to proceed because it was noticed first.   The court noted that it did not condone the practice of noticing depositions at the same time a complaint is filed, but allowed the defendant's deposition to proceed.   In this case, the defendants have filed for a protective order.   Practice Book Sec. 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 ․” In order to provide for an orderly and efficient progression of discovery, it is appropriate that the defendants have the opportunity to discover the factual foundation of the plaintiffs' claims, as opposed to the expert foundation, prior to having their depositions taken.   This court holds that the interests of justice require that the defendants be entitled to a limited protective order.   The defendant physicians shall be entitled to obtain complete disclosure of the plaintiff's medical records, directly or through the use of authorizations and further to complete the depositions of the plaintiffs prior to their being deposed.   The plaintiffs may proceed with the defendants' depositions after these steps have been accomplished.   Cosgrove, J.