Richard Comeau v. Angela Comeau (2011)

MEMORANDUM OF DECISION

The plaintiff (husband), Richard Comeau, and the defendant (wife), Angela Comeau, were intermarried for approximately twenty years.   On October 21, 2008, their marriage was dissolved by way of a judgment of dissolution of marriage.   In connection with this judgment, the parties entered into a Separation Agreement, dated October 20, 2008.   The Agreement governed, among other things, the amount the plaintiff had to pay to the defendant in alimony.   On January 3, 2011, the plaintiff filed a Motion for Modification, Post–Judgment asking that the Court modify his alimony payments because of changed circumstances with the parties.   In response, on March 8, 2011, the defendant requested that the plaintiff submit financial information about his employment at Barclays Capital, Inc. The plaintiff did not provide the defendant with the requested information and on April 13, 2011, the defendant filed a Motion to Compel, Post- Judgment.¹  The defendant objected to plaintiff's March 8 request and filed, pursuant to Practice Book § 13–5, a Motion for a Protective Order, Post–Judgment on April 21, 2011.   The protective order would prevent the production of any financial documents relating to his employment at Barclays unless or until the parties enter into a “Confidentiality Agreement.”   This agreement would prohibit the disclosure of any such information to anyone uninvolved with the Court proceedings.

The plaintiff argues that this agreement is necessary because his Employment Agreement limits him from releasing his employment financials.   The employment contract with Barclays includes a non-disclosure provision that precludes the disclosure of information pertaining to his employment financials without first obtaining the express written consent of Barclays.²  The plaintiff is also bound by a “Confidentiality and Intellectual Property Agreement” which further restricts his ability to deliver information to those not expressly authorized by the agreement.   The plaintiff indicated that he intends to comply with the defendant's requests once he has written consent from Barclays;  however Barclays will not disclose the information unless both parties agree to be bound by the terms of the “Confidentiality Agreement.”   Thus, the plaintiff argues, he will only be able to comply with the defendant's request once the protective order is in place and the “Confidentiality Agreement” is signed because only then will Barclays expressly consent to the distribution of the plaintiff's employment financials to the defendant.   The defendant maintains that the plaintiff should comply with their document request because it is required by law, thus invalidating the non-disclosure provision.   The Court heard argument from both parties on June 21, 2011.

The narrow issue before the Court is whether the plaintiff should be ordered to comply with the defendant's document request with or without the protective order in place.   After careful review of the arguments from both sides, the Court orders that the plaintiff must comply with the defendant's production request;  however, the Court will grant the plaintiff's Motion for a Protective Order.

It has long been “recognized that the granting or denial of a discovery request rests in the sound discretion of the [trial] court ․” Barry v. Quality Steel Products, Inc., 280 Conn. 1, 16–17, 905 A.2d 55 (2006).   This “discretion applies to decisions concerning whether the information is material, privileged ․ or within the disclosing party's knowledge, possession, or power ․” (Internal quotation marks omitted.)  Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 59–60, 459 A.2d 503 (1983).  “The extent of discovery and use of protective orders is clearly within the discretion of the trial judge.”   Carrier Corp. v. Home Insurance Co., judicial district of Hartford–New Britain at Hartford, Docket No. CV 88352383 S, 5 Conn. L. Rptr. 3 (February 11, 1992, Schaller, J.);   see also Rosado v. Bridgeport Roman Catholic Diocesan Corp., 276 Conn. 168, 221 n.59, 884 A.2d 981 (2005) (the trial court has the inherent authority to moderate the discovery process by issuing protective orders under particular circumstances).

Practice Book § 13–5 permits a court, for good cause shown, to “make any order which justice requires to protect a party from annoyance, embarrassment, oppression, or undue burden or expense ․” This section applies to family cases through Practice Book § 25–31.   Under Practice Book rules, the party moving for the issuance of a protective order must meet their burden of establishing good cause.   See Babcock v. Bridgeport Hospital, 251 Conn. 790, 848–49, 742 A.2d 322 (1999).  “Good cause” is the “sound basis or legitimate need to take judicial action,” Welch v. Welch, 48 Conn.Sup. 19, 20, 828 A.2d 707 (2003), and it must be “based upon a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements.”  Id. “Whether or not ‘good cause’ exists for entry of a protective order must depend on the facts and circumstances of a particular case.”  Carrier Corp. v. Home Insurance Co., supra, 5 Conn. L. Rptr. 3.

The plaintiff met his burden of establishing good cause.   It would be unduly burdensome or oppressive for the court to place the plaintiff in a position inimical to his employer.   The plaintiff notified Barclays of the defendant's request, yet it is his employer who still refuses to allow the document exchange unless a confidentiality agreement is in place between the two parties.   Forcing the plaintiff to stand in a potential contentious position by ordering him to comply with the defendant's request (without the consent of his employer) would be oppressive.   The Court's decision is further supported by the fact that it would be unduly burdensome to place the plaintiff in this position when an unchallenged protective order can be entered.

There is no need to compel the plaintiff to produce his employment financials to the defendant without the protective order in place.   The defendant expressed no reason as to why the order should not be entered.   In fact, at oral argument, defendant's counsel conceded that she had no intention of disseminating the plaintiff's employment financials to anyone unconnected with the case.   Furthermore, the terms of the Proposed Confidentiality Agreement appear to be reasonable and would not unnecessarily constrain the defendant as to who she can distribute the information to.

In deciding whether or not to enter a protective order, courts engage in a balancing test, weighing one side's interest in discovering relevant information against the other side's privacy interests.   See Sanzo v. Sanzo, No. NNICV074007525 S, 2008 WL 2426705 at *6 (Conn.Sup.Ct. May 27, 2008).   The defendant is not being precluded from discovering relevant information here.   In fact, by entering the protective order, it makes it more likely that the defendant will get the documents that she requested.   On the other hand, the plaintiff is contractually obligated to make all efforts to protect the privacy of Barclays' financials.   Furthermore, Barclays does have an interest in making sure its own information stays in the hands of only those who need it.

Therefore, the court will grant the plaintiff's Motion for a Protective Order which obligates the parties to enter into a “Confidentiality Agreement”.   Once that has been signed by both parties, the plaintiff is ordered to comply with the defendant's document request within 30 days.

OWENS, J.T.R.

FOOTNOTES

FN1. The defendant also filed a Motion for Contempt, Post–Judgment which alleged that the plaintiff violated the terms of the Separation Agreement because he failed to pay the full amount of his alimony payments.   This issue is not before the court at this time..  FN1. The defendant also filed a Motion for Contempt, Post–Judgment which alleged that the plaintiff violated the terms of the Separation Agreement because he failed to pay the full amount of his alimony payments.   This issue is not before the court at this time.

FN2. This non-disclosure provision would apply unless the information is otherwise required by law or the legal process.   The full text of the provision states that “[e]xcept to the extent required by law or legal process, you agree that you will not, without Barclays' express written consent, disclose your compensation information to anyone within Barclays other than to your manager(s) and individuals in human resources, or to persons outside Barclays other than to family members, attorneys, accountants, financial advisors, or other consultants or agents who deal with compensation matters.”.  FN2. This non-disclosure provision would apply unless the information is otherwise required by law or the legal process.   The full text of the provision states that “[e]xcept to the extent required by law or legal process, you agree that you will not, without Barclays' express written consent, disclose your compensation information to anyone within Barclays other than to your manager(s) and individuals in human resources, or to persons outside Barclays other than to family members, attorneys, accountants, financial advisors, or other consultants or agents who deal with compensation matters.”

Owens, Howard T., J.T.R.