Daniel C. Anderson v. Pamela E. Anderson (2011)

MEMORANDUM OF DECISION

The plaintiff (husband), Daniel C. Anderson, and the defendant (wife), Pamela E. Anderson, were married on February 14, 1986 at Greenwich.   On May 16, 2006 their marriage was dissolved by way of a judgment of dissolution of marriage (Wolven, J.).   The parties entered into a “Separation Agreement” providing that the plaintiff was to pay alimony to the defendant.   On November 18, 2010, the plaintiff filed a Motion for Modification, Post–Judgment on the grounds that the defendant had begun living with someone else.   On March 14, 2011, the plaintiff filed a second Motion for Modification, Post–Judgment, asking that the court modify his alimony payments because he was no longer employed at J.H. Whitney Capital Partners, LLC (J.H. Whitney).   The defendant contests both motions for modification.

The plaintiff was the Director of Information Systems at J.H. Whitney.   As a condition of his employment, he entered into a “Separation Agreement and Release” (Agreement) with his employer.   The Agreement precluded the plaintiff from releasing certain information about J.H. Whitney to the public without first obtaining prior authorization.

On April 23, 2011, a Subpoena Duces Tecum and Notice of Deposition were issued to J.H. Whitney by the defendant.   Specifically, the subpoena and notice were directed at J.H. Whitney's Managing Director and CFO, Michael C. Salvator.   The requests sought records relating to the plaintiff's employment at J.H. Whitney.   On May 10, 2011 by way of letter, Salvator's counsel objected to the production of all documents specified in the subpoena.   The defendant was informed on May 24, 2011 that the plaintiff would not authorize the release of any information in his personnel file because it was privileged.   The plaintiff was deposed the next day.   On May 27, 2011, pursuant to Practice Book § 13–28(d), the defendant filed an Expedited Motion for Order, compelling Salvator to produce the requested documents and to appear at the deposition.   Salvator objected pursuant to Practice Book § 13–28(c) and (e).

The defendant argues that the court should grant the Expedited Motion and compel Salvator to produce the requested documents because:  (1) Salvator does not have standing to object to the Subpoena Duces Tecum;  (2) Salvator's objections were “incorrect” or “inappropriate;  and (3) the requests will likely lead to the discovery of admissible evidence.   Salvator ¹ argues that the Expedited Motion for Order should be denied because:  (1) Salvator has standing to object as he is a “person” within the meaning of Practice Book § 13–28(d);  (2) the defendant's arguments that Salvator's objections were inappropriate” are conclusory;  and (3) the defendant's requests are overbroad, confusing, unreasonable, unduly burdensome, and will not lead to the discovery of admissible evidence.   Furthermore, Salvator argues that any request for the personnel or employee files of the plaintiff (during his employment with J.H. Whitney) is protected by the Connecticut Personnel Files Act, codified as General Statutes § 31–218.

The defendant argues that Salvator does not have standing to object to the discovery request.   Aside from the fact that this argument is conclusory, the court finds that Salvator has standing to object to the discovery request under Practice Book § 13–28.   See Seymour v. Seymour, 262 Conn. 107, 111, n.3, 809 A.2d 1114 (2002) (a nonparty has standing to object to a production request issued on them).

(2) The method of Salvator's objections

Next, the defendant argues that Salvator's objections were “incorrect” or inappropriate,” and as such, should be overruled.”   The court rejects the defendant's argument.   Simply stating that Salvator's objections were incorrect or inappropriate,” without more, leaves this court uncertain as to what she is referring to.   Moreover, “the rules of discovery are designed 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.)  Wexler v. DeMaio, 280 Conn. 168, 188–89, 905 A.2d 1196 (2006), quoting United States v. Proctor & Gamble Co., 356 U.S. 677, 682, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1956).   As such, the court will address the substance of Salvator's objections in order to moderate the disclosure of the basic issues and facts to the fullest possible extent.   Furthermore, the defendant does not appear to have been prejudiced in any way by the nature or manner in which Salvator responded to her production request.

(3) The defendant's discovery requests and Salvator's objections

To generally sum up the issue, the defendant issued a subpoena duces tecum on Salvator and asked him to produce documents concerning the plaintiff's employment at J.H. Whitney.   Salvator objected by way of a letter but did not move for a protective order or a motion to quash.   The defendant submitted this Expedited Motion for Order asking the court to compel Salvator to comply with the discovery request and to order Salvator to appear at the deposition.   Salvator objected to the defendant's motion arguing that her production requests are either protected under the Connecticut Personnel Files Act and/or that they are overbroad, confusing, unreasonable, unduly burdensome, and won't lead to the discovery of admissible evidence.   The issue before the court is whether or not the defendant's motion should be granted.

“In ruling on discovery matters, including motions to quash deposition notices and subpoenas, the court is obligated to take a reasoned and logical approach to the relevant contest between the parties.”   Hackley v. Popp, Superior Court, judicial district of New Haven at New Haven, Docket No. 075002241 (November 28, 2008) (46 Conn. L. Rptr. 745), citing Blumenthal v. Kimber Mfg., Inc., 265 Conn. 1, 7–8, 826 A.2d 1088 (2003).   It is within the trial court's sound discretion to grant or deny a discovery request.  Standard Tallow Corp. v. Jowdy, 190 Conn. 38, 57, 459 A.2d 503 (1983), and this discretion applies to decisions concerning whether the information is material, privileged, substantially more available to the disclosing party, or within the disclosing party's knowledge, possession, or power ․” Standard Tallow Corp. v. Jowdy, supra 59–60.

“A subpoena [duces tecum] is an appropriate process for the production of documents that are relevant to the matter before the court ․ It may not be used, however, for the purpose of conducting a fishing expedition into the papers of a party or a stranger to the proceedings.  Three S. Development Co. v. Santore, 193 Conn. 174, 179, 474 A.2d 795 (1984).   Once a subpoena has been issued, under Practice Book § 13–28(e), the court in which the cause is pending may either “(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 [Practice Book sections 13–2 through 13–5], or (2) condition denial of the motion upon the advancement by the party who requested the subpoena of the reasonable cost of producing the materials sought.”

a. Salvator is not per se protected from disclosure by the Connecticut Personnel Files Act

(Act)

Specifically, Salvator objects to the defendant's requests 1–11 because the information sought is protected by the Act;  however, the Act offers Salvator no protection since it can be overridden by a judicial order.   In relevant part, the Act states that “[n]o individually identifiable information contained in the personnel files or medical records of any employee shall be disclosed by an employer to any person or entity not employed by or affiliated with the employer without the written authorization of such employee except ․ where the disclosure is made ․ (2) pursuant to a lawfully issued administrative summons or judicial order ․” General Statutes § 31–128f.   The disclosure of information contained in a personnel file “must be carefully tailored to a legitimate and demonstrated need for such information in any given case,” and it is the role of the trial court to “exercise its discretion in determining what matters should be disclosed ․” Rosado v. Bridgeport Roman Catholic Diocesan Corp., Superior Court, judicial district of Fairfield, Docket No. 0300272 (December 8, 1994), quoting State v. Januszewski, 182 Conn. 142, 172–73, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S.Ct. 3159, 69 L.Ed.2d 1005 (1981).   In exercising its discretion, the trial court is obligated to weigh the evidentiary interests of the requesting party against the privacy interests of the party/nonparty to whom the request is directed.   See Rosado, supra, Superior Court, Docket No. 0300272.   Therefore, in order to satisfy the defendant's need for information necessary to establish her case while respecting the privacy rights of the plaintiff and Salvator, the court will examine the plaintiff's employment files in camera.   After in camera review, the court will determine which portion of the plaintiff's personnel file will be disclosed to the defendant.

b. The defendant's production requests are subject to modifications

Just because the plaintiff's personnel file is subject to disclosure, does not mean that all of the defendant's request for production will be granted.   See Rosado, supra, Superior Court, Docket No. 0300272.   Since the granting or denial of a discovery request is within the sound discretion of the trial court, Standard Tallow Corp. v. Jowdy, supra 190 Conn. 57, the trial court is obligated to make discoverable “only information that it concludes is clearly material and relevant to the issue involved.”  Rosado, supra, Superior Court, Docket No. 0300272.   Since the law furnishes no bright-line test for what is relevant, the question of relevancy must “be determined on a case by case basis according to the teachings of reason and judicial experience.”  State v. Januszewski, supra, 182 Conn. 172–73.

Aside from objecting under General Statutes § 31–128f, Salvator also submitted specific objections to fourteen of the defendant's production requests.   The court will rule on each of Salvator's objections to the defendant's Requests for Production.

Request # 1

Request for Production # 1 asks Salvator to produce “the entire personnel and employee file kept and maintained by [J.H. Whitney] with respect to [the plaintiff].”   Salvator argues that this request “is overbroad and unduly burdensome, as it does not describe with any reasonable particularity the requested documents ․ Moreover, the term ‘employment file’ is vague and ambiguous.”   As to Request # 1, the objection is overruled.   The request is not overbroad or unduly burdensome.   Surely J.H. Whitney keeps files on all of its employees and certainly kept a file on the plaintiff while he was employed there.   This objection is pure semantics—whatever the file is called, Salvator, as the CFO and managing partner, can produce it.   Furthermore, Salvator is submit it to the court for an in camera review pursuant to General Statutes § 31–128f(2).

Request # 2

Request for Production # 2 asks for “[a]ll records of [J.H. Whitney], its partners, managers, directors, agents, servants and employees concerning personal notes which you or others may have prepared, concerning any and all compensation, remuneration, bonuses, benefits provided, draws, deferred compensation, pensions, non-qualified retirement plans paid to, earned by, or to which [the plaintiff] was entitled to receive and was paid or in which he participated but remains unpaid at this time.”   Salvator objects that the request is “overbroad and unduly burdensome” and that “[a]ny asserted need for the information is outweighed by the burden and expense that full compliance would impose on Salvator and J.H. Whitney.   Further, the Request is vague, ambiguous and confusing in its entirety.”   The objection is overruled.   The request is not unduly burdensome as information about the plaintiff's finances is entirely relevant and necessary to the disposition of his second motion for modification of alimony.   As such, it is likely to lead to discovery of admissible evidence.

Request # 3

Request for Production # 3 asks for “[a]ll communications from [the plaintiff] concerning his employment with [J.H. Whitney] during the period of time from May 17, 2006 to the present.”   Salvator objects that this request is “overbroad,” “oppressive,” “vague, ambiguous and confusing in its entirety, as its reference to the general phrase ‘all communications' and the phrase ‘concerning his employment’ is vague and unclear.”   The objection is sustained.   The request of “all communications” from the plaintiff “concerning his employment” is too broad, and is unduly burdensome and oppressive.

Request # 4

Request for Production # 4 asks for “[a]ll communications from [the plaintiff] concerning his compensation and benefits of employment [at J.H. Whitney] during the period of time from May 17, 2006 to the present.”   Salvator objects that this request is “overbroad,” “vague,” and that “compliance ․ would be unduly burdensome and oppressive.”   The objection is overruled.   Unlike Request # 3, this request is qualified and specifically refers to “compensation and benefits of employment” which is entirely relevant and necessary to the disposition of the plaintiff's second motion.   As such, it is likely to lead to the discovery of admissible evidence.

Request # 5

Request for Production # 5 asks for “[a]ll communications from [J.H. Whitney] or any of its partners, directors, managers, agents, servants, or employees concerning the evaluation of, and/or comments on the performance of by (sic) [the plaintiff] of his employment responsibilities and duties during the period of time from May 17, 2006 to the present.”   Salvator objects that the request is “overbroad,” “vague,” “ambiguous,” and that “compliance would be unduly burdensome and oppressive.”   The objection is overruled.   The plaintiff's performance, and his employer's perceptions of it, is relevant to the disposition of the motion for modification because this evidence may shed light on the circumstances under which the plaintiff left his job at J.H. Whitney.   The request is reasonably likely to lead do the discovery of admissible evidence.

Request # 6

Request for Production # 6 asks for “[a]ll communications including but not limited to internal memorandum and personal notes of Michael C. Salvator or other partners, directors, managers, agents, servants or employees of [J.H. Whitney] concerning the decision to terminate or lay off, [the plaintiff] from his employment with [J.H. Whitney].”   Salvator objects on the most of the same grounds stated previously, but also argues that the request is “protected by the attorney-client privilege/work-product doctrine.”   The objection is overruled.   The attorney-client privilege and the work product doctrine do not apply.   Furthermore, the request is not overbroad or vague;  nor is it unreasonable or oppressive because the manner in which the plaintiff left J.H. Whitney is important and relevant to disposition of the second motion for modification.   Therefore, it is likely to lead to the discovery of admissible evidence.

Requests # 7 and # 8

Requests for Production # 7 and # 8 relate to the formation and initial drafts of the “Separation Agreement” between the plaintiff and J.H. Whitney.   Salvator's objections are sustained.   The previous drafts of the “Separation Agreement” are irrelevant;  all that controls here is the final draft.   This is especially true considering that the defendant has not argued that the Agreement is ambiguous to which extrinsic evidence may be relevant to interpret it.   Moreover, any notes, documents, records, or other information about the formation of the Agreement could implicate the work-product doctrine.

Request # 9

Request for Production # 9 asks for “[a]ll communications from [the plaintiff] concerning the termination of his employment, suspension of employment, layoff, hiatus, or sabbatical from his employment;  and, any information from, instructions by, or requests, by [the plaintiff] with respect to any attempt by counsel for his former wife to obtain information from [J.H. Whitney], or any of its partners, directors, managers, agents, servants, or employees.”   Salvator's objection to the request is sustained.   It would be unduly burdensome and oppressive to require Salvator or J.H. Whitney to produce documents that were written by, and are presumably still in the plaintiff's possession.

Request # 10

Request for Production # 10 asks for “[t]he complete severance package provided by [J.H. Whitney], to [the plaintiff] and any accrued, vested or payable benefits which he will receive in addition thereto at the time of the termination of his employment or at any time thereafter.”   Salvator's objection is overruled because as the court previously mentioned, the plaintiff's current financial conditions after he left his job at J.H. Whitney are entirely relevant to his second motion for modification.   Therefore, the request does seek information that is reasonably calculated to the lead to the discovery of admissible evidence.

Requests # 11

Request for Production # 11 asks for “[a]ll inquiries, communications, telephone contacts, or other requests for information from third parties to [J.H. Whitney] or any of its partners, directors, managers, agents, servants, employees or representatives concerning [the plaintiff] and any position of employment which he may have sought with the third party;  or, seeking a third party's services in finding employment.”   Salvator objects that the request is “unduly burdensome,” “vague,” and that it asks for information that is not in J.H. Whitney or Salvator's possession.   Salvator's objection is overruled.   The information would be in the possession of J.H. Whitney or Salvator because the communications by third parties were made to them, and the request is not unduly burdensome.   This information is likely to lead to the discovery of admissible evidence because the plaintiff's actions in trying to find employment outside of J.H. Whitney could be relevant to the disposition of his second motion.

Request # 12

Request # 12 asks for “[a]ll letters of recommendation or responses given by [J.H. Whitney], or any of its partners, managers, directors, agents, servants, employees or representatives to any inquiries regarding [the plaintiff].”   Salvator objects that this request is “unduly burdensome,” “vague,” and is not likely to lead to the discovery of admissible evidence.   Salvator's objection to this request is overruled.   The request seeks letters of recommendation given by J.H. Whitney in response to inquiries for them.   This is not an unduly burdensome request and it is likely to lead to the discovery of admissible evidence because it may shed light on the circumstances under which the plaintiff left his job at J.H. Whitney.

Request # 13

Request for Production # 13 asks for “[a]ny information provided by Daniel C. Anderson to [J.H. Whitney], or any of its partners, directors, managers, agents, servants, employees, or representatives concerning his future plans after his employment with [J.H. Whitney].”   Salvator objects that the request is “unduly burdensome and oppressive,” that it “seeks information that is in the possession ․ of someone other than Mr. Salvator or J.H. Whitney,” and that the request “seeks information that does not appear to be reasonably calculated to lead to the discovery of admissible evidence.”   Salvator's objections are overruled.   J.H. Whitney or Salvator would be in the possession of information given to them by the plaintiff of any of his future plans.   Furthermore, the request is not unduly burdensome or oppressive and it is likely to lead to the discovery of admissible evidence because it concerns information about the plaintiff's employment prospects after leaving J.H. Whitney which is relevant to the disposition of his second motion.

Request # 14

Request for Production # 14 asks for “[a]ll offers of assistance in job placement or reemployment provided by [J.H. Whitney], or any of its partners, directors, managers, agents, servants, or employees to [the plaintiff].”   Salvator objects that the request is “unduly burdensome or oppressive” and that it “seeks information that does not appear to be reasonably calculated to lead to the discovery of admissible evidence.”   Salvator's objections are overruled for the same basic reasons set forth under the ruling for Request # 13.

Conclusion

For the foregoing reasons, the defendant's Expedited Motion for Order to compel is granted in part and denied in part.   Salvator will produce the requested information to which his objections have not been sustained.   Furthermore, Salvator is to produce the plaintiff's personnel file to the court so that it may conduct an in camera review.   If Salvator or the plaintiff feels a need to further protect their privacy interests, the court notes that they are not precluded from filing a motion for a protective order.   In fact, the defendant has already stated that she would enter into a confidentiality agreement that would only allow dissemination of certain private information to specified persons and parties.

By the Court,

OWENS, J.T.R.

FOOTNOTES

FN1. Salvator notes that his objections are also on behalf of J.H. Whitney.   This clarification was noted by Salvator who argues the notice of deposition was incorrectly served upon him—it should have been served on J.H. Whitney.   This distinction is important, he argues, because J.H. Whitney, not Salvator, is in primary possession of the documents that the defendant seeks.   The court takes notice of Salvator's argument;  however, it finds that Salvator, as the Managing Director and Chief Financial Officer of J.H. Whitney (a company of about eighteen people), should have, or could reasonably obtain access to these documents if the court orders him to produce them..  FN1. Salvator notes that his objections are also on behalf of J.H. Whitney.   This clarification was noted by Salvator who argues the notice of deposition was incorrectly served upon him—it should have been served on J.H. Whitney.   This distinction is important, he argues, because J.H. Whitney, not Salvator, is in primary possession of the documents that the defendant seeks.   The court takes notice of Salvator's argument;  however, it finds that Salvator, as the Managing Director and Chief Financial Officer of J.H. Whitney (a company of about eighteen people), should have, or could reasonably obtain access to these documents if the court orders him to produce them.

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