Zbigniew S. Rozbicki v. Eugene M. Gisselbrecht et al. (2011)

RULING ON PLAINTIFF'S MOTION FOR ORDER OF COMPLIANCE (# 163) AND PLAINTIFF'S OBJECTION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (# 165)

By motion filed on October 28, 2011, supplemented by an affidavit filed on that same day, the plaintiff, Zbigniew S. Rozbicki, moved for an order for compliance.   On that same date, the plaintiff also filed an objection to the defendants' motion for summary judgment.   These matters came before the court and were considered on November 21, 2011.   The motion for an order of compliance is denied.   The objection to the defendants' motion for summary judgment is denied as moot.

I

FACTUAL HISTORY

This case is one of a series of related cases in which the plaintiff appeared, variously, as a pro se party and as attorney of record.   In each of these cases, Rozbicki is the named plaintiff, either in an individual or representative capacity.   See Rozbicki v. Gisselbrecht, Docket No. CV 08 5004460;  Rozbicki v. Gisselbrecht, Docket No. CV 09 4008602;  Rozbicki v. Gisselbrecht, Docket No. CV 10 5007246.   In one or more of these actions, the plaintiff's claims include allegations that he was wrongfully removed as executor of the estate of Kathleen Gisselbrecht, and that the probate court wrongfully denied his claim for $20,000 from that estate.

As this court has noted in the past, the litigation of these cases has been particularly contentious, with the files reflecting numerous motions for sanctions filed by both the plaintiff and the defendants.   Unfortunately, the issues that are now before the court further illustrate the foregoing observation.

The plaintiff deposed one of the defendants, Eugene Gisselbrecht, on July 19, 2011.   Following that deposition, the defendant ¹ moved for a protective order, asserting that the plaintiff was “incredibly abusive, derogatory, impatient, and unprofessional” while taking the defendant's deposition.   The defendant further claimed that the plaintiff had a professional relationship with Kathleen Gisselbrecht, that the plaintiff is seeking to harass the defendant and his family with various lawsuits, and that “he is using the legal system to vex and torment them over the estate of their late sister some four years after her death.”   The defendant contended that the plaintiff's deposition questions were “lengthy, compound, and often incomprehensible.”   The plaintiff objected to the motion, arguing that he had extended “extraordinary efforts and patience” with the defendant during the deposition.²

The court did not grant the protective order and, by ruling dated August 10, 2011, allowed the deposition of the defendant to continue.   However, the court further ordered as follows:  “Eugene Gisselbrecht can have the deposition videotaped, at his own expense.   If the conduct complained of in the motion for protective order is apparent in the video tape, then the defendant may seek additional assistance from the Court including the cost of the video taping or any other remedy that is appropriate.”

The defendant's deposition continued on October 19, 2011, and was videotaped.   Following the deposition, the plaintiff filed the motion that is now before the court.   The plaintiff's motion to compel is entitled “plaintiff's motion for compliance pursuant to § 13–14 C.P.B. and for sanctions and for continuance of argument on defendant's motion for summary judgment.”   The plaintiff supported his motion with an affidavit.   The first ten numbered paragraphs of his affidavit replicate, almost verbatim, the first ten numbered paragraphs of his motion to compel.

The defendant objected to the plaintiff's motion in a memorandum filed on November 4, 2011, arguing that the plaintiff's motion is inaccurate and is supported with a false affidavit.   The defendant claims that the plaintiff sought, in essence, the defendant's entire file relative to the estate of Kathleen Gisselbrecht to be produced at the deposition.   The defendant claims that he complied with that request, but that the plaintiff refused to review the documents produced at the deposition.   Instead, the defendant claims that the plaintiff wanted the defendant to go through each of the documents for the purpose of harassing the defendant “who is 77 years old and in relatively poor health.”   The parties appear to agree that the stack of documents brought to the deposition was approximately one foot high.   The defendant asks the court to sanction the plaintiff for making false representations to the court in his affidavit and further asks this court to rule that the defendant's deposition is concluded.

The record of the deposition appears on two digital video disks (“DVDs”), offered at the hearing on this motion, and marked as Defendant's Exhibits (“DX”) A and B. The defendant asked the court to review, in particular, the second disk;  the plaintiff responded that the court should review the entire three-hour deposition, and the court did so.   A review of the videotaped version of the deposition was illuminating well beyond what a transcript alone would reveal.

II

DISCUSSION

Our discovery statute, General Statutes § 52–197, is intended to narrow issues and secure pertinent evidence for use at trial.   See Wexler v. DeMaio, 280 Conn. 168, 188–89, 905 A.2d 1196 (2006).   Discovery procedures are not intended to be used as tools to annoy, embarrass or oppress the party who is the subject of a discovery procedure.   See Hickman v. Taylor, 329 U.S. 495, 507–08, 67 S.Ct. 385, 91 L.Ed. 451 (1947);  Practice Book §§ 13–5, 13–30(c).  Under appropriate circumstances the court may issue various orders, including an order “that the discovery not be had.”  Practice Book § 13–5(1).   Our Supreme Court “[has] long recognized that the granting or denial of a discovery request rests in the sound discretion of the [trial] court ․” (Internal quotation marks omitted.)  Barry v. Quality Steel Products, Inc., 280 Conn. 1, 16–17, 905 A.2d 55 (2006).   It is understood that the rules pertaining to discovery include a “mandatory provision that discovery shall be permitted if the disclosure sought would be of assistance in the prosecution or defense of the action ․ The court's 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. .” (Citation omitted;  emphasis in original;  internal quotation marks omitted.)  Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 57–60, 459 A.2d 503 (1983).

The Rules of Professional Conduct are relevant to this issue.   The preamble to the Rules provides in relevant part that “[a] lawyer should use the law's procedures only for legitimate purposes and not to harass and intimidate others.   A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials.”   The preamble further calls upon lawyers to exercise “sensitive professional and moral judgment guided by the basic principles underlying the Rules.   These principles include the lawyer's obligation zealously to protect and pursue a client's legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.”

The plaintiff's claims regarding the issues that arose at the defendant's deposition are set forth, principally, in paragraphs one through seven of his motion.   The court will review those claims seriatim.   First, the plaintiff claims that the defendant appeared at his deposition “but brought no documents ․ ³ This claim, while technically correct in that the defendant did not himself carry the documents to the deposition, is misleading.   The defendant's counsel made clear that the documents at the deposition constitute the defendant's entire file relative to the Kathleen Gisselbrecht estate;  that the defendant had produced said file to his counsel in the past;  and that the defendant had no more documents regarding the estate at his home.   See DX B, 12:39 p.m.–12:39:48 p.m.

The plaintiff's second claim is that the defendant's attorney “refused” to make the pile of documents available to the defendant.   This claim is also misleading.   The plaintiff, after questioning the 77–year–old deponent for over two hours, requested that the defendant review the foot-high stack of documents “item by item.”   The plaintiff rejected the defendant's common sense suggestion that the plaintiff review the documents, select those that were of interest to him and then ask relevant questions.  Id., 12:44 p.m., 12:50:10 p.m.–12:53 p.m. The defendant's third claim essentially repeats his second claim.

The plaintiff's fourth claim is that the defendant admitted that “he did not review the one foot high pile of documents [on the day of the deposition] nor at any time prior to the date of the deposition.”  (Emphasis added.)   The latter claim is false.   Defendant's exhibits A and B reflect numerous occasions on which the defendant attempted to make clear that he had reviewed the documents in the past.   DX A, 10:11:50 a.m.–10:13:20 a.m., 10:19 a.m., 10:22 a.m., 10:28:43 a.m.–10:29 a.m.;   DX B, 12:19:40 p.m.

The plaintiff's fifth and sixth claims repeat, in essence, his second and third claims.   The plaintiff's seventh claim is that “the defendant could not remember the answers to relevant questions asked, without reference to specific and relevant documents to this action.”   This claim highlights the defendant's point that the plaintiff should have sought the relevant documents through a request for production prior to the deposition, selected the documents that he believed to be relevant and then questioned the defendant about those documents at the deposition.   The latter approach is, of course, a standard practice followed by experienced counsel when the notice of deposition is accompanied by a broad request to produce documents that, in turn, is likely to generate a large volume of documents.   It should be obvious that overly large quantities of documents cannot be expeditiously reviewed during a deposition.⁴

The plaintiff's conduct during the October 19, 2011 deposition of the defendant was not appropriate.   The defendant's age and condition merited respect and consideration by the plaintiff.   The plaintiff should have prepared for the deposition by seeking the production of documents in advance, reviewing them and selecting items that were relevant.   He should have then prepared clear, direct questions to be asked at the deposition.   Instead, the plaintiff spent more than two hours asking many questions that were unfocused, rambling and confusing.   It should have been obvious to the plaintiff that the latter approach would inevitably serve to confuse the defendant, in view of the defendant's personal situation.   Unfortunately, the plaintiff, even now, finds no fault in his performance.

The DVDs reflect the plaintiff asking questions such as the following:  “Can I conclude from your answer that I just read that you are aware that not all of the people, the legatees, signed the agreement marked 1A which I prepared for distribution?”   DX B, 11:43:33 p.m. Other, similar examples abound.   At one point, the plaintiff asked the defendant a lengthy question regarding a document, handed a different document to the defendant, and continued to pursue the matter until the defendant's counsel pointed out that the plaintiff had given the wrong document to the defendant.   DX B, 12:28:30 p.m.–12:30:15 p.m. On other occasions, the plaintiff asked a series of long, convoluted questions that the defendant obviously did not understand.   DX B, 12:10 p.m.–12:15 p.m. The confusion painfully created by two hours of such questioning was clarified in a precise, six-minute cross examination;  DX B, 12:39 p.m.–12:45:33 p.m.;   which further illustrated the pointlessness of the plaintiff's approach.

At oral argument, the plaintiff insisted that the court issue an order that the deposition be completed, that the documents at issue be given to the defendant and that the defendant be instructed to review the documents.⁵  The court then asked the plaintiff if there was authority for the court to issue such an order and the plaintiff replied “of course.”   The court then asked the plaintiff to identify the authority that permits a court to order a deponent to review documents before coming to a deposition, and the plaintiff replied that that was not what he was asking the court to do.⁶  The plaintiff then stated that if the court wanted authority on the issue, the plaintiff would need additional time to locate it.   The plaintiff indicated that he was unprepared to respond to such a need by the court because, according to the plaintiff, such a proposition is general knowledge within the judiciary.

The plaintiff's unfocused, desultory and confusing questioning shed no discernable light on issues relevant to this case.   On the contrary, and most disappointingly, the deposition was marked by the plaintiff's indifference to the defendant's age and health situation.   The plaintiff's motion asks the court to be a party to his dilatory, unproductive approach, and this court will not do so.

The high ideals set forth in the rules of professional conduct have not been well served in this case.   Those ideals are not apparent in the manner in which the plaintiff conducted the deposition set forth in DX A and B. The plaintiff's inability, deliberate or otherwise, to comprehend that his conduct at the defendant's deposition was unacceptable convinces the court that no specified terms and conditions can be fashioned that would permit the plaintiff to further depose the defendant in a fair and responsible manner.   This ruling does not deny the plaintiff the opportunity to conduct discovery.   On the contrary, the plaintiff has had two opportunities to conduct a full and fair deposition of the defendant.   The court finds, however, that the examination was conducted in a manner that served unreasonably to annoy, embarrass and oppress the defendant.   In light of the foregoing, there is no justification for permitting a third deposition.   Consequently, the court orders that there will be no further deposition of the defendant.

The parties agreed that if the court did not permit the defendant's deposition to continue, the plaintiff's objection to the defendant's motion for summary judgment (# 165) would become moot.   Consequently, that objection is hereby overruled as moot.

So ordered.

John A. Danaher III

FOOTNOTES

FN1. There are multiple defendants in this case.   For purposes of this ruling, all references to “the defendant” are intended to refer to defendant Eugene Gisselbrecht..  FN1. There are multiple defendants in this case.   For purposes of this ruling, all references to “the defendant” are intended to refer to defendant Eugene Gisselbrecht.

FN2. The plaintiff filed exhibits in support of his objection (# 144).   His decision to do so is remarkable in view of the fact that several of the exhibits illustrate his lack of civility toward opposing counsel.   See, e.g., plaintiff's letter dated July 19, 2011;  plaintiff's letter dated August 3, 2011..  FN2. The plaintiff filed exhibits in support of his objection (# 144).   His decision to do so is remarkable in view of the fact that several of the exhibits illustrate his lack of civility toward opposing counsel.   See, e.g., plaintiff's letter dated July 19, 2011;  plaintiff's letter dated August 3, 2011.

FN3. This claim was repeated in the plaintiff's affidavit.   As was noted, supra, the claims set forth in the plaintiff's motion are repeated, almost verbatim, in his supporting affidavit.   Unless otherwise noted, the review of each point raised in the plaintiff's motion will constitute a review of the points raised in the plaintiff's supporting affidavit..  FN3. This claim was repeated in the plaintiff's affidavit.   As was noted, supra, the claims set forth in the plaintiff's motion are repeated, almost verbatim, in his supporting affidavit.   Unless otherwise noted, the review of each point raised in the plaintiff's motion will constitute a review of the points raised in the plaintiff's supporting affidavit.

FN4. It should have been patently obvious to the plaintiff that the notice of deposition was extremely broad and therefore likely to generate the production of a large number of documents.   See Exhibit A attached to Plaintiff's Request for Oral Argument dated September 9, 2011..  FN4. It should have been patently obvious to the plaintiff that the notice of deposition was extremely broad and therefore likely to generate the production of a large number of documents.   See Exhibit A attached to Plaintiff's Request for Oral Argument dated September 9, 2011.

FN5. “I insist that this deposition be completed, that the items that he was pointing at, which counsel claims involves issues—excuse me, involves documents that were requested, there's no objection to those taken, that they be given to the client and if necessary before, sufficient time, with instructions to review those items.”  (Emphasis added.)   Hr'g Tr. 102, November 21, 2011..  FN5. “I insist that this deposition be completed, that the items that he was pointing at, which counsel claims involves issues—excuse me, involves documents that were requested, there's no objection to those taken, that they be given to the client and if necessary before, sufficient time, with instructions to review those items.”  (Emphasis added.)   Hr'g Tr. 102, November 21, 2011.

FN6. The court's question was prompted by the plaintiff's argument in open court, supra, as well as his claim, set forth at paragraph four of his motion for compliance, that “[t]he defendant admitted that he did not review the one foot high pile of documents to which he pointed, in spite of the fact that he was in his attorney's office for one hour prior to the commencement of the deposition, nor at any time prior to the date of the deposition..  FN6. The court's question was prompted by the plaintiff's argument in open court, supra, as well as his claim, set forth at paragraph four of his motion for compliance, that “[t]he defendant admitted that he did not review the one foot high pile of documents to which he pointed, in spite of the fact that he was in his attorney's office for one hour prior to the commencement of the deposition, nor at any time prior to the date of the deposition.

Danaher, John A., J.