Geraldynn Ziskind v. Andrew Ziskind (2012)

RULING ON MOTIONS # 127, 128 and 129

On October 3, 2011, the court, Goldberg, J., issued a ruling concluding that an evidentiary hearing is necessary as to whether the parties' post-judgment stipulation signed March 7, 2011 was voluntarily entered into and whether it is fair and equitable.   Following that decision, the parties noticed depositions.   The defendant noticed the deposition of Attorney Ellen Brown, the former attorney for the plaintiff, arguing that such testimony was relevant to certain claims in the plaintiff's affidavit of July 1, 2011 and to the issue of whether the stipulation was voluntarily entered into at a time when Attorney Brown represented the plaintiff.   Plaintiff filed a Motion for Protective Order and Motion to Quash (# 127 and 127.50) claiming attorney-client privilege.   The defendant filed an Objection to the Motion for Protective Order and a Motion to Compel and/or Preclude (# 129).¹  The plaintiff noticed the deposition of the defendant and included a lengthy request for production of documents specified in Schedule A. The defendant filed a Motion for Protective Order and Motion to Quash (# 128 and 128.50).   The motions were heard on November 21, 2011.

With regard to the notice of deposition of Attorney Brown, the case appears to fall squarely within the factual scenario addressed in Cox v. Burdick, 98 Conn.App. 167 (2006), cert. denied, 280 Conn. 951.   As set forth in Cox v. Burdick:

[The Supreme Court] also recognized in Metropolitan Life Ins. Co. that the attorney-client privilege implicitly is waived when the holder of the privilege has placed the privileged communications in issue ․ [B]ecause of the important public policy considerations that necessitate the creation of the attorney-client privilege [however], the at issue, or implied waiver, exception is invoked only when the contents of the legal advice is integral to the outcome of the legal claims of the action ․ Such is the case when a party specifically pleads reliance on an attorney's advice as an element of a claim or defense, voluntarily testifies regarding portions of the attorney-client communication, or specifically places at issue, in some other manner, the attorney-client relationship.   In those instances, the party has waived the right to confidentiality by placing the content of the attorney's advice directly at issue because the issue cannot be determined without an examination of that advice.

98 Conn.App. 167 at 172 (quoting Hutchinson v. Farm Family Casualty Ins. Co., 273 Conn. 33, 38–39, 867 A.2d 1 (2005).

In this case, plaintiff specifically placed at issue communications with Attorney Brown in connection with her objection to summary enforcement of the stipulation she entered into while represented by Attorney Brown.   Thus the court finds a waiver of the attorney-client privilege and consequently, Attorney Brown must either testify as to the issues raised, or the defendant will be precluded from utilizing that information in support of her defenses to enforcement of the stipulation.   The plaintiff's Motion for Protective Order and Motion to Quash (# 127 and 127.50) is therefore denied and the objection to the plaintiff's Motion for Protective Order (# 129) is sustained.

With regard to the defendant's Motion for Protective Order and to Quash (# 128 and 128.50), the court finds that the request for production of documents is premature and not relevant to the limited issue regarding enforcement of the post-judgment stipulation.   The motion is therefore granted as to the items requested in Schedule A. The parties are hereby directed to obtain a date for their contested hearing pursuant to the order of Judge Goldberg.   The depositions should proceed within the limited parameters as explained in Sandberg v. Sandberg, 8 Conn. L. Rptr. 519 (2000).

So Ordered, this 9th day of January 2012.

Jongbloed, J.

FOOTNOTES

FN1. Apparently, this objection was fax-filed on November 8, 2011, but only two pages of the twelve-page fax were located in the court file.   The objection was re-faxed and received in full on December 29, 2011..  FN1. Apparently, this objection was fax-filed on November 8, 2011, but only two pages of the twelve-page fax were located in the court file.   The objection was re-faxed and received in full on December 29, 2011.

Jongbloed, Barbara Bailey, J.