LLC v. Calco Construction & Development Company et al. (2012)

MEMORANDUM OF DECISION RE MOTION FOR PROTECTIVE ORDER RE DEPOSITION OF ATTORNEY JOHN H. GRASSO (# 192) AND MOTION FOR PROTECTIVE ORDER RE KEEPER OF THE RECORDS OF BOSCARINO, GRASSO & TWACHTMAN LLP (# 191)

The plaintiff, Landmark Investment Group, LLC, has brought three lawsuits against Chung Family Realty Partnership, LLC, (“Chung, LLC”), CALCO Construction & Development Company, (“CALCO”), John A. Senese, Ralph Calabrese, and R. Calabrese Agency, LLC, concerning the purchase of an undeveloped tract of commercial real estate known as 311–349 New Britain Avenue, Plainville, Connecticut, (“the property”).   The present action alleges that the defendants, CALCO and Senese tortiously interfered with the plaintiff's contractual relations with Chung, LLC. Despite extensive discovery obtained in all three of the lawsuits brought by Landmark, as well as a three-day hearing on the plaintiff's application for prejudgment remedy against CALCO and Senese where the court found the plaintiff failed to establish probable cause and denied the application, Landmark is now seeking, almost three years after the commencement of this suit, to depose Attorney John H. Grasso, a partner in the law firm of Boscarino, Grasso & Twachtman, LLP, (“BG & T), which represents the defendants in this matter as well as Chung, LLC, in the two other lawsuits.   In addition, the plaintiff has served a Notice of Deposition on the keeper of the records of BG & T, requesting the delivery of numerous documents.

The documents the plaintiff is seeking are as follows:

(1) Any and all waivers of conflicts of interest executed by Senese, CALCO, Henry Chung, and Chung, LLC, executed in connection with Attorney Grasso's or BG & T's representation of the parties.

(2) All phone records for the period of January 1, 2005 through January 1, 2008.

(3) Retainer agreements and/or engagement letters for the representation of Senese, CALCO, Henry Chung, and Chung, LLC, redacted to conceal information protected by the attorney-client privilege or work product doctrine.

(4) Billing records of CALCO and Senese, related to, or concerning Henry Chung, Chung, LLC, and the property, redacted to conceal information protected by the attorney-client privilege or work product doctrine.

(5) Emails and correspondence by and between Attorney Grasso and Ralph Calabrese.

(6) Memoranda and draft documents related to loans made by Senese and/or CALCO to Henry Chung, and/or Chung, LLC, or related to or concerning the property, redacted to conceal information protected by the attorney-client privilege.

(7) Memoranda and draft documents related to CALCO or Senese's purchase of notes and/or mortgage encumbering the property redacted to conceal information protected by the attorney-client privilege.

(8) Documents demonstrating or concerning payment made by CALCO or Senese related to Landmark Investment Group, LLC v. Chung Family Realty Partnership, LLC, Docket No. CV 07–5003201, and related appeal captioned Landmark Investment Group, LLC v. Chung Family Limited Partnership, LLC, 125 Conn.App. 678 (2010), redacted to conceal information protected by the attorney-client privilege or work product doctrine;  and

(9) Documents demonstrating or concerning payment made by CALCO or Senese related to the lawsuit captioned Landmark Investment Group, LLC v. Chung Family Realty Partnership, LLC, Docket No. CV 10–5015189, redacted to conceal information protected by the attorney-client privilege or work product doctrine.

CALCO and Senese have filed motions for protective order contending that both the deposition of Attorney Grasso as well as the documents requested would violate the attorney-client privilege, the attorney work product doctrine, and could produce no relevant evidence admissible in this case.   The plaintiff argues that Attorney Grasso's testimony and the document requests contained in the subpoena duces tecum are highly relevant, material to the causes of action alleged by Landmark, not protected by any recognized privilege or protective doctrine, and not overly broad or burdensome.

Practice Book § 13–5 allows the court to issue protective orders “[u]pon motion by a party from whom discovery is sought, and for good cause shown.”   The court may “make any order which justice requires to protect a party from annoyance, embarrassment, oppression, or undue burden or expense ․” Practice Book § 13–5.

“The granting or denial of a discovery request rests in the sound discretion of the court ․ 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 ․” (Citations omitted.)  Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 57–60, 459 A.2d 503 (1983).

The Supreme Court has on numerous occasions “reaffirmed the importance of the attorney-client privilege and have recognized the long-standing, strong public policy of protecting attorney-client communications.   In Connecticut, the attorney-client privilege protects both the confidential giving of professional advice by an attorney acting in the capacity of a legal advisor to those who can act on it, as well as the giving of information to the lawyer to enable counsel to give sound and informed advice.   The privilege fosters full and frank communications between attorneys and their clients and thereby promote[s] the broader public interests in the observation of law and [the] distraction of justice.”  (Internal quotation marks omitted;  citations omitted.)  Olson v. Accessory Controls & Equipment Corp., 254 Conn. 145, 156–57, 272 A.2d 14 (2000).

“The presence of third parties generally destroys the confidentiality of a communication, precluding a claim of privilege ․ This rule does not apply, however, when the presence of the third parties is required to achieve the purpose of the communication.”  (Citation omitted.)  State v. Mark R., 300 Conn. 590, 598, 17 A.3d 1 (2011).  “Appropriately, the attorney-client privilege extends to interpreters, and to clerks and agents employed by the attorney ․ in the business committed to his [or her] charge.”  (Internal quotation marks omitted.)  Olson v. Accessory Controls & Equipment Corp., supra, 254 Conn. 158.   Similarly, “[t]he attorney-client privilege can attach to reports of third parties made at the request of the attorney or the client where the purpose of the report was to put in usable form information obtained from the client.”  (Internal quotation marks omitted.)  Id., 160.

In the three lawsuits the plaintiff has commenced involving this transaction, one of which has gone to judgment and been affirmed by the Appellate Court, the second of which is on appeal to the Appellate Court (as is the court's order in this case on the denial of the plaintiff's prejudgment remedy application), there has been voluminous discovery as well as actual testimony in countless court hearings.

By its own admission, Landmark points to the significant role Attorney Grasso, in his representation of CALCO and Senese, played in the negotiation and drafting of the purchase and sale agreement concerning the property, as well as other negotiations relating to the purchase of notes and mortgages from the former note holders to which Chung, LLC, was indebted.   Any question asked of Attorney Grasso regarding his representation of, conversations with, documents prepared for, or correspondence with or about CALCO, and/or Senese, as well as Henry Chung and Chung, LLC, who BG & T also represent, is conceivably protected by the attorney-client privilege and the attorney work product doctrine.¹

The court could allow the deposition to go forward, and Attorney Grasso could assert the attorney-client privilege when questioned.   However, because of the very exhaustive discovery the plaintiff has enjoyed, and its failure to show any circumstance that the defendants participated in fraud, or that any information sought is not otherwise available (and not previously supplied), the court considers the request to be unreasonably burdensome and broad, and finds no “good cause” to allow the deposition.

Furthermore, this court finds that protecting a party's acting attorney from being deposed by the opposing party is good cause to issue a protective order under Practice Book § 13–5.  “The deposition of opposing counsel must be discouraged and disallowed except under the most compelling reasons.   Such a procedure could lead to calling opposing counsel to testify, placing in jeopardy a plaintiff's right to have his designated counsel represent him before our court.”   Tyler v. Schnabel, Superior Court, Docket No. CV 92 0516561, judicial district of Hartford–New Britain at Hartford (November 15, 1994).   The motion for protective order regarding the deposition and subpoenaing of Attorney John H. Grasso is granted.

The subpoena directed to the keeper of the records of BG & T, seeks the delivery of numerous documents.   The defendants argue that these requests rise to the same level as if it were directed to a named attorney since the records in question are for the most part kept by the attorney who manages the file.   Therefore, the requests are subject to the attorney-client privilege, the attorney work product, are oppressive, create an undue burden and expense and highly unlikely to produce relevant or admissible evidence.   Furthermore, the defendants argue that the requests are repetitive of previous requests and certain documents are already in the possession of the plaintiff and have been introduced as evidence in this case.

The plaintiff argues that it is expressly seeking non-privileged and/or redacted documents, or the defendants would have an obligation to provide a privilege log so that the applicability of any privilege could be independently assessed.   Furthermore, the plaintiff contends that “virtually every document responsive to [the] requests would have been transmitted to a third party,” and therefore not privileged.   Landmark contends that the requests are not unduly burdensome, and are relevant to form a basis for its tortious interference and conspiracy claims.

The court grants the motion for protective order as it relates to the keeper of the records and the request for documents.   Clearly some of the requests could be protected by the attorney-client privilege (Requests 1, 3, 4, 6, 7, 8 and 9), or are unduly burdensome due to their unlimited scope, not to mention the confidentiality of not only the relationship between the defendants and attorneys in this case, but the confidentiality of other attorney-client relationships (Request 2).   As to Request 5 seeking “[emails and correspondence by and between [Attorney] Grasso and Ralph Calabrese,” the court directs the parties to determine whether such e-mails and/or correspondence exist and provide said documents in accordance with normal discovery, provided, these writings have not been previously sought or disclosed.

The defendants have established good cause for granting a protective order regarding the proposed deposition of Attorney John H. Grasso, as well as a protective order for the keeper of the records and document production, except as specified.   The court grants the defendants' motions for protective order, and overrules the plaintiff's objections to the same.

Swienton, J.

FOOTNOTES

FN1. The plaintiff does not claim any exception to the attorney-client privilege as it relates to claims that counsel for any of the defendants knowingly participated in any fraud..  FN1. The plaintiff does not claim any exception to the attorney-client privilege as it relates to claims that counsel for any of the defendants knowingly participated in any fraud.

Swienton, Cynthia K., J.