Deborah B. Smith v. The Whitby School, Inc. et al. (2013)

Memorandum of Decision on Motion for Protective Order (No. 193)

In this wrongful termination case the plaintiff served a Request for Production of Documents (asking for items one through eight) on the employer defendant Whitby School (“defendant”) more than four years ago on May 5, 2009.   On July 6, 2009 defendant filed its objections to items one through seven (No. 135) on the bases that they sought production of documents protected by the attorney-client and work product privileges, and, additionally, they were overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence.   Those objections have never been adjudicated.   Notwithstanding the objections, however, the defendant did produce some items in response to items one through seven.   No objection was filed to item eight.   The objections remain outstanding and have never been resolved.

On May 21, 2013, while the 2009 objections to production remained unresolved, plaintiff filed a Motion to Compel (No. 185) seeking immediate production of a certain “script” and a sound recording of a meeting which, she claimed, were called for by the 2009 production request.   This court denied that Motion to Compel by written order of June 20, 2013 (185.86) without prejudice to renewal “if and to the extent that defendant's objections are overruled.”   The court also ordered the defendants to file a privilege log by July 15, 2013 listing the documents they claim to be protected by the attorney-client privilege or the work product doctrine.¹

Without taking any apparent effort to bring the objections on to the short calendar, plaintiff has served a Notice of Deposition to depose Jude Renzini, Director of Human Resources of the Whitby School.   Attached to the Notice of Deposition is a Schedule “A” list of documents to be produced at the deposition.   The Schedule “A “is identical to the 2009 Request for Production of Documents as to which the 2009 objections are still outstanding.   The motion now before the court is defendant's Motion for Protective Order asking that the discovery sought in Schedule “A” not be had, as the “plaintiff is attempting to circumvent Practice Book § 13–10(c) requirements regarding resolving objections to production requests.”   Specifically defendant states that plaintiff in four years has made no effort to have the objections to production of documents heard on the short calendar, which would invoke the necessary prerequisite under Practice Book § 13–10(c) of filing an affidavit certifying that bona fide attempts have been made to resolve the differences concerning the subject matter of the objections and that counsel have been unable to reach an accord.   Plaintiff objects to the requested protective order on the ground that the repetition of the 2009 production requests on Schedule “A” of the 2013 notice of deposition is not an attempt to circumvent the objections to disclosure, but rather is putting the defendants on notice that they should produce documents called for by the May 21, 2013 Motion to Compel, and reminding defendants of their P.B. § 13–15 continuing duty to disclose.   The first ground is now invalid because the Motion to Compel has been denied without prejudice to renewal after the objections are resolved, which has not occurred.   The second ground has very little scope since almost all of the 2009 Production Request was objected to, and those objections remain outstanding.

Although counsel's intent may not have been to circumvent the Practice Book rules regarding objections to production requests, Schedule “A” to the Notice of Deposition of Jude Renzini does have precisely that effect.   The only exceptions would be the one part of the 2009 Production Request not objected to (Section 8), and any of the 2009 production made “notwithstanding” the objections as to which there is followup material be disclosed pursuant to the continuing duty to disclose under § 13–15.

Accordingly there is good cause to grant the Motion for Protective Order, and the court hereby grants the Motion for Protective Order as to Sections 1, 2, 3, 4, 5, 6, and 7 of the 2009 Request for Production of Documents and of the identical 2013 Schedule “A” to the Notice of Deposition, except that the Motion for Protective Order is denied as to any subsequent followup disclosure under P.B. § 13–15 as to any items in those seven categories actually disclosed in 2009 “notwithstanding” the objections.   The Motion for Protective Order is also denied as to Section 8 of the 2009 Request for Production of Documents (non-privileged statements of parties) which was not objected to.

Since there may be further issues of compelling production after the objections have been resolved and after the plaintiff has reviewed the Privilege Log the plaintiff will have to address the June 15, 2013 deadline of the Scheduling Order (No. 183) for hearings on motions to compel.

So Ordered,

Alfred J. Jennings, Jr.

Judge Trial Referee

FOOTNOTES

FN1. The Privilege Log was filed on July 15, 2013 (No. 206) listing more than 100 documents claimed to be covered by the attorney-client privilege..  FN1. The Privilege Log was filed on July 15, 2013 (No. 206) listing more than 100 documents claimed to be covered by the attorney-client privilege.

Jennings, Alfred J., J.T.R.