C. Andrew Riley v. The Travelers Home and Marine Insurance Company (2013)

MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR PROTECTIVE ORDER (# 144)

This action involves an insurance coverage dispute in connection with a fire loss that occurred at the plaintiff's home.   Defendant denied the plaintiff's property loss claim, stating as the basis for its denial that the plaintiff intentionally set fire to his own home and concealed or misrepresented facts and circumstances concerning the loss.

Before the court is the plaintiff's motion for protective order to limit inquiry by the defendant into a statement volunteered by the plaintiff at his deposition, specifically:

A: May I? I'm sorry.   Can I re-answer that question?   Of course it was inappropriate.   They manufactured evidence against me.   They lied and they perpetrated that lie.   They spread that lie to people in town.   Of course that's inappropriate.   It's not a legal question.   It's a question of ethics.

(12/23/2013 deposition of C. Andrew Riley, p. 286, lines 5–10.)

Plaintiff's counsel objected at the deposition on the basis of attorney client privilege and instructed his client not to answer defense counsel's follow-up question:  “what evidence do you claim is manufactured?”

The motion for protective order asserts that such an inquiry would require the plaintiff to disclose privileged communications with his attorney or would otherwise reveal the thoughts, impressions and mental conclusions of plaintiff's counsel.   In short, plaintiff's counsel represents that any knowledge his client has of “manufactured evidence” is the product of their joint review of the evidence and numerous conferences between them to develop the theory of the case.   Therefore, the specifics of the evidence claimed to be “manufactured” are “inextricably intertwined” with privileged communications of counsel and the thought processes and impressions of counsel, and hence not discoverable.   The motion presents aspects of both the attorney client privilege and the work product rule.

“Connecticut has a long-standing, strong public policy of protecting attorney-client communications ․ This privilege was designed, in large part, to encourage full disclosure by a client to his or attorney so as to facilitate effective legal representation ․ The attorney-client privilege seeks to protect a relationship that is a mainstay of our system of justice.”  Gould, Larson, Bennet, Wells & McDonnel, P.C. v. Panico, 273 Conn. 315, 321–22 (2005).

The work product rule or doctrine is often referred to as a privilege.   See Tolman v. Banach, 82 Conn.App. 263, 266 n.3 (2004).   Embodied in Practice Book § 13–3(a), it protects the “mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.”  “The work product rule protects an attorney's interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs and countless other tangible and intangible items ․ Work product can be defined as the result of an attorney's activities when those activities have been conducted with a view to pending or anticipated litigation.”  (Citation omitted;  internal quotation marks omitted.)  Ullmann v. State, 230 Conn. 698, 714 (1994).

“Whereas the attorney-client privilege is an evidentiary rule, the work product doctrine is a rule of discovery.”   C. Tait, Handbook of Connecticut Evidence (2nd Ed.1998) § 12.5.11, p. 450.  “Work product includes ‘documents ․ prepared in anticipation of litigation or for trial’ and encompasses material prepared ‘by or for’ another party or that other party's representative.   See Practice Book § 13–3(a).”  (Internal quotation marks in original.)   Roraback v. Stanley Works, Superior Court, complex litigation docket at Hartford, Docket No. X04 CV 06 4043672 (September 24, 2009, Shapiro, J.).   Like the attorney-client privilege, however, because the work product doctrine tends to prevent a full disclosure of facts relevant to the finding of the truth, the scope of its protection is narrow.   Matos v. Allstate Insurance Co., Superior Court, judicial district of Stamford–Norwalk, Complex Litigation Docket at Stamford, Docket No. X08 CV 05 5002298 (December 3, 2008, Jennings, J.) [46 Conn. L. Rptr. 771].

In the present case, the information sought by defendant's counsel (i.e., the specific “evidence” claimed to be “manufactured”) is, in the view of the court, more properly characterized as “work product.”   Plaintiff's counsel has represented that this information was not arrived at by the client independently and therefore is not part of his personal knowledge of the facts of the case.   Apparently the information came to the plaintiff by means of privileged communication from an attorney, but that does not change the nature of the information itself.   It is still the attorney's work product.   It is the direct result of the attorney's activity in the preparation of the case for trial, even if that work was done in conjunction with the client.

The work product rule “is designed to protect the right of an attorney to thoroughly prepare a case by precluding a less diligent adversary from taking undue advantage of an opponent's efforts.”   Carrier Corp. v. Home Ins. Co., Superior Court, judicial district of Hartford–New Britain at Hartford (June 12, 1992, Schaller, J.) [6 Conn. L. Rptr. 478].   On the other hand, refusing to disclose the identity or nature of the “manufactured evidence” in hopes of springing a surprise at trial is certainly “the sort of ‘cat and mouse’ game that the rules of discovery and production were designed to discourage.”   Pool v. Bell, 209 Conn. 536, (1989).   The court must strike a balance between these competing interests.   See Coss v. Steward, 126 Conn.App. 30, 46 (2011) (the extent of discovery and use of protective orders is a matter within the discretion of the trial judge).

This case is scheduled to begin jury selection in two weeks, and presentation of evidence in four weeks.   Through no fault of counsel, discovery on issues of liability is taking place virtually right up to the eve of trial.   Based upon the facts of this case and applicable law, the court finds good cause has not been shown by the plaintiff to preclude all inquiry regarding the evidence claimed to be “manufactured.”   However, the court also recognizes that plaintiff's counsel may have a legitimate need to withhold his work product until such time as he has completed discovery on liability issues.   After that, the court's interest in full and fair discovery would outweigh any interests served by the work product rule.

Therefore, the plaintiff's Motion for Protective Order is GRANTED, but only until January 9, 2013.   After January 9, 2013, plaintiff's counsel shall be required to identify the specific “evidence” which the plaintiff claims is or was “manufactured.”   Obviously, the analysis that led to the conclusion that the evidence is not genuine need not be disclosed, but the evidence claimed to be “manufactured” must be specifically identified.

The court makes this ruling with the caveat that—at this late date immediately before trial—the identification of the “evidence” claimed to be manufactured will not preclude the defendant from arguing that a continuance of the trial is necessary to alleviate unfair and undue prejudice, if any.   The court cannot express any opinion on such a question at this time, but notes that it may be raised.

BY THE COURT

Sheridan, J.

Sheridan, David M., J.