Theresa Mackay v. Charles Kwon et al. (2015)

MEMORANDUM OF DECISION ON MOTION TO QUASH SUBPOENA (# 117)

By motion dated November 5, 2014, witness Jeffrey Jowdy, of the law firm of Jowdy & Jowdy, PC, seeks to quash a subpoena issued to him by counsel for the plaintiff Theresa Mackay.   The motion was submitted on the papers, which include an opposing brief (# 118), on November 24, 2014.   The subpoena demands the movant Jeffrey Jowdy's appearance for a deposition in this case and production at such deposition of his “case file from the criminal prosecution of its client, Ms. Alana Tucillo–Lehr.”  (Contrary to the motion, the subpoena is not attached to the motion.   Nor is the subpoena attached to the plaintiff's opposing brief.   However, the court believes it has enough information to rule on the motion.   Also, the motion implies that the movant represents “the defendant,” presumably the late Alana Tucillo–Lehr, who was never a party to this case.   That designation is irrelevant to the merits of the motion.)

The basis of the motion is the claim that both the testimony and the documents requested are protected by the attorney-client privilege.

The motion is implicitly pursuant to Practice Book § 13–28(e), which provides, “[t]he court in which the cause is pending ․ may, upon motion made promptly and, in any event, at or before the time for compliance specified in a subpoena authorized by subsection (b) of this section, (1) quash or modify the subpoena if it is unreasonable and oppressive or if it seeks the production of materials not subject to production under the provisions of subsection (c) of this section ․” ¹

“The right of a litigant to discovery is primarily the right to obtain information.”  Chief of Police v. Freedom of Information Commission, 52 Conn.App. 12, 16, 724 A.2d 554 (1999), aff'd, 252 Conn. 377, 746 A.2d 1264 (2000).  “The discovery rules ․ are designed to make a trial less a game of blindman's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practical extent.”  (Internal quotation marks omitted.)  Knock v. Knock, 224 Conn. 776, 782, 621 A.2d 776 (1993).

“In any civil action ․ where the judicial authority finds it reasonably probable that evidence outside the record will be required, a party may obtain ․ discovery of information or disclosure, production and inspection of papers, books, documents and electronically stored information material to the subject matter involved in the pending action, which are not privileged ․ Discovery shall be permitted if the disclosure sought would be of assistance in the prosecution or defense of the action and if it can be provided by the disclosing party or person with substantially greater facility than it could otherwise be obtained by the party seeking disclosure.   It shall not be ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence ․” Practice Book § 13–2.   This rule liberally permits discovery of information “material to the subject matter involved in the pending action,” which certainly includes a broader spectrum of data than that which is material to the precise issues raised in the pleadings.   See Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 139, 491 A.2d 389 (1985) (boundaries of discovery are clearly broader than the boundaries of admissible evidence).   These principles apply clearly to claims that the movant's late client lied to the plaintiff's attorney about her actions leading up to the accident which is the subject of this case, the true actions being essential to the plaintiff's claims.

It is the burden of the party seeking to quash a subpoena to show that there is no reasonable basis for requiring him to comply with the subpoena.   Sharon Motor Lodge, Inc. v. Tai, Superior Court, judicial district of Litchfield, Docket No. CV–98–0077828–S (March 06, 2006) [40 Conn. L. Rptr. 852].   The movant has not met that burden either as to the motion to quash the subpoena entirely, and thus avoid being deposed, or as bringing the file described in the subpoena to the deposition.  “[T]he attorney-client privilege is strictly construed because it tends to prevent a full disclosure of the truth in court ․” (Internal quotation marks omitted.)   Ullman v. State, 230 Conn. 698, 710, 647 A.2d 324 (1994).   Having knowledge of privileged communications and the duty to protect them does not excuse an attorney from testifying as to other matters any more than such knowledge and the right to protect them excuses an attorney's client from testifying as to other matters.   See id., 712–13 (duty not to disclose privileged communications does not affect attorney's capacity and duty to testify as to other matters).

The present motion is, in essence, too broad.   Although the plaintiff's opposition to the present motion concedes that there are likely to be some communications the movant had with Ms. Tucillo–Lehr which are covered by the attorney-client privilege, and although plaintiff's counsel's questions about clearly privileged communications may be a waste of time, there are likely facts as to which the movant has knowledge from an unprivileged source.   Also, there may be facts as to which a claim of privilege is reasonably debatable.   For example, there may be questions as to which the response is that the answer is privileged, but which the questioner may reasonably believe there is an unprivileged, substantive response because the response, or the basis for the response, was never privileged;  see Olson v. Accessory Controls & Equipment Corp., 254 Conn. 145, 170, 757 A.2d 14 (2000) (no privilege for communications in aid of fraud) (quoting Clark v. United States, 289 U.S. 1, 15 (1933));  or as to which the privilege was waived.

For the reasons stated, the motion to quash is denied.   The movant is ordered to bring to the deposition the file described in the subpoena in case the examination turns out to involve one or more documents in that file which is/are unprivileged or as to which a claim of privilege is resolved at the deposition by agreement.   This ruling does not mean the movant's file or any document in that file, specifically or as a part of a category, must be produced—turned over to the plaintiff, through her attorney—despite the movant's claim of privilege.   Nor does this ruling mean only the attorney-client privilege will apply:  the court does not regard the silence of the motion as to other privileges as a waiver.   However, such claims and objections to them are not now before the court.

Cole–Chu, J.

FOOTNOTES

FN1. Practice Book § 13–28(c) provides, “[a] subpoena issued for the taking of a deposition may command the person to whom it is directed to produce and permit inspection and copying of designated books, papers, documents or tangible things which constitute or contain matters within the scope of the examination permitted by Sections 13–2 through 13–5.   Unless otherwise ordered by the court or agreed upon in writing by the parties, any subpoena issued to a person commanding the production of documents or other tangible things at a deposition shall not direct compliance within less than fifteen days from the date of service thereof.”.  FN1. Practice Book § 13–28(c) provides, “[a] subpoena issued for the taking of a deposition may command the person to whom it is directed to produce and permit inspection and copying of designated books, papers, documents or tangible things which constitute or contain matters within the scope of the examination permitted by Sections 13–2 through 13–5.   Unless otherwise ordered by the court or agreed upon in writing by the parties, any subpoena issued to a person commanding the production of documents or other tangible things at a deposition shall not direct compliance within less than fifteen days from the date of service thereof.”

Cole–Chu, Leeland J., J.