Keith M. Curran v. Anna Zubkova (2015)

MEMORANDUM OF DECISION

This is the fourth of five actions filed to date by the son of Eileen B. Curran.  The suits stem from conservatorship proceedings conducted in the Probate Court for the Northeast District (# 26).¹

Keith Curran commenced the instant action as “attorney-in-fact” for his mother, and it consists of a petition requesting that he be allowed to depose her for the preservation of evidence as to the circumstances of the conservatorship proceedings.  The named defendant, Anna Zubkova, was the voluntary conservatrix proposed by Eileen Curran and appointed by the probate court.  She and the remaining defendants (Zubkova's attorney, Paul Kaplan;  the Probate Judge, Leah Schad;  First Niagara Bank;  Athenahealth, Inc.;  and Janice Brady) are all identified as expected adverse parties.

Briefly, Zubkova had succeeded in obtaining an order from the probate court transferring back to Eileen the title to real estate which she had conveyed by quit-claim deed to the plaintiff and his wife.  The first three Curran suits address certain procedural decisions made by the probate court, and its final decree.  Subsequent to the probate decree, and by means not made known to this court, Eileen and Keith have achieved a rapprochement and she has designated him as her attorney-in-fact authorized to pursue legal claims on her behalf.  The present petition, he asserts, is a step in the process of documenting alleged misfeasance and malfeasance on the part of the conservatrix and the other defendants.

This memorandum involves a number of disputes that have arisen following plaintiff's August 5 issuance of his notice of deposition.  At issue are the timing and place of the event, and plaintiff's indication that he would be videotaping the deposition.  Before this court today are a series of motions addressed to these details.  These include the “objection to the taking of deposition” filed by Kaplan on August 6 (# 107);  First Niagara's motion for protective order filed August 10 (# 109);  and Zubkova's motion for protective order filed August 13 (# 110).  Plaintiff replied in writing to the first two of these, by means of his August 7 reply to the Kaplan objection (# 108), and his objection of August 19 to First Niagara's motion (# 121);  while he has not directly replied in writing to the Zubkova motion, he made his objection to it clearly known at the oral argument held before this court on October 1.²

Additionally before this court for decision are plaintiff's motions for contempt targeting James Byrne, the attorney for First Niagara (# 123), filed August 20, Zubkova, and Kaplan (# # 125 and 126), each filed August 24.  The three respondents have each submitted written objections to these motions—Kaplan on September 21 (# 128), Zubkova on September 24 (# 131), and Byrne on September 28 (# 133).

I. Status of the Petition for Taking of Deposition

On August 5, the status of the petition was that it had been granted by order of Judge Calmar on July 30 (# 100.42), over the defendants' objections.  Significantly, however, on August 13, simultaneous with tier motion for protective order, Zubkova filed a motion for reargument (# 111) of the July 30 order.  On August 14, Judge Calmar granted the motion for reargument, but did not rule upon the earlier decision itself until October 29, when he ruled that his initial order would stand (# 152).

That fact that the motions involved in this memorandum came on for hearing while the decision allowing the deposition to be taken had not become final presented this court with a procedural hurdle.  If Judge Calmar were to reverse his first order, the petition would be moribund, no deposition could be had, and the pending motions for protective order would be unnecessary.  On the other hand, if he rejected the Zubkova bid (as he has done), the matters raised by the instant motions would still require adjudication.  Since all parties had briefed their positions, had witnesses available to testify, and had come to court on October 1 ready to proceed, and with consent of all, this court decided to conduct the hearing on the motions scheduled for that date, while indicating that it would issue no decision on them until the motion regarding the July 30 order was resolved.

II. The Motions for Protective Order

The controversy with respect to the deposition began with plaintiff's counsel's issuance of a notice on August 5 that he would depose Eileen Curran, the nominal plaintiff here, at an address in the Commonwealth of Massachusetts, on the morning of August 14.  The notice includes an expression of his intention to videotape the deposition.  The notice is silent as to any stenographic recording of the deposition.

The notice prompted Kaplan objection,³ filed on August 6. First Niagara filed its motion for protective order from on August 10, and Zubkova filed a similar motion on August 13.  Plaintiff has formally objected to all these motions.  Between August 5 and August 13, various exhibits indicate that the parties had discussions aimed at resolving their disputed issues.  Plaintiff's counsel indicated that given the failure of those negotiations, he thought that one of the defendants would seek to have a hearing scheduled in this venue prior to 10 a.m. of August 14, and that he came to the Willimantic courthouse on the morning of August 10 (a Monday—short calendar day) prepared to defend his notice.  The defendants dispute that representation, and in fact made no attempt to schedule a hearing.  The court takes judicial notice that Monday, August 10, was the only regular short calendar date between notice and the deposition date upon which the motions could have been heard.  The calendar for that date would have been printed prior to August 5, and so a hearing on the August 10 short calendar would have required that the Kaplan motion be written on.  A hearing of any of the motions on any other day would have had to be specially assigned.  Plaintiff's counsel learned at the short calendar on the 10th that the no motion had been written on.  Notwithstanding the pendency of the three motions and the lack of judicial response to them on August 14, and notwithstanding the filing of Zubkova's August 13 motion seeking reargument of the very order which permitted the deposition in the first place, plaintiff proceeded on the 14th to the designated Massachusetts location and deposed Eileen Curran in the absence of any party defendant.  He now argues that the orders sought are moot because the deposition has been taken, and that defendants must raise a routine evidentiary objection at trial as to any issue they might have with regards to Eileen's testimony.

A. Particulars of the Motions for Protective Order

Kaplan's motion, the first in time, is specifically adopted by both First Niagara and Zubkova.  He contends that the deposition ought to be conducted in Connecticut, at a courthouse, and that a number of provisions should be made for its videotaping including a prohibition against Keith Curran being the videographer, a bar against focusing the camera upon the lawyers, orders against dissemination of the video outside of the confines of this case, a prohibition against selective editing, if disseminated, an order that any such video not be used to annoy, harass, oppress, or cause undue burden or expense to any other party, and a requirement that a qualified stenographer simultaneously transcribe the witness's testimony in the manner usually employed, with copies of both paper and video depositions to be provided to opposing parties.  Both First Niagara and Zubkova expressly endorse these requests, while in their motions placing particular emphasis on the need to have the deposition conducted at a courthouse for security reasons.

B. Standards for Adjudication of a Motion for Protective Order

Practice Book § 13–5 authorizes “a party from whom discovery is sought” to move, for good cause shown, that the judicial authority make any order which justice requires to protect a party from annoyance, embarrassment, oppression, or undue burden or expense.  While the notice of deposition involved here is not directed against any of the three objecting parties, this provision has been successfully utilized by parties raising objections to another party's attempt to depose a non-party witness;  see Cahn v. Cahn, 225 Conn. 666 (1993) (construing then-numbered § 221 of the Practice Book, the court held that plaintiff's motion for protective order against defendant's efforts to depose certain witnesses out of state was sufficient to warrant judicial response).

The rule confers broad discretion upon the trial court to fashion orders appropriate to the facts of the case before it.  As the Cahn court observed at 674–5, “[w]hat is reasonable notice must depend largely upon the facts and circumstances of each case, and ․ such matters must be left to the wise legal discretion of the trial court,” citing Harris ' Appeal From Commissioners, 58 Conn. 492, (1890);  and C & F Packing Co. v. Doskocil Companies, Inc., 126 F.R.D. 662, 678 (N.D.Ill.1989);  “the most that can be gleaned from the case law is that the reasonableness of notice must be determined under the individual circumstances of each case.”  In exercising its discretion in this context, “[t]he Court is also encouraged in considering a protective order to ‘be as inventive as the necessities of a particular case require in order to achieve the benign purpose of the rule;’ “ Tahoe Insurance Company v. Morrison–Knudsen Company, Inc., 84 F.R.D. 362 (D.Idaho 1979), citing 8 Wright & Miller, § 2036, Federal Practice and Procedure.

C. Appropriate Orders in This Case

Before dealing with the specific concerns defendants raise in their motions, the court will answer the plaintiff's claim that since defendants failed to have their motions decided before the morning of August 14 their motions are now moot and he was justified in proceeding to conduct the deposition as he has done, and that no orders at all need to be considered.

1) Did the Filing of the Motions for Protective Order Stay the Commencement of the Deposition?

Plaintiff's notice of deposition is dated August 5, a Wednesday.  The Kaplan reply states that it was “sent” on that date, though not by what means;  the same paragraph refers to other, earlier correspondence between the parties having been “faxed.”  The abundant exhibits submitted by the various parties reflect their mutual recourse to email or the fax machine in their transmission of communications, and the fact that the Kaplan response is itself dated August 5 permits the inference that the defendants received notice on that date, rather than a day or two later as would have occurred had postal transmittal been utilized.  First Niagara's motion arrived on Monday, August 10, three business days following the notice, and Zubkova's on August 13, six business days later.  Neither then nor now has plaintiff made any showing that any emergency affected the timing of the deposition.  He claims that the motions were dilatory;  at least Kaplan's response, which was nearly instantaneous, cannot be thus faulted.  Those of First Niagara and Zubkova, since they were on the table prior to August 14, were also timely.

In certain respects, the details of timing in this case mirror those reviewed by the Supreme Court in Cahn. There, also, nine days had elapsed between the issuance of the notice of (out-of-state) deposition of several witnesses, and the opposing party had filed a motion for protective order before the scheduled date, but failed to secure any court order on his motion, and declined to attend the event.  In an exercise of its discretion, the trial court ruled that under the circumstances the notice was not reasonable, and it had barred the proponent from making use of the deposition on that basis.  The appellate court affirmed;  see Cahn v. Cahn, 26 Conn.App. 720 (1992).  It reasoned that the trial court had correctly determined that notice was unreasonable and that the opposing party (at 729) “should have been allowed to argue his motion for a protective order once he promptly filed it upon learning of the deposition.”

The Supreme Court affirmed, on the basis that the somewhat unique series of events outlined did justify the trial court's exercise of its discretion.  But its holding did not adopt the “should have been allowed” rationale buttressing the appellate court's conclusion, and expressly declared that no automatic stay of a noticed deposition takes effect merely as a consequence of filing a motion for protective order.  The Court indicated that the party who had filed the motion for protective order could have had such a hearing had he taken steps to alert the trial court to the contest over this procedure, but failed to do so;  significantly, however, it indicated that the deposing party had likewise failed to secure a pre-deposition adjudication of the sufficiency of her notice, thus warranting the manner in which the trial court had exercised its discretion on this evidentiary question.

The decision leaves room for disagreement as to its reach.  In concurrence, Justice Berdon outlined his concerns with its dicta, and indicated that strict adherence to the “no stay” rule might even run afoul of constitutional due process concerns.  Conversely, Justice Borden, in dissent, found it “difficult ․ to follow the reasoning of the majority opinion;” 225 Conn. 666, 682;  and proposed the adoption of a rule that since defendants' filings produced no stay, their failure to have their motions for protective order heard before the deposition should be dispositive.  Had the majority so indicated, plaintiff's position here might be unassailable.

The parties here attribute different significance to Cahn 's holding.  Because the Court indicated that no stay goes into effect solely upon a party's filing a motion for protective order to halt a deposition, plaintiff contends that the only recourse now available to defendants is the making of an objection when and if the deposition is offered into evidence at trial;  that was the procedural posture in which the Cahn dispute arose, and thus, he argues, that is the sole occasion for them to get a judicial resolution of this issue.  Plaintiff trumpets Cahn's “no stay” declaration, but otherwise relies upon Noll v. The Hartford Roman Catholic Diocesan Corporation, Docket No. HHD X04 CV02–4034702, Superior Court, judicial district of Hartford (September 26, 2008;  Shapiro, J.) and Spatta v. American Classic Cars, LLC, Docket No. CV10–6002865, Superior Court, judicial district of Litchfield (April 5, 2012;  Danaher, J.).  Each of these cases involved a party's toying with the rules of discovery to a degree surpassing in substantial measure what defendants here can be accused of.  In Noll, the Virginia resident objecting to notice requiring his deposition in that state had unsuccessfully filed four protective motions in the Hartford judicial district over a period of more than six weeks, had at one point agreed to the deposition which he ultimately failed to attend, and, even though the Connecticut court indicated prior to the scheduled date that he could pursue a stay in the state court of Virginia, he declined to do so.  In Spatta, the issue was compliance with a disclosure request, and defendant was defaulted for failing to answer a proper request for over five months and despite several court orders that it do so.  Neither case is factually close to the one at hand.

Defendants contend that once a motion for protective order is filed, a stay comes into effect barring the taking of the deposition until the motions have been ruled upon.  They maintain that this has become a matter of custom, at least, and that attorneys usually do respect an opponent's filing of a motion for protective order and consent to its determination before proceeding unilaterally to the scheduled event.  Custom cannot override what the Supreme Court has declared to be the law, and Cahn and other authorities dispel defendants' contention.  There is no automatic stay, but the case sets forth no rule that only an evidentiary objection at trial is available for resolving disputes of this nature.  In the event, it is obvious that the Court found fault with the steps taken, or not taken, by both parties for the state of affairs that generated the appeal, and was influenced by their mutual underperformance.

At this juncture, this court cannot and will not rule that the deposition taken on August 14 was improper due to a stay occasioned by the mere filing of the defendants' motions for protective orders.  Since there is no notice of deposition pending, the motions for protective order are moot and will be denied on that basis.⁴

2) Did the Filing of the Zubkova Motion for Reargument Stay the Commencement of the Deposition?

Defendants further argue that the filing of the Zubkova motion for reargument, addressed to the very order which permitted the deposition, ought independently of the motions for protective order to have stayed any action taken pursuant to Judge Calmar's original ruling which she here sought to have reversed.  The file indicates that Judge Calmar granted the request for reargument on August 14, but does not indicate whether that occurred before the commencement of the 10:00 a.m. deposition—nor whether, if it did, his action was communicated to any party before that moment.  As such, this court can consider only that a motion for reargument had been filed (but not acted upon) as of the scheduled commencement.

Zubkova frames her motion as a Practice Book § 11–11 motion, that is, one which pursuant to § 63–1 would operate as though an appeal had been filed and impose an automatic stay upon the execution by any party upon the order or judgment involved in the appeal.  She reasons now that the filing of that motion placed Judge Calmar's 30 order in limbo, and the deposition taken the next day a nullity.  She argues that his order was tantamount to final judgment, and that her motion tolled its effect until reargument was denied, or, if allowed, completed.  Plaintiff's only response to this is to claim that she is really appealing from an interlocutory order, that P.B. § 11–12 is the appropriate authority under which she should have proceeded, and that it does not impose any stay merely by its invocation.

In Nelson v. Dettmer, 305 Conn 654 (2012), the Court examine the effect the filing of a motion to reargue an underlying judgment (in that case, a summary judgment which the trial court reversed following the reargument) had as to imposition of a stay of the order originally entered.⁵  The filing of a motion to reargue, the case holds, calls into question the finality of the original judgment, because the motivation for and purpose of the motion is to bring about a different result.  “[U]ntil the court issues a decision on the motion to reargue, the substantive rights and obligations of the parties are placed in flux.  So long as the parties' substantive rights and obligations remain undetermined, the finality of the original judgment becomes, in effect, suspended;” 305 Conn. 654, 675.

Whether her motion involved a final judgment, or, as plaintiff contends, a non-appealable order, is not a matter of mere labelling.  At pages 676–77 of the decision, the Nelson Court informs us that “the proper rule is ․ that ․ a motion suspends the finality of a judgment if, viewed prospectively, the motion, if granted, would redetermine the rights and obligations of the parties such that it would render the judgment ineffective.  In contrast, if the motion would not affect the rights of the parties, and would merely clarify a portion of the decision, the motion would not suspend the finality of the judgment.”

In the complaint itself, the sole issue involved in this suit is plaintiff's request for an order allowing him to depose his mother for the sake of future proceedings of an undisclosed nature.  Judge Calmar's July 30 order resolved that issue in his favor.  Defendants might have appealed.  Instead, as was her right, Zubkova moved to reargue that conclusion and have the court reverse itself.  Recognizing the continuing validity of its rulings in Weinstein v. Weinstein, 275 Conn. 671 (2005), and Killingly v. Connecticut Siting Council, 220 Conn. 516 (1991), the Nelson court went on to indicate that the filing of a motion capable of suspending the finality of a judgment until the trial court decided such motion was effective to cause a stay of the order under scrutiny, even though the court hearing the reargument ultimately denied it.

The pendency of a motion to reargue what is effectively a final judgment of the trial court is, therefore, distinct from the pendency of the motions for protective order.  The motion to reargue addresses an order establishing with finality “the rights and obligations of the parties” vis-a-vis Eileen Curran's deposition.  As such, it must be viewed as imposing an automatic stay which plaintiff ought to have observed on August 14.

The court notes, however, that the Zubkova action is not the basis for Kaplan or First Niagara's motions for protective order, and that even Zubkova's own motion for protective order is silent as to her simultaneous appeal to Judge Calmar.  This argument is made after the fact, and likewise fails to deal with the reality that there is no notice of deposition pending against which the court can afford defendants “protection.”

Thus plaintiff is apparently in possession of a transcript or a videotape, or both, of a proceeding conducted on August 14 without enforceable authorization by any court.  What use he will attempt to make of it at any future moment remains to be seen.  When and if he makes such an attempt at usage, plaintiffs may have their day in court on this issue.  Alternatively, plaintiff may attempt to renotice his mother's deposition in light of this decision, and of Judge Calmar's October 29 ruling.  If he does, defendants' concerns regarding security and the manner of taking the deposition may be revisited, and, if so, ought to be weighed in light of circumstances at that time.

III. The Motions for Contempt

In his three motions for contempt, plaintiff claims separately as to Kaplan, Zubkova, and Byrne, but in identical language, that “there is good cause to believe that [each] has violated Practice Book Sec. 4–2 and Rules of Professional Conduct 3.1, 3.3. and 8.4, and has engaged in a course of bad-faith and/or dilatory litigation conduct.”

Practice Book § 4.2 provides in pertinent part that “[t]he signing of any pleading, motion, objection or request shall constitute a certificate that the signer has read such document, that to the best of the signer's knowledge, information and belief there is good ground to support it, [and] that it is not interposed for delay ․” Rule 3.1 provides in pertinent part that “[a] lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.”  Rule 3.3 in pertinent part provides that “(a) [a] lawyer shall not knowingly:  (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;  (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel;  or (3) offer evidence that the lawyer knows to be false.”  Finally, Rule 8.4 defines it as “professional misconduct for a lawyer to:  (1) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;  [or] (3) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”

With slight variations as to the specifics of their contumacious behavior, he charges each with frivolous pleading and knowingly making false statements of fact or law to a tribunal, all memorialized within the four corners of those pleadings.  He further accuses Kaplan of having ex parte conversations with an unnamed judicial officer about the case, and Zubkova with falsely citing an incident that she claims involved an encounter between her husband and Curran.  He also accuses her of using provocative and untrue language in her pleadings to influence the court against him.  To a lesser extent, he levies this same charge at Byrne.

The court afforded plaintiff a full opportunity to prove these serious charges.  They fall into two categories:  matters relating to a party's legal position articulated in the pleadings, which the court can thus weigh “on the papers”;  and matters such as, notably, the charge that Kaplan attempted ex parte contact with the court, requiring proof in the form of clear and convincing evidence.

Despite a hearing that lasted the better part of a day, plaintiff adduced no evidence of any sort that Kaplan behaved in any manner not evident from his written product.  He offered no evidence that Kaplan attempted or conducted an ex parte communication with the court, and that charge is found to be baseless.  Similarly, plaintiff gave no account of his encounter with Zubkova's husband.⁶  Since he accuses her of contempt on this detail, he has the burden of proof, and has supplied nothing which sustains it.

The court will not parse his lengthy discourse as to the frivolousness or lack of candor of the several pleadings he attacks.  It is sufficient to note that he relies much upon his reading of the Cahn case, discussed above, and of that of Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673 (2002).  The court has already indicated a reading of Cahn that agrees in part and disagrees in part with that of plaintiff, and the bottom line is that defendants did not overstep the bounds by citing it, even if the court does not fully agree with their reading, either.  Journal Publishing treats of a bill of discovery involving a different procedure that plaintiff avails himself of here, and his argument that defendants' citation of it in support of their objections to a disparate procedure is frivolous is, itself, frivolous.  Our long tradition of adversarial litigation allows each party latitude to make to the court such arguments as are justified both to assist the court “to determine the legal premises properly applicable to the case,” ⁷ and, as appears to be the case here, “to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law.” ⁸

The motions for contempt are denied.

Boland, J.

FOOTNOTES

FN1. The suits, all filed in Windham Judicial District, bear the following captions and docket numbers:  Keith Curran and Haiyong Tao v. Anna Zubkova, CV 13 5005794;  Keith M. Curran and Haiyong Tao v. Court of Probate, Northeast Probate District (26), CV 14 5005817;  Haiyong Tao and Keith M. Curran v. Anna Zubkova, CV 14 5005838;  Keith Curran v. Anna Zubkova, CV 15 5006089;  and Keith Curran v. Anna Zubkova, CV 15 5006090.  Haiyong Tao is the wife of Keith Curran..  FN1. The suits, all filed in Windham Judicial District, bear the following captions and docket numbers:  Keith Curran and Haiyong Tao v. Anna Zubkova, CV 13 5005794;  Keith M. Curran and Haiyong Tao v. Court of Probate, Northeast Probate District (26), CV 14 5005817;  Haiyong Tao and Keith M. Curran v. Anna Zubkova, CV 14 5005838;  Keith Curran v. Anna Zubkova, CV 15 5006089;  and Keith Curran v. Anna Zubkova, CV 15 5006090.  Haiyong Tao is the wife of Keith Curran.

FN2. As distinct from the Practice Book requirements that certain objections be made in writing;  see, interrogatories (Sec.13–8), requests for production (Sec.13–10), or requests of admissions (Sec.13–23);  the Rules do not require that a party opposing a motion for protective order regarding the circumstances of the taking of a deposition file a written statement of those objections..  FN2. As distinct from the Practice Book requirements that certain objections be made in writing;  see, interrogatories (Sec.13–8), requests for production (Sec.13–10), or requests of admissions (Sec.13–23);  the Rules do not require that a party opposing a motion for protective order regarding the circumstances of the taking of a deposition file a written statement of those objections.

FN3. Though captioned “objection”—the term normally utilized to indicate an objection to a discovery request—the document is in essence a motion for protective order, and has been treated by the parties and by the court as such..  FN3. Though captioned “objection”—the term normally utilized to indicate an objection to a discovery request—the document is in essence a motion for protective order, and has been treated by the parties and by the court as such.

FN4. On the other hand, the court does not adopt plaintiff's argument that only an objection at trial is the means for defendants to object.  Their recourse to a motion in limine before trial, for instance, is not foreclosed.  Accordingly, the denial of their motions is expressly without prejudice to the content of those motions, should their arguments arise again in a different context..  FN4. On the other hand, the court does not adopt plaintiff's argument that only an objection at trial is the means for defendants to object.  Their recourse to a motion in limine before trial, for instance, is not foreclosed.  Accordingly, the denial of their motions is expressly without prejudice to the content of those motions, should their arguments arise again in a different context.

FN5. The Nelson case specifically examined the effect which the filing of a motion for reargument had upon the time periods involving the opening of a judgment.  Its reasoning, however, appears suited as well to the determination required here as to the effect the filing of such a motion has with respect to other consequences of an order or judgment..  FN5. The Nelson case specifically examined the effect which the filing of a motion for reargument had upon the time periods involving the opening of a judgment.  Its reasoning, however, appears suited as well to the determination required here as to the effect the filing of such a motion has with respect to other consequences of an order or judgment.

FN6. In fact, he successfully objected to her questioning him about this during her crossexamination..  FN6. In fact, he successfully objected to her questioning him about this during her crossexamination.

FN7. From the Commentary to Rule 3.3..  FN7. From the Commentary to Rule 3.3.

FN8. From the Commentary to Rule 3.1..  FN8. From the Commentary to Rule 3.1.

Boland, John D., S.J.