Opinion
No. X08 CV05-5000466S
December 3, 2008
Memorandum of Decision Re: Motion to Quash Subpoena and For Protective Order (No. 118/119)
Procedural and Factual Background
This case is a claim under the Connecticut Dram Shop Act, Conn. Gen. Stat. § 30102 against the defendants Starwood Hotels and Resorts Worldwide, Inc., Sheraton Stamford Hotel (Mark Heineman, Permittee) n/k/a Stamford Hotel Limited Partnership, and SLT Realty Limited Partnership as operator/permittee/ owner of the Sheraton Stamford Hotel at 2701 Summer Sweet in Stamford (collectively, the "Defendants" or "Starwood") arising out of a December 8, 2004 collision on Washington Blvd. in Stamford. The plaintiff Esther Geib sustained injuries when the Chevrolet Blazer driven by her was struck from the rear by a BMW automobile operated by Ann B. Drescher. Plaintiff alleges that while the BMW operator, Ann B. Drescher, was a patron at the restaurant establishment within the Hotel prior to the accident in question, she was sold and served alcohol while she was intoxicated, and that the plaintiff's injuries were a consequence of Ann Drescher's intoxication. (Complaint, Second Count, ¶¶ 11-13.) The Defendants deny that Ann Drescher was a patron of the hotel restaurant on the day in question and deny that they served her any alcohol at all. Whether or not Ann Drescher was a patron at all of the Sheraton Stamford Hotel on December 8, 2004, or whether or not she was served any alcohol at the Sheraton Stamford Hotel on that date are hotly contested issues in this case, and in a companion case brought against Starwood by Teresa Matos who was a passenger in the car operated by Esther Geib, (Docket No. X08 CV08-5002298S), which has been consolidated with this case.
Ann Drescher was arrested following the accident and charged with operating a motor vehicle while under the influence of alcohol. She attended a meeting in Stamford on March 28, 2006 with the lawyer defending her in the criminal case, Wayne Keeney, Esq. and Charles Abate, Esq., the lawyer representing the plaintiff Esther Geib in this case and Andrew Skolnick, Esq. representing Teresa Matos in her case against Starwood. The topic of discussion was a one-page affidavit signed by Ann Drescher and acknowledged by Atty. Keeney on April 4, 2005, in which she states:
Although until recently the parties disagreed as to the date of this meeting they have now stipulated for purposes of this motion only that it took place on March 28, 2006.
On December 8, 2004 I consumed several large glasses of red wine while decorating a Christmas tree at my home. I also consumed two Vicodin capsules. I left the house, entered my 1988 BMW and drove to the Ridgeway Mall to buy plugs for the tree. I completed the purchase and drove my car out of the mall parking lot into the Sheraton Hotel Parking lot nearby the mall. I entered the restaurant area of the Sheraton Hotel on Summer Street in Stamford, ordered a hamburger, and consumed two Manhattan cocktails. I paid cash and left in about thirty minutes. I entered Summer Sweet from the parking lot and proceeded toward downtown on Summer Street. I missed the turn to return home and went around the block onto Washington Boulevard where I had the accident.
The lawyers for the two plaintiffs were provided with copies of the foregoing affidavit.
In August of 2005 Atty. Skolnick and Atty. Abate each wrote letters on behalf of their clients to the office of the State's Attorney in Stamford, urging that Ann Drescher not be incarcerated. Atty. Skolnick asked that she be placed on probation with monitoring for substance abuse. Atty. Abate asked for a lifetime suspension of her drivers' license. (Ex. B to Defendants' Reply Memorandum, 9/12/07.) Thereafter Ann Drescher entered a plea of guilty to the offense of operating a motor vehicle under the influence of alcohol, and was given a suspended jail sentence and a period of probation. Her operator's license was also suspended for a period of time. Copies of the letters to the prosecutor have been provided to defendants' counsel by Atty. Skolnick and Atty. Abate.
Defendants have had the opportunity to depose Ann Drescher and her attorney, Wayne Keeney, concerning the April 4, 2005 affidavit and the circumstances of its being signed and its being shared with counsel for the two injured plaintiffs and the conversations which occurred at the March 28, 2006 meeting. Ann Drescher testified "They [plaintiffs' counsel] ran me through the day and what had happened." (Tr. 1/10/2007, p. 40.) Likewise Atty. Keeney was asked at his deposition if Mrs. Drescher was asked any questions at the meeting by Atty. Abate about the wording of the affidavit and responded: "Just confirming, you know, line by line." (Tr. 4/30/07, p. 45.)
The defendants have now issued a Deposition Subpoena Ad Testificandum and Duces Tecum to Atty. Abate (representing the plaintiff in this case) and Atty. Skolnick (representing Teresa Matos in her case) seeking to depose those lawyers and seeking production of non-privileged records from their files including correspondence concerning the April 4, 2005 affidavit, records and documents concerning the March 28, 2006 meeting, documents regarding the preparation of correspondence to the Attorney General [state's attorney] prosecuting Ann Drescher, documents involving any communication with Ann Drescher or Atty. Wayne Keeney, and documents in connection with any communication with Ann Drescher or her family or any other witness in connection with the alleged incident on December 8, 2004. Now before the court are motions in each case by the subpoenaed plaintiffs' counsel, seeking to quash the subpoenas served upon them and asking for a protective order against the production of the subpoenaed documents and against the taking of their depositions on the grounds that testimony and records sought by the subpoenas are protected by Connecticut's attorney work product rule. Since this case is consolidated with the Teresa Matos case, the court has considered the affidavits and memoranda filed in both cases in deciding these motions.
A. Motion to Quash Subpoena
Our work product rule is contained in Practice Book § 13-3 which permits the discovery of:
. . . documents and tangible things otherwise discoverable under Section 13-2 [the general scope of discovery provision] and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the judicial authority shall not order disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
Although not expressly set forth in the Practice Book rule, the Connecticut Supreme Court has narrowed the work product privilege to the work product of lawyers only:
"[The] lack of involvement of counsel is also dispositive of the claim that the reports were a `work product.' 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." The attorney's work must have formed an essential step in the procurement of the data which the opponent seeks, and the attorney must have performed duties normally attended to by attorneys. Stanley Works v. New Britain Redevelopment Agency, 155 Conn. 86, 95 (1967).
The work product rule protects not only documents and tangible things prepared by an attorney in his or her work, but especially the mental impressions and conclusions contained in them. "The work product rule protects an attorney's interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible items." (Internal citation omitted.) Ullman v. Connecticut, 230 Conn. 698, 714 (1994). Practice Book § 13-3 allows discovery of ordinary work product ("documents and tangible things otherwise discoverable") only "upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case, and is unable without undue hardship to obtain the substantial equivalent of the materials by other means." Ippolitti v. Ridgefield, Docket No. CV99-0337600S, Superior Court, Judicial District of Danbury at Danbury (August 7, 2000, Moraghan, J.), (2000 Conn.Super.LEXIS 2020 *11). However, an attorney's opinion work product in such documents and tangible things is absolutely protected under § 13-3. (" . . . when the required showing has been made, the judicial authority shall not order disclosure of the mental impressions, conclusions, opinions, or legal theories of any attorney . . .") Accord, Share America, Inc. v. Ernst Young, Docket No. CV93-307132S, Superior Court, Judicial District of Fairfield at Bridgeport (February 20, 1998, Thim, J.), (1998 Conn.Super.LEXIS 463, *4) (" . . . fact work product is subject to discovery upon a showing of `need' and `undue hardship' while opinion work product is protected from disclosure.")
The burden of establishing that the information sought constitutes work product is upon the party asserting such a claim. Carrier Corporation v. The Home Insurance Company, Docket No 352383, Superior Court, Judicial District of Hartford-New Britain at Hartford, (June 12, 1992, Schaller, J.). ( 1992 WL 139778, *5 (Conn.Super.); 6 Conn. L. Rptr. 478), but the burden of showing `substantial need' and `undue hardship' falls upon the party seeking the discovery. Practice Book § 13-3. Because application of the work product doctrine tends to prevent a full disclosure of facts relevant to the truthful disposition of a case, and because the rule is an exception to the general rule permitting the discovery of documents and tangible things, the rule should be narrowly interpreted. Id. at *7.
With respect to the documents subpoenaed, the court finds that the Starwood defendants have made the threshold showings under Practice Book § 13-3 for discovery of fact work product. Defendants have a substantial need for this information. Whether or not Ann Drescher was served any alcohol in the Stamford Sheraton Hotel on December 8, 2004, or was even present on those premises on that date, are key issues in the case. The only evidence in the record at this point supporting her presence at the Hotel and the consumption of alcohol served to her at the Hotel is her own testimony, as summarized in the April 4, 2005 affidavit. Defendants have alluded in their opposition to this motion and in oral argument to possible work product materials which may be present in Atty. Abate's file to contest the claim that Ann Drescher was served alcohol at the Stamford Sheraton. First, there may be references to statements Ann Drescher or her attorney or others may have made about where she obtained or consumed alcohol on December 8, 2004. Second, there is an implication, at least, of a possible agreement or understanding between Ann Drescher and the plaintiffs whereby she delivered to them a Dram Shop defendant (The Stamford Sheraton Hotel) in return for their help in keeping her out of jail by writing favorable letters to the prosecutor. (The affidavit and the letters are established but at this point there is no evidence of any quid pro quo linkage between them.) The latter theory lacks chronological support. The affidavit was drafted and signed on April 4, 2005, almost a year before the March 28, 2006 meeting, and the letters to the prosecutor were written in August 2005 some eight months before the meeting. Still, this is a crucial issue, and there may have been contact between the plaintiff or her attorney and Ann Drescher or her attorney earlier than the March 28, 2006 meeting. Considering this totality of circumstances the court finds a substantial need for the subpoenaed materials. See, Bartolomeo v. Nationwide Mutual Fire Insurance Company, Docket No. CV98-0410808S, Superior Court, Judicial District of New Haven at New Haven (January 5, 2000, Devlin, J.), (2000 Conn.Super.LEXIS 97) (Discovery of privileged material in insurer's claim file prepared in anticipation of litigation permitted to plaintiff claiming bad faith denial of fire loss claim because of "not only substantial but overwhelming" need for information in the claim file to prove his case.) The defendants have also shown inability without undue hardship to obtain the substantial equivalent of these materials by other means. So far as the record shows there were only four people at the March 28, 2006 meeting. Two of them, Ann Drescher and Atty. Wayne Keeney have already been deposed, but have spoken only in very general terms about the questioning of Ann Drescher and the answers she gave at the meeting. And neither of them have produced any notes or records of the meeting. The other two people present were the plaintiffs' lawyers who were actively involved in prosecuting their civil actions against the Hotel and had the most incentive and were the most likely persons at the meeting to attempt to get detailed information to use at trial, and to take notes. Ordinary or fact work product is therefore discoverable under Practice Book § 13-3 and must be produced in response to the subpoena.
See the questioning of Atty. Keeney by Atty. Wellman at pp. 73-75 of the transcript of Wayne Keeney's deposition of 4/30/07.
Atty. Keeney referenced such earlier contact, which was the source of the statutory notices given by the plaintiffs to the owner of the Stamford Sheraton Hotel in January 2005 that a Dram Shop Act claim would be made. (Tr.4/30/07, p. 68.)
Atty. Keeney was subpoenaed to bring his records to his deposition, but testified that he had no non-privileged documents to disclose. (Tr. 4/30/07 p. 6.) Ms. Drescher testified that she did not have any pictures, documents, or materials in connection with the accident. (Tr. 1/10/07 p. 57.)
Opinion work product, on the other hand, "is highly protected, and does not appear to be discoverable." Scovish, Administratrix v. The Upjohn Company, et al., Docket No. 526520, Superior Court, Judicial District of New London at New London (November 22, 1995, Hurley, J.) (1995 Conn.Super.LEXIS 3288 at *6). Opinion work product includes such items as "an attorney's legal strategy, his intended lines of proof, his evaluation of the strengths and weaknesses of his case, and the inferences he draws." Id. Opinion work product is not always readily apparent from a mere description of the material sought to be disclosed. It may consist of highlighting of words, or omission of certain facts, or ordering of facts in a document. Garcia, ppa v. Yale New Haven Hospital, Docket No. CV95-0373032S, Superior Court, Judicial District of New Haven at New Haven (July 2, 1999, Lager, J.) [25 Conn. L. Rptr. 78] (1999 Conn.Super.LEXIS 1821 at *1344); or in the selection and compilation of otherwise discoverable documents in an indexed database prepared by the attorney. See Scovish v. Upjohn, supra, at *7-8 discussing Spork v. Peil, 759 F.2d 312, 316 (2nd. Cir. 1985). Atty. Abate has no obligation to disclose opinion work product materials in responding to Starwood's subpoena. If there are any materials called for by the subpoena which are claimed to be opinion work product of Atty. Abate, he need not disclose them, but shall list them in a privilege log to be filed as a pleading in this case, setting forth non-privileged information concerning the nature of the document, the date it was created, the parties named in the document, the author and all recipients of the document, along with affidavit[s] and/or a memorandum of law articulating the claim of opinion work product. If defendants contest the claim of opinion work product they shall, not later than fourteen days from the filing of such privilege log, file a motion to compel production of the document accompanied by a memorandum of law and/or any affidavit[s] which may be relevant to the claim. The court will then proceed to decide the issue of opinion work product privilege. If the court feels that an in camera review of any document is appropriate before deciding the issue it will give the plaintiff an opportunity to file under Practice Book §§ 7-4B and C and 11-20A a motion for permission to file the document under seal, for purposes of in camera review.
The production herein ordered shall be furnished to the defendants as if in response to a request for production of documents under Practice Book § 13-9. (No actual appearance for deposition is required in order to produce the documents.) See Part B, infra.
B. Motion for Protective Order
The plaintiff has also moved for a protective order under Practice Book §§ 13-5 and 13-28(e)(1) seeking to protect her attorney Charles Abate from being deposed pursuant to the subpoena served upon him.
§ 13-5 provides for various forms of relief from discovery, for good cause shown, "which justice requires to protect a party from annoyance, embarrassment, oppression, or undue burden or expense . . ."
§ 13-28(e)(1) gives the court the discretion to quash or modify a deposition subpoena if it is unreasonable or oppressive or if it seeks the production of materials not subject to production under Practice Book § 13(c).
Connecticut courts have been reluctant to allow attorneys to be called as witnesses in trials in which they are advocates. Ullman v. State, 230 Conn. 698, 716 (1994). In criminal cases, before an attorney for the state or a defendant can be compelled to testify, the party seeking to call the attorney must show a "compelling need" for the testimony of the attorney, that is, that the testimony is "necessary and not merely relevant" and that all other available sources of comparably probative evidence have been exhausted. State v. Thompson, 20 Conn.App. 290, 297 (1989). The compelling need test strikes the appropriate balance between the need for the information and the potential adverse effects on the attorney-client relationship and the judicial process in general. Ullman, supra, at 718. The policy reasons stated for the "compelling need" test in criminal cases are (1) a concern that the witness may not be a "fully objective witness"; (2) the fear that when the attorney testifies, his position may "artificially enhance his credibility as a witness"; (3) the jury may be confused by the dual role of advocate and witness, and (4) a broad concern for public confidence in the administration of justice which suggests the maxim that "justice must satisfy the appearance of justice." (Citation omitted.) Thompson, supra, at 296, Ullman, supra, at 717. Those same concerns apply equally to the administration of civil justice.
These policy concerns are reflected in the Rules of Professional Conduct applicable to attorneys which, with some exceptions, prohibit a lawyer from acting as an advocate at a trial in which the lawyer is likely to be a necessary witness (Rule 3.7a). The rules also place duties of confidentiality (Rule 1.6) and loyalty (Rules 1.7, 1.8) upon an attorney in his or her relationship with the client. "These rules and this court's willingness to enforce them help insure that the public is well served by the bar. Forces that undermine the standards on which the Rules of Professional Conduct are founded disserve the public by weakening the client-lawyer relationship." Picadilly, Inc. v. Raikos, 582 N.E.2d 338, 342 (Ind. 1991). See, also, Gurski v. Rosenblum Filan, LLC, 276 Conn. 257 (2005), citing Picadilly, Inc. in holding that assignments of legal malpractice claims to the adversary in the underlying case are contrary to public policy because, inter alia, they "undermine the sanctity of the attorney-client relationship." Id. at 280.
The court has found that defendants have met the "substantial need" and "undue hardship" requirements of Practice Book § 13-3 to discover the fact work product documents they have subpoenaed. Without knowing what those documents may disclose, the court does not find at this time a "compelling need" to permit the defendants to depose Atty. Abate, which has the potential to be far more injurious than document production to his professional relationship with the plaintiff, and in a broader sense to the public interest in maintaining the loyalty and confidentiality of the attorney-client relationship. The motion for protective order to block the deposition of Atty. Abate is therefore granted without prejudice to defendants' renewal of their request to depose Atty. Abate if the subpoenaed documents afford a factual basis for his deposition testimony and there is no other available source of comparably probative evidence.