Opinion
No. MMX-CV-08-4009666-S
February 9, 2009
MEMORANDUM OF DECISION ON PLAINTIFF'S BILL OF DISCOVERY (#101)
This memorandum addresses the issues raised through the application for a bill of discovery and order to show cause (#101), filed by the plaintiff, Geomatrix Systems, LLC (Geomatrix), on November 10, 2008. Through its application, Geomatrix has petitioned the court to allow it to obtain the testimony and documents ostensibly in possession of the defendant, Waste Engineering, Inc. (Waste Engineering) and Wayne Burritt (Burritt). The plaintiff's application alleges that it intends to bring legal action against various, yet unnamed, Waste Engineering customers who, it is claimed, "have installed certain waste treatment systems that infringe on patents used by Geomatrix." (#101.)
The application, dated November 7, 2008, indicates that Waste Engineering, Inc., does business as "Green Leach Filter Systems," sometimes referred to as "Greenleach," and identifies Burritt as "a person active in the management" of that enterprise. (#101.)
The order to show cause was granted, and an evidentiary hearing was held before the court on January 20, 2009. Both parties were represented by able and experienced counsel. The court received, and has considered, both the documentary and testimonial evidence presented, as well as the arguments tendered in support of, and in opposition to, the plaintiff's application. For the following reasons, the plaintiff's application for a bill of discovery is hereby DENIED.
The defendants have not filed any written documentation in opposition to Geomatrix's application.
I RESOLUTION OF THE PARTIES' CLAIMS
Geomatrix's verified application establishes the fundamental legal and factual issues designated for the court's attention. In pertinent part, the application expressly avers that Geomatrix "has rights in and a license to use a certain septic system patent known as US Patent #7374,670 `High Aspect ratio Waste Water System' (`the Patent') which patent issued on May 20, 2008." (#101, ¶ 2.) The application further asserts that "[u]pon information and belief from the people working in the septic business, Geomatrix has good cause to believe that [Waste Engineering] has been installing systems which directly infringe upon the [plaintiff's] Patent." (#101, ¶ 4.) Furthermore, the application states that "[t]he documentation that the plaintiffs seek, the customer list and the type of system installed, is material and necessary to a proper determination as to which customers will be proper defendants" in its planned legal action, and that the plaintiff "has no adequate remedy at law to obtain the materials requested." (#101, ¶ 6, ¶ 8.)
The plaintiff's pending pleading is formally entitled "Verified Application — Bill of Discovery and Order to Show Cause." (#101.) However, as notwithstanding this title, Geomatrix has clearly asserted that its petition "for an order allowing [it] to obtain the testimony and documents" at issue has been brought "[p]ursuant to General Statutes § 52-156 . . ." the court has focused upon this statutory provision in determining whether to grant the relief requested. (#101.)
Section 52-156 effectively "codifies the ancient bill in equity to perpetuate testimony." Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 139, 491 A.2d 389 (1985). This statute specifically provides in pertinent part that: "(a) "Any person who desires to preserve the testimony of any witness, concerning any matter which is or may be the subject of a civil action, may present a petition in writing to any judge of the Superior Court, setting forth the reasons for his application, the name of the witness, the subject matter of the controversy and the names of all persons interested therein and praying that the deposition of the witness may be taken. Upon presentation of the petition, the judge shall appoint a time and place for the respondents to appear before him and show cause why the prayer of the petition should not be granted, and order such notice thereof to the parties, whether resident in this state or not, as he thinks reasonable. If, at the time appointed, he finds that the notice ordered has been given, he shall further direct, if no sufficient cause is shown to the contrary, that depositions shall be taken at such times and places as he may prescribe, either by himself or by some other person or persons whom he may appoint for that purpose, who shall receive therefor from the petitioner three dollars a day." (Emphasis added.) The statute has remained "virtually unchanged" since its adoption in 1823. See E. Stephenson, Connecticut Civil Procedure (3d Ed. 2002) § 129d, p. 147.
Our appellate level courts do not appear to have provided precise guidelines upon which the Superior Court need rely in determining whether to grant the opportunity to perpetuate testimony by granting "the prayer of the petition in "any matter which is or may be the subject of a civil action." (Emphasis added.) § 52-156. As one judge of the Superior Court has aptly observed, "[t]he statute contains no standards for a determination as to whether or not the petition should be granted or in what circumstances it should be granted or denied." CT Page 2966 Petition of Christensen, 25 Conn.Sup. 271, 273, 202 A.2d 834 (1964).
The court in Petition of Christensen did, however, provide a clear and cogent explanation of the proper use of § 52-156, and further delineated a practical test to be employed when determining whether or not to grant such a petition as is represented by the present application for a bill of discovery: "The sole purpose of such a suit is to perpetuate the testimony. To sustain a bill of this character, it must appear that the facts which the plaintiff expects to prove by the testimony of the witnesses sought to be examined will be material in the determination of the matter in controversy; that the testimony will be competent evidence; that depositions of the witnesses cannot be taken and perpetuated in the ordinary methods prescribed by law, because the then condition of the suit (if one is pending) renders it impossible, or (if no suit is then pending) because the plaintiff is not in a position to start one in which the issues may be determined; and that taking of the testimony on bill in equity is made necessary by the danger that it may be lost by delay. The procedure is confined to cases where extraordinary remedy is necessary in the interests of justice and there is a substantial risk that the testimony will be lost unless the extraordinary relief is granted. See 26A C.J.S., Depositions, § 23; 16 Am.Jur., Depositions, §§ 8, 9." (Internal quotation marks omitted; emphasis added.) Id. Petition of Christensen thus identifies a four prongs test that can be applied in the present matter to determine whether the "extraordinary relief" provided by § 52-156 should be granted to the applicant: 1) the facts at issue must be material to the determination of the controversy; 2) the information sought will be competent in nature; 3) there is no lawful alternative for procuring the information sought through the bill, upon which the contemplated lawsuit may be founded; 4) the bill should only be used when the interests of justice require the implementation of this extraordinary remedy to eliminate "a substantial risk that the testimony will be lost" unless the relief is granted. Petition of Christensen, supra, 25 Conn.Sup. 273.
Petition of Christensen strongly cautions, however, that notwithstanding this four-pronged test, the remedies offered by § 52-156 should not "permitted to be abused by broad `fishing expeditions' to enable a party to ascertain whether or not he has a cause of action or to assist him in framing a complaint. It should be carefully limited to situations . . . where the ends of justice clearly require its use. If there were not such a limitation, there would be no need for the existing provisions by statute and rule providing for the taking of depositions under clearly defined special circumstances." (Internal quotation marks omitted.) Petition of Christensen, supra, 25 Conn.Sup. 274, in reliance upon Muti v. New Haven, 24 Conn.Sup. 452, 454, 194 A.2d 447 (1963). Thus, a trial court should properly deny a bill to perpetuate testimony where it found that a plaintiff had failed to show unusual or extraordinary circumstances limiting its ability to immediately proceed with a cause of action in the absence of the relief provided through the statute. Petition of Christensen, supra, 25 Conn.Sup. 273-74.
Applying the four-part analysis described in Christensen, supra, to the application under consideration, the court is constrained to conclude that Geomatrix's request for a bill of discovery, soliciting permission to proceed pursuant to § 52-156, must, at this time, be denied. The facts of this case, uncontroverted as presented through the pleadings and at oral argument, impel the conclusion that at present, Geomatrix is relying upon the statutory remedy to assist its access to information by participation in a well-intentioned but nonetheless overly broad "fishing expedition" through which it may to identify potential defendants who may be infringing upon the plaintiff's intellectual property rights because they have caused, allowed or permitted the installation of certain septic systems. Geomatrix is clearly entitled to protect itself from infringement upon its intellectual property rights. However, in its application brought pursuant to § 52-156, Geomatrix merely contends that "people working in the septic business" have suggested that Waste Engineering is, or has been, installing septic systems that infringe on the patent. (#101, ¶ 4.) Geomatrix has provided no further information concerning such sources of information, leaving the court to infer that, potentially, these "people working in the septic business" can assist in focusing upon the information solicited through the bill of discovery. In addition to the alternative remedies, at present, the pleading's lack of specificity with regard to the names of the individuals subject to pre-suit discovery implicates an unnecessary use of the limits of the "extraordinary remedy" provided by § 52-156.
In reaching this conclusion, the court has fully weighed and balanced the efforts employed by Geomatrix thus far in its attempts to secure information relating to the locations at which Waste Engineering has installed "subsurface sewage disposal systems." (Ex. A.) At the hearing, Geomatrix tacitly admitted the public nature of the information it has attempted to garner through the use of the bill of discovery. (Tes. Potts; (Ex. A.) While the court acknowledges that Geomatrix has, thus far, made some efforts to utilize the Connecticut Freedom of Information Act (FOIA), General Statutes § 1-210, et seq., the type of broad, unspecific solicitation represented by Exhibit A falls far short of the adequate pre-suit remedies that are actually available to the plaintiff in this matter, without the need to resort to the "extraordinary relief" provided by § 52-156. Petition of Christensen, supra, 25 Conn.Sup. 273-74.
In reaching this conclusion, the court has considered, but finds insufficient basis for crediting, the nonspecific testimony tendered by Geomatrix in support of its contention that the defendant, or others acting on the defendant's behalf, had some how impeded the plaintiff's utilization of the FOIA process. (Tes. Potts.)
In addition, the fourth part of the Christensen analysis strongly weighs against granting Geomatrix's bill to perpetuate testimony. Here, the plaintiff does not claim that there is a substantial risk that testimony will be lost if relief is not granted. Id. Instead, as noted, through testimony and at oral argument, Geomatrix effectively admitted that there are alternate, albeit economically undesireable, means of acquiring information as to where Waste Engineering has been installing the septic systems that may infringe on the patent at issue, through searches of public records. Geomatrix has not asserted, in its application for a bill of discovery, that there is a danger that the testimony at issue may be lost by delay. (#101.) Thus, the factual circumstances of this case lack the "extraordinary circumstances" contemplated by § 52-156, and as explicated in Christensen for purposes of measuring whether the statutory relief should be granted.
In reaching its conclusion in this matter, the court acknowledges that the relief contemplated by § 52-156 appears to be appropriately granted when no other reasonable means of acquiring and memorializing the requested information is available to an applicant. For instance, this statutory relief was properly afforded to the applicant where an identified proposed deponent was ninety years old and lived in California; under those circumstances, it was appropriate for the Superior Court to grant a bill to perpetuate testimony pursuant to § 52-156 upon a finding that, " [g]iven the witness's age and the time it takes one to bring a case to trial, the perpetuation of the witness's testimony is appropriate and will prevent a failure of justice." (Emphasis added.) Pinkham v. Citigroup, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 03 402227 (July 3, 2003, Thim, J.) [ 35 Conn. L. Rptr. 45]. Similarly, a bill to perpetuate testimony was appropriately granted where a plaintiff, allegedly injured by a fire hose, sought to sue the city and members of the fire department who were responsible for causing or allowing the hose to cause her injury. See Muti v. New Haven, supra, 24 Conn.Sup. 454. In Muti, although the plaintiff did not know the identity of the firefighters who were responsible for the incident, other witnesses at the scene of the accident could provide information concerning these actors; at that stage in the development of our legal process, the court concluded that the only possible way the plaintiff could commence her action against the specific tortfeasors required her to access information concerning their identities through the pre-suit depositions of the other named witnesses. Id., 453. Therefore, the court allowed the depositions of the fire chief and the two police officers to proceed for the purposes of perpetuating their testimony. Id., 454.
It should be noted that the facts and ruling of Muti, allowing the use of the bill to procure access to information related to particular public officials, predated the implementation of § 1-210 et seq., the Connecticut Freedom of Information Act; Public Acts 1975, No. 7-342. See Board of Trustees v. Freedom of Information Commission, 181 Conn. 544, 549, 436 A.2d 266 (1980).
Furthermore, in determining that the present bill must be denied, the court has fully considered and reviewed Geomatrix's argument that it expects to prove, through discovery provided by Waste Engineering, competent and material information that could be used to determining whether certain customers are infringing on its patent. The plaintiff's application thus meets the first and second prongs of Petition of Christensen. Although, read broadly, Geomatrix may possibly, at this time, be able to meet the third prong of Christensen, because its proposed depositions cannot be taken in the ordinary methods if the plaintiff does not know the customers' identities. Here, however, through access to public documents, there exists a lawful alternative for Geomatrix to use in procuring the information sought through the bill, understandably economically burdensome, upon which the contemplated lawsuit may be founded. Like the plaintiff in Muti, Geomatrix seeks to bring a cause of action against unknown parties and contends that a third party knows their identities. Accordingly, the availability of public information concerning the locations where Waste Engineering has procured governmental subdivisions' permits. for installation of the septic systems at issue compels this court's conclusion that the plaintiff has not yet met the third Petition of Christensen prong.
Finally, as previously discussed, the remedy provided by § 52-156 should only be used when the interests of justice require the implementation of this extraordinary remedy to eliminate "a substantial risk that the testimony will be lost" unless the statutory relief is granted. Petition of Christensen, supra, 25 Conn.Sup. 273. As the plaintiff has not met the fourth Christensen prong by demonstrating such "a substantial risk that the testimony will be lost" unless the statutory relief is granted, the use of the bill of discovery is inapposite under the circumstances of the present case.
Accordingly, Geomatrix's Bill of Discovery and Order to Show Cause, effectively a motion to perpetuate testimony brought pursuant to § 52-156, must at this time be DENIED.