Opinion
No. CV 04 0072627
September 7, 2004
MEMORANDUM OF DECISION
There are three issues currently before the court. The first one relates to the plaintiff's motion for commission to conduct discovery of five non-party witnesses located in four different states. The second relates to the defendants' motion for a protective order to prevent depositions and document production of these five witnesses. The third one relates to the plaintiff's motion for admission of attorney George R. Hirsch as counsel for the plaintiff pro hac vice.
On April 13, 2004, the plaintiff, Longwood Engineered Products, Inc., filed an application for temporary injunction and order to show cause against the defendants, Polyneer, Inc. and Ralph Oriola. The plaintiff also filed an eight-count complaint alleging breach of contract and breach of duty of loyalty by Oriola; and by both defendants: tortious interference; violation of the Connecticut Uniform Trade Secrets Act, General Statutes § 35-53 et seq; violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a(4) et seq. and § 42-110b.
On June 7, 2004, the plaintiff filed five motions for appointment of commission and request of process pursuant to Connecticut Practice Book § 13-28(a). The motions requested the court to allow discovery and deposition including issuance of a subpoena or subpoena duces tecum for five non-party witnesses located in Indiana, Illinois, Pennsylvania, and Maine. The plaintiff also filed a motion seeking admission of George R. Hirsch, Esq. as counsel for the plaintiff pro hac vice.
On June 14, 2004, the plaintiff filed an amended verified complaint where it restated all its prior allegations against Polyneer and Ralph Oriola, and added five John Does as defendants. In his amended verified complaint the plaintiff alleges that these five Joe Doe defendants were engaged in the wrongdoings in concert with Polyneer and Oriola.
On June 18, 2004, the defendants filed an objection to motion for commission and motion for protective order for Roembke Mfg. And Design, Inc.; Rubber Molding Technology, Inc., Distributor of Rutil, U.S. Can Corporation, and Crown Cork Seal, Division of Crown Holdings, Inc., pursuant to Practice Book § 13-2, § 13-5 and § 13-28. On June 22, 2004, the defendants filed addendum to its objection to the motion for commission and motion for protective order to include JL Machine Tool, Inc. On June 22, 2004, the court conducted a hearing on the plaintiff's motion for commission and defendants' objection and request for a protective order. At the hearing the plaintiff argued that the court should grant its motions for commission on the basis that: 1) all five witnesses would have relevant evidence in this case because they all had done business with Polyneer in connection with miniature seals; and 2) all document requests were narrowly tailored to either defendants' business activity or production of miniature seals. The defendants argue in opposition that 1) granting such commissions and issuing subpoenas or subpoenas duces tecum would cause defendants unfair annoyance, embarrassment, oppression, undue burden and expense under Practice Book § 13-5; 2) the plaintiff's subpoenas are unreasonably broad and oppressive, not likely to lead to discovery of admissible evidence; and 3) plaintiff's subpoenas request information which is not appropriately subject to production as it is confidential, privileged, and subject to trade secret protection under Practice Book § 13-2.
Practice Book § 13-5 states in relevant part: "Upon motion by a party from whom discovery is sought, and for good cause shown, the judicial authority may make any order which justice requires to protect a party from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of discovery be limited to certain matters; . . . (7) that a trade secret or other confidential research, development or commercial information not be disclosed or be disclosed only in a designated way." "The extent of discovery and use of protective orders is clearly within the discretion of the trial judge." Carrier Corp. v. Home Insurance Co., judicial district of Hartford-New Britain at Hartford, Docket No. CV 88352383 S, 6 Conn. L. Rptr. 3 (February 11, 1992, Schaller, J.). "Such orders may provide that discovery be had only on specified terms and conditions, that discovery be conducted with no one present except persons designated by the judicial authority, and that a deposition after being sealed be opened only by order of the judicial authority." Welch v. Welch, 48 Conn.Sup. 19, 828 A.2d 707, 34 Conn. L. Rptr. 171 (2003).
Under Practice Book § 13-5 the party seeking a protective order is required to show standing and good cause. This court has previously held that a party has standing if it seeks to protect itself "from a harm due to a subpoena of a nonparty." Loscano v. Plainfield, Superior Court, judicial district of Windham at Putnam, Docket No. CV 01 0067834, 34 Conn. L. Rptr. 174 (February 11, 2003, Potter, J.). Although the plaintiff in the present case did not address the issue of standing in either its motions for commission or its argument before the court, the defendants in their memorandum address this issue and argue that they have standing because: 1) they possess a personal interest in preventing depositions of non-party witnesses; and 2) issuance of subpoenas duces tecum would have a chilling effect on the willingness of these witnesses to testify.
The defendants cite Cahn v. Cahn, 26 Conn.App. 720, 603 A.2d 759 (1992), in support of their position that the defendants possess a personal interest in preventing depositions of nonparty witnesses. In Cahn, a party moved for a protective order to prevent a deposition of a nonparty witness. Cahn, 26 Conn.App. at 728. The Appellate Court noted that although Practice Book § 221 (now § 13-5) applies to parties, a party has a standing to request a protective order to prevent a deposition of a nonparty witness if "the basis for protective order is to protect the party's interest." Id. The court found that the plaintiff's interest was affected because it would be unduly burdensome for the plaintiff from Connecticut to have to attend a deposition in New York. The defendants in the present case argue that they have personal interest in the protective order on the same ground as the plaintiff in Cahn. More specifically, the defendants argue that like for the plaintiff in Cahn, having to attend depositions and examine records of five witnesses located in four different states would cause substantial burden and expense for the defendants.
In addition, the defendants argue that they have standing because issuance of subpoenas or subpoenas duces tecum would significantly impair the witnesses' willingness to testify. The defendants cite Opozner v. Bass, 63 Conn.App. 555 (2001), cert. denied, 259 Conn. 930 (2002), where the plaintiff requested subpoenas duces tecum that required two physicians who had reviewed the plaintiff's medical record upon a request of the defendant, to produce their personal billing and tax information. The court held that the defendant had standing to seek protective order to protect these nonparty witnesses because issuance of subpoenas duces tecum would have a "chilling effect" on the witnesses' ability to testify. The defendants in the present case argue that the plaintiff wants to obtain proprietary information from the witnesses, disclosure of which is likely to be objectionable as trade secret, confidential, or otherwise privileged. As a result, the subpoenas would have a "chilling effect" on the witnesses as they would be reluctant to testify for the defendants.
In view of the fact that the plaintiff's request for commission to conduct deposition of five out-of-state witnesses would impose on the defendants undue burden of having to attend depositions in four states and examine a broad variety of documents, the defendants have standing for issuance of a protective order.
The next inquiry is whether the defendants demonstrated good cause under Practice Book § 13-5 for the court to issue a protective order. Courts have defined good cause as "a sound basis or legitimate need to take judicial action." See Welch, supra, 48 Conn.Sup. 19. "Good cause must be based upon a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements." Id. at 20. "Whether or not `good cause' exists for entry of a protective order must depend on the facts and circumstances of a particular case." Carrier Corp. v. Home Insurance Co., judicial district of Hartford-New Britain at Hartford, Docket No. CV 88-352383 S (February 11, 1992, Schaller, J.).
The plaintiff argues that issuance of the subpoenas is warranted because they will obtain information relevant to the issues in the present case. The defendants argue in opposition that there is good cause for the court to issue a protective order on the grounds that 1) the information sought is irrelevant and not likely to lead to the discovery of admissible evidence; 2) proposed subpoenas request information that is likely to be protected from production as confidential, trade secrets, and/or otherwise privileged; 3) the proposed depositions and subpoenas duces tecum will impose an undue burden on the defendants; and 4) there are less burdensome means for discovery.
The defendants contend that the plaintiff seeks the information that is unlikely to lead to discovery of admissible evidence. The defendants cite Lamar v. St Mary's Hospital Corporation, 31 Conn.Sup. 335, 330 A.2d 107 (1974), and Katz v. Richman, 114 Conn. 165 (1932), to support their argument. In Lamar, the plaintiff filed a thirty-six page motion for disclosure and production of information by the defendant, who was a physician, including his schooling, background and area of practice. The court sustained the defendants' objection to the plaintiff's motion for disclosure ruling that "overwhelming volume of inquiry" did not contain admissible evidence because it was immaterial to the plaintiff's medical malpractice case, and information sought was more readily obtainable from other co-defendants. In Katz, the plaintiff, a holder of a mortgage note, alleged a wrongful transfer of a mortgage property by the defendants. The defendants organized a corporation and transferred the property to the corporation. Subsequently, the defendants transferred the stock of the corporation to their wives for valuable consideration. The plaintiff moved to examine the books of the corporation. In denying the plaintiff's motion, the court ruled that this discovery constitutes a mere "fishing expedition" that would not assist to discovery of admissible evidence but instead lead to unreasonable prolongation of the trial, and great inconvenience and expense of the parties concerned.
The defendants in the present case argue that the plaintiffs' requests are similar to the plaintiffs' requests in Lamar and Katz. Like the plaintiffs in Lamar and Katz, who requested a wide variety of information which the court found was immaterial to be admissible in evidence, the plaintiff in the present case requested five out-of-state corporate witnesses to present "every and all" document in their possession which was produced in connection with either business with the defendants and/or miniature seals. (Memorandum in Opposition, p. 13.) The defendants contend that since the plaintiff's subpoenas duces tecum are extremely broad and not tailored to the allegations of its verified complaint or amended verified complaint, the plaintiff failed to show how "these parties are likely to posses information reasonably calculated to the discovery of admissible evidence." (Memorandum in Opposition, p. 12.) To allow such an extensive discovery the court would not only prolong this case but also impose an unreasonable burden and expense on the defendants in having to be present at depositions in four different states and examine an overwhelmingly large amount of documents.
Further, the defendants argue that they have good cause because proposed depositions would impose an "oppressive and undue financial burden" on the defendants. The defendants argue that the plaintiff, a much larger corporation and a subsidiary of Longwood Industry, Inc., a multi-million New Jersey based corporation, brought the present action for anti-competitive reasons. (Memorandum in Opposition, p. 13.) The defendant Polyneer, Inc., on the other hand, is a small three-year-old start-up business. The defendants, therefore, contend that granting the plaintiff's motions would require the defendants to attend depositions and examine documents in Maine, Pennsylvania, Indiana, and Illinois which will bury the defendants in unreasonable litigation expenses as well as adversely interfere with its future business relationships with these witnesses.
Additionally, the defendants argue that proposed subpoenas violate Practice Book § 13-2 because they request production of information that is protected as confidential research, privileged or trade secrets. (Memorandum in Opposition, p. 12.) Practice Book § 13-2 states in relevant part: "In any civil action . . . where the judicial authority finds it reasonably probable that evidence outside the record will be required, a party may obtain in accordance with the provisions of this chapter discovery of information or disclosure, production and inspection of papers, books or documents material to the subject matter involved in the pending action, which are not privileged . . ." The defendants argue that the plaintiff's subpoenas require production of privileged information because the subpoenas ask for "every and all documents" concerning defendants, their business as well as confidential research and business information of the witnesses. (Memorandum in Opposition, p. 13.)
"[T]he main purpose in authorizing pretrial discovery is to permit, prior to trial, the narrowing of the issues and the securing of pertinent evidence for use at the trial." (Internal quotation marks omitted.). Lamar, supra, 31 Conn.Sup. 335. "Not to be approved is the search for irrelevant." Id. at 336. The plaintiff's request for discovery and document production goes far beyond the scope of the allegations in the plaintiff's verified complaint and amended verified complaint. The plaintiff failed to prove how the depositions of five non-party corporate witnesses along with the examination of all and every document these witnesses ever possessed that related to business with defendants and/or related to said miniature seals would lead to discovery of admissible evidence. The court denies the plaintiff's motions for commission to conduct discovery of all five non-party witnesses without prejudice. In addition, the court finds that the defendants have shown good cause to grant the protective order as for all five deponents. The court notes that granting the protective order does not place the plaintiff under an undue burden, as the information sought is more readily available from the defendants themselves, who are willing and available to participate in depositions.
In addition, by agreement of both parties the court grants the plaintiff's motion to admit attorney George K. Hirsch as counsel for the plaintiff pro hac vice.
Potter, J.