Opinion
No. CV 02-0470739 S
October 26, 2005
MEMORANDUM OF DECISION
On November 1, 2002, the plaintiff, Renny Mathew, a former employee of the defendant, Kensington Square Apartments, commenced this action. The plaintiff's second amended complaint, dated May 13, 2004, alleges nine counts and is the operative complaint upon which this motion is based. The nine counts are in breach of implied contract, breach of implied covenant of good faith and fair dealing, negligent misrepresentation, promissory estoppel, defamation per se, defamation per quod, false light, negligent supervision and intentional infliction of emotional distress. The plaintiff alleges he was wrongly terminated by the defendant based on allegations that he sexually harassed another employee, stole company postage and inaccurately reported his work hours. He further alleges that the defendant has discussed his confidential work file and the reasons for his termination with tenants and employees of the defendant.
On July 6, 2005, the defendant filed a motion to preclude the plaintiff from "introducing at the time of trial any evidence that he was defamed and/or slandered on the grounds that the plaintiff has willfully refused to comply with the [discovery] order of the Court (Devlin, J.)" On August 17, 2005, the plaintiff filed a memorandum of law in opposition. The matter was heard on the short calendar on August 22, 2005.
"Practice Book § 13-14(a) provides that, in general terms, if a party fails to comply with certain discovery obligations, the court may, on motion, make such order as the ends of justice require, including entry of an order establishing as a fact the matters in question, prohibiting the entry into evidence of designated matters, entry of a default, nonsuit or dismissal, and an award of costs and attorneys fee." (Internal quotation marks omitted.) Millbrook Owners Ass'n., Inc. v. Hamilton Standard, 257 Conn. 1, 10-11, 776 A.2d 1115 (2001). "The determination of whether to enter sanctions pursuant to [Practice Book § 13-14] and, if so, what sanction or sanctions to impose, is a matter within the sound discretion of the trial court." (Internal quotation marks omitted.) Amba Realty Corp., v. Kochiss, 67 Conn.App. 149, 151-52, 786 A.2d 1137 CT Page 13351-mh (2001).
The defendant argues in its memorandum in support of the motion, that the plaintiff, despite Judge Devlin's discovery order dated February 1, 2005, has yet to respond fairly, within the meaning of Practice Book § 13-14, to the defendant's Interrogatory #7, which poses questions regarding the plaintiff's defamation claims. The defendant further argues that in order to allow the defendant to properly defend itself, the plaintiff is required to provide specific information regarding these claims. Consequently, the defendant maintains that the court should enter sanctions against the plaintiff pursuant to Practice Book § 13-14.
The plaintiff counters that the defendant is improperly using the motion to preclude to set forth arguments that are more appropriately set forth in a motion to strike or a motion for summary judgment. He further argues that, to the best of his ability, he has complied with Judge Devlin's order.
Initially, the court must decide whether the plaintiff has complied with Judge Devlin's discovery order. In order to do this it is necessary to analyze the context in which the court issued its order. Interrogatory #7 inquires as to the basis of the plaintiff's defamation per se (count five), defamation per quod (count six) and false light (count seven) allegations. It essentially asks: a) what negative or false statements were made; b) when were they made; c) to whom were they made, and; d) how were they made. The plaintiff's initial response did not provide the exact language of the alleged defamatory statements nor did it point to any specific dates on which such statements were made. Instead the plaintiff simply stated that he believed that employees of the defendant were discussing his termination, such that tenants and employees of the defendant were made aware of the reasons for his termination, which included allegations of sexual harassment, stealing company postage and inaccurately reporting working hours. This initial response did not include a list of names to whom the alleged defamatory statements had been made.
Interrogatory #7 specifically states "with regard to Count Five, Count Six and Count Seven of the Second Amended Complaint dated May 13, 2004, identify and describe: a) the precise language used or substantially used by the defendant that the plaintiff and/or his representative claims constitutes a defamatory statement of fact or statements of fact; b) the date or dates on which the plaintiff and/or his representative claims that each and every defamatory statement was CT Page 13351-mk communicated by the defendant to a third party; c) the name or identity of each individual to whom the plaintiff and/or his representative claims a defamatory communication was made; and d) the mode of communication employed by the defendant that the plaintiff and/or his representative claims constitutes a publication of a defamatory statement or statements."
Specifically, in response to Interrogatory #7, the plaintiff's initial November 30, 2004 response stated: "1) the plaintiff does not know the precise language used by defendant and its employees that constituted defamatory statements. However, based on representations made to him by employees and tenants, the plaintiff believes that employees of defendant spoke openly in defendant's front office, discussing the plaintiff's termination for sexually harassing a female coworker, stealing company postage, and inaccurately reporting his working hours; b) Plaintiff believes that these defamatory statements were made on numerous occasions, beginning at the time of his termination, and continuing to the present; c) Plaintiff is unable to state the name of each individual to whom the defamatory communications were made, but they include the following: d) verbal.
On December 8, 2004, the defendant filed its second motion for order of compliance claiming that this response, as well as the responses to interrogatories 2, 3, 4, 5, 6, 10 and 12, were not answered pursuant to Practice Book § 13-4(b)(4) because they failed to respond to the interrogatories fairly. Before ruling on the motion, the judge and the defendant were made aware that in responding to Interrogatory #7, the plaintiff had inadvertently left out the list of individuals to whom the alleged defamatory statements had been made. In the plaintiff's memorandum of law in opposition to the order of compliance, it stated CT Page 13351-mi that this list was given to the defendant along with the memorandum in opposition. Nevertheless, Judge Devlin ruled in favor of the defendant as to interrogatories 3, 4a, 5a, and 7, ordering the plaintiff to amend his answers to more fully comply by May, 1, 2005. This is a clear indication that Judge Devlin did not consider the plaintiff's response to Interrogatory #7 to be adequate even if the list of names had not been inadvertently left off.
On March 1, 2005, in response to the court's order, the plaintiff submitted its supplemental answer to Interrogatory #7. The only significant change in plaintiff's supplemental response is that the list of names that previously had been left out is included. In addition, the plaintiff cites to a number of locations where he claims he was approached by persons inquiring as to his termination. This information is not responsive to the Interrogatory as the plaintiff is not claiming these specific locations are the cite of the alleged defamation nor does he cite to any specific language that he claims is defamatory. For all intents and purposes, the plaintiff's answer to Interrogatory #7 is essentially the same as it was before the order of compliance. Therefore, the plaintiff has not complied with the judge's order, and it is within this court's discretion to issue sanctions pursuant to § 13-14(a).
The Plaintiff's supplemental answers dated March 1, 2005 but certified to defendant June 14, 2005 are as follows "a) the plaintiff does not know the precise language used by the defendant and its employees that constituted defamatory statements. Numerous individuals approached the Plaintiff at the corner store near St. Raphael's Hospital, Shaw's Supermarket, Burger King, and on Kensington Street and inquired about the Plaintiff's termination specifically for sexual harassment; b) Plaintiff believes that these defamatory statements were made on numerous occasions, beginning at the time of his termination, and continuing to the present; c) Plaintiff is unable to state the name of each and every individual to who the defamatory communications were made, but they include the following: Mary Midget, Audry Valentine, Lilian Orama, Karline Nelson, Anothonia Reyes, Martin Gonzalez, Kevin Schupp, Carlos Colon, Jack Mccrea, Ronald Rubeck and Grizal Vargas, and; d) Verbal. (Emphasis added.)
The defendant argues that pursuant to § 13-14(b)(4), the appropriate sanction for such a violation is "an order precluding the plaintiff from introducing at the time of trial any evidence that he was defamed and/or slandered." "Section 13-14 of the Practice Book is designed to prevent surprise or ambush when it comes to discoverable evidence. The sanction of keeping otherwise competent and relevant evidence out of a trial is a drastic sanction, but it is often necessary to prevent unfair advantage or serious prejudice to an opposing party." Almonte v. Krajeskj, Superior Court, judicial district of Danbury, Docket No. CV 98 0332796 (January 9, 2002, J. Doherty.) "In order for a trial court's order of sanction for violation of a discover order to withstand scrutiny, three requirements must be met. First, the order to be complied with must be reasonably clear. In this connection, however, . . . even an order that does not meet this standard may form the basis of a sanction if the record establishes that, notwithstanding the lack of such clarity, the party sanctioned in fact understood the trial court's intended meaning . . . Second, the record must establish that the order was in fact violated . . . Third, the sanction imposed must be proportional to the violation." Millbrook Owners Ass'n., Inc. v. Hamilton Standard, 257 Conn. 1, 17-18, 776 A.2d 1115 (2001).
As to the first prong of the Millbrook test, Judge Devlin's discovery order was reasonably clear, given the circumstances of the order. While CT Page 13351-mj Judge Devlin's order merely stated that "the plaintiff shall amend his response to more fully comply," the record establishes that the plaintiff knew that simply appending a list of names of persons to whom defamatory statements were made would not be sufficient, as Judge Devlin issued the discovery order even after the plaintiff had supplied the list of names at oral argument. In addition, it is reasonably clear that for the plaintiff's response to more fully comply, it must be responsive to the proposed interrogatory. The plaintiff supplemented its response by citing various locations where he had been approached by tenants and employees of the defendant inquiring as to his termination. These various locations are not responsive to the question posed in the interrogatory, which asks about the precise language used or substantially used by the defendant that the plaintiff claims is defamatory.
As determined above, the record demonstrates that the plaintiff has not complied with Judge Devlin's order, thereby, satisfying prong two of the Millbrook test. Whether the sanction is proportional to the violation is a more difficult question in light of the breadth of the defendant's preclusion request. The defendant petitions this court to preclude any and all evidence that the plaintiff was defamed and/or slandered. Essentially, the defendant's motion to preclude operates as a motion to strike counts five, six and seven of the plaintiff's complaint. While this may seem an over-broad exclusionary request, it appears that the defendant has been left with no choice as the plaintiff has provided very little responsive information as to his defamation/slander claims. Consequently, the defendant's exclusionary request is proportional to the amount of discoverable information that is being withheld from it and "to the extent that responsive information is not provided, the [defendant] may seek to preclude evidence of the same at trial." Colton v. World Gym of Middletown, Inc., Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 00 0094040 (November 6, 2002, Shapiro, J.)
Thus, the Millbrook factors have been met and a court order precluding the entry of evidence is appropriate. Therefore, for the aforementioned reasons, the defendant's motion to preclude the plaintiff from introducing at trial any evidence that the plaintiff was defamed/slandered, is granted.