Opinion
No. CV 01 0445849
April 30, 2003
MEMORANDUM OF DECISION
On December 6, 2000, the plaintiff, Margaret Mulvey, filed a one-count complaint against the defendants, Kristen Brennan and Frances Brennan. This action arises from injuries and losses allegedly sustained as a result of an automobile accident in Trumbull, Connecticut.
The complaint alleges that on March 20, 2000, Mulvey was operating her automobile on the southbound exit 10 ramp from Route 8 in Trumbull. Kristen Brennan was operating an automobile owned by Frances Brennan on the same exit ramp, directly behind Mulvey. The complaint alleges that as a result of Kristen Brennan's negligent operation, Frances Brennan's vehicle collided with the rear of Mulvey's vehicle, causing Mulvey to sustain considerable physical and emotional injuries and loss of income.
On February 18, 2003, Mulvey filed a motion for protective order and a motion for permission to file nonstandard discovery requests, claiming that Kristen Brennan and Frances Brennan conducted private surveillance of her activities on at least two separate occasions and that she desires to determine specifically what surveillance they obtained. On March 11, 2003, Kristen Brennan and Frances Brennan filed objections to both motions.
Mulvey's motion for permission to file nonstandard discovery requests was filed in accordance with Practice Book § 13-6(b), which provides in relevant part that "[i]n all personal injury actions alleging liability based on the operation or ownership of a motor vehicle . . . the interrogatories shall be limited to those set forth in Forms 201, 202 and/or 203 of the rules of practice, unless upon motion, the judicial authority determines that such interrogatories are inappropriate or inadequate in the particular action."
DISCUSSION
"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 . . ." (Emphasis added.) Practice Book § 13-5. "[T]he party seeking to bar [discovery] must make a threshold showing that there is `good cause' that the protective order issue . . . The showing must involve a particular and specific demonstration fact, as distinguished from stereotyped and conclusory statements." (Citation omitted; internal quotation marks omitted.) Clarkson v. Greentree Toyota Corp., Superior Court, judicial district of Danbury, Docket No. CV 0311823 (April 20, 1993, McGrath, J.) ( 8 C.S.C.R. 515, 516). "The trial court has wide discretion in its rulings on evidence . . ." (Internal quotation marks omitted.) State v. Robinson, 227 Conn. 711, 732, 631 A.2d 288 (1993).
In her motion for protective order, Mulvey represents that the two occasions on which she was placed under surveillance caused her "[concern] for her health, safety and welfare and . . . considerable emotional distress and upset." (Mulvey's Motion for Protective Order, p. 1.) Mulvey further alleges that she "found the fact that she was being spied on to be highly unnerving, particularly in light of the current state of world affairs." (Mulvey's Motion for Protective Order, p. 1.) The motion is unaccompanied by affidavits, medical records or any other evidentiary submissions, and Mulvey's allegations, by themselves, do not constitute "a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements," sufficient for a showing of good cause as required by Practice Book § 13-5. See Clarkson v. Greentree Toyota Corp., supra, 8 C.S.C.R. 516. The motion for protective order is therefore denied.
With regard to Mulvey's motion for permission to file nonstandard discovery requests, Mulvey merely claims that she "wishes to determine with specificity exactly what surveillance was conducted and the results and conclusions of such surveillance." (Mulvey's Motion for Permission to File Nonstandard Discovery Requests, p. 1.) Kristen Brennan and Frances Brennan counter that the requested materials are protected by the work product doctrine.
"In any civil action . . . where the judicial authority finds it reasonably probable that evidence outside the record will be required, a party may obtain . . . discovery of information or disclosure, production and inspection of papers, books or documents material to the subject matter involved in the pending action . . . Discovery shall be permitted if the disclosure sought would be of assistance in the prosecution or defense of the action and if it can be provided by the disclosing party or person with substantially greater facility than it could otherwise be obtained by the party seeking disclosure." (Emphasis added.) Practice Book § 13-2. "[T]he attorney work product doctrine encompasses work that is essentially the result of an attorney's activities when those activities have been conducted with a view toward litigation." Metropolitan Life Ins. Co. v. Aetna Casualty Surety Co., 249 Conn. 36, 51-52 n. 17, 730 A.2d 51 (1999). Tangible materials prepared in anticipation of litigation are 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." Practice Book § 13-3.
In the present case, the parties do not dispute that the surveillance was conducted by Kristen Brennan and Frances Brennan in anticipation of litigation. "[I]t is not enough for a plaintiff seeking materials gathered in anticipation of litigation to express a desire or need to get the materials. The rule requires a showing of substantial need. Since the plaintiff should already know what public physical activities she has carried on, she is able to prepare the essentials of her case without the immediate need to see any surveillance tapes made by the defendants of those same activities." (Internal quotation marks omitted.) Judson v. Drost, Superior Court, judicial district of New Britain, Docket No. CV 99 0493618 (September 10, 1999, Gaffney, J.). Mulvey's bald declaration that she "wishes" to obtain the surveillance materials is thus insufficient to constitute a showing of "substantial need" and "undue hardship" as required by Practice Book § 13-3. Her motion for permission to file nonstandard discovery requests is therefore denied.
For the foregoing reasons, the motion for protective order is denied. The motion for permission to file nonstandard discovery requests is also denied. It is so ordered.
Gilardi, J.