Opinion
No. CV02 039 40 52S
May 28, 2004
MEMORANDUM OF DECISION RE MOTION FOR PRECLUSION (MAY 17, 2004)
The defendant has petitioned this court requesting an order that precludes a consultant/expert from attending depositions.
The plaintiff initiated an action against the defendant City of Bridgeport and several of its current and former agents wherein she alleged that she was wrongfully terminated in retribution for her cooperation with a federal investigation involving municipal corruption. The criminal probe led to the conviction of one of the defendants, Joseph Ganim, the former mayor of the defendant City of Bridgeport. The plaintiff alleges that her cooperation with the federal investigation led to her termination.
On May 14, 2004 the plaintiff attempted to depose John Marsilio, the former Director of Public Faculties for the City of Bridgeport. Accompanying plaintiff's counsel was Mr. Edward Adams, a consultant. Mr. Adams is a retired special agent of the Federal Bureau of Investigation. He currently is a principal in Adams Barrett Associates, LLC, a private investigation agency. He was the supervisory agent for the Federal Bureau of Investigation during the agency's probe into the administration of the former Mayor Ganim.
Mr. Adams's business card prominently features the official seal for the Department of Justice's Federal Bureau of Investigation.
The defendants objected to Mr. Adams's presence at the deposition. They suggested that Mr. Adams could remain in nearby alternative facilities during the deposition. They further offered to temporarily adjourn the deposition in order to allow plaintiff's counsel an opportunity to consult with Mr. Adams. Plaintiff's counsel demanded that Mr. Adams attend the deposition.
Connecticut Practice Book § 13-5 provides: "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 . . . (5) that discovery be conducted with no one present except persons designated by the judicial authority . . ."
Furthermore, Connecticut Practice Book § 13-30(c) provides, "At any time during the taking of the deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner is unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending may order the officer conducting the examination forthwith to cease taking the deposition, or may limit the scope and manner of the taking of the deposition provided in Section 13-5. If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending."
This court has the authority to order "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, 20, 828 A.2d 707 (2003). "The moving party bears the burden of showing good cause why a protective order should be issued . . . A finding of good cause must be based on a particular factual demonstration of potential harm, not on conclusory statements." (Citations omitted; internal quotation marks omitted.) Vitone v. Waterbury Hospital, Docket No. CV 97 0139262, Superior Court, Judicial District of Waterbury (December 7, 2001, West, J.) ( 31 Conn. L. Rptr. 48).
The plaintiff suggests that non-parties routinely attend depositions. She further comments that this expert is similar to jury consultants often used during trial. What she ignores is the fact that this is a discovery issue, not a request to close a courtroom.
The scope of discovery permitted by both the Connecticut and Federal rules of procedure is broad. It is not grounds for objection that the information sought would be inadmissable at trial as long as the information sought appears to be reasonably calculated to lead to the discovery of admissible evidence. Practice Book § 13-2, Fed.R.Civ.P. § 26(b)(1). In fact, "[m]ost states . . . have adopted discovery provisions modeled on Rules 26 through 37 of the Federal Rules of Civil Procedure" with its broad scope of discovery. Seattle Times v. Rhinehart, 467 U.S. 20, 29, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984). "Rule 26(c) was adopted as a safeguard for the protection of parties and witnesses in view of the almost unlimited right of discovery given by Rule 26(b)(2)." 8 Wright, Miller Marcus, supra, § 2036. "Much of the information that surfaces during pre-trial discovery may be unrelated, or only tangentially related, to the underlying cause of action. Therefore, restraints placed on discovered, but not yet admitted, information are not a restriction on a traditionally public source of information." Seattle Times Co. v. Rhinehart, 467 U.S. 33. "As in all civil litigation [the defendants will gain] the information they wish to disseminate only by virtue of the court's discovery processes. As the Rules authorizing discovery were adopted by the state legislature, the processes thereunder are a matter of legislative grace. A litigant has no First Amendment right of access to information made available only for purposes of trying his suit . . . Thus, continued court control over the discovered information does not raise the same specter of government censorship that such control might suggest in other situations." (Citation omitted.) Seattle Times Co. v. Rhinehart, supra, 467 U.S. 32.
Welch, 48 Conn.Sup at 22-23.
"Pre-trial depositions and interrogatories are not public components of a civil trial. Such proceedings were not open to the public at common law . . . and, in general, they are conducted in private as a matter of modern practice." (Citation omitted.) Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 (1984). The party noticing and taking the deposition generally decides the manner in which the deposition will proceed. Lupone v. Lupone, Superior Court, Docket No. 446200, Judicial District of New Haven, (July 3, 2001, Pittman, J.).
Lupone court commented, "The `deposing' party decides in the first instance the day and time of the deposition, § 13-27(a) and (b); the place of the deposition, § 13-29; the documents and other things that the deponent may be required to bring along, 13-28(c); the authority before whom the deponent must swear or affirm the truth of the testimony, § 13-28(a); the questions that will be asked, § 13-30(a); the length of time the deposition will consume, § 13-27(e); the means by which the testimony will be memorialized, such as by videotape, in addition to stenographic means, § 13-27(f)(2); all without leave of the court. These are matters that have traditionally been considered the prerogatives of the deposition-taker, albeit usually after affording the opponent or witness some ability to negotiate about the terms."
Although it might be helpful to have experts or consultants attend a deposition, their attendance is not mandatory. Depositions are private proceedings which the public is not entitled to attend. Welch, 48 Conn.Sup at 23. "[T]he fear of adverse publicity, intimidation or other outside forces that could interfere with the free flow of information, most of which would not be admissible during the actual litigation stages of [the] case," would entry of a protective order. In re Alexander Litigation, 820 F.2d 352, 355-56 (11th Cir. 1987).
In the present case, good cause exists to prevent Mr. Adams from attending the deposition. He was the supervisory agent whose efforts helped secure a conviction of some of the defendants in this matter. The potential for intimidation is probable, not speculative. Furthermore, that federal investigation has not concluded. Therefore Mr. Adams may have confidential information regarding the investigation, information unavailable to the defendants, which could be improperly used during the deposition.
The court finds that the plaintiff has shown good cause for a protective order. Mr. Adams may not attend depositions in this matter. He can be available for consultation in a nearby room, with the plaintiff allowed temporary adjournments to accomplish that goal.
Dewey, J.