Opinion
No. LLI CV 06 5000208
November 5, 2007
MEMORANDUM OF DECISION
This discovery dispute concerning statements allegedly taken at the request of an insurance adjuster was initially argued on the short calendar on September 17, 2007, in the context of the plaintiff's motion for default (#114). On September 19, 2007, this court issued an order directing the defendants to produce to the plaintiff, within fourteen days, "[t]he statement made to the insurance adjuster." Thereafter, on September 25, 2007, the defendants filed a motion to reargue claiming that the court's ruling was based on erroneous facts. The motion to reargue was granted on September 27, 2007, and this matter was reargued on the short calendar on October 15, 2007. The court sustains its initial decision on this matter.
"The attorney-client privilege protects communications between client and attorney when made in confidence for the purpose of seeking or giving legal advice." Ullmann v. State, 230 Conn. 698, 711, 647 A.2d 324 (1994). "[A]s with all privileges, the [party] claiming the attorney-client privilege has the burden of establishing all essential elements." (Internal quotation marks omitted.) Harp v. King, 266 Conn. 747, 770, 835 A.2d 953 (2003). Wigmore explains that `[i]t has never been questioned that the [attorney-client] privilege protects communications to the attorney's . . . other agents . . . for rendering his services. The assistance of these agents often being indispensable to his work and the communications of the client often being necessarily committed to them by the attorney or by the client himself, the [attorney-client] privilege must include all the persons who act as the attorney's agents.' 8 J. Wigmore, Evidence, (4th Ed. 1961) § 2301, p. 583." Olson v. Accessory Controls Equipment Corp., 54 Conn.App. 506, 522, 735 A.2d 881 (1999). Where an insurance adjuster received communication at the express direction of counsel for the insured, the attorney-client privilege may be available. See, e.g., Fenton v. Shillelagh Corp., Superior Court, judicial district of New Haven, Docket No. CV 94 0365519 (December 26, 1995, Corradino, J.).
In Fenton, the attorney for the insured submitted an affidavit indicating that he directed the claims manager of the insured's insurance company to have a representative prepare a statement of his client regarding the incident in question. Id. The court held the statement from the insured to the adjuster privileged as an attorney-client communication. Id. The present case differs significantly from the factual scenario faced by Judge Corradino in Fenton, which is relied upon by the defendants in their motion to reargue. Here, at argument, counsel for the defendants vacillated between indicating that the statements were produced at her request, stating that the statements were produced with her cooperation, and additionally stating that the statements were produced only with her knowledge or consent — essentially that she thought it was "a good idea." Counsel also stated during the initial argument on this matter, in her motion to reargue, and at reargument that it was, in fact, the adjuster that first contacted her and indicated that he intended to obtain statements. Additionally, unlike Fenton, counsel for the defendants submitted no affidavit. There was no sworn testimony in the present case, and comments by counsel for the defendants at short calendar were made in the context of legal argument.
Counsel stated: "It's the insurance adjuster getting the statements at my direction . . ." Transcript of October 15, 2007, p. 5.
Counsel stated: "[The insurance adjuster] consulted with me about whether he should get [the statements], and I advised him, sure, go ahead." Transcript of October 15, 2007, p. 5.
Counsel stated: "[The insurance adjuster] wanted to obtain statements. I said, that sounds like a good idea, go ahead." Transcript of October 15, 2007, p. 5.
See transcript of September 17, 2007 hearing, p. 4.
This court concludes that the defendants have not met their burden of demonstrating the existence of the attorney-client privilege as it relates to the statements at issue. As previously stated, there is no affidavit before this court to indicate that counsel directed the adjuster to take the statements, and at reargument on this matter counsel vacillated significantly on this issue. Based upon the argument and reargument before this court, it actually appears that the insurance adjuster — and not the attorney for the defendants — engendered the taking of the statements at issue. For the foregoing reasons, this court sustains its order on this matter. Additionally, as both counsel appeared to agree, there were two statements at issue in the plaintiff's original disclosure for production. This court's September 19, 2007 order only encompassed one statement. Consequently, this court orders the defendants to produce to the plaintiff, within fourteen days, the two statements originally at issue.
SO ORDERED.