Opinion
No. X04 CV 02 4000582 S
July 29, 2005
RULING ON OBJECTION TO DEPOSITION REQUESTS FOR PRODUCTION AND MOTION FOR PROTECTIVE ORDER
The defendants have sought to limit the scope of documents to be produced at a deposition of Daniel Cronin, former archbishop of the Archdiocese of Hartford (#190) and to limit the scope of questioning at his deposition (#194). Though the arguments on behalf of both sides have been lengthy and complex, the fundamental question is how a civil conspiracy count affects the relevance of documents. The answer lies in what a civil conspiracy is, or, perhaps more critically, what it is not.
First, however, I am not disturbing the prior rulings of Judge Freed regarding the scope of discovery and his in camera review of documents. Judge Freed did, however, expressly leave open the question of whether his orders would be affected by a subsequent ruling on the then pending motion to strike, inter alia, the fifth count of the operative complaint. This count purports to sound in civil conspiracy. Second, I am not disturbing Judge Peck's ruling on the "civil conspiracy" count: relying on Macomber v. Travelers Property Casualty Corp., 261 Conn. 620 (2002), she denied the motion to strike the civil conspiracy count. I do, however, reexamine the civil conspiracy analysis for the purpose of deciding discovery issues arising from that count.
I have read the five-volume file in this action, as well as much of the case law in this and other jurisdictions. The elements of civil conspiracy have frequently been listed, along with some general considerations. For example:
"The [elements] of a civil action for conspiracy are: (1) a combination between two or more persons, (2) to CT Page 11060-cq do a criminal or an unlawful act or a lawful act by criminal or unlawful means, (3) an act done by one or more of the conspirators pursuant to the scheme and in furtherance of the object (4) which act results in damage to the plaintiff." (Internal quotation marks omitted.) Marshak v. Marshak, 226 Conn. 652, 665 . . . (1993).
[n. 37] We note that there is no independent claim of civil conspiracy. Rather, "[t]he action is for damages caused by acts committed pursuant to a formed conspiracy rather than by the conspiracy itself." (Emphasis added; internal quotation marks omitted.) Marshak v. Marshak, [ supra, 669]. Thus, to state a cause of action, a claim of civil conspiracy must be joined with an allegation of a substantive tort.
Harp v. King, 266 Conn. 747, 779 (2003).
Further, a civil conspiracy is not actionable in itself: for a plaintiff to recover damages, he must show that the overt act in question is tortious and has damaged him. That is, a plaintiff must prove an independent underlying cause of action before the civil conspiracy claim becomes material. See, e.g., Litchfield Asset Management Corp. v. Howell, 70 Conn.App. 133, 140 (2002); see also Dumais v. Hartford Roman Catholic Archdiocese, 2002 Ct.Sup. 9774 (Sferrazza, J.) (2002) ( 32 Conn. L. Rptr. 693); Sparano v. Daughters of Wisdom, Inc., 2004 Ct.Sup. 10653 (Adams, J.) (2004) ( 37 Conn. L. Rptr. 422).
Perhaps the following example illustrates the principles. Suppose that A, B and C agree to rob a bank. A is the gunman, B is the wheelman, and C is the money launderer. While A and B are driving to the bank, they strike P, who is entirely at fault. Although there is certainly a criminal conspiracy, no one is liable to P in damages because there is no underlying tort causing him damages, even though the act occurred in furtherance of the conspiracy.
Suppose, however, that in the same scenario A and B are driving helter-skelter away from the bank and strike P, who was innocently on the sidewalk at the time. Not only is B, the driver, liable to P, because of unsafe driving, but also A and even C, who is not even in the car, are liable. Here, CT Page 11060-cr the elements are satisfied, because they conspired to commit an unlawful act and, in the course of and in furtherance of the conspiracy, a tortious act caused harm to the plaintiff.
C, as it turns out, would be liable under principles of vicarious liability in the civil conspiracy context even if C knew nothing about the planned robbery until A and B approached him after the fact to ask him to launder the proceeds.
The examples perhaps show that civil conspiracy is not itself a cause of action. Indeed, it has been aptly noted that the benefit of the notion of civil conspiracy to a plaintiff is not that it creates liability where otherwise none might exist, but rather it expands the universe of those potentially liable for the harm. It is, in effect, a variant of vicarious liability. In the example cited above, the money launderer, who may be the deep pocket, can be found liable only by virtue of the conspiracy. To this effect, see 16 Am.Jur.2d 277, Conspiracy, § 51 (1998) ("It has been pointed out that in civil cases the conspiracy itself may be of no consequence, except as bearing on the applicability of certain rules of evidence or on the determination of who is liable for the damages resulting from the conspiracy.")
It is not difficult to apply these principles to the present case. A motion to strike the fifth count, purporting to allege a civil conspiracy, has been denied. It would appear that the allegations may support the elements of liability by virtue of civil conspiracy in the following manner. The claimed agreement between the archdiocese and the church is stated in a fairly straightforward manner. The object of the agreement is claimed to be, at the risk of oversimplification, the criminal suppression of evidence regarding priest misconduct in order to facilitate donations, tuition payments and the like. The alleged tortious acts harming the plaintiff appear to be those listed in paragraph 26 of the fifth count: essentially "covering up" Foley's misconduct and leading the public to believe that Foley was not a pedophile.
Judge Freed's rulings largely addressed the discovery relating to the tortious acts and I do not choose to disturb those rulings. Discovery regarding the conspiracy issues, that is, more precisely, questions as to whether one or more defendants can be found liable for the tortious acts because of involvement in the alleged conspiracy, is slightly more complex. Bearing in mind that the existence of and participation in the alleged conspiracy is analytically different from participation in the tortious act on which primary liability is premised, I find the following categories of materials to be appropriately discoverable:
a) Information relating to any agreements between the CT Page 11060-cs alleged co-conspirators regarding the existence and scope of the conspiracy at any time,
Many cases have held that a co-conspirator is liable for tortious acts of other conspirators even if those acts were committed before the co-conspirator joined the conspiracy. See, e.g., DeVries v. Brumback, 349 P.2d. 532, 535-36 (Cal. 1960) ("It is the settled rule that `to render a person civilly liable for injuries resulting from a conspiracy of which he was a member, it is not necessary that he should have joined the conspiracy at the time of its inception; every one who enters into such a common design is in law a party to every act CT Page 11060-ct previously or subsequently done by any of the others in pursuance of it.'" (citations omitted)). Logically the knowing and intentional participation in conspiratorial efforts is the key to vicarious liability as a conspirator; the issue of vicarious liability is distinct and separate from the issues of the tortious act and causation of damages. Discovery, of course, of relevant information and material calculated to lead to relevant material is generally allowed.
Usually, the statute of limitations will serve as a limitation on the scope of discovery; presumably the statute of limitations governing the underlying tortious act will apply. See Charles Rubenstein, Inc. v. Columbia Pictures Corp., 154 F.Sup. 216, 219 (D.Minn. 1957) ("It is the impact of the conspiracy which gives rise to a claim for damages, and it is the date of such impact of the wrong engendered by the conspiracy from which this statute of limitations begins to run. Imputing to a fellow conspirator the deeds and acts of his co-conspirators may perchance continue over a period of many years, but the wrong caused by the conspiracy sets in motion the applicable statute of limitations.") In this case, of course, the period is most unusually long. In the circumstances, I will be willing to hear objections based on burdensomeness as well as relevance and privilege.
b) Information specifically relating to "covering up" for Foley at any time.
Again, the conceptual linchpin is the bifurcation between the issue of liability in the first instance, which concerns traditional tort concepts of breach of duty to a plaintiff, causation and damages, and the extension of liability to others perhaps not directly committing the tort, which consideration involves the notion of civil conspiracy. As stated in Charles Rubenstein, supra:
The connection between the parties having been established, whatever was done in pursuance of the conspiracy by one of the conspirators is considered as the act of all the conspirators; all are equally liable therefor as joint tortfeasors, regardless of whether they were original parties to the conspiracy and irrespective of either the fact that they did not actively participate therein or the extent to which they benefitted thereby. (Citation omitted).
The parties shall submit any suggestions regarding the precise discovery order by August 17, 2005. This decision shall provide the guidelines for the "final" discovery orders to be entered in the three companion files as well. So ordered.
Beach, J.