Opinion
No. 305653
October 13, 1995
MEMORANDUM OF DECISION
I
The plaintiff moves for sanctions against the corporate defendant for failure to answer interrogatories and requests for production which the plaintiff he claims he submitted to the defendants in March 1994. The corporate defendant replies that it was unaware that those discovery requests were directed to it rather than to the individual defendant. the [The] plaintiff rejoins that the notice of interrogatories and requests for production clearly states that it is directed to "the defendants." However, a copy of that notice neither was in the plaintiff's file, the defendants' file nor in the court's file. Rather, the notice was reproduced by the plaintiff from the "hard drive" memory of the plaintiff's attorney's computer. The court is left with conflicting representations of counsel. The court cannot grant a motion for sanctions based on conflicting representations of counsel. Cf. Cologne v. Westfarms Associates, 197 Conn. 153-154 (1985). The motion for sanctions pursuant to Practice Book § 231 (#136) is denied. The corporate defendant shall comply with the discovery request within thirty days.
Practice Book § 223(b) provides that interrogatories shall not be filed with the court. Practice Book § 227(b) provides that requests for production shall not be filed with the court.
Practice Book "Sec. 231. Order for Compliance; Failure to Answer or Comply with Order (Discovery and Depositions) If any party has failed to answer interrogatories or to answer them fairly, or has intentionally answered them falsely or in a manner calculated to mislead, or has failed to respond to requests for production or for disclosure of the existence and contents of an insurance policy or the limits thereof, or has failed to submit to a physical or mental examination, or has failed to comply with a discovery order made pursuant to Sec. 230A, or has failed to comply with the provisions of Sec. 232, or has failed to appear and testify at a deposition duly noticed pursuant to this chapter, or has failed otherwise substantially to comply with any other discovery order made pursuant to Secs. 222, 226, and 229, the court may, on motion, make such order as the ends of justice require. "Such orders may include the following: "(a) The entry of a nonsuit or default against the party failing to comply; "(b) The award to the discovering party of the costs of the motion, including a reasonable attorney's fee; "(c) The entry of an order that the matters regarding which the discovery was sought or other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; "(d) The entry of an order prohibiting the party who has failed to comply from introducing designated matters in evidence; "(e) If the party failing to comply is the plaintiff, the entry of a judgment of dismissal. "The failure to comply as described in this section may not be excused on the ground that the discovery is objectionable unless written objection as authorized by Secs. 222, 226, and 229 has been filed."
II
The plaintiff has requested that the defendant Wertheim produce copies of pleadings filed by him in other civil actions. The court earlier circumscribed the temporal ambit of this request. The defendant Mark Wertheim now has asserted that complying with the plaintiff's request to produce copies of pleadings would tend to incriminate him. Pending against Wertheim in Superior Court are criminal charges for computer crime in the first degree, in violation of General Statutes § 53a-252, and larceny in the first degree, in violation of General Statutes § 53a-122. These charges allegedly arise out of the same facts as does this civil action. Wertheim claims that the pleadings for which production is sought may lead to evidence that he had been in financial difficulty. In turn, he argues, this could be proof of a motive which could be used against him in the pending criminal prosecution. See State v. Gunning, 183 Conn. 299, 305, 311-12, 439 A.2d 339 (1981) (defendant and another discuss ways to make money because they were "broke"; importance and relevancy of motive to commit larceny.).
General Statutes "Sec. 53a-252. Computer crime in the first degree: Class B felony. (a) A person is guilty of computer crime in the first degree when he commits computer crime as defined in section 53a-251 and the damage to or the value of the property or computer services exceeds ten thousand dollars. "(b) Computer crime in the first degree is a class B felony."
General Statutes "Sec. 53a-122. Larceny in the first degree: Class B felony. (a) A person is guilty of larceny in the first degree when he commits larceny as defined in section 53a-119 and: (1) The property or service, regardless of its nature and value, is obtained by extortion, (2) the value of the property or service exceeds ten thousand dollars, (3) the property consists of a motor vehicle, the value of which exceeds ten thousand dollars, or (4) the property is obtained by defrauding a public community, and the value of such property exceeds two thousand dollars. "(b) In any prosecution under subdivision (3) of subsection (a) of this section, evidence of (1) forcible entry, (2) forcible removal of ignition or (3) alteration, mutilation or removal of a vehicle identification number shall be prima facie evidence of a larcenous intent. "(c) Larceny in the first degree is a class B felony."
The Fifth Amendment to the Constitution of the United States provides that no person "shall be compelled . . . to be a witness against himself. . . ." Article First § 8 of the Constitution of the State of Connecticut similarly provides that: "No person shall be compelled to give evidence against himself. . . ." "This law has also been codified by the adoption of General Statutes § 52-199 . . . ." Westport National Bank v. Wood, 31 Conn. Sup. 266, 267, 328 A.2d 724 (1974); see also General Statutes § 51-35(b). Although it has been suggested that our state constitution may afford greater protection with respect to the production of documents; Burritt Interfinancial Bancorporation v. Brooke Pointe Associates, 42 Conn. Sup. 445, 453-54, 625 A.2d 851 (1992); the defendant Wertheim does not suggest that the scope of the privilege with respect to his claim is different under any of these constitutional or statutory provisions.
General Statutes "Sec. 52-199. Questions which need not be answered. Self-incrimination. (a) In any hearing or trial, a party interrogated shall not be obliged to answer a question or produce a document the answering or producing of which would tend to incriminate him, or to disclose his title to any property if the title is not material to the hearing or trial. "(b) The right to refuse to answer a question, produce a document or disclose a title may be claimed by the party interrogated or by counsel in his behalf." General Statutes § 51-35(b) provides: "A person shall not be compelled to give evidence against himself, except as otherwise provided by statute, nor shall such evidence when given by him be used against him."
The privilege "against self-incrimination `not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.' Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973)." Olin Corporation v. Castells, 180 Conn. 49, 53, 428 A.2d 319 (1980). It also is well settled that the privilege extends to civil pretrial discovery proceedings. See e.g., Estate of Fisher v. Commissioner of Internal Revenue, 905 F.2d 645, 648-649 (2d Cir. 1990); Bank One of Cleveland, N.A. v. Abbe, 916 F.2d 1067, 1074 (6th Cir. 1990); Maco-Bibb County Hosp. Auth. v. Continental Ins., 673 F. Sup. 1580, 1582 (M.D.Ga. 1987); McIntyre's Mini Computer v. Creative Synergy Corp. , 115 F.R.D. 528, 529 (D.Mass. 1987); see Olin Corporation v. Castells, supra, 180 Conn. 53-54; see also Westport National Bank v. Wood, 31 Conn. Sup. 266, 267, 328 A.2d 724 (1974); Rosado v. Bridgeport Roman Catholic Diocesan Corporation, Superior Court, Judicial District of Fairfield, No. 302072 ( 14 Conn.L.Rptr. 13, 393) (1995). However, with respect to the production of documents, "[t]he papers and effects which the privilege protects must be the private property of the person claiming the privilege, or at least in his possession in his purely personal capacity." United States v. White, 322 U.S. 694, 700, 42 S.Ct. 1248, 88 L.Ed. 1542 (1944). To hold that these papers are of such a character would be glorification of form over substance. Even in the context of constitutional law, "[t]he exaltation of form over substance is to be avoided." United States v. DiFrancesco, 449 U.S. 117, 142 (1980); see also Wolman v. Walter, 433 U.S. 229, 250 (1977); Escobedo v. Illinois, 378 U.S. 478, 486 (1964). The papers sought here are copies of pleadings, prepared by Wertheim's attorneys, the originals of which are filed with the court. As such they are public records. Bernier v. National Fence Co., 176 Conn. 622, 627, 410 A.2d 1007 (1979). "They therefore embody no element of personal privacy and carry with them no claim of personal privilege." United States v. White, supra, 322 U.S. 699. For this reason, the defendant's claim of privilege is overruled.
There is no claim by Wertheim that the very fact that he is in possession of the requested documents might incriminate him.
BY THE COURT
Bruce L. Levin Judge of the Superior Court