Opinion
No. 06-4006190
February 2, 2007
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO QUASH SUBPOENA AND PLAINTIFF'S OBJECTION THERETO.
This case involves a dispute over a non-competition covenant in an agreement between the plaintiff TelAid Industries and the defendant David T. Wood. Plaintiff contends that the defendant David T. Wood resigned from TelAid Industries and subsequently obtained employment with the defendant Tricomm Group, Inc. or an entity affiliated with said company. The plaintiff further claims that the company that employed David T. Wood was owned by his father, the defendant Howell W. Wood.
The plaintiff has filed motions seeking a prejudgment remedy against the defendants. The plaintiff issued a subpoena on the defendant Howell Wood. Howell Wood, through counsel, filed a motion to quash said subpoena and protective order. His claim is that he is physically unable to attend and participate in the rigors of a deposition. The defendant submitted exhibits with his objection and request for a protective order. Said exhibits consist of two medical reports from an internist Scott W. Houton, M.D. of Old Saybrook, Connecticut. Dr. Houton opines that the defendant is incapable to participate in a deposition as a result of severe medical conditions. The plaintiff contends that he is entitled as a matter of practice rule to have questions answered by the defendant at a deposition taken before a stenographer. The defendant, through counsel, seeks a blanket order protecting him from appearing at a deposition. Argument was had before the undersigned on December 18, 2006.
The Court has reviewed the applicable Connecticut Practice Book provisions. It is important to note that the Practice Book provisions pertaining to protective orders concerning depositions and discovery mirror Federal Rules of Procedure Section Rule 26C. According to federal case law, it is rare for the Court to issue a protective order that completely precludes a deposition. See Frideres v. Schlitz, 150 F.R.D. 153, 156 (S.D. Iowa 1993). The proponent of a motion for protective order bears a heavy burden of demonstrating good cause for such an order. See In re McCorbill Publ'g, Inc., 91 B.R. 223, 225 (Bankr. S.D.N.Y., 1988). If there is compelling evidence that a deposition will be a substantial threat to the deponee's life, a court may in its discretion appropriately grant a protective order. Walsh v. Pullman Co., 10 F.R.D. 77 (S.D.N.Y., 1948). The court in McCorhill, in deciding to preclude the deposition of an 80-year-old man, stated that "in the event that Mr. Kraus suffers a heart attack, as a result of an oral deposition, no amount of subsequent apologies or statements of sorrow will compensate for the known risk." McCorhill, 91 B.R. at 225.
Another consideration may be whether or not there exist competing opinions as to the witnesses' ability to withstand a deposition. In Bucher v. Richardson Hospital Authority, 160 F.R.D. 88, 92-93, the court distinguished the facts of McCorhill, where no uncontroverted medical evidence regarding the witness' health existed, from the facts in Bucher, where the statute of the witness' ability to testify was hotly contested. After weighing the evidence, the Bucher court decided not to quash the deposition. In contrast, the court in United States v. Mariani, 178 R.F.D. 447 (M.D.Pa. 1998), held that a protective order prohibiting deposition was warranted where the witness was an 83-year-old man suffering from severe coronary artery disease and congestive heart failure. See Mariani, 178 F.R.D. at 451.
The above cases are governed by the federal rules. Our Practice Book rules Section 13.5 states as follows:
Sec. 13.5 — Protective Order. 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; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the judicial authority; (6) that a deposition after being sealed be opened only by order of the judicial authority; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the judicial authority.
The trial court is vested with the inherent authority to moderate the discovery process by imposing protective orders under appropriate circumstances. See Rosado v. Bridgeport Roman Catholic Diocesan Conn., 276 Conn. 168, 221 n. 59, 884 A.2d 981 (2005). The party seeking a protective order under Practice Book Section 13-5 bears the burden of establishing the contemplated "good cause." See discussion at Babcock v. Bridgeport Hospital, 251 Conn. 790, 848-49, 742 A.2d 322 (1999). Moreover, it has long been "recognized that the granting or denial of a discovery request rests in the sound discretion of the [trial] court . . ." Barry v. Quality Steel Products, Inc., 280 Conn. 1, 16-17, 905 A.2d 55 (2006); Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 57, 459 A.2d 503 (1983). "That discretion applies to `decisions concerning whether the information is material, privileged, substantially more available to the disclosing party, or within the disclosing party's knowledge, possession or power . . .' Standard Tallow Corporation v. Jowdy, supra, 59-60." Brown v. Housing Authority, 23 Conn.App. 624, 626-27, 583 A.2d 643 (1990). In ruling on discovery matters, including motions to quash deposition notices and subpoenas, the court is obligated to take a reasoned and logical approach to the relevant contest between the parties. See, e.g., Blumenthal v. Kimber Manufacturing, 265 Conn. 1, 7-8, 826 A.2d 1088 (2003).
It is important to note that the last report of the doctor in question is in November of 2006. This Court finds that the brief and conclusory doctor's certificate is not sufficient to obtain a blanket protective order barring the deposition of the defendant. In order to resolve this dilemma, the Court orders a temporary protective order in favor of the defendant Howell Wood. The defendant is further ordered to make his physician available to the Court for examination and testimony as to the present medical and physical condition of the defendant and prognosis for a deposition or alternate discovery in the near future. Defendant's counsel is ordered to advise the Court within the next ten days as to the availability of the defendant's doctor for examination. All costs for examination by the physician shall be taxed as costs at the conclusion of trial.