Opinion
No. MMX-CV-09-5005966-S
April 6, 2010
MEMORANDUM OF DECISION
On January 9, 2009, the plaintiffs, Gregory Bessoni, Brittney Waida (through her mother, Dawn Waida) and Dawn Waida, filed a three-count complaint against the defendants, Aisling and Benjamin Cadley. Count one of the complaint contains the following allegations. The defendants made statements accusing Bessoni of having intercourse with their young daughter Emeri, that such statements are defamatory per se, and that such defamatory statements were repeated to "any number of individuals, resulting in a governmental investigation" of Bessoni. Count two of the complaint contains allegations that the defendants accused Brittney Waida of various types of sexually inappropriate conduct and repeated these accusations "on a number of occasions to others," which resulted in a governmental investigation of Brittney and that these statements were defamatory per se. Count three incorporates the allegations contained in count two, but alleges damages as incurred by Brittney Waida's mother, Dawn Waida.
On August 14, 2009, the defendants filed a motion for protective order in regard to various items which the plaintiffs requested that the defendants bring with them to their depositions. In their motion the defendants claim that much of the information sought is irrelevant, further protected by our rules of practice, the work product doctrine, and various privileges Specifically, the defendants request an order that: (1) Aisling Cadley is not required to produce at her deposition items 1, 3, 4, or 5 listed in schedule A of the notice of her deposition; and (2) Bejamin Cadley is not required to produce at his deposition items 1, 2, 4, 5, or 6 listed on schedule A of the notice of his deposition. The defendants have submitted a memorandum of law in support of their motion. On August 18, 2009, the plaintiffs filed a memorandum of law in opposition. Subsequently the defendants filed a reply brief on September 1, 2009. Neither party supported their briefs with affidavits, testimony, or any other form of evidence.
"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 elected 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 . . ." Practice Book § 13-5. "A finding of good cause must be based on a particular factual demonstration of potential harm, not on conclusory statements." Sarfaty v. PNN Enterprises, Inc., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 02 0280255 (April 19, 2004, Tanzer, J.). "The granting or denial of a discovery request rests in the sound discretion of the court . . . The court's 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 . . ." (Citations omitted.) Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 57-60, 459 A.2d 503 (1983).
Item One on Schedule A of the Notice of Deposition of Aisling Cadley/Item One on Schedule A of the Notice of Deposition of Benjamin Cadley
Item number one on schedule A of the notice of deposition of Aisling Cadley requests that the defendants produce "[a] copy of all medical or counseling records that relate to any treatment by either defendant or Emeri/Emma Cadley that refer or reference the plaintiffs in this matter." In their memorandum of law in support of the motion for a protective order the defendants argue that the request 1) is not relevant or material; 2) is unduly burdensome; and has a tendency to harass and embarrass; 3) seeks privileged information under General Statutes § 52-146k, which prohibits disclosure of communications made by a victim to a sexual assault counselor; and 4) seeks privileged information under General Statutes § 52-146o, which prohibits disclosure of patient communications with a physician or surgeon. In their reply brief the defendants also assert new arguments including that the disclosure of the requested documents would violate 1) the Health Insurance Portability and Accountability Act, 42 U.S.C. § 1320d et seq., 2) the general application of the Connecticut Insurance Information and Privacy Protection Act, General Statutes § 38a-975 et seq., and 3) the principles of Berger v. Cuomo, 230 Conn. 1, 6-7, 644 A.2d 333 (1994). The plaintiffs counter that the medical records are relevant because they are likely to reveal the falsity of the defendants' accusations of sexual misconduct by the plaintiffs.
General Statutes § 52-146k provides in relevant part: "(b) On or after October 1, 1983, a battered women's counselor or a sexual assault counselor shall not disclose any confidential communications made to such counselor at any time by a victim in any civil or criminal case or proceeding or in any legislative or administrative proceeding unless the victim making the confidential communications waives the privilege, provided under no circumstances shall the location of the battered women's center or rape crisis center or the identity of the battered women's counselor or sexual assault counselor be disclosed in any civil or criminal proceeding. Any request made on or after October 1, 1983, by the defendant or the state for such confidential communications shall be subject to the provisions of this subsection . . ."
General Statutes § 52-146o provides in relevant part: "a) Except as provided in sections 52-146c to 52-146j, inclusive, and subsection (b) of this section, in any civil action or any proceeding preliminary thereto or in any probate, legislative or administrative proceeding, a physician or surgeon, as defined in subsection (b) of section 20-7b, shall not disclose (1) any communication made to him by, or any information obtained by him from, a patient or the conservator or guardian of a patient with respect to any actual or supposed physical or mental disease or disorder or (2) any information obtained by personal examination of a patient, unless the patient or his authorized representative explicitly consents to such disclosure . . ."
In their brief, the plaintiffs also assert that because the Old Saybrook Police Department and the department of children and families have been privy to these documents and have not found them credible, that therefore the plaintiffs are entitled to these documents. In their reply brief, the defendants state that the plaintiffs' statement that the police and department of children and families have been privy to the requested documents and not found the claims of sexual abuse to be credible is an unsworn statement of fact which should only be treated as argument. The court agrees with the defendants in accordance with Double G.G. Leasing, LLC v. Underwriters at Lloyd's, London, 116 Conn.App. 417, 430 n. 6, 978 A.2d 83, cert. denied, 294 Conn. 9908, 982 A.2d 1082 (2009), which held that unsworn statements of fact are not evidence and are only to be treated as argument.
"Section 4-1 of the Code of Evidence provides: `Relevant evidence' means evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence. Material facts are those facts directly in issue or those probative of matters in issue; Code of Evidence, § 4.13; unless excluded by some rule or principle of law, any fact may be proved that logically tends to aid the trier in the determination of the issue. Code of Evidence, § 4.14; Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 569-70, 657 A.2d 212 (1995) (issues and materiality are framed by the pleadings and are controlled by substantive law)." Sarfaty v. PNN Enterprises, Inc., supra, Docket No. CV 02 0280255. However, it should be noted that the test of what is material for the purpose of discovery is broader than the test of materiality for admissibility at trial. See Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 139, 491 A.2d 389 (1985) ("[T]he allowable scope of inquiry at a discovery deposition clearly exceeds the boundaries of admissable evidence").
Through their complaint which alleges defamatory statements made by the defendants regarding accusations of sexual misconduct, the plaintiffs have put in issue the accuracy of those statements. "[F]or a claim of defamation to be actionable, the statement must be false . . . and under the common law, truth is an affirmative defense to defamation . . ." (Citations omitted.) Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 228-29, 837 A.2d 759 (2004). The medical records are likely to make the existence of the defamatory nature of these statements more or less probable, and therefore the request for medical records of the defendants and Emma are relevant and material.
The defendants also argue that the requested medical records are privileged under General Statutes §§ 52-146k and 52-146o. Our Supreme Court has stated that "with respect to privilege claims generally, we have held that where the confidential status of otherwise discoverable information is apparent, a claim of privilege may be disposed of without further inquiry . . . Where the nature of a document is not patently discernible from the face of the discovery request, however, the burden of establishing immunity from discovery rests with the party asserting the privilege . . . That burden is discharged by the presentation of evidence in the form of testimony or affidavits concerning the document's content and use." (Citations omitted.) Babcock v. Bridgeport Hospital, 251 Conn. 790, 847-48, 742 A.2d, 322 (1999).
Moreover, for a protective order to issue based on the privileges pursuant to §§ 52-146o and 52-146k, the movant must establish that the healthcare provider met the requirements of the statutory privilege if it is not discernable from the nature of the request. See Rosado v. Bridgeport Roman Catholic Diocesan Corporation, Superior Court, complex litigation docket at Waterbury, Docket No. X06 CV 93 0157085 (December 6, 2006, Alander, J.) [ 42 Conn. L. Rptr. 533] (held that number of documents were not protected for a variety of reasons including failure to establish that the statutory requirements of § 52-146o(a), that the individual practitioner was licensed to practice in Connecticut, had been met). Section 52-146o pertains to physicians and surgeons as defined in subsection (b) of General Statutes § 20-7b. Subsection (b) of § 20-7b defines "providers" as persons furnishing health care services who are licensed or certified to furnish such services pursuant to Connecticut's General Statutes. Similarly, in § 52-146k(a)(2) (5), the statute delineates specific criteria under which a counselor may qualify for application of the privilege including that the counselor complete a certain number of hours of training and fulfill particular certification requirements.
General Statutes § 52-146k(a)(2) provides: "`Battered women's counselor' means any person engaged in a battered women's center (A) who has undergone a minimum of twenty hours of training which shall include, but not be limited to, the dynamics of battering, crisis intervention, communication skills, working with diverse populations, an overview of the state criminal justice system and information about state and community resources for battered women, (B) who is certified as a counselor by the battered women's center which provided such training, (C) who is under the control of a direct service supervisor of a battered women's center, and (D) whose primary purpose is the rendering of advice, counsel and assistance to, and the advocacy of the cause of, battered women."
Section 52-146k(a)(5) provides: "`Sexual assault counselor' means any person engaged in a rape crisis center who (A) has undergone a minimum of twenty hours of training which shall include, but not be limited to, the dynamics of sexual assault and incest, crisis intervention, communication skills, working with diverse populations, an overview of the state criminal justice system, information about hospital and medical systems and information about state and community resources for sexual assault victims, (B) is certified as a counselor by the sexual assault center which has provided such training, (C) is under the control of a direct services supervisor of a rape crisis center, and (D) whose primary purpose is the rendering of advice, counseling and assistance to, and the advocacy of the cause of, victims of sexual assault."
In the present case, the plaintiffs request that Aisling Cadley produce "all medical or counseling records." Section 52-146k specifically protects communications between a patient and a physician or surgeon, and § 52-146o protects communications between a victim and a sexual assault counselor. Notably the plaintiffs' request is for medical and counseling records, which may encompass a broader spectrum of health professionals than just physicians and sexual assault counselors. See e.g., General Statutes § 52-146c (psychologist-patient privilege); § 52-146d (psychiatrist-patient privilege); § 52-146q (social worker privilege). It is not clear from the face of the discovery request that the documents concern communications only between a physician and patient, or only between a sexual assault counselor and a victim, nor is it clear that the medical professionals who created the documents meet the statutory qualifications for the application of the privilege. The defendants have not provided any affidavits or evidence from which the court may discern this information. The court cannot simply assume that the documents fall within the purview of the statutory privileges asserted when the face of the request is ambiguous. See Sarfaty v. PNN Enterprises, Inc, supra, Docket No. CV 02 0280255 (not every communication between client and attorney is protected by the attorney-client privilege, neither party pointed to specific documents that are privileged and the court saw no reason to issue a blanket bar of all the records in the case). Accordingly, the motion for protective order is denied with respect to this ground.
The defendants also assert that the plaintiffs' request for medical records is unduly burdensome and has a tendency to harass and embarrass. Conclusory statements are insufficient and do not constitute a showing of good cause as to why a protective order should be issued. Thomas v. Response Insurance Co., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 08 600662S (October 29, 2009, Hartmere, J.) ("Good cause must be based upon a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements"); Construction Services of Bristol, Inc. v. CDC Financial Corporation, Superior Court, judicial district of New Britain, Docket No. CV 97 0478709 (Oct. 19, 2000, Kocay, J.). The defendants make nothing but conclusory statements in their brief with respect to this argument and have failed to demonstrate with specificity why the court should grant their motion for a protective order based on this ground.
The last arguments raised by the defendants, which are contained in their reply brief, are that to allow the disclosure of the requested documents would violate 1) the Health Insurance Portability and Accountability Act, 42 U.S.C. § 1320d et seq., 2) the general application of the Connecticut Insurance Information and Privacy Protection Act, General Statutes § 38a-975 et seq., and 3) the principles of Berger v. Cuomo, 230 Conn. 1, 6-7, 644 A.2d 333 (1994). Connecticut appellate courts have concluded that they "are not required to review issues that have been improperly presented to [the] court through an inadequate brief . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned . . . These same principles apply to claims raised in the trial court." (Internal quotation marks omitted.) Connecticut Light Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003).
In Connecticut Light Power Co. v. Dept. of Public Utility Control, supra, 266 Conn. 120, the plaintiff's entire constitutional argument in its brief to the trial court consisted of a single conclusory statement that the defendant's interpretation of a statute would result in an unconstitutional appropriation of its shareholders' property and a footnote providing the text of the fifth amendment and two citations related to the takings clause. The Supreme Court therefore determined that the plaintiff's brief was inadequate as to this issue and that the argument was abandoned. In the present case, the defendants' brief offers less analysis than that of the plaintiff in Connecticut Light Power Co. Therefore their arguments are deemed abandoned.
For all of the previously mentioned reasons, the defendants' motion for protective order of the requested medical and counseling records is denied. The above reasoning is also applicable to the defendants' motion for protective order regarding item number one on schedule A of Benjamin Cadley's notice of deposition because the request is identical to that made of Aisling Cadley.
Item Number Three on Schedule A of the Notice of Deposition of Aisling Cadley/Item Number Four of the Notice of Deposition of Benjamin Cadley
Item number three on schedule A of the notice of deposition of Aisling Cadley requests that the defendant produce "[a]ny and all correspondence, e-mails, memoranda, notes, journals, diaries, and phone messages that reference or relate to any of the plaintiffs or the subject of this lawsuit in any manner." The court interprets this request to exclude correspondence with the department of children and families and the Old Saybrook Police Department because these were made separate discovery requests by the plaintiff and are discussed infra.
The defendants assert that this request is overbroad, imprecise, unduly burdensome, not specifically tailored to any aspect of the pending litigation, and outside the scope of discovery under Practice Book § 13-2. They further argue that to require the defendants to produce diaries or journals is an inquiry into the defendant's private or subjective thoughts which are not at issue and that the request does not specify or limit the source of any such documents thereby making the request invasive and oppressive. In their brief in opposition to the motion, the plaintiffs argue that the request is relevant to their concern that the defendants spread their defamatory statements to "various individuals via email and other electronic communication."
The defendants do not provide specific facts and have not shown good cause as to why this request is unduly burdensome or oppressive. Practice Book § 13-5; Sarfaty v. PNN Enterprises, Inc., supra, Docket No. CV 02 0280255. Moreover they have not provided any authority for the proposition that the plaintiffs need to further limit the source of any of the documents requested.
The defendants cite to no authority for the proposition that the defendants' general privacy is reason to grant a total bar to the discovery of any diaries or journals in the possession of the defendants. Nevertheless, as one trial court has held while looking to New York case law for guidance, before ordering disclosure of an unredacted diary, the trial courts should review diaries in camera to determine whether full disclosure is required and to minimize the intrusion into the privacy of the party. Tower v. Maturo, Superior Court, judicial district of New Haven, Docket No. CV 06 5001979 (October 31, 2007, Cosgrove, J.) [ 44 Conn. L. Rptr. 435]. The plaintiffs' request for "correspondence, e-mails, memoranda, notes, journals, diaries, and phone messages" that reference the plaintiffs or the subject matter of this lawsuit is likely to lead to the discovery of evidence of the publication of the defamatory statements as well as the veracity of such statements and is therefore relevant, and the defendants have not requested an in camera inspection of any documents. Therefore, the defendants' motion is denied as to this ground. However, the court will entertain a request for an in camera inspection with reasons for the same and the requested time frame clearly indicated therein.
The above reasoning is also applicable to the defendants' motion for protective order with respect to item number four on schedule A of Benjamin Cadley's notice of deposition because the request is identical to that made of Aisling Cadley.
Item Number Four on Schedule A of the Notice of Deposition of Aisling Cadley/Item Number Five on Schedule A of the Notice of Deposition of Benjamin CadleyItem number four on schedule A of the notice of deposition of Aisling Cadley requests that the defendant produce "[a]ll documentations received from or provided to the Department of Children and Families which references or relates to any of the plaintiffs or the subject matter of this lawsuit in any manner." The defendants assert that this request is not material and necessary to the plaintiff's action and that information received by the defendants from the department of children and families is irrelevant to the plaintiffs' claims. The defendants argue further that the request seeks "information which is protected by one or more of the following privileges:" 1) General Statutes §§ 17a-101e(b) and 17a-103 which offer immunity from civil liability to anyone who makes, in good faith, a report regarding child abuse to a law enforcement agency; 2) the common-law absolute privilege from civil suits for statements given for the purpose of a judicial or quasi-judicial proceeding; 3) the privilege from civil liability applicable to statements made to protect one's own interests if made in good faith.
In their brief the defendants cite to General Statutes §§ 17-101e and 17-103, not 17a-101e and 17a-103, nevertheless the court construes this as a clerical error.
In its brief in opposition, the plaintiffs counter that the class of absolutely privileged communications is narrow, and practically limited to legislative and judicial proceedings, and acts of State. Additionally the plaintiffs argue that none of the privileges asserted by the defendants are applicable to the present case and that all of the asserted privileges require the communications be made in good faith.
To clarify, the court notes that the "privileges" asserted by the defendants are privileges in the sense that they are special defenses used to protect parties from civil liability and are not evidentiary privileges. Moreover, the defendants do not cite any case law that supports the proposition that the asserted immunities to civil liability also act as complete bars to discovery. Nevertheless, whether the present case requires the application of these privileges is pertinent to the relevancy and materiality of the plaintiffs' discovery request.
The defendants' first argument is that General Statutes §§ 17a-101e(b) and 17a-103 give rise to an absolute privilege from liability. Section 17a-101e(b) provides that any person who "in good faith, makes, or in good faith does not make" a report pursuant to section 17a-103 shall be immune from civil or criminal liability. Section 17a-103 provides that any person with reasonable cause to suspect or believe that any child under the age of eighteen has been abused or neglected may cause a written or oral report to be made to the Commissioner of Children and Families or his representative or a law enforcement agency. As our Supreme Court noted in Bhatia v. Debek, 287 Conn. 397, 416, 948 A.2d 1009 (2008), § 17a-101e(b) provides immunity from liability to those who "in good faith" report child abuse. In Bhatia, the court held that good faith immunity did not apply where the trial court found that the defendant acted with malice and without probable cause. Bhatia v. Debek, supra, 416. "The publication of defamatory words may be under an absolute privilege, or under a qualified or conditional privilege. Under the former there is no liability, although defamatory words are falsely and maliciously published." (Emphasis omitted; internal quotation marks omitted.) Irwin v. Cohen, 40 Conn.Sup. 259, 262, 490 A.2d 552 (1985), quoting Hasset v. Carroll, 85 Conn. 23, 35, 81 A. 1013 (1911). "It is only the qualified or conditional privilege that may be abused or lost by malice, improper motive, or bad faith." Irwin v. Cohen, supra, 262. As the language of § 17a-101e requires good faith in making, or in not making, a report of child abuse, it is a statutory privilege which is qualified or conditional, not an absolute privilege from liability. In addition, this court notes that the defendants have yet to file their answers and special defenses, which may or may not put malice and good faith in issue. The court therefore finds the requested evidence relevant and likely to lead to the discovery of admissible evidence.
The defendants' second argument is that an absolute privilege exists for statements given for the purpose of a judicial or quasi-judicial proceeding, and that the statements made to the department of children and families would qualify as a judicial proceeding. "[L]ike the privilege which is generally applied to pertinent statements made in formal judicial proceedings, an absolute privilege also attaches to relevant statements made during administrative proceedings which are quasi-judicial in nature . . . The judicial proceeding to which [absolute] immunity attaches has not been defined very exactly . . . In addition, [our Supreme Court] previously has delineated several factors that assist in determining whether a proceeding is quasi-judicial in nature." (Citations omitted; internal quotation marks omitted.) Craig v. Stafford Construction, Inc., 271 Conn. 78, 84-85, 856 A.2d 372 (2004). In addition to the requirement that the proceeding in question be a judicial or quasi-judicial proceeding, to determine that an absolute immunity applies, "the statement at issue must have been made in the course of a judicial [or quasi-judicial] proceeding." Wolinsky v. Standard Oil of Connecticut, Inc., United States District Court, Docket No. 3:08 CV832 (D.Conn, August 25, 2008), citing, Hopkins v. O'Connor, 282 Conn. 821, 839, 925 A.2d 1030 (2007) ("The decision to inform others, unconnected with the process of the plaintiff's commitment, even if properly motivated out of concern for their safety, was in no way directed toward the achievement of the objects of litigation or any other proceedings").
In Wolinsky v. Standard Oil of Connecticut, Inc., the district court noted that "while the ultimate issue of immunity is a question of law, it is apparent from governing case law that resolving that issue depends upon the factual context in which the statement is made." The court went on to hold that "[b]ecause [the case is] at an early stage . . . and the facts relating to the [correspondence at issue] are not all known, dismissal as a matter of law is inappropriate." Similarly, in the present case, the court is without the factual background to determine whether the proceeding at issue constitutes a judicial proceeding under the factors set out by the Supreme Court, or whether the statement at issue was made in the course of that judicial proceeding. Therefore the requested documents are relevant and material to the plaintiffs' case.
The defendants' third argument is that the requested documents relate to statements made in good faith to protect one's own interests which are privileged from liability if made in good faith and without malice. In their brief the defendants cite to Ely v. Mason, 97 Conn. 38, 115 A. 479 (1921), for that proposition. In Ely, the court stated: "It is our duty to say whether, on the facts found, the trial court properly ruled as a matter of law that the defamatory communications were made on an occasion of privilege because made in order to protect the defendant's interests, assuming that the defendant believed them to be true and made the communications in good faith, that is, without actual malice." (Emphasis added.) Id., 43. Thus, the privilege is conditional, and not an absolute privilege. As already discussed, supra, this court notes that the defendants have yet to file their answers and special defenses, which may or may not put malice and good faith in issue. The court, therefore, finds the requested evidence relevant and likely to lead to the discovery of admissible evidence.
The above reasoning is also applicable to the defendants' motion for protective order with respect to item number five on schedule A of Benjamin Cadley's notice of deposition because the request is identical to that made of Aisling Cadley.
Item Number Five on Schedule A of the Notice of Deposition of Aisling Cadley/Item Number Six on Schedule A of the Notice of Deposition of Benjamin CadleyItem number five on schedule A of the notice of deposition of Aisling Cadley requests that the defendant produce "[a]ll documentation received from or provided to the Old Saybrook Police Department which references or relates to any of the plaintiffs or the subject matter of this lawsuit in any manner." The defendants assert that this request for production is overbroad, not material, unduly burdensome, and that it seeks information, such as statements made to the police, which, they argue, are "protected by one or more of the following privileges": 1) under the auspices of Gallo v. Barile, 284 Conn. 459, 465-66, 935 A.2d 103 (2007), statements made to the police are subject to a qualified privilege, 2) under General Statutes §§ 17a-101e(b) and 17a-103 which offer immunity from civil liability to anyone who makes, in good faith, a report regarding child abuse; 3) under the common-law absolute privilege to civil suits for statements given for the purpose of a judicial or quasi-judicial proceeding; and 4) under the privilege from civil liability applicable to statements made to protect one's own interests if made in good faith. In response the plaintiffs contend that the production request is relevant and material as it may lead to the discovery of false information that was given to the police and that the defendants cannot use the defense of a qualified privilege as a shield.
With respect to the defendants' first argument that statements made to the police benefit from a qualified privilege of immunity from liability, the defendants are correct in their assertion that the Supreme Court in Gallo v. Barile, supra, 284 Conn. 471-72, held that "a qualified privilege is sufficiently protective of [those] wishing to report events concerning crime," and thereby rejected absolute immunity for such statements. As already discussed supra, a qualified privilege does not protect a defendant who makes statements that are both defamatory and malicious, and considering the early stage of this case, and that the defendants still have yet to file their answer and special defenses, the court finds this request for production is likely to lead to evidence that is relevant and material.
With respect to the second argument, the court's analysis regarding the same ground as raised for item number four on schedule A of the notice of deposition of Aisling Cadley applies to item five as well. Sections 17a-101e(b) and 17a-103 of the General Statutes do not act as a bar to discovery in this case.
The defendants' third argument is that the common-law absolute privilege from civil suits for statements given for the purpose of a judicial or quasi-judicial proceeding applies to bar the plaintiffs' request for documents received from or provided to the Old Saybrook Police Department. In Gallo, supra, 284 Conn. 471-72, the Supreme Court determined that statements obtained by the police in connection with a criminal investigation are not of the type of proceeding to be afforded absolute immunity because "[t]here is no benefit to society or the administration of justice in protecting those who make intentionally false and malicious defamatory statements to the police." (Internal quotation marks omitted.) Id. Thus the defendants may only benefit from a conditional privilege for any defamatory statements made to the Old Saybrook police, and the court finds the production request relevant at this stage in the proceedings. The plaintiffs' discovery request is not barred with respect to this ground.
With respect to the defendants' fourth argument, the court's analysis regarding the same ground that was raised by the defendants for item number four on schedule A of the notice of deposition of Aisling Cadley applies here as well. The conditional privilege of immunity from suit afforded to those making statements to protect their own interest does not act as a bar to discovery in this case.
Lastly, the court notes that the defendants' conclusory assertions that the request for documents that were obtained by or provided to the police is unduly burdensome and overbroad do not constitute good cause for which to grant the motion for protective order.
The above reasoning is also applicable to the defendants' motion for protective order with respect to item number six on schedule A of Benjamin Cadley's notice of deposition because the request is identical to that made of Aisling Cadley.
Item Number Two in Schedule A of the Notice of Deposition of Benjamin Cadley
Item number two on schedule A of the notice of deposition of Benjamin Cadley requests that the defendant produce "[a] copy of the forensic report from Emeri/Emma Cadley at Yale University." In their brief, the defendants raise the following arguments: 1) the request is irrelevant and is not material to the plaintiffs' action, 2) the request is for documents privileged under General Statutes §§ 52-146k and 52-146o, 3) the request is unduly burdensome and has a tendency to harass and embarrass, 4) the request violates the Health Insurance Portability and Accountability Act, 42 U.S.C. § 1320d et seq., and 5) the forensic report "is subject to the attorneys' work product doctrine and is not discoverable." In response, the plaintiffs assert that the production of the forensic report will lead to further evidence that the accusations of the plaintiffs' sexual misconduct were fabricated.
The defendants' first four arguments are incorporated by reference to arguments already raised in their objection to the plaintiffs' request for medical and counseling records because those same records "were used to compile the report requested here, and the same information will be contained in the forensic report." The court denies the motion on those grounds for the same reasons already discussed in the section on medical and counseling records, supra. The defendants have not shown good cause for the court to bar discovery as to the medical and counseling records. The defendants' last argument is that the forensic report is protected by the attorney work product doctrine because the term "forensic" means "pertaining to, connected with, or used in courts of law or public discussion and debate," and because Practice Book § 13-3(a) provides absolute protection from the disclosure mental impressions, conclusions, opinions or legal theories of an attorney or representative of a party concerning litigation.
Practice Book § 13-3(a) addresses the attorney work product doctrine. Work product includes "documents . . . prepared in anticipation of litigation or for trial" and encompasses material prepared "by or for" another party or that other party's representative. See § 13-3(a); Onebeacon v. Ironshore Holdings, Superior Court, complex litigation docket at Hartford, Docket No. X04 CV 08 5019642 (January 27, 2009, Shapiro, J.) [ 47 Conn. L. Rptr. 129].
Practice Book § 13-3(a) provides: "Subject to the provisions of Section 13-4, a party may obtain discovery of documents and tangible things otherwise discoverable under Section 13-2 and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the judicial authority shall not order disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation."
"Work product can be defined as the result of an attorney's activities when those activities have been conducted with a view to pending or anticipated litigation." (Internal quotation marks omitted.) Ullmann v. State, 230 Conn. 698, 714, 647 A.2d 324 (1994). "Courts have . . . looked at the temporal proximity of litigation and the likelihood of litigation to decide if materials were prepared in anticipation of litigation." North American Philips v. Aetna Casualty and Surety Co., Superior Court, judicial district of New Britain, Docket No. CV 91 0395790 (June 10, 1993, O'Neill, J.) [ 9 Conn. L. Rptr. 230]. "[The] lack of involvement of counsel is also dispositive . . . The attorney's work must have formed an essential step in the procurement of the data which the opponent seeks, and the attorney must have performed duties normally attended to by attorneys." (Citation omitted.) Stanley Works v. New Britain Redevelopment Agency, 155 Conn. 86, 95, 230 A.2d 9 (1967).
"The burden of establishing that the information sought constitutes work product is upon the party asserting such a claim . . ." Matos v. Allstate Insurance Co., Superior Court, complex litigation docket at Stamford, Docket No. X08 CV 05 5002298 (December 3, 2008, Jennings, J.) [ 46 Conn. L. Rptr. 771]. In the present case the defendants have not provided any affidavits or evidence from which the court can discern when the forensic report was created, when litigation was anticipated, or to what extent there was any attorney involvement. The defendants' motion for protective order with respect to the forensic report is, therefore, denied.