Opinion
No. HHD X04 CV-5015994 S
July 10, 2008
MEMORANDUM OF DECISION ON MOTION TO PRECLUDE AND FOR SANCTIONS AND COSTS (#204)
After consideration, the court issues this memorandum of decision concerning the plaintiffs' motion to preclude Attorney Madonna Sacco from defending depositions in this medical malpractice action and for financial sanctions and costs, dated March 31, 2008. The defendants submitted an objection (#246), dated May 13, 2008.
For ease of reference, the court refers to Attorney Sacco as "defense counsel."
The court held a hearing on the plaintiffs' motion on June 3, 2008, at which counsel presented oral argument. In addition, pursuant to a briefing schedule, the parties presented supplemental submissions, the last of which was dated June 19, 2008, which the court also has considered.
The plaintiffs contend that defense counsel repeatedly engaged in witness-coaching and deliberate obstructive conduct at three depositions taken in this case. In response, the defendants argue that defense counsel defended her clients appropriately and within the rules of practice.
I Deposition Conduct
"In order for a trial court's order of sanctions for violation of a discovery order to withstand scrutiny, three requirements must be met. First, the order to be complied with must be reasonably clear . . . Second, the record must establish that the order was in fact violated . . . Third, the sanction imposed must be proportional to the violation." (Internal quotation marks omitted.) Wexler v. DeMaio, 280 Conn. 168, 179, 905 A.2d 1196 (2006).
Similar requirements apply when considering an order of sanctions for violation of the rules of practice concerning discovery. "Our rules of CT Page 11509 practice lack specific remedies for violations of the deposition rules set forth therein . . . Before sanctions can be imposed, three conditions must be met. First, the rule which was purportedly breached must be reasonably clear; second, the rule must have been violated; and third, the sanctions imposed must be proportional to the violation committed." (Citation omitted; internal quotation marks omitted.) E.D.H, Inc. v. Cole, Superior Court, judicial district of Tolland, Complex Litigation Docket at Tolland, Docket No. X07 CV 02 0081527 (July 24, 2003, Sferrazza, J.) (citing Millbrook Owners Association, Inc. v. Hamilton Standard, 257 Conn. 1, 17-18, 776 A.2d 1115 (2001).
The rules under which discovery may obtained by deposition are clear. "The giving of notice for a deposition constitutes an order to the deponent to appear and submit to examination." Hagbourne v. Campbell, Superior Court, judicial district of Waterbury, Docket No CV 96 0132593 (December 12, 1997, Vertefeuille, J.) (21 Conn. L. Rptr. 121) (motion for sanctions as to same defense counsel for improper deposition conduct). As our Supreme Court reiterated in Cahn v. Cahn, 225 Conn. 666, 672, 626 A.2d 296 (1993), "[a]ll questions, including those objected to, are to be answered . . . unless the objecting party procures from the court a protective order precluding or limiting the scope or disclosure of discovery." (Internal quotation marks omitted.)
Concerning deposition procedure, Practice Book § 13-30(a) provides, in relevant part, that "[e]xamination and cross-examination of deponents may proceed as permitted at trial." "Counsel at deposition cannot act unprofessionally or interrupt or use speaking objections or testify for a witness." Fletcher v. PGT Trucking, Inc., Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 96 00547653 (October 2, 1998, Flynn, J.). Coaching the witness through speaking objections at a deposition is to be discouraged. See Kern v. Gwiazda, Superior Court, judicial district of Hartford at Hartford, Docket No. CV 01 0811373 (February 10, 2003, Beach, J.).
Practice Book § 13-30(b) provides, in relevant part, "[e]vidence objected to shall be taken subject to the objections. Any objection during a deposition must be stated concisely and in a non-argumentative manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation directed by the court, or to present a motion under subsection (c) of this section."
Subsection (c) states, in relevant part, "[a]t any time during the taking of the deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending may order the officer conducting the examination forthwith to cease taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in Section 13-5."
Section 13-30(b), quoted above, does not define either the tern "concisely" or the term "nonargumentative." The defendants assert that sanctions are not warranted here because this rule is "clearly ambiguous as it pertains to this matter . . ." See defendants' objection, p. 33. The court is unpersuaded that this applicable rule of practice is ambiguous.
The defendants argue that § 13-30(b)'s language allows for an interpretation of what is considered "concisely" and "nonargumentative," see defendants' objection, p. 33, and that "when and how long an objection should or should not be is wholly dependent upon the question posed, the situation at the time of the objection, counsel in attendance and the colloquy surrounding said objection." See defendants' objection, pp. 33-34. The defendants offer no support for the inexplicable assertion that determining whether an objection is concise and nonargumentative depends on which individual counsel are present when an objection is interposed.
Where the rules of practice do not define a term, it is appropriate to utilize the dictionary definition to ascertain its meaning. See State v. Tutson, 278 Conn. 715, 732, 899 A.2d 598 (2006) (construing the term "alibi" as used in Practice Book §§ 40-21 through 40-25). "When a term is not statutorily defined, we look to the commonly approved meaning of the word as defined in the dictionary." Id. In order to so, the Supreme Court has looked to Webster's Third New International Dictionary (Webster's). See id.
Webster's, page 471, defines "concisely" as: "in a concise manner." "Concise" is defined as "marked by brevity in expression or by compact statement without elaboration or superfluous detail . . . accomplished in little time . . ." Webster's, p. 471. The term "succinct" is listed therein as a synonym for "concise."
While there is no definition in Webster's for "nonargumentative," it obviously means that an objection must be stated in a way that is not argumentative. Webster's, page 117, in the closest relevant definition, defines "argumentative" as "consisting of or characterized by argument: containing a process of reasoning: controversial." Thus, a non-argumentative objection must lack such characteristics. There is no ambiguity.
In addition, § 13-30(b) must be read together with Practice Book § 13-31(c)(3)(B), which provides, "[e]rrors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties, and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless seasonable objection thereto is made at the taking of the deposition." Thus, to preserve an objection to the form of a question, all an attorney has to do is, concisely, and in a non-argumentative manner, state that she objects to the form of the question. Simply stating, "Objection to the form of the question," is usually sufficient.
With those definitions and rules in mind, the court reviewed the three depositions cited by the parties. Certain of the specific examples from the deposition transcripts which the plaintiffs claim are evidence of witness coaching by defense counsel clearly violate the requirement that objections must be concise and non-argumentative. In these, defense counsel's remarks either went well beyond making an objection as to the form of the question or simply were improper comments. In addition, as to these, no question of privilege was at issue. Various instances show that defense counsel's comments suggested answers to the witness and communicated warnings to the witness about what to say or not to say. These amount to coaching the witness in violation of Practice Book § 13-30(b). These examples are discussed below.
In the January 22, 2007 deposition of non-party witness Mitchell H. Driesman, who was represented there by his own counsel, not defense counsel, at pages 82-83, the following was stated:
Q. [by plaintiffs' counsel]: And how would gaining access cause a branch of the femoral artery to be sheared off? What mechanically would have to happen?
In the interest of brevity, certain references in the transcripts made by the court reporter are omitted. References to "A." are to answers by the witness who was being deposed.
[Defense Counsel]: I am going to object. This is completely hypothetical. Are we talking about in this case, under a particular set of circumstances?
[Plaintiffs' counsel]: In the process of gaining access to a femoral artery.
[Defense counsel]: I just think that is beyond what — Dr. Driesman didn't perform that part of the procedure. He wasn't there when that part of the procedure was performed.
[Dr. Driesman's counsel]: Can I have the question read back, please? (Question read.)
[Dr. Driesman's counsel]: If you understand, you can answer the question.
By her interjection of her statement of evidence, that Dr. Driesman did not perform that part of the procedure and was not present when it was performed, defense counsel was, even though he was not her client, suggesting to the witness what she wanted him to say in response to plaintiffs' counsel's question.
The defendants argue that defense counsel's objections were placed on the record when the line of questioning turned to issues on which she thought a protective order was needed. "If improper, bad faith, or oppressive questions are asked during a deposition, the procedure is for counsel to immediately contact a Superior Court Judge for a ruling, Practice Book 247(c) [now § 13-30(c)] . . ." Goenne v. Aetna Life Casualty Co., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 92 051106 (February 28, 1994, Corradino, J.) (9 CSCR 272) [11 Conn. L. Rptr. 149].
Following the deposition of Dr. Driesman, plaintiffs' counsel sent a letter to defense counsel, dated March 5, 2007. Therein, he advised her that, in his view, she had engaged in sanctionable behavior at that deposition. He stated that if such behavior recurred, he would move for sanctions.
In the deposition of Dr. Bangalore Deepak, another non-party witness, but represented by defense counsel, which occurred on February 4, 2008, other witness coaching occurred. When asked by plaintiffs' counsel whether he considered certain conditions to be signs and symptoms of retroperitoneal hematoma, defense counsel objected to the form of the question and added, "First of all, you need to give the witness the medical records. He hasn't seen them." Deepak deposition, p. 48. Plaintiffs' counsel stated that he was seeking the witness' recollection and stated that if the witness did not recall Mr. Faile's treatment or condition, he could say so. Deepak deposition, p. 48. Defense counsel then persisted, "We're not going to give him the medical record?" Deepak deposition, p. 49. Then, defense counsel further stated, "I think it's common usage in medical malpractice cases to have the medical records given to the deponent but —" Deepak deposition, p. 49. Thus, defense counsel three times raised her view of the need for the witness to see the medical record in order to testify.
At page 71, the following was stated:
"Q. [Plaintiffs' counsel]: If you had been involved in Mr. Faile's [the decedent] care on March 22, would you expect there to be an entry in the chart?
[Defense Counsel]: Objection to the form of the question. Just to remind you, we don't know if this is the whole chart." Going beyond the first sentence of the objection to provide a reminder was improper.
At page 77, the following was stated:
"Q. [Plaintiffs' counsel]: Would there have been also an attending cardiologist likewise on call?
A. Yes.
Q. [Plaintiffs' counsel]: Was that Dr. Zarich that day?
A. Yes.
[Defense Counsel]: Do you know that? Be careful of that because I don't think he was on call that day, but I could be wrong." By this interjection, defense counsel also coached the witness. Her question to the witness when opposing counsel was examining him was improper, as was her comment about what she thought the evidence showed.
At page 97, the following was stated:
"Q. [Plaintiffs' counsel]: What technique do you use most often?
[Defense Counsel]: Objection. He says it depends on the patient, the body habitus. If you give him the body habitus and the patient maybe he can answer the question.
[Plaintiffs counsel]: Tell me what does it depend on the body habitus?" The fact that plaintiffs' counsel changed his question after defense counsel's objection does not undo the fact that defense counsel improperly interjected a comment about the evidence.
At pages 206-07, the following was stated:
CT Page 11515
"Q. [Plaintiffs' counsel]: So if a CAT scan demonstrates two hours after the stick that there's an active brisk arterial bleed, that's not an indication that it's continuing and not stopping on its own?
A. I can't comment on this but I don't know if a CAT scan can tell you there is a continuous brisk bleed.
[Defense Counsel]: Where does it say there's a brisk bleed?
A. It's only suggesting. They cannot be certain.
[Defense Counsel]: Would you just point that out —
[Plaintiffs' counsel]: I don't have it in front of me. [Defense Counsel]: I'm looking at Bates stamp 1672.
Q. [Plaintiffs' counsel]: `There are multiple foci of dense contrast within the hematoma suggesting brisk active hemorrhage.'
[Defense Counsel]: But that doesn't say that there's an active bleed." This last remark by defense counsel is an example of making an inappropriate suggestion to the witness as to how to testify.
Coaching the witness also occurred at the deposition of defendant Dr. Stuart Zarich, which was taken on February 18, 2008, but not completed. At page 43, the following was stated:
Q. [Plaintiffs' counsel]: And on that date he went to the emergency room early in the morning, about three o'clock in the morning, is that correct?
[Defense Counsel]: Objection to the form of the question. A. I'm not sure what time it was.
[Defense Counsel]: You can ask to see anything that you need.
The Witness: Okay.
[Defense Counsel]: If you need to do that." Here, after he testified that he was not sure about some information, the suggestion by defense counset, in the midst of opposing counsel's examination, that the witness should ask to see something in order to testify, was improper.
At pages 50-51, the following was stated:
"Q. [Plaintiffs' counsel]: And were you aware that [the decedent] had had a fall while he was a CB in Vietnam?
A. Yes.
Q. [Plaintiffs' counsel]: And he had injured himself?
A. Well —
[Defense Counsel]: Objection to the form.
A. I knew he had the fall at that time and that's what I was postulating might have done this.
Q. [Plaintiffs' counsel]: And would the mechanism of injury be that he had bled inside his pericardium and that that bleed had clotted and calcified?
A. It set off a reaction that caused calcification, yes.
Q. [Plaintiffs' counsel]: That would have been something Mr. Faile had been living with from whenever his Vietnam service was until 2005?
[Defense Counsel]: Objection to the form of the question.
A. Not necessarily.
Q. [Plaintiffs' counsel]: From the time of his injury forward?
[Defense Counsel]: Objection to the form. I — I think this was a hypothesis." By interjecting `what she thought, defense counsel again made a suggestion to the witness, even though the witness previously used the word "postulating." Counsel's proper role in defending a deposition does not include prompting a witness, as an issue is explored by opposing counsel, in order to have the witness' testimony remain consistent.
A similar example of an improper interjection, by reminding the witness of what he said before, followed, at pages 146-47, where defense counsel added to her objection to the form of a question, concerning the documentation of the decedent's blood pressure, that, "It's a constant read out." This followed the witness' earlier statement that "[a]n arterial line displays a continuous output. I knew his blood pressure every minute."
Another example of defense counsel prompting the witness follows. At pages 72-73, the following was stated:
Q. [Plaintiffs' counsel]: This retroperitoneal space, Doctor, is that an actual gap inside the patient or is it just a place where blood can accumulate if it bleeds in there?
[Defense counsel]: Objection to the form of the question.
A. It's a potential space.
Q. [Plaintiffs' counsel]: So do I understand that it's — it can fill but normally it's — there's no space there?
[Defense counsel]: Objection to the form of the question. A. I'm not quite certain how much of a space.
Q. [Plaintiffs' counsel]: Withdrawn. What do you mean by a "potential space," Doctor?
[Defense counsel]: Objection to the form of the question. If you can't answer —
A. I can't. I probably misspoke. It —
CT Page 11518
[Defense counsel]: You didn't say it. The questioner said it.
A. No, I said potential space.
Adding the advice to the witness of "If you can't answer," after her objection to the form of the question, is another example of improperly coaching the witness. Defense counsel then made an additional, similarly improper comment to the witness, when she interjected incorrectly that the witness had not made the statement, plaintiffs' counsel had done so.
At page 93, the following was stated:
Q. [Plaintiffs' counsel]: Well, let's talk about Mr. Faile. Was it necessary first to anticoagulate Mr. Faile?
[Defense Counsel]: I'm sorry, I'm just going to object to the form. Was it necessary because of Mr. Faile's specifics to anticoagulum or — The doctor's already testified that Lovenox is given under —
[Plaintiffs' counsel]: I'm aware of what the doctor's testimony is and I'm going to ask him about coagulation.
Reminding the witness of his previous testimony is not properly part of an objection.
Another example of defense counsel's interjection of a reminder about evidence follows. At pages 102-03, the following was stated:
"Q. [Plaintiffs' counsel]: You told us this morning that you spoke with Mr. Faile before the procedure and explained it to him; is that correct?
A. Correct.
Q. [Plaintiffs' counsel]: And did you give him an estimate of when he was likely to go home?
[Defense Counsel]: Objection to the form.
A. I'm not sure.
Q. [Plaintiffs' counsel]: Did you tell him whether he would be admitted overnight following the procedure?
A. I'm not sure exactly what I told him at the time.
Q. [Plaintiffs' counsel]: What was your practice back then, when you had patients come in for catheterization as to how long they would be in the hospital?
[Defense Counsel]: Objection to the form. And Mr. Faile didn't come in for a catheterization.
[Plaintiffs' counsel]: I'm aware of that." Adding defense counsel's comment about evidence, concerning why Mr. Faile had come to the hospital, was a reminder to the witness, not a proper part of an objection to the form of the question. If defense counsel thought that the change of subject, from a question pertaining to Mr. Faile, to a question about the witness' general practice, had confused the witness or the record, her opportunity for cross-examination provided an avenue by which, through questioning, the record could be clarified.
Likewise, defense counsel's interjection of a comment, after plaintiffs' counsel's question about whether Dr. Driesman documented that the decedent's blood pressure was in the 80's when he left the catheterization lab, suggesting that "maybe" Dr. Driesman's entry in his report was wrong, was improper. See deposition, pp. 151-52. Defense counsel's comment suggested how the witness should testify. At that juncture, since defense counsel stated that she thought that plaintiffs' counsel was intentionally misleading the witness, her remedy was to immediately seek relief from the court, as provided in Practice Book § 13-30(c). See Goenne v. Aetna Life Casualty Co., supra, Docket No. CV 92 051106 (February 28, 1994, Corradino, J.). The transcript contains an extensive colloquy on this subject at pages 151-58; it does not reflect that either side attempted to contact the court at the time.
Finally, another example follows. At pages 193-194, the following was stated:
CT Page 11520
Q. [Plaintiffs' counsel]: Were there surgeons in house at Bridgeport Hospital on the night of the 26th?
A. Yes —
[Defense Counsel]: Objection.
THE WITNESS: Sorry.
[Defense Counsel]: Surgeons or vascular surgeons?
[Plaintiffs' counsel]: Surgeons. There was nothing unclear about the question, which the witness began to answer before the objection was interposed. By suggesting that the questioner might have meant "vascular surgeons" when he said "surgeons," defense counsel was improperly providing a suggestion to the witness.
In their motion, the plaintiffs also assert that defense counsel engaged in obstructionism, including instructing witnesses not to answer legitimate questions and interposing herself into the examination to block effective interrogation. As to instructing witnesses not to answer, the plaintiffs first cite an example from Dr. Deepak's deposition, where defense counsel objected, based on attorney-client privilege, to a question concerning when Dr. Deepak met with his attorney. The defendants point out that, during the deposition of plaintiff Justine Faile, plaintiffs' counsel also made privilege objections and instructed his client not to answer.
The parties are not seeking an order to require that such questions be answered. As noted above, Practice Book § 13-30(b) provides that "[a] person may instruct a deponent not to answer only when necessary to preserve a privilege . . ." There is no indication that such privilege objections were presented in bad faith. "The procedure contemplated by our practice is simply to preserve the record and to move on, with the understanding that the issue can then be presented to the court as to whether the question(s) should be answered . . ." (Footnote omitted.) Kern v. Gwiazda, supra, Docket No. CV 01 0811373 (February 10, 2003, Beach, J.). As general matter, the court notes that an inquiry as to when an attorney met with her client is not an invasion of the attorney-client privilege. See Ullmann v. State, 230 Conn. 698, 712, 647 A.2d 324 (1994).
As to other examples cited by the plaintiffs, in their motion, at pages 5, 6-8, of instructions by defense counsel that questions were not to be answered, the instructions were unwarranted by the rules of practice, since no claim of privilege was asserted. As stated above, if improper, bad faith, or oppressive questions are asked during a deposition, the procedure is for counsel to immediately contact the court for a ruling. See Goenne v. Aetna Life Casualty Co., supra, Docket No. CV 92 051106 (February 28, 1994, Corradino, J.).
In other examples cited by the plaintiffs, counsel disagreed as to how the deposition should be conducted and extensive colloquies ensued. At times, questions were rephrased and at times the questioner moved on. The extensive colloquies were created through the statements, on the record, by both plaintiffs' counsel and defense counsel. The court concludes that defense counsel was not solely responsible for burdening the record with these lengthy disputes.
However, one instance from these recurring disputes must be noted, since defense counsel made inappropriate, ad hominem comments concerning plaintiffs' counsel, on the record, and in the presence of a witness, Dr. Deepak. First, after she stated that opposing counsel was misrepresenting testimony to the witness and engaging in a trick, she then stated that she was not accusing plaintiffs' counsel of trying to trick the witness. She stated, "[I]t's not an accusation, it's what opposing counsel does. That's why we're here today." See Deepak deposition, pp. 190-91. Defense counsel later continued, "It's the nature of our business. You're trying to extract money from my client and you can only do so if you get witnesses to self-incriminate or blame others." Deepak Deposition, p. 191. When plaintiffs' counsel stated that making such statements in front of Dr. Deepak was inappropriate, defense counsel responded, "Isn't that what you're doing though?" Deepak deposition, p. 191. After plaintiffs' counsel stated that, "no," he was not engaged in extracting money, defense counsel then responded, "Are you withdrawing your claim for monetary damages?" Deepak deposition, p. 192.
Remarks at a deposition, to the effect that opposing counsel routinely engages in tricking witnesses in order to extract money, are "inappropriate, undignified, and degrading to the process." State v. McCarthy, 105 Conn.App. 596, 633, 636, 939 A.2d 1195, cert. denied, 286 Conn. 913, 944 A.2d 983 (2008) (concerning remarks in which defendant's investigators were referred to as "jokers.") Rather than make such comments, as the court has stated above, if counsel believes that an examination is being conducted in violation of the rules of practice, the court may grant relief in response to a motion seeking the same or in response to an oral request in the midst of the deposition.
In summary, the court concludes that the applicable rules of practice are clear and that the record establishes that they were in fact violated by defense counsel. Defense counsel failed to conform her conduct during the deposition to the requirements of Practice Book § 13-30(b). Accordingly, sanctions are warranted. Next, the court considers sanctions to be imposed which are proportional to the violations.
The court makes no findings concerning the form of questions as to which objections were made.
II Relief
"The trial court has the authority to regulate the conduct of attorneys and has a duty to enforce the standards of conduct regarding attorneys." (Internal quotation marks omitted.) Bergeron v. Mackler, 225 Conn. 391, 397, 623 A.2d 489 (1993).
"[T]he trial court has broad discretion to fashion and impose sanctions for failure to comply with the rules of discovery . . ." (Citations omitted.) Northeast Savings, F.A. v. Plymouth Commons Realty Corp., 229 Conn. 634, 638, 642 A.2d 1194 (1994).
A Preclusion
The plaintiffs seek to preclude defense counsel from defending depositions. In effect, the motion seeks to partially disqualify defense counsel from representing the defendants in this case. "[D]isqualification is both harsh and draconian, and . . . the movants have a heavy burden to show clearly that disqualification is warranted . . ." Chapman v. Norfolk Dedham Mutual Fire Insurance Co., Superior Court, judicial district of New London at New London, Docket No. 51 3098 (December 15, 1992, Teller, J.).
"In disqualification matters . . . we must be solicitous of a client's right freely to choose his counsel . . ." (Internal quotation marks omitted.) Bergeron v. Mackler, supra, 225 Conn. 397-98. "The standards for attorney disqualification may not be used to restrict an individual's ability to select counsel of choice on the basis of nothing more than a litigant's subjective perception that another litigant is influencing the proceedings." Bergeron v. Mackler, supra, 225 Conn. 400.
Disqualification of an attorney from representing a client in a particular case may be warranted after an attempt by the attorney to subvert the discovery process. See Briggs v. McWeeny, 260 Conn. 296, 336, 796 A.2d 516 (2002). The plaintiffs' presentation cites no authority for the proposition that an attorney should be partially disqualified from representing her clients, by precluding her from defending depositions during the course of litigation. The court is aware of none.
While, as discussed, sanctions for defense counsel's conduct at depositions are warranted, the plaintiffs have not met the heavy burden of showing that she ought to be partially disqualified from representing her clients in this matter. Accordingly, the plaintiffs' motion to preclude is denied.
B Sanctions
As discussed above, the court has found that defense counsel failed to conform her conduct during the deposition to the requirements of Practice Book § 13-30(b). Pursuant to Practice Book § 13-14(a), the court has the discretion to "make such order as the ends of justice require" for the failure to appear and testify at a deposition duly noticed.
"[A] court may, either under its inherent power to impose sanctions in order to compel observance of its rules and orders, or under the provisions of § 13-14, impose sanctions . . ." Millbrook Owners Association, Inc. v. Hamilton Standard, supra, 257 Conn. 14. "The decision to enter sanctions . . . and, if so, what sanction or sanctions to impose, is a matter within the sound discretion of the trial court." (Internal quotation marks omitted.) Evans v. General Motors Corp., 277 Conn. 496, 523, 893 A.2d 371 (2006).
Practice Book § 13-14(b)(2) provides that the court's orders may include "[t]he award to the discovering party of the costs of the motion, including a reasonable attorneys fee." An award of the opposing party's attorneys fees has been found to be an appropriate sanction for improper deposition conduct. Hagbourne v. Campbell, supra, Docket No. CV 96 0132593 (December 12, 1997) (Vertefeuille, J.) (21 Conn. L. Rptr. 121).
In considering sanctions, the court notes that defense counsel previously has been the subject of four rulings, by four Superior Court judges, concerning her conduct during depositions. In Haghourne v. Campbell, supra, Docket No CV 96 0132593 (December 12, 1997, Vertefruille, J.) (21 Conn. L. Rptr. 121), the court found that defense counsel had acted improperly, in ways strikingly similar to those outlined in the court's findings here, which are discussed above. "She also objected repeatedly to questions based on the form of the question, which is proper, but then she improperly expounded on the objection, often in a way which may have suggested answers to the deponent . . ." Id. The court also noted that "[s]he responded in quarrelsome fashion to questions put to the deponent . . ." Id. The court found that "[i]t is obvious from a review of the deposition transcript that the objections of counsel . . . were not succinct. Moreover, the frequent interruptions made by defense counsel were improper, argumentative and time-consuming, with the result that the plaintiff did not have a proper and orderly deposition . . ." Id.
In ordering defense counsel to pay attorneys fees, the court stated, "The court finds no merit to any of her contentions, including the claim that her conduct was proper . . . A sanctions order against an attorney has both a compensatory and a deterrent purpose . . . The court's objective is to compensate a party for expenses incurred as a result of wrongful conduct as well as to deter any further instances of such misconduct." Id.
Subsequently, in Babcock v. Bridgeport Hospital, Inc., Superior Court, Complex Litigation Docket at Waterbury, Docket No. X01 CV 98 0150693 (November 15, 2000, Hodgson, J.), the court awarded attorneys fees to the plaintiffs, as compensation for the costs of preparing the parts of the motion upon which they prevailed and for repeating the inquiry which was improperly impeded by defense counsel. Again, the conduct there by defense counsel bears a striking similarity to that discussed above. The court stated, "[a]fter reviewing the pages of the deposition transcript at issue, the court finds that defense counsel on several occasion[s] inappropriately made comments that may have had the tendency to suggest answers to [the witness]." Id. The court also stated that "the conduct described above improperly obstructed the deposition, imposed expense and delay, and warrants the imposition of sanctions." Id. Included in the court's orders were that, at the resumed deposition, "defense counsel shall not suggest answers, make comments about the facts of the case, or make speeches about the propriety of questions . . ." Id.
In a third case, according to a December 1, 2003 transcript in Viscount v. Berger, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 01 0074852, the court (Robinson-Thomas, J.) ruled from the bench. Although the court determined that sanctions directly against defense counsel were not appropriate, reasonable attorneys fees for having pursued the motion were awarded, to be paid by defense counsel's office, not by her clients. Again, similar conduct was the subject of the court's orders concerning the reconvening of the subject deposition. Included were that objections to form that go on to state other issues are not appropriate. The court also stated that "there should be no characterizations of testimony at all by Counsel. The witness should be allowed to answer without being coached as to what the answer should be and without having characterizations made as to what the testimony was or what it was not. If there's a concern about repetitious answers, I think it's appropriate to put that on the record, but then the answer must be taken." See transcript, p. 14 of 20.
In Shannehan v. Aronow, Superior Court, Complex Litigation Docket at Waterbury, Docket No. X06 CV 03 0183642 (January 2, 2007, Stevens, J.), the court granted a motion to compel, as to areas in which defense counsel made repeated speaking objections and instructed the witness at a deposition not to answer, and ordered that the deposition be continued, limited to the lines of inquiry which were outlined in the motion. The request for sanctions was denied, except that the defendant was ordered to pay for the costs of the renoticed deposition, and the costs were ordered not to be recoverable in the event of a judgment in favor of the defendant.
The four previous decisions, from 1997 to 2007, show that sanctions have been ordered, based on defense counsel's deposition conduct. The court's findings in this case, concerning three depositions, represent the fifth such instance in which the Superior Court has addressed such issues and found the conduct to be sanctionable. Also, the conduct here recurred after plaintiffs' counsel's letter, which again put defense counsel on notice as to the issues.
In plaintiffs' counsel's affidavit, he states that his regularly hourly billing rate is $370.00 per hour, which the court finds to be reasonable. He also avers that he spent 12.8 hours in preparing the motion, which is reasonable also, for a total amount of $4,736.00. Since the court grants the motion only in part, one-half of that amount, $2,368.00, is awarded as attorneys fees.
This sum is to be paid by defense counsel, not by the defendants, within forty-five days. In the event that a judgment is entered for the defendants in this matter, this award shall not be recoverable as costs. The court declines to consider awarding an additional, multiplied amount, as suggested at oral argument, since such relief was not specifically requested in the plaintiffs' motion.
If similar misconduct occurs at future depositions, additional sanctions will be considered. At future depositions, defense counsel shall not suggest answers, make comments about the facts of the case, or make speeches about the propriety of questions. The defendants' request for an award of sanctions, based on plaintiffs' pursuit of this motion, is denied.
CONCLUSION
For the foregoing reasons, the plaintiffs' motion to preclude Attorney Madonna Sacco from defending depositions is denied and the plaintiffs' motion for financial sanctions and costs is granted, in part, as specified above. Defendants' request for an award of sanctions is denied.
It is so ordered.