Opinion
FSTCV166028203S
08-10-2016
Christopher O'Neil v. LT of Stamford, LLC dba Tracks Bar & Restaurant et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION FOR ORDER OF PRODUCTION
Donna Nelson Heller, J.
Before the court is the motion of the defendants LT of Stamford, LLC, d/b/a Tracks Bar & Restaurant, and James Duggan for an order requiring the Records Division of the Stamford Police Department to produce the department's file relating to an April 19, 2014 incident that occurred at Tracks Restaurant in Stamford, Connecticut (#104.00). In their motion, the defendants represent that several people were arrested as a result of the incident and the police conducted an investigation. On July 1, 2014, the court entered nolles on all of the charges against the persons who had been arrested.
The co-defendant Richard Terenzio, Jr. does not join in the motion. For purposes of this memorandum of decision, the term " defendants" shall mean the defendants LT of Stamford, LLC, d/b/a Tracks Bar & Restaurant, and James Duggan, unless otherwise indicated.
The defendants served a notice of deposition and a subpoena duces tecum on the Stamford Police Department, Records Division, seeking production of the department's file at the deposition of the keeper of records, Sergeant John Scalise, on July 29, 2016. The department has declined to produce the file because the records were erased pursuant to General Statutes § 54-142a(c)(1), which provides in pertinent part that " [w]henever any charge in a criminal case has been nolled in the Superior Court, . . . if at least thirteen months have elapsed since such nolle, all police and court records and records of the states or prosecuting attorney or the prosecuting grand juror pertaining to such charge shall be erased . . ." § 54-142a(c)(1). Subsection (e) of § 54-142a further provides that " [t]he clerk of the court or any person charged with retention and control of such records in the records center of the Judicial Department or any law enforcement agency having information contained in such erased records shall not disclose to anyone, except the subject of the record, . . . information pertaining to any charge erased under any provision of this section and such clerk or person charged with the retention and control of such records shall forward a notice of such erasure to any law enforcement agency to which he knows information concerning the arrest has been disseminated and such disseminated information shall be erased from the records of such law enforcement agency. Such clerk or such person, as the case may be, shall provide adequate security measures to safeguard against unauthorized access to or dissemination of such records or upon the request of the accused cause the actual physical destruction of such records, except that such clerk or such person shall not cause the actual physical destruction of such records until three years have elapsed from the date of the final disposition of the criminal case to which such records pertain." General Statutes § 54-142a(e)(1).
" On its face, [General Statutes § ]54-142a(a) limits the police records which are erased to those 'pertaining to' a criminal 'charge.' The statute does not 'erase' records pertaining to the performance of customary community caretaking functions or, indeed, all records pertaining to a criminal investigation. The statute by its plain language does not extend to police records which existed prior to a criminal 'charge.'" Penfield v. Venuti, 93 F.R.D. 364, 367-68 (D.Conn. 1981). " Our courts have held that the term 'records' in the Erasure Act does not include evidence obtained by the police in the course of an investigation, nor does it preclude the testimony of witnesses as to their personal recollection of events." (Citations omitted.) Boyles v. Preston, 68 Conn.App. 596, 609-10, 792 A.2d 878 (2002). In Penfield, the federal court construed the Erasure Act to determine the extent to which records " erased" under the statute were discoverable in civil litigation after the charges against a defendant were dismissed. The court held that records compiled or material collected routinely by police officers could be the subject of discovery in a subsequent civil action even if criminal charges arising from the incident were prosecuted unsuccessfully. As the court observed, " [i]f the courts were to . . . preclude the use in civil litigation of any and all material collected or records compiled by police officers in cases that prompt an unsuccessful criminal prosecution[, ] the conduct of civil cases arising out of many serious incidents could be hopelessly crippled. [General Statutes § 54-142a] on its face does not require that the records and testimony of police officers otherwise available in civil litigation be placed beyond the reach of litigants simply because a prosecutor decides that the conduct of a particular person was not serious enough to warrant prosecution and the charges against the person ultimately are dismissed." Id. at 368. The court concluded that " Connecticut's criminal records erasure statute does not prevent access to such evidence in a civil action merely because the police retrieved physical evidence before private parties could do so; because the police thereafter submitted reports on the incident; and because prosecutors thereupon commenced criminal proceedings (ultimately unsuccessful) against the person who happens to be a defendant in the civil action." Id. at 369.
The defendants in this case are seeking access to the department's records to determine whether they have grounds to file apportionment complaints against any other participants in the April 19, 2014 incident. The Erasure Act does not bar such discovery; indeed, the language of the statute that precludes the " actual physical destruction of such records until three years have elapsed from the date of the final disposition of the criminal case to which such records pertain"; General Statutes § 54-142a(e)(1); supports the conclusion that such records may properly be the subject of discovery in subsequent civil litigation.
Accordingly, the motion for order of production (#104.00) is hereby GRANTED. The Stamford Police Department, Records Division, shall produce to counsel for the defendants LT of Stamford, LLC, d/b/a Tracks Bar & Restaurant, and James Duggan all witness statements, party statements, incident reports, video recordings, physical evidence, and records that were collected, compiled, obtained or created in connection with the department's investigation of the April 19, 2014 incident on or before August 19, 2016. The documents shall also be made available to counsel for the plaintiff and the co-defendant Richard Terenzio, Jr. at that time.
BY THE COURT
HELLER, J.