Opinion
CV156055458S
02-03-2017
Cecilia J. Pfister et al. v. Madison Beach Hotel, LLC et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION MOTION TO QUASH (#175)
Robin L. Wilson, J.
I
STATEMENT OF CASE AND PROCEDURAL HISTORY
The plaintiffs, Cecilia J. Pfister, Margaret P. Carbajal, Katherine Spence (formerly Katherine Harvey), Schutt Realty, LLC c/o Norman Schutt, Emile J. Geisenheimer, Susan F. Geisenheimer, Henry L. Platt, Douglas J. Crowley and 33 MBW, LLC (collectively plaintiffs) commenced this action by service of writ, summons and complaint against the defendants, Madison Beach Hotel, LLC, Madison Beach Hotel of Florida, LLC (collectively MBH) and the town of Madison (town). The return date is July 14, 2015, and the case was returned to court on June 19, 2015. On May 23, 2016, the plaintiff, Schutt Realty, LLC withdrew from the action. On May 11, 2016, the plaintiffs filed a fourth amended complaint which is the operative complaint and alleges the following facts.
The plaintiffs are all owners of single-family residences in the vicinity of the Madison Beach Hotel in Madison, Connecticut. The defendant Madison Beach Hotel, LLC owns property situated at 86 and 88 West Wharf Road in Madison Connecticut, and defendant Madison Beach Hotel of Florida, LLC is the operating entity of the Madison Beach Hotel. The defendant town owns the grassy area located south of the Madison Beach Hotel building and on the west side of West Wharf Road in Madison, Connecticut known as the " grassy strip, " which is a public town park.
The defendants MBH at the above premises owned by it, have operated a hotel, restaurant, bar/lounge and banquet/conference center since at least the spring of 2012. The defendants MBH have utilized the grassy strip in the course of the operation of the MBH's hotel, restaurant, bar/lounge and banquet/conference center. In the course of said operation, the defendants MBH have permitted and/or caused the transmission of amplified sound and music thereby causing excessive noise to reach the plaintiffs' residence. During this period, and in the course of such operation, defendants MBH also have permitted and/or caused traffic congestion and the obstruction of private and public ways so as to interfere with the plaintiffs' and others' access to plaintiffs' residence. The defendants have used and continue to use unreasonably and unlawfully both their properties and the property owned by the defendant town. As a proximate result of the defendants MBH's activities, the plaintiffs have been unable to perform and enjoy normal recreational and social activities. The defendants MBH's interference with the plaintiffs' abilities to use and enjoy their property is substantial and unreasonable.
As a direct and proximate result of all of the above alleged activities of the defendants MBH, the plaintiffs have suffered diminution in the value of their property and have suffered medical problems, which include nervousness, anxiety and mental anguish. The acts complained of constitute a private nuisance and have proximately caused and will proximately cause the plaintiffs irreparable injury, harm and damage. Counts one through nine are as to each of the individual plaintiffs and allege a private nuisance against the defendants MBH. Count ten alleges that the defendants MBH's use of their properties and the grassy strip in the course of the operation of their hotel, restaurant, bar/lounge and banquet/conference center is subject to the terms and conditions of a variance application approved by the Zoning Board of Appeals on November 5, 2008, and that the acts alleged in counts one through nine violates the conditions of the variance. Complaints have been made to the defendants on multiple occasions about both the noise and the traffic congestion/obstruction of private and public ways. Notwithstanding notice of such violations, the defendant town has taken no action to enforce the terms and conditions of the variance because the Madison Town Planner, David Anderson and the Madison Zoning Enforcement Officer, John DeLaura, have claimed that the terms and conditions of the variance are unenforceable with respect to, inter alia, defendants MBH's use of the grassy strip. The plaintiffs allege that the terms and conditions of the variance are enforceable with respect to, inter alia, defendants MBH's use of the grassy strip and plaintiffs seek a declaratory judgment that the terms and conditions of the variance are enforceable. The plaintiffs seek declaratory relief pursuant to General Statutes § 52-29.
Count eleven alleges that pursuant to a lease agreement dated June 13, 2012, the defendant town leased to the defendants MBH the grassy strip. The defendants MBH's use of their properties and the grassy strip in the course of the operation of their hotel, restaurant, bar/lounge and banquet/conference center is subject to the terms and conditions of the variance. The defendants MBH utilized their property and grassy strip in the course of the operation of their hotel, restaurant, bar/lounge and banquet/conference center to, inter alia, host live music concerts regularly from May to September. These live music concerts result in the transmission of amplified sound and music thereby causing excessive noise that reach the plaintiffs' residences. In addition, these live music concerts cause traffic congestion and the obstruction of private and public ways so as to interfere with the plaintiffs' and others' access to plaintiffs' residences. In causing the excessive noise, traffic congestion and obstruction of private and public ways through the use of the grassy strip, defendants MBH have violated the terms and conditions of the variance. Complaints have been made to the defendants on multiple occasions about the noise and the traffic congestion/obstruction of private and public ways. As a proximate result of the aforementioned, the plaintiffs have been unable to perform and enjoy normal recreational and social activities of life on their properties and to use and fully enjoy their properties to the extent to which they could have but for said activities. The defendants MBH's interference with the abilities of the plaintiffs to use and enjoy their properties is substantial and unreasonable. The plaintiffs allege that they have suffered a diminution in the value of their properties and as a result of the noise they have suffered medical problems including but not limited to nervousness, anxiety and mental anguish. The plaintiffs allege that the acts described above constitute a private nuisance and have proximately caused and will proximately cause plaintiffs irreparable injury, harm and damage.
The plaintiffs further allege in count eleven that in leasing the grassy strip to the defendants MBH to be used in the operation of their hotel, restaurant, bar/lounge and banquet/conference center to, inter alia, host live music concerts, despite notice of the risk of imminent harm and the occurrence of harm to the plaintiffs, the defendant town has caused the resulting nuisance in violation of General Statutes § 52-557n(a)(1)c. Count twelve alleges negligence against the town pursuant to § 52-557n. The plaintiffs acknowledge that the enforcement of the conditions of the variance is a discretionary duty. However, they claim that the breach of the discretionary duty subjected the plaintiffs who are an identifiable class of victims, to the risk of imminent harm. Count thirteen alleges various violations of the zoning regulations of the town. The plaintiffs seek declaratory relief, injunctive relief as well as money damages.
Pursuant to Practice Book § § 13-26, 13-27, 13-28 and General Statutes § 52-148e, the defendants MBH noticed the deposition of the Madison Beach Preservation Association (MBPA), a nonparty, and issued a subpoena duces tecum for the production of certain records.
On August 29, 2016, the plaintiff, pursuant to Practice Book § § 13-28(e) and 52-148e moved to quash the subpoena on grounds that the subpoena is unreasonable, oppressive, burdensome, overbroad and violative of the MBPA's constitutional rights. The defendants objected to the plaintiffs' motion to quash on grounds that the plaintiffs lack standing, the documents sought are reasonably calculated to lead to discovery of admissible evidence, the plaintiffs' boilerplate objections lack any merit and disclosure of the documents does not run afoul of the MBPA's associational rights.
The court heard oral argument on the motion on November 7, 2016, at short calendar.
II
STANDARD OF REVIEW
" Our rules of practice provide guidelines to facilitate the discovery of information relevant to a pending suit." Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 139, 491 A.2d 389 (1985). " The discovery rules are designed to facilitate trial proceedings and to make a trial less a game of blindman's [bluff] and more a fair contest with the basic issues and facts disclosed to the fullest [practicable] extent." (Internal quotation marks omitted.) Vitone v. Waterbury Hospital, 88 Conn.App. 347, 357, 869 A.2d 672 (2005).
The scope of discovery is defined in Practice Book § 13-2 in relevant part as follows: " In any civil action where the judicial authority finds it reasonably probable that evidence outside the record will be required, a party may obtain in accordance with the provisions of this chapter discovery of information . . . material to the subject matter involved in the pending action, which [is] not privileged, whether the discovery or disclosure relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, and which [is] within the knowledge, possession or power of the . . . person to whom the discovery is addressed. Discovery shall be permitted if the disclosure sought would be of assistance in the prosecution or defense of the action and if it can be provided by the disclosing party or person with substantially greater facility than it could otherwise be obtained by the party seeking disclosure. It shall not be ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence . . ."
In Connecticut, the courts have " long recognized that the granting or denial of a discovery request rests in the sound discretion of the [trial] court . . ." (Internal quotation marks omitted.) Olson v. Accessory Controls & Equipment Corp., 254 Conn. 145, 156, 757 A.2d 14 (2004). " The court's discretion applies to decisions concerning whether the information is material [or] privileged . . . as stated in [§ 13-2]." Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 59-60, 459 A.2d 503 (1983). " That discretion is limited, however, by the provisions of the rules pertaining to discovery; Practice Book § § 217-21 [now § § 13-2 to 13-5] . . ." Id., 57-58.
As to depositions, Practice Book § 13-26 provides in relevant part: " [A]ny party who has appeared in a civil action . . . may, at any time after the commencement of the action . . . in accordance with the procedures set forth in this chapter, take the testimony of any person, including a party, by deposition upon oral examination. The attendance of witnesses may be compelled by subpoena as provided in Section 13-28. The attendance of a party deponent . . . may be compelled by notice to the named person or such person's attorney in accordance with the requirements of Section 13-27(a)." Regarding the production of documents at a deposition, Practice Book § 13-28(c) provides, in relevant part: " A subpoena issued for the taking of a deposition may command the person to whom it is directed to produce and permit inspection and copying of designated books, papers, documents or tangible things which constitute or contain matters within the scope of examination permitted by Sections 13-2 through 13-5 . . ."
Section 13-28 provides in relevant part:
Section 13-27(a) provides: " A party who desires to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. Such notice shall not be filed with the court, but shall be served upon each party or each party's attorney in accordance with Sections 10-12 through 10-17. The notice shall state the time and place for taking the deposition, the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify such person or the particular class or group to which he or she belongs and the manner of recording. If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced as set forth in the subpoena shall be attached to or included in the notice."
General Statutes § 52-148e, the statutory counterpart to § 13-28, also governs the issuance of subpoenas and provides in relevant part: " (b) The subpoena may command the person to whom it is directed to produce and permit inspection and copying of designated books, papers, documents or tangible things which are material to the cause of action or the defense of the party at whose request the subpoena was issued and within the possession or control of the person to be examined. However, no subpoena may compel the production of matters which are privileged or otherwise protected by law from discovery." Subsection (c) provides: " Any person to whom a subpoena commanding production of books, papers, documents or tangible things has been directed may, within fifteen days after the service thereof or on or before the time specified in the subpoena for compliance if such time is less than fifteen days after service, serve upon the issuing authority designated in the subpoena written objection to inspection or copying of any or all of the designated materials. If objection is made, the party at whose request the subpoena was issued shall not be entitled to inspect and copy the disputed materials except pursuant to an order of the court in which the cause is pending. The party who requested the subpoena may, if objection has been made, move upon notice to the deponent for an order at any time before or during the taking of the deposition."
Subsection (d) governs the granting of motions to quash subpoenas and provides: " The court in which the cause is pending may, upon motion made promptly and in any event at or before the time for compliance specified in a subpoena authorized by subsection (b) of this section, (1) quash or modify the subpoena if it is unreasonable and oppressive or if it seeks the production of materials not subject to production under the provisions of subsection (b) of this section, or (2) condition denial of the motion upon the advancement by the party who requested the subpoena of the reasonable cost of producing the materials which he is seeking."
A motion to quash may be granted when a subpoena is " unreasonable and oppressive, " or " if it seeks the production of materials not subject to production" within the scope permitted by Practice Book § § 13-2 through 13-5. Practice Book § 13-28(c) and (e). Whether to grant a motion to quash is discretionary. Townsend v. Commissioner of Correction, 116 Conn.App. 663, 670, 672, 975 A.2d 1282, cert. denied, 293 Conn. 930, 980 A.2d 916 (2009). " Any request for information that does not directly relate to legitimate issues that may arise in the course of the criminal prosecution ought to be denied." (Internal quotation marks omitted.) State v. Erickson, 297 Conn. 164, 177, 997 A.2d 480 (2010). The court should be even more cautious in civil cases where a person's liberty is not at stake. See Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 58-60, 459 A.2d 503 (1983) (trial court has discretion to limit discovery in civil actions where the disclosure sought is outside the scope permitted by Practice Book § 13-2, including when it would not be of assistance in the prosecution or defense of the action, when it is immaterial or privileged, when it is not within the disclosing party's knowledge, possession or power, or when the requesting party is in an equal or better position to obtain the information on its own).
" The court . . . may, upon motion made promptly and in any event at or before the time for compliance specified in a subpoena authorized . . . quash or modify the subpoena if it is unreasonable and oppressive . . ." General Statutes § 52-148e(d). Thus, the test in determining whether the court should grant the witness' motion to quash, is whether the subpoena is " unreasonable and oppressive" . The court must also determine whether the information sought is outside the scope of § 13-2. Deprivation of a person's right of association is tantamount to his or her oppression. See Hopkins v. Oxley Stave Co., 83 F. 912, 929-30 (8th Cir. 1897) (Caldwell, J., dissenting).
III
STANDING
The defendants object to the motion to quash on grounds that the plaintiffs lack standing. The defendants argue that the subpoena directed at MBPA does not implicate the plaintiffs' legitimate interests, and the plaintiffs make no attempt to articulate identifiable individual interests that are implicated by the document requests. The defendants further argue that the plaintiffs lack any legitimate interest in asserting the claimed constitutional associational rights of the MBPA or its purported members. The plaintiffs reply that because at least three of them are members of the MBPA, whose associational rights are implicated by the defendants' discovery request, they have standing to move to quash the subpoena. The plaintiffs further argue that by claiming that the subpoena would infringe upon the rights of the MBPA and its members, of whom at least three are plaintiffs in the present action, to associate for purpose of seeking legal redress for infringement of their rights, they have sufficiently alleged a colorable claim of injury.
" Standing is an aspect of justiciability and, as such, the problem of standing is surrounded by the same complexities and vagaries that inhere in justiciability . . . The constitutional question of standing is complex and has received the attention of the courts as well as of many academicians . . . In order for a party to challenge the constitutionality of a statute or an action predicated thereon he must have standing. Standing focuses on whether that party is the proper party to request adjudication of the issues . . . A person cannot challenge the constitutionality of a statute unless he shows that he himself is injured by its operation . . . The emphasis is on whether the party has 'a personal stake in the outcome of the controversy' . . . and whether the dispute touches upon 'the legal relations of parties having adverse legal interests.' . . . The general rule is that a litigant may only assert his own constitutional rights or immunities . . . Where a right arising from the federal constitution is alleged, the most restrictive rule of standing to be applied by this court will be the federal one . . . Only members of a class whose constitutional rights are endangered by a statute may ask to have it declared unconstitutional . . . One who is not injured by the operation of a law cannot be said to be deprived by it of his constitutionally protected rights . . . Aside from the mere question of standing, if his attack is to be successful, a litigant must sustain the burden of proving the facts essential to his standing, that is, that the effect or impact of the challenged statute on him adversely affects a constitutionally protected right which he has. This means a right which he proves that he has under the facts of his particular case." (Citations omitted.) Shaskan v. Waltham Industries Corp., 168 Conn. 43, 48-50, 357 A.2d 472 (1975).
" Standing is established by showing that the party claiming it is authorized by statute to bring suit . . . or is classically aggrieved . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." (Citation omitted; emphasis in original; internal quotation marks omitted.) Portfolio Recovery Associates, LLC v. Healy, 158 Conn.App. 113, 116, 118 A.3d 637 (2015). " A party has standing to move to quash a subpoena addressed to another if the subpoena infringes upon the movant's legitimate interests." (Citations omitted; internal quotation marks omitted.) State v. DeCaro, 252 Conn. 229, 254, 745 A.2d 800 (2000). " It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute [an effective] restraint on freedom of association." National Assn. for the Advancement of Colored People v. Alabama, 357 U.S. 449, 462, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958).
In the present action, defendants MBH have issued a subpoena duces tecum on MBPA, a nonparty, ordering the production of the following documents: (i) " [c]opies of all communications concerning or related to [the present action]; " (ii) " [c]opies of any records, including notes or minutes, of any MBPA meetings held since the date of its incorporation; " (iii) " [c]opies of all press releases that the MBPA has created since the date of its incorporation; " (iv) " [c]opies of all advertising materials the MBPA has created since the date of its incorporation; " (v) " [c]opies of records identifying the MBPA's membership; " and (vi) " [c]opies of any documents concerning the MBPA's funding of the [present action]." (See Pl.'s Mot. Quash Ex. A, Docket Entry no. 175.) The plaintiffs have challenged the constitutionality of each of these document requests on the ground that they violate the plaintiffs' freedom of association. (See Pl.'s Mot. Quash at 3-4, Docket Entry no. 175.)
The MBPA was incorporated on August 4, 2014, as a Connecticut nonstock, nonmember, not for profit corporation. (Def. Obj., Ex. A, Docket Entry no. 181.). The nature of the activities to be conducted or the purposes to be promoted by the corporation are " [t]o enable a group of Madison Connecticut neighbors working together to preserve the character of the Madison shoreline." Id. MBPA has three directors. Id. While the plaintiffs acknowledge that MBPA is a nonstock, nonprofit, corporation with no persons having statutory corporate membership rights, the association includes " members" throughout Madison, Connecticut. The association's " membership" is described as a voluntary membership, to " monitor the behavior of the hotel . . . protection of the beachfront [and] to keep the peace and tranquility." (Def. Obj. Ex. B, Docket Entry no. 181.) At least three of the plaintiffs in the present action are members of the MBPA. (Pl.'s Reply Ex. B, Docket Entry no. 184.). In light of plaintiffs' membership in the association, there exists a possibility that the disclosure of member names may act to curtail membership in the MBPA and, thereby, infringe on the plaintiffs' constitutional right to freedom of association. Based on the foregoing authority, such possibility is sufficient to provide the plaintiffs with standing to bring the present motion to quash. Accordingly, the court overrules the defendants' objection on standing grounds.
IV
FREEDOM OF ASSOCIATION
A
State Action
The plaintiffs argue that all of the requests violate the plaintiffs' freedom of association. The defendants argue that the motion to quash should be denied because MBH's subpoena for documents is reasonably calculated to lead to discovery of admissible evidence; the plaintiff's boilerplate objections to the document requests lack any merit; and disclosure of the documents requested does not run afoul of the MBPA's purported associational rights.
" It is a basic tenet of constitutional law that the First Amendment applies only to individuals or entities engaged in 'state action.'" St. Ledger v. Area Cooperative Educational Services, Inc., 228 F.Supp.2d 66, 70 (D. Conn. 2002). " In Brentwood [ Academy v. Tennessee Secondary School Athletic Assn., 531 U.S. 288, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001)], the Supreme Court recently clarified the test for 'state action' as it had developed through National Collegiate Athletic Ass'n v. Tarkanian, 488 U.S. 179, 109 S.Ct. 454, 102 L.Ed.2d 469 (1988), Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982), Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982), and Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982). The Court noted that [w]hat is fairly attributable [as state action] is a matter of normative judgment, and the criteria lack rigid simplicity . . . [N]o one fact can function as a necessary condition across the board . . . nor is any set of circumstances absolutely sufficient, for there may be some countervailing reason . . .' Brentwood, supra, 531 U.S. at 295-96, 121 S.Ct. 924. Reviewing the tests for 'state action' that had previously been set forth, the Court identified a 'host of facts' which bear on whether an activity can be attributable to a state: 'when the state exercises its coercive power or significant encouragement, when a private actor is a willful participant in joint activity with the state, when an entity is controlled by the state or an agency thereof, when an entity has been delegated a public function by the state, when an actor is entwined with governmental policies, or when the government is entwined in the entity's management or control.' Gorman-Bakos [ v. Cornell Cooperative Extension of Schenectady County, 252 F.3d 545, 552 (2d Cir. 2001)] (citing Brentwood, 531 U.S. at 296, 121 S.Ct. 924)." St. Ledger v. Area Cooperative Educational Services, supra, 228 F.Supp.2d 70. The right of freedom of association can be violated only by state action, as distinguished from private action. See Fallis v. Dunbar, 532 F.2d 1061, 1061 (6th Cir. 1976).
The action of state courts may constitute state action. See Shelley v. Kraemer, 334 U.S. 1, 14, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). In Shelley, the Supreme Court ruled that the judicial enforcement of a racially restrictive covenant by a homeowner's association constituted state action. Id., 20. " We conclude . . . that the restrictive agreements standing alone cannot be regarded as violative of any rights guaranteed to petitioners by the Fourteenth Amendment. So long as the purposes of those agreements are effectuated by voluntary adherence to their terms, it would appear clear that there has been no action by the State and the provisions of the Amendment have not been violated . . . But here there was more." Id., 13. That " more" was the judicial enforcement of the restrictions. See id., 13-14. But see King v. King, 162 Wash.2d 378, 401, 174 P.3d 659 (2007) (recognizing that " the United States Supreme Court has . . . pulled back the reach of Shelley, if not overruling it sub silentio, by requiring 'something more' than the reliance on a . . . judicial proceeding").
" Contrary to the suggestion of Justice Powell's dissent, we do not hold today that a private party's mere invocation of state legal procedures constitutes joint participation or conspiracy with state officials satisfying the [42 U.S.C.] § 1983 requirement of action under color of law." (Internal quotation marks omitted.) Lugar v. Edmondson Oil Co., supra, 457 U.S. 939 n.21. " [W]e have consistently held that a private party's joint participation with state officials in the seizure of disputed property is sufficient to characterize that party as a 'state actor' for purposes of the Fourteenth Amendment . . . The Court of Appeals erred in holding that in [the context of prejudgment attachment] 'joint participation' required something more than invoking the aid of state officials to take advantage of state-created attachment procedures. That holding is contrary to the conclusions we have reached as to the applicability of due process standards to such procedures. Whatever may be true in other contexts, this is sufficient when the State has created a system whereby state officials will attach property on the ex parte application of one party to a private dispute." Id., 941-42.
The issuance of a subpoena duces tecum by a private attorney does not convert a private cause of action into state action. See, e.g., Barnard v. Young, 720 F.2d 1188, 1189 (10th Cir. 1983). " Use of the court device of a subpoena duces tecum is no more joint action between the private attorney and the court than was the allegedly improper taking of a deposition in Skolnick v. Martin, 317 F.2d 855 (7th Cir. 1963). If an attorney does not become a state actor merely by virtue of instigating state court litigation, Lugar v. Edmondson Oil Co., 457 U.S. at 939, then the attorney does not become a state actor merely by employing state authorized subpoena power." Barnard v. Young, supra, 1189. Courts have found, however, that since a court order enforcing a subpoena duces tecum does constitute state action, constitutional analysis may be applied to a related motion to quash. See, e.g., Doe v. 2TheMart.com Inc., 140 F.Supp.2d 1088, 1091-92 (W.D. Wash. 2001).
Although the issuance by counsel for the defendants of the subpoena at issue does not, by itself, give rise to state action, because a ruling by the court on the present motion to quash such subpoena would constitute state action, the court will analyze the constitutional implications which arise therefrom.
B
Substantive Case Law on Freedom of Association
The Supreme Court has held that compelled disclosure of affiliation with groups engaged in advocacy may constitute a restraint on freedom of association. See National Assn. for the Advancement of Colored People v. Alabama, supra, 357 U.S. 462. " Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly . . . It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the 'liberty' assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech . . . Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.
" The fact that Alabama, so far as is relevant to the validity of the contempt judgment presently under review, has taken no direct action . . . to restrict the right of petitioner's members to associate freely, does not end inquiry into the effect of the production order . . . In the domain of these indispensable liberties, whether of speech, press, or association, the decisions of this Court recognize that abridgment of such rights, even though unintended, may inevitably follow from varied forms of governmental action . . . It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute [an effective] restraint on freedom of association . . . This Court has recognized the vital relationship between freedom to associate and privacy in one's associations . . . Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs." (Citations omitted.) Id., 460-62.
" A party resisting discovery need not make a showing of harm or other coercion; but before the burden shifts to plaintiffs to demonstrate the necessary compelling interest in having discovery, defendants must at least articulate some resulting encroachment on their liberties." New York State National Organization for Women v. Terry, 886 F.2d 1339, 1355 (2d Cir. 1989), cert. denied, 495 U.S. 947, 110 S.Ct. 2206, 109 L.Ed.2d 532 (1990), citing Bates v. Little Rock, 361 U.S. 516, 524, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960); United States v. Citizens State Bank, 612 F.2d 1091, 1093-94 (8th Cir. 1980). " Mindful of the crucial place speech and associational rights occupy under our constitution, we hasten to add that in making out a prima facie case of harm the burden is light." New York State National Organization for Women v. Terry, supra, 1355. " The evidence offered need show only a reasonable probability that the compelled disclosure of a party's contributors' names will subject them to threats, harassment, or reprisals from either Government officials or private parties." Buckley v. Valeo, 424 U.S. 1, 74, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976).
" [A] factual record of past harassment is not the only situation in which courts have upheld a First Amendment right of non-disclosure. The underlying inquiry must always be whether a compelling governmental interest justifies any governmental action that has 'the practical effect " of discouraging" the exercise of constitutionally protected political rights, ' NAACP v. Alabama, supra, 357 U.S. at 461, 78 S.Ct. at 1171, 'even if any deterrent effect . . . arises . . . as an unintended but inevitable result of the government's conduct in requiring disclosure, ' Buckley v. Valeo, supra, 424 U.S. at 65, 96 S.Ct. at 656. Thus, in Pollard v. Roberts, [283 F.Supp. 248 (E.D. Ark.), aff'd per curiam, 393 U.S. 14, 89 S.Ct. 47, 21 L.Ed.2d 14 (1968)], although there was no evidence of past reprisals against contributors to the Republican Party of Arkansas, the court held that it would be 'naive' not to recognize that disclosure would impermissibly discourage the exercise of constitutional rights given the unpopularity of the Republican Party of Arkansas at that time. [ Id., 258.] In Shelton v. Tucker, [364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960)], the Supreme Court struck down a state law requiring the teachers of Arkansas to disclose all organizations to which they belonged as violative of the Fourteenth Amendment. As in Pollard the Court adopted a commonsense approach and recognized that a chilling effect was inevitable if teachers who served at the absolute will of school boards had to disclose to the government all organizations to which they belonged. [T]he pressure upon a teacher to avoid any ties which might displease those who control his professional destiny would be constant and heavy.' 364 U.S. at 486, 81 S.Ct. at 251." Local 1814, International Longshoremen's Assn., AFL-CIO v. Waterfront Commission of New York Harbor, 667 F.2d 267, 271-72 (2d Cir. 1981).
" [A] reasonable probability that the compelled disclosure of a party's contributors' names will subject them to threats, harassment, or reprisals from either Government officials or private parties"; Buckley v. Valeo, supra, 424 U.S. 74; should not be confused with objections to divulging an association's strategy to its opponents. See A& R Body Specialty & Collision Works, Inc. v. Progressive Casualty Ins. Co., United States District Court, Docket No. 3:07CV929 (WWE), (D.Conn. 2013). " [T]he appellants do not cite any case which supports their assertion that mak[ing] . . . political opponents privy to . . . internal strategies is alone sufficient to demonstrate a chilling effect on their First Amendment rights." (Internal quotation marks omitted.) Id., quoting In re Motor Fuel Temperature Sales Practices Litigation, 641 F.3d 470, 490 (10th Cir. 2011). " Here, the non-parties argue that the revelation of their interests and priorities to individuals or organizations with adverse interests is the harm from which they should be protected." (Emphasis in original; internal quotation marks omitted.) A& R Body Specialty & Collision Works, Inc. v. Progressive Casualty Ins. Co., supra (subpoena not quashed on first amendment grounds).
In the context of analyzing whether the court should grant a writ of mandamus, wherein " [t]here must be more than what we would typically consider to be an abuse of discretion in order for the writ to issue"; In re Motor Fuel Temperature Sales Practices Litigation, supra, 641 F.3d 487; the court held that " we cannot say that the district court committed any error in refusing to presume that the information at issue is privileged under the First Amendment, let alone that the court committed the egregious error necessary for us to issue a writ of mandamus." Id., 488. The court went on to hold that an ambiguous unsworn statement mischaracterizing the breadth of the discovery request was insufficient to demonstrate " a clear and indisputable right to a writ of mandamus . . . based on the district court's holding that they had not satisfied their burden to establish a prima facie case of First Amendment chill." (Citation omitted; internal quotation marks omitted.) Id., 492.
The party invoking the right of association may meet its burden by submitting declarations of members of the association as to how compliance would have adverse effects. See United States v. Citizens State Bank, supra, 612 F.2d 1094. The appellants in Citizens State Bank claimed that " deposit slips, signature cards and other documents contained in the bank records identify the members of and contributors to the USTU, [a voluntary association of citizens who are opposed to the current operation of the IRS], and if the IRS were allowed access to this information, some of those who would otherwise join or contribute to the USTU would be discouraged from doing so out of fear of retaliation by the IRS." Id., 1093 (remanding to district court to determine if bank statements with member names redacted may serve government's needs or if government can demonstrate compelling reason for such broad summons). Citizens State Bank makes clear that constitutional protection provided by the right of association is not necessarily limited to member lists, but is applicable to bank records and other documents which may also result in the divulgence of the names of members. See id. Although National Assn. for the Advancement of Colored People v. Alabama does not stand for the premise that all business records are necessarily protected under the right of association, it also does not stand for the proposition that business records are necessarily not protected. See National Assn. for the Advancement of Colored People v. Alabama, supra, 357 U.S. 463-65 (NAACP only challenged state's right to member lists).
The plaintiffs have submitted deposition testimony that the town's politicians " have bedded themselves with [the] hotel." (Pl.'s Reply Ex. A p. 184, Docket Entry no. 184.) Additionally, submitted with the defendants' MBH's motion for summary judgment, filed prior to the present motion to quash, is evidence that the MBPA has made demands upon the town of Madison with regards to the hotel's activities; (see DeLaura Aff. Ex. D and E, Docket Entry no. 170); and that the town of Madison not only has opposed these demands, but is also involved in facilitating the very activities of the hotel that the plaintiffs and the MBPA oppose. (See DeLaura Aff. Ex. F., Docket Entry no. 170.) Based on the foregoing authority, which provides for a common sense approach, such evidence is sufficient to satisfy the light burden of the plaintiffs to submit evidence that there exists a reasonable probability that disclosure of the names of members of the MBPA would act to curtail membership in the MBPA, and as a result, chill the plaintiffs' right of association.
" Governmental action which may operate to restrict the freedom to associate is subject to exacting scrutiny." St. German of Alaska Eastern Orthodox Catholic Church v. United States, 840 F.2d 1087, 1094 (2d Cir. 1988), citing National Assn. for the Advancement of Colored People v. Alabama, supra, 460-61; Buckley v. Valeo, supra, 424 U.S. 64-65; Local 1814, International Longshoremen's Assn. v. Waterfront Commission of New York Harbor, supra, 667 F.2d 270. " [D]isclosure of [the names of an association's members] should not be ordered unless it is substantially related to a compelling governmental interest." St. German of Alaska Eastern Orthodox Catholic Church v. United States, supra, 840 F.2d 1094 (enforcement of tax laws is compelling), citing Buckley v. Valeo, supra, 424 U.S. 64. " Our determination that disclosure is significantly related to the achievement of a compelling governmental interest does not end our inquiry, however, for we must still examine the scope of the proposed action. [E]ven though the governmental purpose . . . [may] be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved." (Internal quotation marks omitted.) Local 1814, International Longshoremen's Assn. v. Waterfront Commission of New York Harbor, supra, 667 F.2d 273. The Second Circuit determined that while fighting crime on the waterfront was compelling, the government could achieve its purpose by obtaining the identities of only ten percent of those requested in the subpoena. See id., 272-74 (approving trial court's modification of subpoena).
" Judicial integrity is . . . a state interest of the highest order." Republican Party of Minnesota v. White, 536 U.S. 765, 793, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002). " The concept of public confidence in judicial integrity does not easily reduce to precise definition, nor does it lend itself to proof by documentary record. But no one denies that it is genuine and compelling." Williams-Yulee v. Florida Bar, U.S. 135 S.Ct. 1656, 1667, 191 L.Ed.2d 570 (2015).
Because the plaintiffs have submitted evidence of a reasonable probability of a chilling effect resulting from the identification of MBPA members, to the extent that each document request may result in such disclosure, the defendants must submit a compelling justification. The defendants have submitted evidence that the present litigation is being funded by members of the MBPA. (Defs.' Opp'n Mot. Quash Ex. C, Docket Entry no. 181.) Thus, in the interest of ensuring the judicial integrity of the present action, a compelling interest, production of the documents requested in redacted form to exclude the identities of members who are not involved in funding the litigation is constitutional. With regards to document request number one--communications concerning or related to the present action--the ordered production of such documents in redacted form to exclude the names of members who are not funding the present action is constitutional. With regards to document request number two--records, notes, and minutes of MBPA meetings--the ordered production of such documents in redacted form to exclude the names of members who are not funding the present action is constitutional. With regards to document request number three--press releases issued by the MBPA--the ordered production of such documents in redacted form to exclude the names of members who are not funding the present action is constitutional. With regards to document request number four advertising material of the MBPA--the ordered production of such documents in redacted form to exclude the names of members who are not funding the present action is constitutional. With regards to document request number five--identification of the members of the MBPA--given the evidence that the town is facilitating the very activities of the hotel that the plaintiffs and the MBPA oppose, the breadth of the request, and the common sense approach this court applies in determining the likelihood of a chilling effect, the court grants the plaintiff's motion to quash with respect to this document request as such request is not narrowly tailored to accomplish acompelling interest. With regards to document request number six--documents concerning the MBPA's funding of the present action--the ordered production of such documents in redacted form to exclude the names of members who are not funding the present action is constitutional.
The court notes that the defendants argue as one of the grounds for denying plaintiffs' motion to quash is that the MBPA does not have members. (Defs.' Opp'n Mot. Quash pp. 8-9, Docket Entry no. 181.) Yet, at the same time they request the identities of the association's members. Common sense begs the question, whether defendants' request is legitimately related to the present action--or something more, which could be construed as intimidation.
V
ATTORNEY/CLIENT PRIVILEGE
The plaintiffs have also moved to quash defendants' MBH's subpoena on grounds that the attorney/client privilege prohibits such disclosure. 'The attorney-client privilege protects communications between client and attorney when made in confidence for the purpose of seeking or giving legal advice.' Ullmann v. State, 230 Conn. 698, 711, 647 A.2d 324 (1994). 'In Connecticut, the attorney-client privilege protects both the confidential giving of professional advice by an attorney acting in the capacity of a legal advisor to those who can act on it, as well as the giving of information to the lawyer to enable counsel to give sound and informed advice.' Metropolitan Life Insurance Co. v. Aetna Casualty and Surety Co., 249 Conn. 36, 52, 730 A.2d 51 (1999). 'As with all privileges, the [party] claiming the attorney-client privilege has the burden of establishing all essential elements.' (Internal quotation marks omitted.) Harp v. King, 266 Conn. 747, 770, 835 A.2d 953 (2003). And since the rule tends to prevent a full disclosure of the truth in court, it should be strictly construed. Turner's Appeal, 72 Conn. 305, 317-18, 44 A. 310 (1899).
" It is true, of course, that the privilege accorded communications between attorney and client is not limited to direct communications between the two. It extends to communications made through agents for communication. State v. Hanna, 150 Conn. 457, 465, 191 A.2d 124 (1963). 'Statements made in the presence of a third party are usually not privileged because there is then no reasonable expectation of confidentiality.' State v. Cascone, 195 Conn. 183, 186, 487 A.2d 186 (1985). 'The presence of certain third parties, however, who are agents or employees of an attorney or client, and who are necessary for consultation, will not destroy the confidential nature of the communications.' State v. Gordon, 197 Conn. 413, 424, 504 A.2d 1020 (1985)." Amica MIC v. Fasarella Pro Paint, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. FSTCV10-6003636, (July 11, 2011, Jennings, J.T.R.).
First the court concludes that the requested documents are relevant under § 13-2 on the issue of bias and credibility based upon the financial interest that the MBPA's members that are funding the present lawsuit have in the outcome of the case, and who, may very well be called to testify on behalf of the plaintiffs. Second, the plaintiffs have failed to meet their burden to establish that the requested documents are privileged pursuant to the attorney/client privilege. The plaintiffs have not stated to the court that any of the requested documents contain communications " between client and attorney when made in confidence for the purpose of seeking or giving legal advice." Amica MIC v. Fasarella Pro Paint, supra, Superior Court, Docket No. FSTCV10-6003636. Indeed, the meetings of the MBPA may have been attended by many third parties, wherein statements made during the meetings, even if counsel were present, under Connecticut law, would destroy any privilege. See id. Accordingly, the plaintiffs motion to quash on the ground that the attorney/client privilege applies to the requested documents is denied.
The defendants' requests are also limited in time and scope to (i) all communications concerning or related to the present action; (ii) copies of records, including notes or minutes of any MBPA meetings held since the date of incorporation, which was August 2014; (iii) copies of all press releases that MBPA has created since the date of its incorporation; (iv) copies of all advertising materials MBPA created since the date of its incorporation; (v) copies of records identifying MBPA's membership; and (vi) copies of any documents concerning MBPA's funding. As the plaintiffs have failed to meet their burden in establishing that the requested documents are privileged under the attorney/client privilege, they are hereby ordered to produce in redacted form to exclude the names of members who are not funding the present action, (i) all communications concerning or related to the present action; (ii) all records, notes, and minutes of MBPA meetings; (iii) press releases issued by the MBPA; (iv) advertising material of the MBPA; (vi) copies of any documents concerning the MBPA's funding of the present action. Since the court has granted the motion to quash the subpoena (v) seeking copies of records identifying MBPA's entire membership, on constitutional grounds, the plaintiffs need not produce that documentation.
VI
WORK PRODUCT
The plaintiffs also claim that the documents requested by the defendants are protected by the work product doctrine under Practice Book § 13-3, which provides in part: " (a) 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 party's representative only upon a showing that the party seeking discovery has substantial need of the materials in preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials. 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."
" Under Connecticut law the lack of involvement of counsel can be dispositive of a claim that reports are work product. '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. The attorney's work must have been 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.' (Citations and internal quotation marks omitted.) Stanley Works v. New Britain Redevelopment Agency, 155 Conn. 86, 95, 230 A.2d 9 (1967)." Amica MIC v. Fasarella Pro. Paint, supra, Superior Court, Docket No. FST CV10-6003636 S.
" As in the case of attorney-client privilege, the burden of establishing that the information sought constitutes an attorney work product is on the party asserting such a claim. Geib v. Sheraton Stamford Hotel, Superior Court, Judicial District of Stamford/Norwalk at Stamford, Docket No. X08CV05-5000466S (December 3, 2008, Jennings, J.) (2008 Ct.Sup. 19286, ). Since Rule 26 of the Federal Rules of Civil Procedure addresses work product in like terms, Connecticut courts have looked to federal decisional law in order to adjudicate work product issues arising under Practice Book § 13-3. See Garcia v. Yale New Haven Hospital, Superior Court, Judicial District of New Haven, Docket No. CV95-037032 (July 2, 1999, Lager, J.) (25 Conn.L.Rptr. 78, )." Amica MIC v. Fasarella, supra, Superior Court, Docket No. FST CV-106003636-S.
The court in QBE Insurance Corp. v. Interstate Fire and Safety Equipment Company, U.S.D.C., D.Conn., Docket No. 3:07cv1883 (SRU) (February 18, 2011, Underhill, U.S.D.J.), 2011 WL 69282 aptly " cautioned against protecting documents from discovery simply because of a 'ritualistic incantation' by insurers that documents are prepared in preparation for litigation and drew a 'fact specific' distinction between documents prepared in the ordinary course of an insurer's business of investigation of a claim and documents created 'because of' anticipated litigation . . . [I]t is particularly important that the party opposing production of the documents, on whom the burden of proof as to the privilege rests, demonstrate by specific and competent evidence that the documents were created in anticipation of litigation." (Emphasis added.) Segway, Inc. v. Special Olympics of Connecticut, Inc., Superior Court, judicial district of New Haven, Docket No. CV116022089S, (October 29, 2015, Wilson, J.).
Again, the plaintiffs have failed to meet their burden in showing that the requested documents fall within the work product privilege. The plaintiff has not put forth any evidence that the requested documents were created in anticipation of litigation. Accordingly, the plaintiffs' motion to quash on work product grounds is denied. The plaintiffs are to produce the requested documents (i) through (iv), and (vi) in redacted form as this court ordered above. This court has previously ruled that the motion to quash the subpoena regarding the production of records identifying MBPA's entire membership list is granted, therefore the plaintiffs are not required to produce those records identifying the MBPA's entire membership list.
For those records which the court has ordered plaintiffs to produce, compliance is ordered on or before February 28, 2017. If the moving party does not receive compliance by that date, the moving party may file a Motion for Judgment of Nonsuit referring to this order. Absent proof of compliance on file before the motion appears on this short calendar, the motion will be granted by the court and judgment will enter.
(b) Each judge or clerk of any court, notary public or commissioner of the superior court, in this state, may issue a subpoena, upon request, for the appearance of any witness before an officer authorized to administer oaths within this state to give testimony at a deposition subject to the provisions of Sections 13-2 through 13-5, if the party seeking to take such person's deposition has complied with the provisions of Sections 13-26 and 13-27. (c) A subpoena issued for the taking of a deposition may command the person to whom it is directed to produce and permit inspection and copying of designated books, papers, documents or tangible things which constitute or contain matters within the scope of the examination permitted by Sections 13-2 through 13-5. Unless otherwise ordered by the court or agreed upon in writing by the parties any subpoena issued to a person commanding the production of documents or other tangible thing at a deposition shall not direct compliance within less than fifteen days from the date of service thereof. (d) The person to whom a subpoena is directed may, within fifteen days after the service thereof or within such time as otherwise ordered by the court or agreed upon in writing by the parties, serve upon the issuing authority designated in the subpoena written objection to the inspection or copying of any or all of the designated materials. If objection is made, the party at whose request the subpoena was issued shall not be entitled to inspect and copy the disputed materials except pursuant to an order of the court in which the cause is pending. The party who requested the subpoena may, if objection has been made, move, upon notice to the deponent, for an order at any time before or during the taking of the deposition. (e) The court in which the cause is pending, or, if the cause is pending in a foreign court, the court in the judicial district wherein the subpoenaed person resides, may, upon motion made promptly and, in any event, at or before the time for compliance specified in a subpoena authorized by subsection (b) of this section, (1) quash or modify the subpoena if it is unreasonable and oppressive or if it seeks the production of materials not subject to production under the provisions of subsection of this section, or (2) condition denial of the motion upon the advancement by the party who requested the subpoena of the reasonable cost of producing the materials being sought. (f) If any person to whom a lawful subpoena is issued under any provision of this section fails without just excuse to comply with any of its terms, the court before which the cause is pending, or any judge thereof, or, if the cause is pending in a foreign court, the court in the judicial district wherein the subpoenaed person resides, may issue a capias and cause the person to be brought before that court or judge, as the case may be, and, if the person subpoenaed refuses to comply with the subpoena, the court or judge may commit the person to jail until he or she signifies a willingness to comply with it.