Opinion
No. CV PJR 0398038
April 3, 2003
MEMORANDUM OF DECISION
This is an application for a protective order and to quash a subpoena requiring the applicant to give deposition testimony to be used in a civil action pending in the state of Georgia.
The applicant bases his request on the following claims:
(1) the subpoena was served on some one other than himself;
(2) the subpoena is defective in that it was issued in violation of Sec. 52-148e, C.G.S.; and
(3) it seeks information which may not be relevant in the action pending in Georgia. Counsel for the parties appeared and were heard regarding the application and the court reserved decision.
Having considered the claims of the parties and having reviewed the applicable statutory authority and case law, the court makes the following findings:
1. Defective Service.
In response to the allegation that the subpoena was served on one David Ginsberg rather than on the applicant, David Swanson, the respondent filed with the court a copy of the marshal's return which indicates that the marshal served "David R. Swanson, President CISI" at "CISI, 431 Post Rd.E, Suite 6, Westport, CT 06880."
The applicant offered no competent evidence or testimony from "David Ginsberg" or any other witness to refute the allegation that service was actually made on the applicant.
2. Failure to comply with Section 52-148e, C.G.S.
A review of Section 52-148e (Issuance of subpoena for taking deposition. Deposition to be used outside the state) indicates that there is no requirement for the respondent in this case to make an application to the Connecticut Superior Court before the subpoena could be issued by a Commissioner of the Superior Court. The evidence permits the court to find that the commission to take the out of state deposition of the applicant, David Swanson, in regard to the matter of Coverdell Company v. TBC Telemarketing, Inc. pending in that court, was issued by Elizabeth E. Long, Chief Judge, Superior Court of Fulton County, Georgia on October 21, 2002. It was further ordered by Judge Long that, ". . . any [other] person authorized to administer oaths in Fairfield County, Connecticut is hereby appointed and authorized to serve as commissioner of this [Ga.] court to take the deposition of Mr. David Swanson upon oral examination in accordance with the attached subpoena . . ."
Section 52-148e (f), C.G.S. provides, in relevant part, "Deposition of witnesses living in this state may be taken in like manner to be used as evidence in a civil action or probate proceeding pending in any court of the United States or of any other state of the United States . . . on application of any party to such civil action or probate proceeding."
The Respondent argues that the "application" was made in the court in which the case is pending — the Superior Court of Georgia and that a judge of that court granted such application and ordered that the deposition of Swanson be taken. That fact is unrefuted.
In Lougee v. Grinnell, 216 Conn. 483 (1990), an appeal from the denial by the trial court to quash a foreign subpoena, our Supreme Court was presented with facts very similar to the instant case. In Lougee, the applicant sought to have a subpoena from the state of Texas quashed for, among other things, the failure by the party seeking the deposition to apply to the Connecticut Superior Court for a subpoena, pursuant to Sec. 52-148e, C.G.S. The trial court denied that motion to quash and our Supreme Court affirmed that judgment.
3. Subpoena seeks irrelevant information.
This reason was also raised in the Lougee case and was addressed in that decision. Our Supreme Court specifically ruled that, "Information material to the subject matter of a lawsuit certainly includes a broader spectrum of data than that which is material to the precise issues raised in the pleadings." Lougee, supra, p. 489.
The court went on to add, ". . . because the role of Connecticut courts in the Texas action is confined to supervising a deposition, we decline to speculate upon whether the information Lougee possesses is actually immaterial to the subject matter of that action. See Horizons Titanium Corporation v. Norton Co., 290 F.2d 421, 425 (1st Cir. 1961); E.I. duPont de Nemours Co. v. Deening Milliken Research Corporation, 72 F.R.D. 440, 442-43 (D.Del. 1976). Id.
"We are satisfied that the Texas court will thereafter determine the evidentiary issue of materiality presented here, when and if Lougee's deposition, or any part of it, is offered into evidence in the Texas action. Id. P490.
For the foregoing reasons, the application to quash subpoena and for protective order is hereby denied.
By the Court,
JOSEPH W. DOHERTY, JUDGE