Opinion
No. FST FA 05 4004889 S
December 22, 2006
MEMORANDUM OF DECISION ON MOTION FOR CONTINUANCE DATED DECEMBER 21, 2006
The above-entitled matter has been referred to the Regional Family Trial Docket months ago. The trial has been scheduled by RFTD to commence on January 8, 2007. By a fax filing dated December 21, 2006, the plaintiff has filed a Motion for Continuance utilizing form JD-CV-21 Rev. 12-96. This fax filing exceeded the capacity of the judicial fax system. The fax was sent in three sections; 32 pages on December 21, 2006 at 11:26 a.m. through 11:31 a.m.; 32 pages sent on December 21, 2006 at 11:44 a.m. to 11:47 a.m.; 22 pages sent on December 21, 2006 at 12:11 p.m. to 12:15 p.m. The Motion for Continuance is 86 pages. The plaintiff did not fax this motion to the Clerk of the Superior Court but instead faxed it to the Judge's Secretary. The fax arrived at the Judge's Secretaries' office during a staffing lull. The undersigned was made aware of the fax filing by a telephone call received at 1:55 p.m. on December 21, 2006 from Hon. Holly Abery-Wetstone, Presiding Judge Regional Family Trial Docket. In said telephonic conversation the undersigned and Judge Abery-Wetstone agreed that this Motion for Continuance would be heard and decided by the undersigned. The undersigned has been the pre-trial Judge of record and has issued well over 100 pendente lite decisions since August of 2005. The undersigned has presided over at least 60 days of pre-trial hearings in this matter.
The above-entitled case was assigned for a Special Masters Pretrial at the Regional Family Trial Docket in July of 2006. A continuance was granted at the request of the plaintiff and a Special Masters Pretrial was held at the Regional Family Docket in September of 2006. The trial was scheduled to commence January 8, 2007 and is estimated to take more than two months. On one occasion the plaintiff attempted to continue the trial by attacking the authority of the Judicial Branch to establish the RFTD.
The plaintiff's Motion for Continuance is addressed to the court's discretion. The court has applied the rules set forth in the case
Kelly v. Kelly, 85 Conn.App. 794, 799-800 (2004). Each of those precepts cited in Kelly has been applied in acting on this continuance request.
The undersigned has been a Superior Court Judge for 12 years. This court presided over the Complex Civil Litigation Docket for three years. In addition this court presided over many of the high profile and contentious trials that have occurred in the judicial district of Stamford/Norwalk. This court has commented on the record in this litigation that the Tauck case is the most complicated litigation that this court has ever presided over. In a written decision issued many months ago the court alluded to the fact that there were at least a dozen issues of first impression that have confronted this court. Since then more such issues have arisen. At times this court has presided at hearings in this case in which fifteen lawyers were present. Most hearings were conducted without a court clerk in the courtroom due to staffing limitations. This court notes in passing that on virtually every business day since August 2005 a Tauck motion has been presented to this court, a hearing been conducted or a Tauck matter has been researched and analyzed by this court.
In open court over six months ago this court has also indicated that the Judicial Branch possesses insufficient personnel in order to efficiently handle this matter. The court informed the parties over six months ago that the chances would be extremely likely that this matter would be tried without the completion of discovery. Over six months ago the court admonished the parties that they must be prepared to try this case on the date scheduled for trial and they must use their resources to obtain the maximum amount of information that they could obtain in the most efficient manner with the understanding that discovery would never be complete. The parties were warned by the undersigned on multiple occasions that they would be forced to try the case with some discovery not completed.
This motion for continuance clearly highlights these issues.
More than 700 pleadings have been filed and hundreds more are expected. The Judicial Branch has created a new pleading coding system especially for the Tauck case. The Cater/Edison System is incapable of coding in a pleading beyond number 999. No doubt this case will reach pleading number 999 prior to the conclusion of trial. The underlying 86-page Motion for Continuance is merely another example of voluminous pleadings with which the limited manpower of the Superior Court has attempted to grapple. It has been said that: "A trial is search for justice, but no trial is
perfect." It is with those precepts and comments in mind the court is deciding the motion for continuance.
The major issue raised is that the plaintiff has sought computer-related evidence from the defendant for more than sixteen months. She has filed multiple requests and multiple orders have entered. She claims that the defendant is not in compliance. On May 4, 2006 appointed a computer expert to assist in accessing all computer storage devices so that each party would be provided full and complete access to the computer storage devices. The court has entered further orders implementing that May 4, 2006 order. The court has ordered confidentiality agreements to facilitate the parties receiving computer-related material from each other. This court has appointed a Special Master to facilitate discovery production and has held multiple hearings in open court with reports from the discovery Special Master.
Despite those efforts, the plaintiff has noted that on December 6, 2006, defendant's counsel of record advised the discovery Special Master by a letter that certain unspecified computer-related evidence was placed in the hand of "federal authorities." On December 15, 2006 this court ordered that the defendant quantify with specificity the computer devices turned over to the "federal authorities" by 3:00 p.m. on Monday, December 18, 2006. A written reply was received by the undersigned at 3:44 p.m. on December 18, 2006. Eleven computer devices along with its description and serial numbers were contained in that written reply. The court obtained further information from the discovery Special Master on December 19 further outlining those eleven computer devices.
Immediately thereafter this court asked an assistant clerk to contact the "federal authorities." That assistant clerk has been in contact with "federal authorities"; specifically two identified individuals. Arrangements are in the process of being made between this court acting through the assistant clerk and the "federal authorities." The purpose is so that the undersigned can review those computer devices for determination as to whether or not any of them are subject to attorney client and/or work product privilege. The items are not in hard copy but in electronic format. A privilege log is not appropriate. The court must conduct an in camera review. At this very moment the court is waiting for a report from the Assistant Clerk assigned to this task.
It is the undersigned's belief that this court will be able to perform such an in camera examination either in the court chambers of the undersigned or some other mutually arranged office satisfactory to the undersigned and the "federal authorities." Such will involve this court's review of said eleven computer devices. It may be that this
court will have to work on legal holidays, religious holidays, weekends, evenings or early mornings beyond normal work hours. This court has stated in open court its willingness to do so.
This court believes that the trial will be able to commence on January 8, 2007. The court will have issued orders in regard to its in camera review before that date. It may very well be the court will be able to complete its examination and the computers will then be available for review by the parties after this court has vetted the computer records for the attorney client and/or work product privilege. It may be that the plaintiff will have to hold off presenting certain of its evidence or present its evidence out of order because of this delay. This should not prevent the plaintiff from adequately presenting evidence to the trial judge.
The plaintiff has also addressed multiple other discovery issues. This court remains available for the hearing discovery issues after January 8, 2007, while the case is on trial. There are sufficient attorneys associated with the plaintiff's law firm and the defendant's law firm to be able to conduct simultaneously a trial at the Regional Family Docket in Middletown and to conduct discovery in the Judicial District of Stamford/Norwalk.
The motion for continuance is denied without a hearing.
Since there is no evidence of formal federal criminal proceedings, no stay of these proceedings can be considered by this court. The request for stay is denied.
The plaintiff concludes her Motion for Continuance with the following statement "Something is rotten in the State of Denmark. In light of the shocking events described in this application the plaintiff is entitled to and should receive additional time to prepare her case for trial or in the alternative a stay should issue immediately."
The lawyers knew that this court traveled to Denmark from late August 2006 to early September 2006. In its entire vacation this court noted nothing "Rotten in the State of Denmark." This court takes a personal affront to such a statement and believes that such a statement is either a criticism of this court individually or of the Judicial Branch in general. The court looks for an apology from plaintiff's counsel for this unfortunate reference.