Opinion
No. CV99-0496040S
January 24, 2001
MEMORANDUM OF DECISION ON MOTIONS FOR PROTECTIVE ORDER (#119 120)
Before the court are two motions for protective order filed pursuant to Practice Book § 13-5 on April 10, 2000, and May 15, 2000, respectively. The motions were filed by Francis J. Verderame, Jr., a nonparty to the present action.
On August 16, 1999, Francis J. Verderame, Sr., filed an amended complaint in four counts against the defendant, James J. Pryor. The action sounds in breach of contract, breach of the duty of good faith and fair dealing, unfair trade practices and negligent misrepresentation resulting from a stock purchase agreement and deferred compensation agreement. The defendant filed an answer, special defenses and an amended counterclaim sounding in breach of a covenant not to compete, breach of the covenant of good faith and fair dealing and violation of CUTPA. The plaintiff filed an answer and special defenses to the defendant's counterclaim and filed a counterclaim sounding in accord and satisfaction, estoppel and waiver.
The defendant issued a notice of deposition and production of documents to the movant, seeking to depose the movant on May 2, 2000. The defendant issued a second notice of deposition and production of documents to the movant seeking to depose the movant on May 17, 2000. The notice of production demands all documents related to 35 clients of Southington Insurance Center, Inc., of which the movant is president. The movant and Southington Insurance Center, Inc. are not parties to the present action. Neither notice included a subpoena, nor were they served by certified or registered mail.
The movant seeks a protective order from the deposition because the defendant failed to serve a subpoena pursuant to Practice Book § 13-28. The movant seeks a protective order from the requested production on the grounds that the documents sought are not discoverable pursuant to General Statutes § 36a-988. The movant further argues that the documents are not reasonably calculated to lead to the discovery of admissible evidence, they are overly broad, unduly burdensome and subject the movant's insureds to the disclosure of confidential records.
The defendant objects to the motion for protective order on the grounds that the deposition is likely to lead to relevant and admissible evidence and that such an order would severely hamper and interfere with the defendant's right to legitimate disclosure and production.
DISCUSSION
"The extent of discovery and use of protective orders is clearly within the discretion of the trial judge." State Department of Transportation v. Steinman, Inc., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 571964 (May 27, 1998, Hennessey, J.). Practice Book § 13-5 provides in relevant part: "Upon motion by a party from whom discovery is sought, and for good cause shown, the judicial authority may make any order which justice requires to protect a party from annoyance, embarrassment, oppression, or undue burden or expense. . . ."
I
As provided by the rules of practice, "any party who has appeared in a civil action . . . may, at any time after the commencement of the action or proceeding, 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." Practice Book § 12-26. "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." Practice Book § 13-28(b). "[R]easonable notice [of the deposition] . . . shall be served upon each party or each party's attorney by personal or abode service or by registered or certified mail." Practice Book § 13-27(a). "The party seeking to bar a deposition must make a threshold showing that there is good cause that the protective order issue." Bonk v. Iaropoli, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 341890 (July 27, 1998, Skolnick, J.).
In the present case, the notices of deposition failed to comply with Practice Book §§ 13-26 through 13-28. The plaintiff failed to issue a subpoena to the movant and failed to have the notice served in compliance with Practice Book § 13-27(a). The movant, therefore, was not obligated to comply with the defendant's request. The court declines, however, to issue a protective order which would prevent the defendant from taking the deposition of the movant if such a notice of deposition complies with the rules of practice. Depositions of nonparties are allowed by the rules of practice and the movant has not met his burden of showing annoyance, embarrassment, oppression or undue burden or expense. See Practice Book § 13-5.
II
Also before the court is the issue of whether the documents sought by the defendant are privileged. The movant argues that the documents are protected by General Statutes § 38a-988, as amended by No. 99-284 of the 1999 Public Acts, which provides in relevant part: "An insurance institution, agent or insurance-support organization shall not disclose any personal or privileged information concerning an individual collected or received in connection with an insurance transaction unless the disclosure is: . . . (h) In response to a facially valid administrative or judicial order, including a search warrant or subpoena. . . ." The defendant maintains in his objection that "the deposition of Southington Insurance Center, Inc. is likely to lead to relevant and admissible in the instant matter."
"Discovery is confined to facts material to the . . . cause of action and does not afford an open invitation to delve into the defendant's affairs. . . .A [party] must be able to demonstrate good faith as well as probable cause that the information sought is both material and necessary to his action." (Citations omitted.) Berger v. Cuomo, 230 Conn. 1, 6-7, 644 A.2d 333 (1994). The defendant has failed to demonstrate the relevance or materiality of the documents requested to the present action. Without a more specific statement as to what information from the movant's files is sought with reference to the relevant issues in the case, the court has no basis upon which to determine whether the information would be reasonably calculated to lead to the discovery of admissible evidence.
Additionally, the movant has shown good cause for the issuance of a protective order for the files sought by the defendant as required by Practice Book § 13-5. The movant is prohibited from disclosing personal and privileged information contained in the files of Southington Insurance Center, Inc., absent a court order, pursuant to General Statutes § 38a-988(h), as amended by No. 99-284 of the 1999 Public Acts. No subpoena or court order was issued.
General Statutes § 38a-988, as amended by No. 99-284 of the 1999 Public Acts, provides: "An insurance institution, agent or insurance-support organization shall not disclose any personal or privileged information concerning an individual collected or received in connection with an insurance transaction unless the disclosure is:
(a) Made with the written authorization of the individual, provided: (1) If such authorization is submitted by another insurance institution, agent or insurance-support organization, it meets the requirements of section 38a-981, or (2) if such authorization is submitted by a person other than an insurance institution, agent or insurance-support organization, it shall be: (A) Dated, (B) signed by the individual, and (C) obtained within one year prior to the date a disclosure is sought pursuant to this subsection; or
(b) Made to a person other than an insurance institution, agent or insurance-support organization, provided such disclosure is reasonably necessary: (1) To enable such person to perform a business, professional or insurance function for the disclosing insurance institution, agent or insurance-support organization, and such person agrees not to disclose the information without the individual's written authorization unless the disclosure: (A) Would otherwise be permitted by this section if made by an insurance institution, agent, or insurance-support organization or (B) is reasonably necessary for such person to perform his function for the disclosing insurance institution, agent or insurance-support organization; or (2) to enable such person to provide information to the disclosing insurance institution, agent or insurance-support organization for the purpose of: (A) Determining an individual's eligibility for an insurance benefit or payment, or (B) detecting or preventing criminal activity, fraud, material misrepresentation or material nondisclosure in connection with an insurance transaction; or
(c) Made to an insurance institution, agent, insurance-support organization or self-insurer, provided the information disclosed is limited to that which is reasonably necessary: (1) To detect or prevent criminal activity, fraud, material misrepresentation or material nondisclosure in connection with insurance transactions, or (2) for either the disclosing or receiving insurance institution, agent or insurance-support organization to perform its function in connection with an insurance transaction involving the individual; or
(d) Made to a medical-care institution or medical professional for the purpose of: (1) Verifying insurance coverage or benefits; (2) informing an individual of a medical problem of which he may not be aware; or (3) conducting an operations or services audit, provided only such information is disclosed as is reasonably necessary to accomplish the foregoing purposes; or
(e) Made to an insurance regulatory authority; or
(f) Made to a law enforcement or other government authority: (1) To protect the interests of the insurance institution, agent or insurance-support organization in preventing or prosecuting the perpetration of fraud upon it; or (2) if the institution, agent or organization reasonably believes that illegal activities have been conducted by the individual; or
(g) Otherwise permitted or required by law; or
(h) In response to a facially valid administrative or judicial order, including a search warrant or subpoena; or
(i) Made for the purpose of conducting actuarial or research studies, provided: (1) No individual may be identified in any actuarial or research report; (2) materials in which the individual may be identified are returned or destroyed as soon as they are no longer necessary; and (3) the actuarial or research organization agrees not to disclose the information unless the disclosure would otherwise be permitted by this section if made by an insurance institution, agent or insurance-support organization; or
(j) Made to a party or a representative of a party to a proposed or consummated sale, transfer, merger or consolidation of all or part of the business of the insurance institution, agent or insurance-support organization, provided: (1) Prior to the consummation of the sale, transfer, merger or consolidation only such information is disclosed as is reasonably necessary to enable the recipient to make business decisions about the purchase, transfer, merger or consolidation; and (2) the recipient agrees not to disclose the information unless the disclosure would otherwise be permitted by this section if made by an insurance institution, agent or insurance-support organization; or
(k) Made to a person whose only use of such information will be in connection with the marketing of a product or service, provided: (1) No medical-record information, privileged information, or personal information relating to an individual's character, personal habits, mode of living or general reputation is disclosed, and no classification derived from such information is disclosed; (2) the individual has been afforded an opportunity to indicate that he does not wish personal information disclosed for marketing purposes and has given no indication that he does not wish the information disclosed; and (3) the person receiving such information agrees not to use it except in connection with the marketing of a product or service; or
(l) Made to an affiliate whose only use of the information will be in connection with an audit of the insurance institution or agent or the marketing of an insurance product or service, provided (1) with regard to individually identifiable medical records information, written consent of the individual to whom the individually identifiable medical record pertains is obtained prior to disclosure for marketing purposes, and (2) the affiliate agrees not to disclose the information for any other purpose or to unaffiliated persons.
(m) Made by a consumer reporting agency, provided the disclosure is made to a person other than an insurance institution or agent; or
(n) Made to a group policyholder for the purpose of reporting claims experience or conducting an audit of the insurance institution's or agent's operations or services, provided the information disclosed is reasonably necessary for the recipient to conduct the audit; or
(o) Made to a professional peer review organization for the purpose of reviewing the service or conduct of a medical-care institution or medical professional; or
(p) Made to a governmental authority for the purpose of determining the individual's eligibility for health benefits for which the governmental authority may be liable; or
(q) Made to a certificate holder or policyholder for the purpose of providing information regarding the status of an insurance transaction; or
(r) Made to a lienholder, mortgagee, assignee, lessor or other person shown on the records of an insurance institution or agent as having a legal or beneficial interest in a policy of insurance, provided: (1) No medical-record information is disclosed unless the disclosure would otherwise be permitted by this section; and (2) the information disclosed is limited to that which is reasonably necessary to permit such person to protect its interests in such policy; or
(s) Made pursuant to section 53-445.
Accordingly, the court grants the orders protecting the documents at issue pending a proper showing by the defendant.
BY THE COURT
Hon. Andre M. Kocay, J.