Opinion
No. CV 02 0188494
December 22, 2004
MEMORANDUM OF DECISION
The plaintiff, Joseph Busak, the conservator of Eleanor Busak's estate, filed suit against the defendants, Maryanne Obuchowski and Sandra Gottlin, executrixes for Adrienne Busak's estate, to recover assets that the plaintiff alleges Adrienne Busak acquired by unlawful inter vivos transfers from Eleanor Busak. Before the court is a motion for order by the defendants that asks the court to compel Eleanor Busak's former attorney, Paul Plotnick, to answer deposition questions that he refused to answer under a claim of attorney-client privilege.
On August 20, 2004, Plotnick was deposed by the defendants and answered numerous questions. He allegedly refused to answer several questions regarding his attorney-client relationship with Eleanor Busak, claiming that her current attorneys asserted the attorney-client privilege, and that he could not, therefore, disclose communications made pursuant to his representation of Eleanor Busak. The defendants argue that the privilege does not apply, and that the proper procedure for claiming the privilege was for Plotnick to file a motion for protective order prior to the deposition seeking the court's permission to refuse to provide privileged information. The plaintiff argues that the privilege does apply, and that a motion for protective order is not appropriate where, as here, a deposition covers many questions for which the attorney-client privilege is not claimed. Because this court finds that the defendants failed to follow the appropriate procedure for challenging the invocation of the privilege, it will not address the parties' substantive arguments regarding the applicability of the privilege.
Practice Book § 13-2 provides, in relevant part, that a party "may obtain . . . discovery of information . . . material to the subject matter involved in the pending action, which are not privileged . . ." "Any party may be compelled by notice to give a deposition . . . The giving of the notice prescribed by [Practice Book § 13-27], unless modified by the court, constitutes an order to the deponent to appear at the time and place designated in the notice and to submit to examination and cross-examination as permitted at trial . . . All questions, including those objected to, are to be answered . . . unless the objecting party procures from the court a protective order precluding or limiting the scope or disclosure of discovery . . ." (Citations omitted.) Pavlinko v. Yale-New Haven Hospital, 192 Conn. 138, 143, 470 A.2d 246 (1984). The Appellate Court has recognized, however, that the duty to answer all questions at a deposition is subordinate to the attorney-client privilege. In Gebbie v. Cadle Co., 49 Conn.App. 265, 274 n. 7, 714 A.2d 678 (1998), the court noted that, "[t]he defendant's argument that the liberal rules of discovery during a deposition require him to answer improper questions and later assert the privilege at trial is unavailing. While it is true that the allowable scope of inquiry at a discovery deposition clearly exceeds the boundaries of admissible evidence . . . this does not relieve the attorney of the duty to uphold the attorney-client privilege." (Citation omitted; internal quotation marks omitted.)
In Sarfaty v. PNN Enterprises, Inc., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 02 0280255 (April 19, 2004, Tanzer, J.), the court ruled on a motion for protective order, based on the attorney-client privilege, filed prior to the deposition of an attorney. The court held that, "[t]he deposition of [the attorney] should proceed; however, the court notes that the attorney-client privilege has not been waived and that deposition questions are not to delve into privileged areas." Also, in Page v. DiMaggio Plumbing Heating, Inc., Superior Court, judicial district of Danbury, Docket No. CV 98 0334003 (November 15, 2000, Hiller, J.), this court ruled on a motion for protective order that sought to protect certain documents from discovery, and held that, "all information requested shall be produced and available for use in depositions, subject only to claims as to attorney-client privilege."
In the present case, the plaintiff did not file a motion for protective order prior to the deposition. Plotnick simply refused to provide answers when he believed that doing so would violate Eleanor Busak's attorney-client privilege. Neither did the defendant provide the court with a transcript or list of the questions that Plotnick refused to answer. The defendant would have the court issue a blanket order compelling Plotnick to answer all questions at the deposition. This it cannot do. The court cannot rule on the privilege in the abstract, but can only determine whether it applies to particular questions. A protective order issued in advance of the deposition, without knowledge of what questions are at issue, could only offer vague guidance. There will inevitably be contention regarding particular invocations of the privilege, forcing the parties to return to court for a final ruling. Recognizing this, this court held, in Page v. DiMaggio Plumbing Heating, Inc., supra, Superior Court, Docket No. CV 99 0334003, that, "[c]laims of attorney-client privilege shall be made with a privilege log detailing the nature of the document and the reason it should be protected. Any such claim shall be accompanied by submission of the document to the court for an in camera review." Similarly, in Connecticut National Bank v. Rytman, Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 87 0159941 (December 10, 2001, Hodgson, J.) the court, ruling on a motion for protective order, held that, "[i]t is not possible for the court to determine in advance which questions at the deposition . . . may invade the actual province of the attorney-client privilege . . . and which will not . . . It will be necessary for [the attorney] to attend the deposition if it is duly rescheduled and to answer such questions . . . as do not request or contain privileged communications. If any party seeks review of the propriety of an invocation of the privilege, that party must present the court with a record adequate for a ruling on the specific question . . . at issue."
The defendants' motion for order is, therefore, denied with permission to refile the motion with a transcript identifying the specific invocations of the privilege to which the defendants object and their reasons for objecting in each instance.
HILLER, J.