Opinion
No. WWM CV 07 5001603
March 5, 2010
RE MOTION FOR PROTECTIVE ORDER #139 MOTION TO QUASH #140
The defendant, Guillo-Veron, LLC, D/B/A Hillside Package Store, moves for a protective order prohibiting the deposition of Bruce Nease and the production request associated with that deposition on the ground that the information sought is protected under the work product doctrine, pursuant to Practice Book § 13-3. The defendant also moves this court to quash the subpoena duces tecum, dated October 9, 2009, and served on Bruce Nease, on the same aforementioned basis.
DISCUSSION
"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." (Internal quotation marks omitted.) Ullmann v. State, 230 Conn. 698, 714, 647 A.2d 324 (1994). "The work product rule protects an attorney's interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs and countless other tangible and intangible items." (Internal quotation marks omitted.) Id. Practice Book § 13-3 addresses the attorney work product doctrine. Work product includes "documents . . . prepared in anticipation of litigation or for trial" and encompasses material prepared "by or for" another party or "that other party's representative." See Practice Book § 13-3(a).
"Practice Book § 13-3 allows discovery of ordinary work product (`documents and tangible things otherwise discoverable') only `upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case, and is unable without undue hardship to obtain the substantial equivalent of the materials by other means." (Internal quotation marks omitted.) Geib v. Sheraton Stamford Hotel, Superior Court, complex litigation docket at Stamford, Docket No. X08 CV 05 5000466 (December 3, 2008, Jennings, J.) "However, an attorney's opinion [and legal theory] work product in such documents and tangible things is absolutely protected under § 13-3." Matos v. Allstate Ins. Co., Superior Court, complex litigation docket at Stamford, Docket No. X 08 CV 05 5002298 (December 3, 2008, Jenkins, J.) ( 46 Conn. L. Rptr. 771). "The burden of establishing that the information sought constitutes work product is upon the party asserting such a claim . . . but the burden of showing `substantial need' and `undue hardship' falls upon the party seeking the discovery. Practice Book § 13-3." (Citations omitted.) Id.
Practice Book § 13-3 provides, in relevant part, that such materials may only be discoverable "upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means." Further, "[i]n 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." Id.
In its memorandum of law in support of its motions, the defendant argues that in preparation of its defense against the plaintiff's allegation of negligence the defendant retained the services of Bruce Nease, an investigator employed by Tritec Investigations. The defendant contends that Mr. Nease was given specific investigative instructions from defense counsel with regard to this matter that contained counsel's theories of defense and other opinions and/or mental impressions about this action. The defendant further contends that the deposition sought and accompanying production request, which includes Mr. Nease's entire investigation file (recorded and written statements, and notes) and interview with a witness, named Marilyn Maldonado, is protected by the attorney work product doctrine. Lastly, the defendant argues that the plaintiff has not demonstrated a substantial need in obtaining the work product from the defendant, and that the factual information sought is readily discoverable from other sources. The plaintiff counters, that the testimony and documents requested are not protected by the work product doctrine and should have been provided in the ordinary course of discovery, including any statements and/or interviews of Ms. Maldonado. The plaintiff further contends, that to the extent that the defendant claims this material is protected by the work product doctrine the plaintiff has made a sufficient showing that there is a substantial need for the information and materials requested and that the substantial equivalent of this material cannot be obtained by other means, without undue hardship.
In Stanley Works v. New Britain Redevelopment Agency, 155 Conn. 86, 92-95, 230 A.2d 9, 13-14 (1967), citing federal authority, the Supreme Court affirmed a decision ordering the disclosure of appraisals reports, saying that the lack of involvement by counsel negates the claim of "work product." Our Supreme Court specifically stated: "This lack of involvement of counsel is also dispositive of the claim that the reports were a `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 formed 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 . . . see also Hickman v. Taylor, 329 U.S. 495, 501, 511, 67 S.Ct. 385, 91 L.Ed. 451 . . . As we have noted, there is nothing in the record before us indicating that the appraisal reports were prepared pursuant to this rule." (Citations omitted; internal quotation marks omitted.) Stanley Works v. New Britain Redevelopment Agency, supra, 155 Conn. 95. In determining that the claimed privilege was property rejected by the trial, the Court noted that the record was "devoid of any indication that the appraiser's reports and their opinions as to the value of the plaintiff's property were in any way requested by or procured for the benefit of the defendant's counsel . . ." Id.
"While the work product rule often is applied to the work of an attorney, the concept of work product is not confined to information or materials gathered or assembled by a lawyer. The work product rule also protects materials compiled by investigators and other agents of an attorney as part of the attorney's trial preparation . . . The work product privilege also may attach under state law to statements and materials prepared by a party's investigator or insurer in contemplation of litigation." 23 Am.Jur.2d Depositions and Discovery § 46. Simply, "[a]ll documents and tangible things prepared by or for the attorney of the party from whom discovery is sought are within the qualified immunity given to work products, so long as they are prepared in anticipation of litigation." 23 Am.Jur.2d Depositions and Discovery § 45. However, "[t]he . . . statement of a witness . . . is not properly considered work product of an attorney, because it records the mental impressions and observations of the witness himself and not those of the attorney. What a witness knows is not the work of counsel." Id.
In the present matter, the court finds that the defendant's counsel retained the services of Bruce Nease, an investigator, specifically for the purposes of preparing for trial. The court further finds that the statements and materials prepared by Mr. Nease, that consist of his investigation file, were prepared in contemplation of litigation, and, accordingly, are protected under the work product doctrine. The court, however, finds that the alleged statement of Ms. Maldonado, a witness in the present matter, is not properly considered work product of an attorney because it depicts the mental impressions and observations of the witness herself, what a witness knows is not the work of counsel. Furthermore, the court finds that the plaintiff has a substantial need of any of the alleged statements of Ms. Maldonado, recorded or written, and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.
CONCLUSION
Based on the foregoing, the court hereby grants the defendant's motion for a protective order prohibiting the deposition of Mr. Nease and the production request associated with that deposition, with the exception of the written or recorded statements of Ms. Maldonado allegedly obtained by Mr. Nease. Any written or recorded statements of Ms. Maldonado must be provided to the plaintiff. Accordingly, the defendant's motion to quash the subpoena duces tecum served on Mr. Nease is also granted.