Superior Court of Connecticut, Judicial District of New Haven, New Haven
Special Olympics Connecticut, Inc
MEMORANDUM OF DECISION RE MOTION TO COMPEL AND FOR SANCTIONS (#143)
Robin L. Wilson, J.
FACTS AND PROCEDURAL HISTORY
The facts of this case are as set forth in the court's (Fischer, J.) decision on the defendants' Special Olympics Connecticut, Inc.'s (SOCT) and Thomas Madera's motion for summary judgment, and are as follows. This action was commenced by service of writ, summons, and complaint on July 5, 2011. " The plaintiffs, Segway, Inc. (Segway), Vincent Schuck, and Sarah Laufersweiler, filed their second amended complaint on March 27, 2012 . . . which is the operative complaint in the present case. The defendants, Special Olympics Connecticut, Inc. . . . and Thomas Madera, filed an answer on June 22, 2012. This is an indemnification action in which the plaintiffs seek recovery under principles of common-law indemnification. In the second amended complaint, the plaintiffs allege the following facts.
" The defendants were planning and hosting an event for law enforcement personnel called the Law Enforcement Torch Run International Conference to be held at Foxwoods Resort Casino in November 2009. Among the planned events was an obstacle course that featured Segway Personal Transporters (SPTs). In or about February 2009, the defendants reached out to the plaintiffs to ask if the plaintiffs would donate SPTs for the defendants' use during the obstacle course. The plaintiffs agreed. Madera, who at all relevant times was an agent, servant, and/or employee of SOCT, sent the plaintiffs a description of the proposed obstacle course. At that time the course featured ramps, traffic cones, and other potentially dangerous obstacles. One leg of the defendants' proposed obstacle course involved blindfolding a participant while the participant rode an SPT.
" The plaintiffs informed the defendants that operation of an SPT while blindfolded was dangerous and could not be done. The plaintiffs also warned the defendants of the hazards the other proposed obstacles presented. At some point, the parties agreed that Segway representatives should observe the proposed obstacle course to determine whether it was suitable for safety purposes. On September 16, 2009, Schuck and Laufersweiler traveled to Southern Connecticut State University (SCSU), where the parties prepared the obstacle course and staged a dry run of the event. Schuck and Laufersweiler recommended, and the defendants agreed, that the traffic cones set up on the obstacle course by the defendants should be replaced with smaller markers. Schuck and Laufersweiler also learned for the first time that the defendants planned to use student volunteers to operate the SPTs on the obstacle course.
" John Ezzo, a student at SCSU, was one of the student volunteers. During the dry run, Ezzo, who was operating an SPT without a helmet and with his vision impaired by the hood of his sweatshirt, fell and sustained injuries. Ezzo subsequently commenced an action (the Ezzo action) against the plaintiffs in the Bridgeport Superior Court. See Ezzo v. Segway Inc., Superior Court, judicial district of Fairfield, Docket No. CV-09-6005385-S. The Ezzo action settled, and the plaintiffs now seek indemnification from the defendants for Ezzo's damages.
" The plaintiffs' second amended complaint contains four counts. Counts one and two are against SOCT and sound in negligence and recklessness, respectively. Counts three and four are against Madera and sound in negligence and recklessness, respectively." Segway, Inc., et al. v. Special Olympics Connecticut, et al., Superior Court, judicial district of New Haven at New Haven Docket No. CV-11-6022089-S, (February 23, 2015, Fischer, J.) The defendants filed a motion for summary judgment on January 21, 2014." On February 23, 2015, the court, Fischer, J. granted the motion as to Madera and denied the motion as to SOCT."
On August 5, 2015, pursuant to Practice Book § 13-27(h), the defendant, SOCT filed a motion to compel the plaintiff Segway to produce its " designated representative" at a deposition to testify or alternatively in accordance with § 13-14, an order from the court precluding the plaintiff from calling any witnesses to testify regarding the topics in the defendant's notice of deposition. Additionally, the defendant has moved for sanctions against Segway for which it characterizes as the extraordinary efforts to which the plaintiff's counsel has gone to prevent their " designated representative" from testifying. In support of its motion, the defendant claims the following. This is an indemnification action against the defendant in which the plaintiff is seeking reimbursement from a $10 million dollar settlement it paid out in the Ezzo personal injury claim. As previously noted the allegations against the defendant sound in negligence and recklessness on the theory that the defendant was in " exclusive control" of the situation. The defendant has been trying to depose Segway's " designated representative" since December 17, 2012, and in fact, the deposition was postponed by Segway on three prior occasions which prompted Special Olympics to file a prior motion to compel (#142). In response to that motion, counsel for Segway agreed to produce a " designated representative" at a time and place that was mutually agreed upon.
The deposition of Roxanne Lamonde, Segway's designated representative was scheduled for June 23, 2015, and all the necessary arrangements were made in accordance with their agreement. The defendant claims that Segway never objected to any of the items that were designated by SOCT, however, that deposition was again postponed by Segway, this time, counsel for Segway called two days before the deposition to inform counsel for SOCT that he wasn't feeling well and needed to postpone the deposition a fourth time. Again, no objections were raised to the designated topics, nor were any issues identified with those topics, instead, counsel for Segway requested a postponement due to illness. The deposition was rescheduled for July 8, 2015. Segway's counsel contacted SOCT counsel to advise him that the person they were designating, Roxanne Lamonde, may not be the right person for all the designated areas, but she was the right person for most of them. In addition, defendant claims that Segway's counsel mentioned that there might be one or two areas in which he would have to assert the attorney/client privilege depending upon what questions were asked. The defendant claims that at no time did Segway object to the designated areas, or raise any issues involving those designated areas. Plaintiff's counsel and counsel for SOCT did attend the July 8, 2015 deposition of Ms. Lamonde, however shortly after the deposition began, after having traveled 2 1/2 hours, it became clear to defendant's counsel that Segway's counsel was not going to allow Ms. Lamonde, the designated representative answer any of the substantive questions as set forth in defendant's topics. According to defendant, Segway cited two reasons, first any communications Ms. Lamonde had were attorney/client privilege because she was a paralegal, and somehow that privilege extends to her; and second, Segway claims that any and all questions after this incident are protected by the work product privilege, and thus the designated representative was not to answer questions about any topic after the date of the incident.
The defendant claims that the designated representative was not prepared to discuss all of the topics requested of her, which defendant claims was information that was requested as far back as December 2012. Specifically, the defendant claims that Segway has not disclosed any of its economic damages, nor was the designated representative prepared to testify about those damages, although she conceded she was the person designated to do so. Defendant further claims that although the claim has been pending for four years, the plaintiff has not produced any information about its economic damages. The defendant argues that trial on this case is scheduled to start on November 18, 2015, and it has still not been able to depose plaintiff's designated representative on the topics outlined in defense of the action. The defendant requests the court to compel the plaintiff to produce a witness immediately, and should be further required to drop his claim of attorney/client and/or work product privilege. In addition, the defendant requests the court to order plaintiff to pay the costs of counsel fees for his trip to New Hampshire for a deposition that was interrupted by the plaintiff's claimed bad faith objections.
The plaintiff has objected to defendant's motion and has filed a memorandum in support thereof. The plaintiff in its objection claims that when the defendants first noticed the deposition of Segway's corporate representatives, Segway was prepared to produce three employees to testify regarding the 21 topics identified in defendants' notice of deposition. The three employees designated were Francis " Chip" McDonald, Deb Jordan and Gerri Moriarty. However, according to Segway, over the course of almost three years, these employees left Segway. Segway claims that there are currently very few employees with any knowledge of the underlying incident or the company policies and procedures in place at the time of the underlying incident. One of the only individuals currently employed by Segway who has knowledge pertaining to most of the 21 topics identified in the notice of deposition is paralegal, Roxanne Lamonde. When the July 8, 2015 deposition of Roxanne Lamonde was originally scheduled, plaintiff's counsel claims that he emailed defendant's counsel and indicated to him that over the years numerous people had left Segway, but that Segway would produce Ms. Lamonde with the understanding that the attorney/client privilege and/or work product doctrine would be asserted where appropriate.
Counsel for the plaintiff claims that in a separate telephone conversation with defendant's counsel, he also indicated that while Lamonde would have some information pertaining to the 21 topics, she would be a resource for determining which former employees may have information. During the deposition, Lamonde did identify several individuals and plaintiffs have since provided defendants with the names of and contact information for 11 former employees and the names of 7 employees who may have the information defendants seek. During the deposition, plaintiff's counsel asserted the attorney/client privilege and work product doctrine and at times directed Lamonde not to answer particular questions. The plaintiffs do not have an objection to the 21 topics being inquired into and were prepared to produce three different Segway employees to testify regarding these topics, however, they claim that because Lamonde is a paralegal working within the plaintiffs' corporate department, the attorney/client privilege and work product doctrine can be asserted with respect to work done and information obtained by Lamonde since she was a paralegal working within the corporate legal department of the plaintiff at the time she conducted the investigation of the incident.
Oral argument was heard on the motion on ...