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Care One Management, LLC v. State

United States District Court, D. Connecticut

June 20, 2017

CARE ONE MANAGEMENT, LLC et al. Plaintiffs,
v.
STATE OF CONNECTICUT, DIVISION OF CRIMINAL JUSTICE, OFFICE OF CHIEF STATE'S ATTORNEY, Respondent

          ORDER ON PLAINTIFFS' SECOND MOTION TO COMPEL

          Charles S. Haight, Jr. Senior United States District Judge

         Plaintiffs in this action are a group of fifty-two sub-acute care, long term nursing care, and assisted living healthcare facilities located in New Jersey, Connecticut, and Massachusetts, and the entities that manage and own them. Respondent Division of Criminal Justice, Office of Chief State's Attorney, is an agency of the executive branch of the government of the State of Connecticut. Plaintiffs filed the present Motion to Compel Compliance with Order of the United States District Court (Doc. 13), seeking an order compelling Respondent to comply with this Court's Order (Doc. 8), an order which compelled compliance with a subpoena (Doc. 15, Ex. 1) issued by the United States District Court for the District of New Jersey.

         Plaintiffs assert that Respondent's productions to date have been incomplete and inadequate, and that Respondent has yet to conduct "a thorough and adequate search for responsive documents." Plaintiffs' Brief, Doc. 14 at 10. Plaintiffs ask the Court to order production of all documents responsive to the New Jersey subpoena, "including, but not limited to, all email communications referring or relating to [Plaintiffs] and/or their complaints of sabotage and vandalism, and any arrest warrants or arrest warrant applications, including drafts, " as well as an affidavit of compliance describing Respondent's efforts to identify responsive documents. Doc. 13 at 2. Respondent objects to this motion, on the grounds that, (1) Plaintiffs already possess the documents in question; and (2) no responsive documents exist. Respondent's Brief, Doc. 17 at 1.

         I. BACKGROUND

         Plaintiffs are currently engaged in litigation with certain national and local labor unions, pending in the U.S. District Court for the District of New Jersey as CARE ONE MANAGEMENT, LLC v. UNITED HEALTHCARE WORKERS EAST, SEIU 1199 et al, No. 2:12-cv-6371-SDW-MCA.

         In July 2012 a series of strikes were held at a number of Connecticut facilities owned and operated by Plaintiffs. Plaintiffs contacted Respondent in 2012 to report acts of sabotage and vandalism at facilities affected by these labor disturbances, and an investigation into these claims was initiated. See Memorandum in Support of Plaintiffs' First Motion to Compel, Doc. 1-1 at 2. The instant subpoena was issued on February 20, 2014 by Plaintiffs' New Jersey counsel. See Doc. 15, Ex. 1. The subpoena seeks broad production of all documents and communications in Respondent's possession which relate to the parties to the New Jersey litigation.

         Respondent's first production was described by an accompanying March 26, 2014 letter (Doc. 15, Ex. 2) from Assistant State's Attorney Michael Proto: "the documents enclosed fully reproduce our file . . . except that we have excluded four documents over which we claim law enforcement and work product privileges." Doc. 15-2 at 2. That claim of privilege resulted in Plaintiffs' initial recourse to this Court, in their First Motion to Compel (Doc. 1).

         In addition to demanding production of the four withheld documents, Plaintiffs' First Motion to Compel (Doc. 1) specifically noted that Respondent had "failed to confirm the existence of draft arrest warrants or documents relating to the preparation of such warrants, as requested by the subpoena." Doc. 1 at 2. Respondent did not oppose the First Motion to Compel, and, in a January 14, 2016 electronic Order (Doc. 8), this Court granted that motion. In response to that Order, Respondent provided a second round of production, accompanied by a January 27, 2016 letter (Doc.

         15, Ex. 3) from Supervising Assistant State's Attorney JoAnne Sulik, and consisting of "the four withheld documents sought in [Plaintiffs'] motion to compel." Doc. 15, Ex. 3.

         Taking those two productions together, Plaintiffs then had Respondent's complete case file as to the investigation of the 2012 labor disturbances at Plaintiffs' Connecticut facilities. Attorney Sulik's letter also includes the following paragraph, addressed to the issue of arrest warrants:

         In my letter of September 18, 2015, I wrote that no arrest warrant application(s) was drafted in this matter. In your motion, you indicated that I did not represent that no arrest warrants were drafted. There may be some confusion regarding terminology or procedure. If a law enforcement officer has probable cause to believe that a criminal offense has been committed and that a particular individual committed that offense, he or she may draft an application for an arrest warrant. In Connecticut, that is done by completing a standardized form. That application is presented to a judge. If the judge finds probable cause, he or she checks a box on the application form to that effect and, thus, authorizes the arrest. A sample is enclosed.

         Id.

         Following the second production, Plaintiffs deposed two law enforcement officers of the State of Connecticut who had been involved in both the investigation of the labor disturbance and in the production of documents related to that investigation. These depositions gave Plaintiffs reason to believe that Respondent's search for responsive documents was limited to a request for the case file, and that the case file may not contain all responsive documents in Respondent's possession.[1] Plaintiffs alerted Respondent to this development, and asked for further production, in a letter dated March 21, 2016. Doc. 15, Ex. 6. Plaintiffs renewed this request on April 22, 2016. See Doc. 15, Ex. 7. Attorney Sulik replied on April 27, 2016, and asked Plaintiffs to "forward the relevant portions of the transcripts . . . so that I may better conduct our search for additional materials." Doc. 15, Ex. 8. Before providing the transcripts, Plaintiffs asked Respondent to execute an acknowledgment of the Stipulated Confidentiality Order in place as to the New Jersey litigation. Doc. 15, Ex. 9.

         On May 19, 2016, Respondent provided an executed confidentiality acknowledgment, along with a third round of production, accompanied by a letter from Attorney Sulik. Doc. 15, Ex. 11. According to that letter, the third production consisted of "several additional documents that we have identified as potentially responsive to [the] subpoena." Id. at 5. Having received the executed confidentiality acknowledgment, Plaintiffs provided Respondent with the requested transcripts on May 19, 2016. Doc. 15, Ex. 11. Plaintiffs contacted Respondent on June 6, June 21, and July 6, 2016, inquiring as to the status of the search for additional documents, and received no response. Doc. 15, Ex. 12. In Plaintiffs' July 6 email, they informed Respondent that, if no response was received by July 8, 2016, Plaintiffs would seek further recourse from the Court. As far as the Court can see from the record, following the May 19, 2016 production, Respondent did not respond to Plaintiffs until November 2016. In its brief in opposition to this Motion, filed November 29, 2016 Respondent counsel indicates that, in making the May 2016 production, she "failed to notice and, therefore, did not provide three ...


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