United States District Court, D. Connecticut
CARE ONE MANAGEMENT, LLC et al. Plaintiffs,
STATE OF CONNECTICUT, DIVISION OF CRIMINAL JUSTICE, OFFICE OF CHIEF STATE'S ATTORNEY, Respondent
ORDER ON PLAINTIFFS' SECOND MOTION TO
Charles S. Haight, Jr. Senior United States District Judge
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
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
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.
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.
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).
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.
3) from Supervising Assistant State's Attorney JoAnne
Sulik, and consisting of "the four withheld documents
sought in [Plaintiffs'] motion to compel." Doc. 15,
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
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.
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. 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.
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 ...