United States District Court, D. Connecticut
RULING ON PLAINTIFF'S MOTION FOR A PROTECTIVE
ORDER [DOC. #47]
SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE.
have issued a subpoena to Attorney Meredith C. Braxton, who
is counsel of record for plaintiff in this case, to appear
for a deposition. Plaintiff has moved to quash the subpoena,
and for a protective order prohibiting the deposition of
Attorney Braxton. See Doc. #47; see also Doc. #49 (memorandum
in opposition), Doc. #51 (reply). The motion has been
referred to the undersigned for ruling. The Court finds that
Attorney Braxton has put her personal knowledge at issue in
this case by including her own statements as attachments to
the Second Amended Complaint, and thus, is subject to
deposition as to her personal knowledge. Accordingly, the
Court GRANTS, in part, and DENIES, in part,
plaintiff's Motion for a Protective Order [Doc.
#47]. Because Attorney Braxton's deposition was
noticed for January 15, 2019, a date which has passed, the
Court TERMINATES, as moot, plaintiff's
motion to quash.
Jane Doe,  brings this action against The Town of
Greenwich and two employees of the Greenwich Police
Department, Sergeant Detective Brent Reeves and Detective
Krystie Rondini. See Doc. #1. Plaintiff alleges, inter alia,
that in 2016,  she was sexually assaulted by Peter
See Doc. #46 at 7-8. Roe was, at the time, a student at
Brunswick School, the all-male brother institution to
plaintiff's own all-female high school, Greenwich
Academy. See Doc. #20-1 at 3 n.1. Both Jane Doe and Peter Roe
were minors at the time. See Docs. #46 at 5; #65 at 3.
Second Amended Complaint [Doc. #46] (hereinafter the
“SAC”), alleges that a pool party, for plaintiff
and her friends, was held at the Doe residence, and that
“Plaintiff's parents, Plaintiff's adult brother
and two adult friends were on hand to supervise the
gathering.” Doc. #46 at 7. Roe attended the party and
was allegedly “aggressive, lewd and
belligerent[.]” Id. “Witnesses reported
observing [Roe] trying to grope and otherwise inappropriately
grab the girls and making suggestive and lewd comments to
them.” Id. Roe allegedly assaulted Brother
Doe, who then began making arrangements to ensure Roe was
taken home. See Id. at 8. Two Brunswick students
then took Roe to the pool house bathroom “to try to
sober him up[.]” Id. at 8. “Plaintiff
went to the pool house bathroom to assist.”
Id. The other two students left the pool house when
summoned by their parents, leaving Doe alone with Roe. See
Id. It was at that time that the alleged sexual
assault occurred. See id.
“described what had happened to her ... to a number of
her friends and some family members, although she did not
tell her parents or brother.” See Doc. #46 at 9.
Plaintiff ultimately informed her school's counselor. See
Id. The counselor notified the Head of School, who
in turn “filed a report with the Department of Children
and Families (‘DCF') as required by law.”
Id. The SAC asserts “[u]pon information and
belief” that “DCF forwarded the report to the
Greenwich PD.” Id. On August 2, 2016,
plaintiff made a formal statement to the Greenwich Police.
point during the course of the investigation, the Doe family,
dissatisfied with the process, retained counsel to act on
their behalf. See Id. at 10. Attorney Braxton,
acting on behalf of the Doe family, communicated with
Sergeant Detective Reeves and Greenwich Police Chief Jim
Heavey regarding the investigation, beginning in August 2016.
See Doc. #46-1. Attorney Braxton signed the operative SAC,
and is now counsel of record in this matter.
brings causes of action pursuant to 42 U.S.C. §1983 for
violation of her Fourteenth Amendment rights to equal
protection and due process, and a state law claim for
“intentional or negligent infliction of emotional
distress[.]” See Doc. #46 at 16-20. Named as defendants
are the Town of Greenwich, Sergeant Detective Brent Reeves,
and Detective Krystie Rondini. Plaintiff contends that
defendants conducted an insufficient investigation into her
complaint against Roe, and that they improperly allowed
Brunswick School to conduct an independent investigation into
her allegations. See generally Id. at 9-13.
Plaintiff further asserts that the Greenwich Police
Department routinely colludes with Brunswick School in such
investigations “to prevent negative publicity from
tarnishing the reputation of Brunswick[, ]” “to
enable Brunswick to ... manipulate witnesses[, ]” and
to “shield [Brunswick] students from criminal
prosecution[.]” Id. at 2. The alleged failures
in this investigation, plaintiff contends, were due in part
to this policy and practice of collusion.
to the operative SAC [Doc. #46] are several documents: (1) a
letter from Attorney Braxton to Sergeant Detective Reeves,
dated August 23, 2016; (2) an email exchange between Attorney
Braxton and Chief Heavey, dated August 30, 2016, and August
25, 2016; and (3) a letter from Attorney Braxton to Chief
Heavey, dated May 23, 2018, making a FOIA request relating to
matters discussed in the email exchange, and a May 30, 2018,
letter from the Town of Greenwich responding to that request.
See Doc. #46-1.
December 13, 2018, defendants issued a subpoena to Attorney
Braxton, requiring her attendance at a January 15, 2019,
deposition. See Doc. #47-3 at 2. Defendants argue that they
should be permitted to depose Attorney Braxton, because she
has “relied upon her personal knowledge of events that
she has participated in to support the Plaintiff's
claims. She has attached, and incorporated into, the Second
Amended Complaint correspondence between herself and
Defendant Reeves.” Doc. #49 at 2. Defendants refer to a
letter written by Attorney Braxton, dated August 23, 2016,
which purports to memorialize an August 19, 2016,
conversation regarding the investigation. See Doc. #46-1 at
2-3. Defendants assert:
Plaintiff Counsel's August 23rd letter makes a
series of factual assertions that are disputed; issues
regarding the use of alcohol at the party by underage youths,
Plaintiff's parents' vigilance in screening the party
goers to insure no alcohol was present, Ms. Braxton's
assertion that Defendant Reeves expressed a belief directly
to her that Jane Doe's assault claim did not merit a
‘vigorous' investigation, Plaintiff Counsel's
charges of an allegedly ‘unduly cozy relationship'
between GPD and Brunswick (the collusion claim) and
allegations that Reeves tried to coerce Plaintiffs into
dropping the case[.]
Doc. #49 at 2.
also argue that they need to depose Attorney Braxton
regarding allegations of “collusion” and
“mutual strategy, ” as reported by Greenwich Time
shortly after this case was filed. Doc. #49 at 3; see also
Doc. #49-1 at 4-17. Defendants seek to “confirm that
the newspaper accurately reported what [Attorney Braxton]
said and, if so,  to find out what she meant by a
‘mutual strategy' and what facts support that
claim.” Doc. #49 at 4. Plaintiff does not dispute that
her allegations in the SAC rely, in part, on Attorney
Braxton's personal knowledge, but argues that such
reliance is insufficient to justify defendants' request
to depose Attorney Braxton. See Docs. #47-4; #51 at 2.
26(b)(1) of the Federal Rules of Civil Procedure sets forth
the scope and limitations of permissible discovery:
Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense
and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount
in controversy, the parties' relative access to relevant
information, the parties' resources, the importance of
the discovery in resolving the issues, and whether the burden
or expense of the proposed discovery outweighs its likely
benefit. Information within this scope of discovery need not
be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1). “The party resisting
discovery bears the burden of showing why discovery should be
denied.” Cole v. Towers Perrin Forster &
Crosby, 256 F.R.D. 79, 80 (D. Conn. 2009). The burden
here, therefore, is on plaintiff to establish a basis for
denying the discovery sought.
to Rule 26(c) of the Federal Rules of Civil Procedure,
“[t]he court may, for good cause, issue an order to
protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense, including ...
forbidding the disclosure or discovery[.]” Fed.R.Civ.P.
26(c)(1)(A). “Where the discovery is relevant, the
burden is upon the party seeking non-disclosure or a
protective order to show good cause.” Dove v. Atl.
Capital Corp., 963 F.2d 15, 19 (2d Cir. 1992).
“Rule 26(c) confers broad discretion on the trial court
to decide when a protective order is appropriate and what
degree of protection is required.” Seattle Times
Co. v. Rhinehart, 467 U.S. 20, 36 (1984).
considerations come into play when evaluating a protective
order for the deposition of opposing counsel. While
“depositions of opposing counsel are disfavored,
” United States v. Yonkers Bd. of Educ., 946
F.2d 180, 185 (2d Cir. 1991), “the disfavor with which
the practice of seeking discovery from adversary counsel is
regarded is not a talisman for the resolution of all
controversies of this nature.” In re ...