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Doe v. Town of Greenwich

United States District Court, D. Connecticut

September 10, 2019

JANE DOE
v.
TOWN OF GREENWICH, et al.

          RULING ON PLAINTIFF'S MOTION FOR A PROTECTIVE ORDER [DOC. #47]

          HON. SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE.

         Defendants 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.

         I. BACKGROUND

         Plaintiff, Jane Doe, [1] 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, [2] she was sexually assaulted by Peter Roe.[3] 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.

         The 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.

         Plaintiff “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. See id.

         At some 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.[4]

         Plaintiff 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.

         Attached 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.

         On 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.

         Defendants 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.

         II. LEGAL STANDARD

         Rule 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.

         Pursuant 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).

         Additional 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 ...


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