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Kolashuk v. Hatch

Court of Appeals of Connecticut

January 7, 2020

JOSEPH KOLASHUK
v.
KYLE HATCH

          Argued October 15, 2019

         Procedural History

         Writ of error from the orders of the Superior Court in the judicial district of New London, Bates, J., granting the motion for sanctions filed by the defendant in error against the plaintiff in error, and Calmar, J., awarding attorney's fees to the attorney of the defendant in error, brought to the Supreme Court, which transferred the matter to this court. Writ of error granted; remanded with direction.

          Maury M. Garrett, Jr., with whom was Lawrence H. Adler, self-represented, for the plaintiff in error (Lawrence H. Adler).

          Kelly E. Reardon, with whom, on the brief, was Laura A. Raymond, for the defendant in error (Joseph Kolashuk).

          Lavine, Alvord and Lavery, Js.

          OPINION

          LAVINE, J.

         The plaintiff in error, Lawrence H. Adler, the attorney for the defendant, Kyle Hatch, filed a writ of error with our Supreme Court, [1] challenging the sanctions issued against him by the trial court, Bates, J., and the imposition of attorney's fees ordered by the trial court, Calmar, J. The case of Bank of New York v. Bell, 142 Conn.App. 125, 63 A.3d 1026, cert. denied, 310 Conn. 901, 75 A.3d 30 (2013), and cert. denied, 310 Conn. 901, 75 A.3d 31 (2013), which stands for the proposition that a party may not be ordered to produce documents owned by or in the possession of third parties, is dispositive of Adler's claims. We, therefore, grant the writ of error.

         The following facts, as found in the record, underlie Adler's claims. On March 5, 2016, the minor plaintiff/ defendant in error, Joseph Kolashuk, was riding his bicycle on Raymond Hill Road in Oakdale when he and a motor vehicle operated by Hatch, collided. Kolashuk suffered injuries and, by and through his mother and next friend, Danielle Kolashuk, commenced a personal injury action against Hatch. The complaint sounded in negligence and statutory and common-law recklessness. It alleged, in relevant part, that Hatch was operating his motor vehicle while typing, sending, and/ or reading text messages ‘‘from'' his cell phone (phone) and operating his motor vehicle at a high rate of speed while using a phone in his hand.[2] The Reardon Law Firm, P.C. (firm), represented Kolashuk. Adler entered an appearance on behalf of Hatch.

         On March 6, 2017, the firm noticed Hatch's deposition duces tecum, requesting that he produce at the deposition (1) any and all phone records of March 5, 2016, including bills, invoices, text messages and e-mails; and (2) the actual phone he used on March 5, 2016. On March 15, 2017, Hatch objected to both production requests and moved for a protective order, stating in part that the records were not within his knowledge or possession.[3]

         On March 7, 2017, Attorney Robert I. Reardon, Jr., noticed the depositions of and issued subpoenas to the keepers of records for Verizon Wireless (Verizon) and AT&T, Inc., commanding that they produce ‘‘[a]ny and all . . . phone . . . records from March 5, 2016 between [10] and [11 a.m.] for phone number [for Hatch] including call details, text details, phone calls made and/or received, text messages sent and/or received, and [e-mails] sent and/or received.'' Hatch filed motions to quash the subpoenas duces tecum issued to the service providers and motions for a protective order, stating in relevant part that the request for production was not valid in that it violated General Statutes § 16-247u (b).[4]

         During his deposition on March 17, 2017, Hatch testified, in part, that minutes before the collision, he had sent a text message on a phone with service provided by Verizon. On the record, Reardon articulated his efforts to obtain the phone records from the service providers and that he had been unsuccessful in doing so. He produced a facsimile received from Verizon, indicating that it had no records for the number in Hatch's name. Adler reviewed the facsimile and stated: ‘‘I will help you because I think you and I can probably agree, because it's ultimately going to be a non issue, but I think the reason is because it's not in the account name of . . . Hatch. That is his number, but it's not in his name.'' Reardon asked Hatch whose name was on the account. Hatch stated that the phone was a company work phone and that the account is in the name of R & W Heating Energy Solutions, LLC (R & W Heating), his employer.[5] Following a discussion between counsel, Adler stated to Reardon: ‘‘You and I can probably, early next week, work out a parameter of a production. I can probably get you what you need.''

         At a point later in the deposition, Reardon asked Hatch if he had brought the phone with him. He had not; the phone's screen had broken, and although he had it repaired, he did not know whether the phone still contained data. Reardon asked Hatch to give the phone to Adler to preserve. Adler agreed to hold the phone in escrow. Hatch's counsel filed a motion for a protective order regarding the phone on the ground that, pursuant to Connecticut statute, one may not request phone records from one to whom such records do not belong and that it is impermissible for a party to provide phone records belonging to third parties. Hatch's counsel invited Reardon to subpoena the phone records from R & W Heating or to subpoena the records from R & W Heating's service provider.

         On March 23 and April 26, 2017, Reardon sent a letter to Adler requesting Hatch's phone records.[6] By motion dated April 13, 2017, the firm sought to compel production, asking the court to order Hatch to produce the phone records as requested in the notice of Hatch's deposition, among other things. On May 9, 2017, Judge Bates issued an order stating that ‘‘[t]he . . . phone records shall be produced for the time requested, which appears to the court to be reasonably limited in time.''

         Hatch did not produce the records, and by motion dated May 2, 2017, the firm filed a motion for a protective order for certain individuals whose depositions Adler had noticed and for sanctions against Hatch for his continued refusal to provide the phone records, ‘‘which is the subject of a pending motion to compel filed'' on April 13, 2017. The firm also sought a sanction of $380.96 for the expenses the firm had incurred in its effort to obtain the phone records of a third party whom Hatch allegedly called on the morning of the collision.[7]There was a further exchange of correspondence between counsel for the parties in which Joseph M. Barnes, an attorney at the firm, stated that during a status conference, Adler had confirmed ‘‘that [he] had the records we were requesting and could get them to my office by Monday, [May 22, 2017].'' Adler replied by letter stating, ‘‘my client does not have possession or control of any records for the phone at issue. I also did not represent that I had them in my possession, but simply indicated what I believed they showed. I have asked repeatedly and will ask again, that you confirm that if I can obtain the records that you seem to be seeking and provide them to you, you withdraw any further requests for possession of my client's or his [parents'] business . . . phone or any broader requests for phone records beyond the time limit specified by Judge Bates. Once I receive this confirmation, I will make the arrangements for what I understand you are looking for with the appropriate parties.''

         On June 12, 2017, Reardon filed a motion for default and sanctions for violation of Judge Bates' order. In addition to a default against Hatch, Reardon sought attorney's fees, costs and a sanction of $5000 against Hatch for the time the firm spent attempting to obtain his phone records. Reardon also moved for an order of contempt against Adler for his wilful refusal to comply with the court's order.

         On June 14, 2017, Reardon and Attorney Andrew B. Goodwin, [8] representing Hatch, appeared before Judge Bates. At that time, Goodwin stated in part: ‘‘I have stated to you repeatedly that my client does not have cell records, and you have heard from both me and from Verizon that the cell records are not in my client's name. It is only recently that you have been willing to limit the time period, as the court mandated, which was a significant portion of my objection. I also have a dispute about your entitlement effort to have access to the actual cell phone that has extensive unrelated material and, likely, attorney-client privileged material.

         ‘‘Here, once again, is my suggestion. I will discuss with my client's employer turning over the cell records-my client's employer turning over the cell records with the limitations placed by the judge in terms of date and time period, in accordance with the order, of course. I will do that voluntarily if, and only if, they do not satisfy you with the parameters that you defined, which is, according to your May 31, 2017 letter, that the records produced are sufficient to determine when your-that's Mr. Hatch-client was on the phone from 10 a.m. to 11 a.m. on March 5, 2016.

         ‘‘If you cannot make that determination after reviewing the records, I will agree to a judicial review of the phone to the extent this information is still on there, only for the date and time periods referenced. For reasons stated above, I will not simply turn over the phone if I can obtain it from my client's employer.''[9]

         During the June 14, 2017 hearing, Judge Bates asked whether the order should be restructured because the owner of the phone is not a party to the action. Thereafter, the court stated: ‘‘I'm going to issue a clarification that when I referred to his cell phone records, I was referring, if unartfully, to the records of the cell phone he was using. I understand that . . . the record of the calls is in the hands of the attorney representing [Hatch], and I order the attorney to turn those records over. Again, it's for the two hour interval. And I'm not going to make a limit. You know, I'm not going to prevent counsel, if there is reason to get more cell phone records down the line, to request those. It's not going to be a condition of this order, but the order is only affecting that . . . two hour period of time. So, that will be a clarification. As to whether or not the difference which I referred to as being . . . a difference without a [distinction], I think that's going to be part of the sanctions argument that we'll have to have.'' (Emphasis added.) The court also ordered that the records be produced within five business days.[10]

         By motion dated July 12, 2017, Reardon filed a second motion for sanctions due to what he termed Adler's ‘‘deliberate defiance'' of the court's orders. The motion sought a sanction of $5000 against Adler, a finding of contempt against Adler, and a default against Hatch for wilful violation of a court order. On July 27, 2017, Judge Bates held an evidentiary hearing on Reardon's motion for sanctions. At the hearing, Hatch testified that his phone number is connected to whatever phone he is using, the phone he was using on the date of the collision belongs to R & W Heating, and he could not remember whether he had seen the phone records. In addition, his parents are the owners of R & W Heating. He presumed that the phone records are in his mother's possession. He also testified that he had turned the phone at issue over to his parents, as he and his parents decided that ‘‘it was better for them to keep it safe.'' He further testified that he and his parents had no objection to turning over the phone records to Reardon. The court opined that Hatch had constructive possession of the phone and that the defense was ‘‘hiding behind a sort of legal technicality'' as to who owned the phone. (Emphasis added.) Adler argued that the phone is not what is at issue, the phone records are at issue. He also argued that Hatch never had possession of the phone records, which are in the possession of the owners of R & W Heating. The following colloquy transpired:

‘‘[Adler]: Your Honor, the only thing I've been talking about in the entire [proceeding] is Your Honor's order, which is about the records. The phone is not the subject of anything pending.
‘‘[Judge Bates]: The phone-when I refer to the phone, I'm talking about the phone records. . . .
‘‘[Adler]: We never had them. We didn't turn them over to the parents. We've never had the phone records. The parents get the bills, they pay the bills, they have them at their ...

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