October 15, 2019
from Superior Court in the judicial district of New
London, Bates, J.,
M. Garrett, Jr., with whom was Lawrence H. Adler,
self-represented, for the plaintiff in error (Lawrence H.
E. Reardon, with whom, on the brief, was Laura A. Raymond,
for the defendant in error (Joseph Kolashuk).
Judges: Lavine, Alvord and Lavery, Js. LAVINE, J. In this
opinion the other judges concurred.
Conn.App. 133] LAVINE, J.
plaintiff in error, Lawrence H. Adler, the attorney for the
defendant, Kyle Hatch, filed a writ of error with our Supreme
Court, 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.
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 [195 Conn.App. 134] 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. The Reardon Law Firm, P.C. (firm),
represented Kolashuk. Adler entered an appearance on behalf
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.
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  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 [195 Conn.App. 135] 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).
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 nonissue,
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. 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."
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 [195 Conn.App. 136] 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.
March 23 and April 26, 2017, Reardon sent a letter to Adler
requesting Hatch's phone records. 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."
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 [195 Conn.App. 137] its effort to obtain the
phone records of a third party whom Hatch allegedly called on
the morning of the collision. 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 ...