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 ...