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Kolashuk v. Hatch

Appellate Court of Connecticut

January 7, 2020


          Argued October 15, 2019

Page 844


          Appeal from  Superior Court in the judicial district of New London, Bates, J.,


          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).

          Judges: Lavine, Alvord and Lavery, Js. LAVINE, J. In this opinion the other judges concurred.


Page 845

         [195 Conn.App. 133] 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

Page 846

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.[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 [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 ยง 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 nonissue, but I think the reason is because

Page 847

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 [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.

          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 [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.[7] There was

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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 ...

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