216 Conn. 483 | Conn. | 1990
This case concerns the trial court’s denial of a motion to quash a deposition subpoena and its refusal to issue a protective order despite the claim of the petitioner, Virginius B. Lougee, that the information sought by the respondent, Jeannie B. Grinnell, was immaterial and unnecessarily duplicative. The court ruled that the statutory criteria for issuing a deposition subpoena had been satisfied and that Lougee had not shown good cause as to why he should not be deposed. We affirm the judgment of the trial court.
The relevant procedural history of this case is as follows. Grinnell is the plaintiff in an action brought in Texas against the American Tobacco Company (Ameri
During his tenure as CEO, Lougee was responsible for American’s policy on issues of “smoking and health.” Consequently, in responses to Grinnell’s interrogatories he was designated by American as one of four individuals once holding policy-making positions and having the most knowledge regarding the chemical composition of certain cigarettes. Lougee may be the only one of these individuals presently alive.
As a result of American’s designation, Grinnell filed a deposition notice in her Texas action which was directed to American but sought Lougee’s testimony. The Texas trial court determined that American could not be compelled to produce Lougee for a deposition because Lougee was no longer an employee of American. Grinnell then hired a Connecticut attorney to subpoena Lougee to appear at a deposition in Connecticut. Lougee moved to quash the subpoena. The trial court, after determining that Grinnell failed to apply for the subpoena as required by General Statutes § 52-148e (f),
On October 20,1989, Grinnell obtained an order from the District Court of Jefferson County, Texas, commissioning a Connecticut notary to take the deposition of
Lougee promptly moved to quash the subpoena
Lougee appealed to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023. On appeal, Lougee claims that the trial court should not have denied his motion to quash Grinnell’s deposition subpoena and for a protective order because: (1) the information sought was not material to a pending action; and (2) the information sought was unnecessarily duplicative. We disagree.
I
Before addressing the merits of this appeal, we must determine whether the appeal is properly before this court. An order issued upon a discovery motion in a civil case does not ordinarily constitute an appealable final judgment. Melia v. Hartford Fire Ins. Co., 202
II
Lougee’s first claim is that the trial court should not have denied his motion to quash Grinnell’s deposition subpoena and for a protective order because the information she seeks is not material to the Texas action. In support of his claim, Lougee points out that on April 11,1989, the Texas trial court granted summary judgment in favor of American on all of Grinnell’s post-1965 claims. Since only those claims for the period ending December 31, 1965, remain viable, and since his knowledge derives from the years 1981 to 1985, Lou-
At the outset, we note that the limited statutory requirements for the issuance of a subpoena for the taking of a deposition to be used in a foreign civil action have been met in this case. General Statutes § 52-148e (a)
In addition, § 52-148e (f)
Further, because the role of Connecticut courts in the Texas action is confined to supervising a deposition, we decline to speculate upon whether the information Lougee possesses is actually immaterial to the subject matter of that action. See Horizons Titanium Corporation v. Norton Co., 290 F.2d 421, 425 (1st Cir. 1961); E.I. duPont de Nemours & Co. v. Deening Milliken Research Corporation, 72 F.R.D. 440, 442-43 (D. Del. 1976). It may well be that Lougee lacks the information that Grinnell desires, but Grinnell need not blindly accept Lougee’s claimed lack of knowledge as reported by his attorney. Grinnell is entitled to test that claim by deposing Lougee, and any objections raised by Lougee can adequately be preserved on the record of the deposition. See Travelers Rental Co. v. Ford Motor Co., 116 F.R.D. 140, 143 (D. Mass. 1987); Amherst Leasing Corporation v. Emhart Corporation, 65 F.R.D. 121, 122-23 (D. Conn. 1974). We are satisfied that the Texas court will thereafter determine the evidentiary issue of materiality presented here, when
Ill
Lougee next claims that the trial court should not have denied his motion to quash Grinnell’s deposition subpoena and for a protective order because the information she seeks is unnecessarily duplicative. Specifically, he claims that Grinnell now possesses the transcript of Lougee’s testimony from an unrelated “smoking and health” case previously litigated in New Jersey, as well as depositions taken from Robert Hei-mann, CEO at American from 1969 to 1980, and Preston H. Leake, current director of research and development. Lougee notes further that American has offered to stipulate that its position on “smoking and health” issues remains the same as that stated by both Lougee in his testimony in the New Jersey action and Heimann at his deposition in the Texas action. We find this claim equally unavailing.
In support of his claim that Grinnell’s possession of his testimony in the New Jersey action should excuse a present deposition, Lougee principally relies on DiPalma v. Wiesen, 163 Conn. 293, 303 A.2d 709 (1972). In DiPalma, the witness actually testified for two days at trial and was released. When the witness failed to comply with a subpoena requiring a second appearance in court, the trial court refused to issue a capias to secure his presence. This court held that the trial court did not abuse its discretion in refusing to issue the capias in light of the witness’ prior submission to two days of trial examination. In this case, where Lougee has not testified with respect to the Texas action, we find no duplication of testimony analogous to that in DiPalma.
DiPalma aside, we note that it is uncertain at this point in time whether the transcript of Lougee’s New
Consequently, it is our view that Grinnell is entitled to explore by deposition Lougee’s personal knowledge of American’s position on “smoking and health” issues. We therefore hold that the trial court did not abuse its discretion in denying Lougee’s motion to quash Grin-nell’s application for a deposition subpoena and for a protective order. See Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 57, 459 A.2d 503 (1983).
The judgment is affirmed.
In this opinion the other justices concurred.
“[General Statutes] Sec. 52-148e. issuance of subpoena foe taking OF DEPOSITIONS. DEPOSITION TO BE USED OUTSIDE THE STATE. . . .
“(f) Deposition of witnesses living in this state may be taken in like manner to be used as evidence in a civil action or probate proceeding pending in any court of the United States or of any other state of the United States or of any foreign country, on application of any party to such civil action or probate proceeding.”
Lougee’s pleading was labeled in part as an “objection” to Grinnell’s deposition subpoena application, but essentially sought to quash the subpoena.
We have addressed the merits of Lougee’s claim, in Parts II and III of this opinion, that the trial court should not have denied that portion of his motion seeking a protective order notwithstanding the fact that Practice Book § 221, unlike its counterpart Federal Rule of Civil Procedure 26 (c), provides that a protective order may be issued only to protect “a party.” Lougee is not a party to the Texas action.
“[General Statutes] Sec. 52-148e. issuance of subpoena for taking OF DEPOSITIONS. DEPOSITION TO BE USED OUTSIDE THE STATE, (a) Each judge or clerk of any court, justice of the peace, notary public or commissioner of the superior court, in this state, may issue a subpoena, upon request, for the appearance of any witness before him to give his deposition in a civil action or probate proceeding, if the party seeking to take such person’s deposition has complied with the provisions of sections 52-148a and 52-148b and may take his deposition, each adverse party or his agent being present or notified.”
See footnote 1, supra.