PHILIP IRWIN AARON v. NINA J. MATTIKOW ET AL.

2004 Ct. Sup. 14106
No. CV 03-0194924 SConnecticut Superior Court, Judicial District of Stamford-Norwalk at Stamford
September 20, 2004

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

RULINGS ON PENDING MOTIONS
JENNINGS, JUDGE.

I. MOTION FOR PROTECTIVE ORDER (#122)
The motion for protective order is denied. The plaintiff may depose the defendant Alfred H. Mattikow until the deposition is complete, but not to exceed one full court day (10 A.M. to 5 P.M. with a one-hour luncheon recess and a 15-minute morning and afternoon recess). The resumption of deposition shall be held at the Stamford Courthouse on a mutually agreeable date during the month of November 2004.

II. MOTION TO COMPEL DISCOVERY (#137) A. Document Disclosure
It is not sufficient compliance with plaintiff’s document demands for a defendant to say that he or she has turned over all the requested documents to their attorney and then for the attorney to say that “all documents that are not privileged and that are in my client’s possession
have already been produced.” (Emphasis added.) E.g. Transcript of Nina Mattikow’s deposition, p. 21. This is a circular and potentially evasive response, which in various forms has been repeated throughout the deposition. The defendant’s “Notice of Compliance” of March 15, 2004 is likewise inadequate in that it is limited to documents that the defendants “have in their possession” when there was testimony from the defendants that they had turned over possession of some documents sought by the plaintiff to their attorney.

Therefore, it is ordered that the defendants shall, not later than October 22, 2004:

(1) Turn over to the plaintiff any non-privileged documents — not previously produced — called for by the plaintiff’s April 1, 2003 request for production of documents to the extent ordered by the court on CT Page 14107 January 26, 2004 in the possession or control of the defendants, their present attorney or any other attorney or banker, accountant, or other advisor or record keeper under their control. Defendants shall make a good faith effort to locate any such documents in their possession or control including, as necessary, inquiries of third parties within their control who may have possession of any such documents.
(2) Turn over to the plaintiff any non-privileged documents — not previously produced — called for by the Request for Production of Documents attached as Schedule “A” to the two notices of deposition dated October 18, 2003 in the possession or control of the defendants, their present attorney or any other attorney or banker, accountant, or other advisor or record keeper under their control. Defendants shall make a good faith effort to locate any such documents in their possession or control including, as necessary, inquiries of third parties within their control who may have possession of any such documents.
(3) File with respect to all such documents requested by the plaintiff an updated and unqualified certificate of compliance with discovery attesting to the defendant’s production of all non-privileged documents called for by the document requests of April 1, 2003 and October 18, 2003 to the extent ordered by the court after diligent search and inquiry of third parties within their control.
(4) File as a pleading in the case a Privilege Log listing each document withheld from production on a claim that the document is privileged or that production of the document would violate a privilege. If any documents are withheld from production on a claim of privilege, the plaintiff may by motion ask the court in the future to review the validity of the privilege claim.
(5) If by October 22, 2004 the defendants have been unable for whatever reason to produce copies of their state and federal income tax returns for the years for CT Page 14108 the years 1989 through 1993, inclusive, then on October 22, 2004 the defendants shall produce to the plaintiff duly executed and, if required, acknowledged authorizations and consents, in proper form, directed to the New York and/or Connecticut taxation departments and to the Internal Revenue Service to permit the plaintiff to obtain copies of any such missing tax returns directly from the taxing authorities.

B. Answers to Deposition Questions Questions Posed to Defendant Nina Mattikow:
The defendant Nina Mattikow shall answer questions as to her knowledge of the factual basis for the special defenses filed on her behalf including, but not limited to, the questions at Tr. 131-36.

The defendant Nina Mattikow shall answer questions as to her knowledge of the search and inquiry performed by her or on her behalf to locate documents called for by plaintiff’s document requests, and the results thereof, and the present custody of any documents so located including, but not limited to, the questions at Tr. 10-24, Tr. 29-31, Tr. 33-35, and Tr. 121.

The defendant Nina Mattikow shall answer questions as to the source of the investment income which was used to make mortgage payments including, but not limited to, the questions at Tr. 58-59.

The defendant Nina Mattikow shall answer questions as to the source and ownership of funds used to purchase or renovate the premises at 969 North Street, Greenwich, Connecticut including, but not limited to, the question at Tr. 67.

Questions Posed to Defendant Alfred Mattikow:
The defendant Alfred Mattikow shall answer questions as to inquiries made to his attorneys to obtain copies of pre-existing documents such as income tax returns or judgments against Mr. Mattikow including, but not limited to, the questions at Tr. 27-28, and 30 unless those documents were turned over to such attorneys for the purpose of receiving legal advice related to those documents or their contents. The attorney-client privilege does not cover mere communications of fact between attorney and client which are not “inextricably linked to the giving of legal advice.”Ullman v. State of Connecticut, 230 Conn. 698 (1994). If counsel for Mr. CT Page 14109 Mattikow still feels that the conversations are privileged, then questions relating thereto shall not be answered but a sufficient record shall be made by testimony or offer of proof as to each such attorney inquired about to permit the court to rule specifically in the future on the privileged status of each such conversation asked about.

Defendant Alfred Mattikow shall answer the question “And did you, in fact, invest those funds?” ($150,000 received from Idea Source.) Tr. 56.

Defendant Alfred Mattikow shall answer questions as to Plaintiff’s Exhibit 28, which is a New York State Tax Warrant for taxes imposed under Article 22 of the New York Tax Law (personal income taxes). The reference to 130 Carthage Road is merely a mailing address to which the warrant was sent.

Defendant Alfred Mattikow may be asked, and shall answer, questions regarding the defendants’ former home at 130 Carthage Road, Scarsdale, New York, to this extent: who owned the house (how title was held); when it was sold; the sales price; the net proceeds of sale after paying off all encumbrances against the property and the expenses of sale; and the extent to which the net sales proceeds from 130 Carthage Road were invested into the purchase of the home at 696 North Street, Greenwich Connecticut. (Tr. 221.)

Defendant Alfred Mattikow shall answer questions as to his knowledge of the sources of income that were used to pay maintenance expenses of the house at 969 North Street, Greenwich, Connecticut (Tr. 45-47.)

Resumption of Depositions
The Court has ruled in response to the Motion for Protective Order that the deposition of defendant Alfred Mattikow shall resume on a date in November 2004. (See Part II of this Ruling, supra.) The foregoing questions which the court has ordered Mr. Mattikow to answer, and reasonable follow up questions to his answers thereto, may be put to Mr. Mattikow during that resumed deposition. The deposition of defendant Nina Mattikow may also be resumed on a mutually agreeable date during the month of November 2004 for the sole purpose of putting to her the foregoing questions which the court has ordered her to answer, and any reasonable followup questions to her answers thereto. The resumed deposition of Mrs. Mattikow shall also be held at the Stamford Courthouse, and shall not exceed 2 hours from the time it starts.

BY THE COURT: CT Page 14110

Alfred J. Jennings, Jr., Judge CT Page 14111