2011 Ct. Sup. 11053, 51 CLR 632
No. FST X08 CV09 4019435 SConnecticut Superior Court Judicial District of Stamford-Norwalk, Complex Litigation Docket at Stamford
March 21, 2011
MEMORANDUM OF DECISION MOTION FOR PROTECTIVE ORDER AND/OR TO QUASH #259
BRAZZEL-MASSARO, J.
INTRODUCTION
The court has received a motion combined with memorandum of argument by counsel for Mr. Robert Zelle, husband of the plaintiff Patricia Zelle, to quash a subpoena and notice of deposition directed to him by the defendant Bayer Healthcare. The notice and subpoena are dated February 4, 2011 for a deposition scheduled for March 7, 2011. The motion for a protective order and to quash are dated March 3, 2011.[1]
The defendant filed an objection to the motion with a memorandum of law.[2] The plaintiff, Patricia May Zelle also submitted a “joinder in the motion and memorandum filed by Robert Zelle” on March 7, 2011.
The parties have agreed that the court may decide this matter on the papers.[3]
DISCUSSION
The motion for protective order that was submitted by counsel for Mr. Zelle raises a number of objections to conducting the deposition. The motion and supporting argument of counsel refers to General Statutes §§46b-213a(h), 46b-115cc(d), 46b-129a and 52-146 as exceptions to marital privilege but counsel does not provide specific statutory argument supporting the motions. The memorandum fails to specifically provide argument as to each claimed protection. Counsel claims as the basis of the protective order that the “information would invade the attorney-client privilege, attorney work product privilege, anticipation of litigation privilege and the marital privilege.” There is no law provided to the court regarding any of these claims by the plaintiff’s husband. The main emphasis of the argument is that the deposition is unreasonable, oppressive and harassing. Counsel for Mr. Zelle also argues CT Page 11054 that the document request is improper in that it seeks privileged information and again attorney work product as well as medical information that is protected by HIPPA.
The counsel for Mr. Zelle cites statutes that do not allow a marital privilege exception but he fails to provide law or argument for the support of the privilege in the instant action. The marital privilege has been recognized by our legislature in both criminal and civil matters. Criminally, it has been both codified and excepted as to personal violence in Connecticut Statutes, § 54-84a. The privilege not to testify lies solely with the witness spouse and cannot be invoked by the party spouse. A marital privilege in the civil context was acknowledged by the Connecticut Supreme Court in Spitz’s Appeal from Commissioners, 56 Conn. 184, 14 A. 776 (1887). The basis of the privilege is to prevent testimony that may be adverse to the spouse and may be properly asserted at the time of the deposition. Breadventures, Inc. v. Mrvic, Superior Court, judicial district of Stamford, Docket No. CV 00-0180681, (February 22, 2002, Adams, J.) [31 Conn. L. Rptr. 468]. In the present action, the defendant argues that the deposition testimony of the spouse is related to the fact that he was involved in the medical care of his wife and that the defendant has a right to inquire as to the extent of the plaintiff’s injuries and allegations in the complaint. The defendant has not indicated that they intend to delve into marital communications and based upon the argument of defendant Mr. Zelle has direct testimony of his own that would be appropriate for a deposition inquiry. The subpoena duces tecum states that the request for deposition is “to testify what you know in a certain civil action.” The deponent has a right to state an objection to any questions that invade the marital privilege but cannot utilize the privilege to avoid a deposition. Likewise, Mr. Zelle alleges attorney client privilege and work product but he does not delineate any basis for the assertion. He has no privilege related to his spouse’s communications with her counsel or the work product claim. Therefore, the motion to quash is denied without prejudice to the right of Mr. Zelle to assert the marital privilege at the time of his deposition of communications made during the marriage and that they were intended to be private.
The claim of attorney client privilege has no basis in a situation where the husband may be present or even assisting in meetings with counsel. The communications between client and attorney are privileged when made in confidence for the purpose of seeking legal advice and not when made in the presence of a third party. There is not reasonable expectation of confidentiality. State v. Gordon, 197 Conn. 413, 423-24, 504 A.2d 1020 (1985).
CT Page 11055 The subpoena request six separate areas of documents to be produced by the deponent to which he has objected to all six categories. A review of the document requests indicates clearly in the instructions that it is limited to the documents solely in the deponent’s possession and control and his individual counsel. Once again, if any of the documents are related to a marital communication they may be protected but the objection must be raised at the time of the deposition. Therefore, if the deponent has documents that he believes are protected it is incumbent upon him to create a privilege log for review by counsel and if necessary, by the court. The deponent has raised a blanket objection to the requests which may not be supported by a review of the documents. However, the document requests for the medical documents of Mrs. Zelle that are beyond any specific document in the possession of Mr. Zelle is overly broad and as such only documents specifically related to his involvement will be disclosed. As to each of the following requests the deponent is to produce the documents subject to any marital privilege objection to be raised at the time of deposition.
CONCLUSION
The motion to quash is denied, but as to the deposition testimony concerning the claim of marital privilege, the deponent may when appropriate raise the objection. The objection to the document requests is denied with the exception of any marital privilege or medical documents records already produced by the plaintiff. The deponent will prepare and provide a privilege log of any documents to which the defendant object based upon the marital privilege or attorney client privilege and/or work product at least 3 business days before the scheduled deposition.
CT Page 11056