Burgess v. Town of Wallingford

• Decision Date: 21 September 2012
• Docket Number: 3: 11 -CV- 1129 (CSH)
• Citation: Burgess v. Town of Wallingford, 3: 11 -CV- 1129 (CSH) (D. Conn. Sep 21, 2012)
• Court: U.S. District Court — District of Connecticut
• Parties: RICHARD E. BURGESS, Plaintiff, v. TOWN OF WALLINGFORD; CHIEF DOUGLAS L. DORTENZIO, In His Individual and Official Capacities; LIEUTENANT ANTHONY MARTINO, In His Individual and Official Capacities; SERGEANT MICHAEL COLAVOLPE, In His Individual and Official Capacities; OFFICER GABRIEL GARCIA, In His Individual Capacity; OFFICER DEVIN FLOOD, In His Individual Capacity; and MARK VANAMAN, Defendants.

RICHARD E. BURGESS, Plaintiff, v.TOWN OF WALLINGFORD; CHIEF DOUGLAS L. DORTENZIO, In His Individual and Official Capacities; LIEUTENANT ANTHONY MARTINO, In His Individual and Official Capacities; SERGEANT MICHAEL COLAVOLPE, In His Individual and Official Capacities; OFFICER GABRIEL GARCIA, In His Individual Capacity OFFICER DEVIN FLOOD, In His Individual Capacity; and MARK VANAMAN, Defendants.

3: 11 -CV- 1129 (CSH)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

Dated: September 21, 2012

RULING ON DEFENDANTS' MOTION TO COMPEL AND FOR SANCTIONS AND

MOTION FOR PROTECTIVE ORDER

HAIGHT, Senior District Judge:

In this action for false and malicious arrest, plaintiffRichard Burgess("Plaintiff") has repeatedly attempted to make audio recordings of depositions and has published deposition transcripts, as transcribed by a court reporter, on the Internet.Defendants now move the Court for two orders: (1) an order compelling Plaintiff to remove the transcript of his deposition testimony from the Internet and imposing sanctions for said publication online; and (2) a protective order barring Plaintiff from making future audio recordings at depositions, prohibiting him from publishing deposition transcripts on the Internet, and mandating his removal of all depositiontranscripts he has placed online.Doc. #31, 32.

I.FACTUAL SUMMARY

PlaintiffRichard Burgess commenced this action alleging "false and malicious arrest" by the Wallingford Police Department on May 16, 2010.Doc. #1.Burgess has alleged that, on that date, he accompanied his girlfriend to Yale Billiards, located at 950 Yale Avenue in the town of Wallingford, Connecticut.Id., ¶11.According to his Complaint, Plaintiff"was wearing a handgun visibly secured in a holster at his waist," for which he"possessed a valid Connecticut pistol permit" and "legal regist[ration] to him through the Connecticut State Police."Id., ¶12.Burgess asserts that while he was playing billiards, the owner of the business, Robert Hilton, approached him and requested that he conceal his handgun.Id., ¶13.Burgess refused and Hilton then allegedly retreated to phone the police to "check if openly carrying a firearm is legal."Id.Shortly thereafter, a patron named Mark Vanaman allegedly approached Burgess and "told [him] to conceal his handgun or [Vanaman] would call the police."Id., ¶14.Burgess claims he responded by telling Vanaman "to leave him alone and to feel free to call the police."Id.

Burgess also asserts that Hilton and Vanaman then "reapproached [him together] and they agreed that Burgess would leave."Id.At that point, Burgess allegedly proceeded outside to wait for the police to arrive "and clear up the issue of open carrying [of handguns] being legal."Id., ¶15.

When Hilton phoned the Wallingford Police Department and explained the situation, the dispatcher sent Sergeant Michael Colavolpe and Officers Michael Franenza, Abel Gonzalez, Gabriel Garcia, and Devin Flood to Yale Billiards.Id., ¶23.The police officers seized Burgess's gun and arrested him for "breach of the peace."Id., ¶27.Plaintiff was ultimately transported to the Wallingford Police Department and charged with disorderly conduct in violation of ConnecticutGeneral Statutes§ 53a-182.¹According to Plaintiff, "[o]n May 25, 2010 the charge of Disorderly Conduct was dismissed based on the recommendation of the Prosecutor advising the Judge a reason of 'No Probable Cause.'"Id.¶46.

On July 18, 2011, Plaintiff brought the present action against the Town of Wallingford; Chief of Police Douglas L. Dortenzio; Officers Colavolpe, Garcia, and Flood; Investigating Officer Lieutenant Anthony Martino; and Yale Billiards patron Mark Vanaman.²In his Complaint, Plaintiff set forth claims for: unlawful arrest, including, inter alia, unreasonable search and seizure in violation of the Fourth Amendmentand42 U.S.C. § 1983("Section 1983"); false arrest and failure by the town of Wallingford to adequately train its police officers; deprivation of free speech, in violation of the First and Fourteenth AmendmentsandSection 1983; deprivation of the right tokeep and bear arms in violation of the Second and Fourteenth Amendments and the Connecticut Constitution, Art. I, §15; and malicious prosecution by defendant Vanaman.

At the present stage of the proceedings, the parties are engaged in discovery.This process has, however, been plagued throughout by heated disputes over Plaintiff's attempts to make audio recordings of deposition testimony and his publication thereafter of deposition transcripts on the Internet.For example, on March 16, 2012, during the taking of Plaintiff's own deposition, the parties found it necessary to contact the Court to resolve an impasse they had reached.See Doc. #28.In particular, Defendants' notice of the deposition had indicated that Plaintiff's testimony would be recorded by a qualified court stenographer, pursuant to Rule 30(b)(3)(A) of the Federal Rules of Civil Procedure.Id.Plaintiff appeared for his deposition with a tape recorder to make an audio recording of his own testimony and, in fact, began taping.Id.Defendants' counsel objected to Plaintiff's use of the tape recorder on the grounds that (1)Plaintiff had given no prior notice of his intention to make an audio recording of his testimony, Fed. R. Civ. P. 30(b)(3)(B), and (2)Plaintiff was likely to make inappropriate use of the recording thereafter.Id.After hearing counsel argue the question during a telephone conference, the Court sustained Defendants' objection, "directed that no taped recording be made of the deposition, and that the initial portion that had been recorded not be published or promulgated by the [P]laintiff in any fashion."Id.Plaintiff then ceased recording his deposition.Doc. #34-1, p. 3.When later furnished by the court reporter with a copy of his certified transcript, Plaintiff admittedly published it "on the Internet."Id.

Following the Court's aforementioned ruling, Plaintiff has continued to appear at depositions with his digital audio recorder, seeking to make tapes of the testimony given.SeeDoc. #34-1, p. 3.At the depositions of witnesses Robert Hilton and Sara Dobensky, the owner and an employeeof Yale Billiards, respectively, Defendants' counsel made oral objections to Plaintiff making audio recordings but did not communicate with the Court or file any written objections.Doc. #34-1, p. 3.Although the parties' submissions do not address whether Plaintiff actually recorded Hilton's and Dobensky's deposition testimony, it is unlikely that he did so in light of Defendants' fervent opposition.In any event, Plaintiff later "published online the certified transcripts furnished by the court reporter."³Id.

Thereafter, the issue of Plaintiff's desire to make audio recordings at depositions resurfaced at the scheduled deposition of pro se defendantMark Vanaman.Plaintiff noticed Vanaman's deposition to take place at the offices of his counsel, Rachel Baird, on July 27, 2012.Doc. #34-3.In the Notice, Plaintiff included his intention "to record the proceedings of the deposition by digital audio recorder in addition to the means stated above [ i.e., stenography by court reporting services]."Id., p. 1.On the day of that deposition, however, Attorney Kristan Maccini, counsel of record for all Defendants other than pro se Vanaman, asserted that Vanaman had not received a written copy of the Notice of Deposition until he arrived at the deposition.⁴Attorney Maccini objected toPlaintiff's recording of Vanaman's deposition by any means in addition to the court reporter's transcript.Id., p.¶ 26.Shortly thereafter, Attorney Maccini and Vanaman left Attorney Baird's office without any testimony being taken of Vanaman.Doc. #34-2, ¶32.

II.PENDING MOTION

Defendants simultaneously move the Court for: (1) an order compelling Plaintiff, pursuant to Federal Rule 37 and Local Rule 37 of Civil Procedure, to "remove the publication of his written deposition transcript from the website http://ctcarry.com" and for sanctions for Plaintiff's "blatant disregard of this Court's Order," Doc. #31; and (2) a protective order, pursuant to Federal Rule of Civil Procedure 26(c), "prohibiting the [P]laintiff from publishing deposition transcripts and/or other documents relative to his matter containing personally identifying information of witnesses and defendants," ordering Plaintiff"to remove any such documents he previously published on the [I]nternet," and barring Plaintiff and/or his counsel, pursuant to Federal Rules 28 and 30 of Civil Procedure, from "unilaterally and unofficially audio recording or video recording depositions."Doc. #32.Defendants contend that Plaintiff's publication of deposition transcripts "is a calculated effort [by Plaintiff] to harass, vex and annoy these defendants and non-party witnesses and is an abuse of process."Doc. #32, p. 2.

Plaintiff simultaneously objects to both of Defendants' motions.First, he argues that heshould not be barred from making audio recordings of deposition testimony provided that he gives proper notice under Fed. R. Civ. P. 30(b)(3)(B).In addition, he stresses that "any modern digital recording device that would be used [by him] would not distort the record" - i.e., not run afoul of Fed. R. Civ. P. 30((b)(5)(B), which mandates that "[i]f the deposition is recorded nonstenographically, . . . [t]he deponent's and attorneys' appearance or demeanor must not be distorted through recording techniques."Doc. #34-1, p. 6.He asserts that if he makes audio recordings of the depositions, it will ensure the accuracy of the court reporter's transcripts - in his words, "avoid distortions, not create them."Id.

Second, Plaintiff objects to any order to compel his removal of previously taken deposition transcripts from the Internet, arguing that "deposition transcripts are not privileged materials."Doc. #34-1, p. 8.Plaintiff asserts that "[n]ever has the...