Lougee v. Grinnell, 13937
| Citation | 216 Conn. 483,582 A.2d 456 |
| Decision Date | 20 November 1990 |
| Docket Number | No. 13937,13937 |
| Court | Supreme Court of Connecticut |
| Parties | Virginius B. LOUGEE v. Jeannie B. GRINNELL. |
Francis H. Morrison III, with whom were Ruth Kurien and, on the brief, Mary Ellen C. Whiteman, Hartford, for appellant (petitioner).
Irving H. Perlmutter, New Haven, with whom was Arthur R. Almquist, pro hac vice, for appellee (respondent).
Before SHEA, GLASS, COVELLO, BORDEN and FRANCIS X. HENNESSY, JJ.
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 (American). In that action, Grinnell alleges that her husband died of lung cancer caused by smoking cigarettes produced by American. Lougee was employed by American from 1950 to 1965 as an engineer and master mechanic prior to serving as American's chief executive officer (CEO) from 1981 to 1985, when he retired.
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), 1 granted the motion without prejudice.
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, "a material witness," in Stamford, Connecticut. On October 27, 1989, Grinnell applied to the Connecticut Superior Court for a subpoena requiring Lougee to appear at the Stamford deposition. Lougee was served with the subpoena in Darien, Connecticut.
Lougee promptly moved to quash the subpoena 2 and for a protective order, arguing that because the Texas court had recently granted summary judgment in favor of American on all of Grinnell's post-1965 claims, and because Lougee was responsible for American's policy on smoking and health issues only from 1981 to 1985: (1) the information sought by Grinnell was irrelevant; and (2) the deposition was unreasonable, oppressive and sought duplicative testimony. After a hearing, the trial court granted Grinnell's deposition subpoena application, denied Lougee's motion to quash the subpoena and issued an order requiring Lougee to appear at the Stamford deposition.
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.
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 Conn. 252, 255, 520 A.2d 605 (1987). The discovery order appealed in this case, however, was not rendered in the context of a civil action pending in Connecticut. Compare Chrysler Credit Corporation v. Fairfield Chrysler-Plymouth, Inc., 180 Conn. 223, 429 A.2d 478 (1980). In this case, the sole judicial proceeding instituted in Connecticut concerned the propriety of Grinnell's deposition subpoena, a proceeding that Commissioner of Health Services v. Kadish, 17 Conn.App. 577, 578 n. 1, 554 A.2d 1097 (1989). Because the separate and distinct judicial proceeding concerning Grinnell's deposition subpoena terminated when the trial court issued the orders appealed, Lougee has appealed from a final judgment, and we will address his appeal on the merits. 3
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, Lougee contends that his testimony is immaterial to the legal issues remaining in the Texas action. Lougee also maintains that he acquired no direct knowledge specific to Grinnell's decedent while he was CEO for American.
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) 4 provides in relevant part that "[e]ach 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 ... if the party seeking to take such person's deposition has complied with the provisions of sections 52-148a and 52-148b...." The provisions of §§ 52-148a and 52-148b have no relevance to this case, and Lougee does not contest the fact that an authorized official issued Grinnell's deposition subpoena.
In addition, § 52-148e(f) 5 provides in pertinent part that: "[d]eposition of witnesses living in this state may be taken in like manner to be used as evidence in a civil action ... pending in any court ... of any other state ... on application of any party to such civil action...." It is undisputed that Grinnell is a party to a civil action pending in Texas where Lougee's deposition is to be used in evidence, and that Lougee is living in Connecticut.
Despite Grinnell's compliance with § 52-148e on its face, Lougee urges us to overturn the trial court's rulings on the ground that his testimony is immaterial to the legal issues remaining in the Texas action. Practice Book § 218, however, liberally permits discovery of information "material to the subject matter involved in the pending action...." (Emphasis added.) Information material to the subject matter of a lawsuit certainly includes a broader spectrum of data than that which is material to the precise issues raised in the pleadings. Accord In the Matter of Surety Assn. of America, 388 F.2d 412, 414 (2d Cir.1967). Thus, the fact that the issues in Grinnell's action relate to a time period ending before Lougee became CEO for American does not necessarily render his knowledge immaterial to the Texas lawsuit.
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. Deering 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...
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