ROBERT GREEN, ET AL. v. UNITED STEEL CORPORATION, LLC, ET AL DOCKET NO. X07-HHD-CV-22-6158732-S Superior Court of Connecticut, J.D. OF HARTFORD. COMPLEX LITIGTION DOCKET. AT HARTFORD Filed June 21, 2024 Noble, Cesar A., Judge MEMORANDUM OF DECISION RE MOTION FOR PROTECTIVE ORDER, # 338 *1 Before the court in this products liability matter related to the exposure of the plaintiff, Robert Green (Green), to illness causing products containing benzene, is the motion for protective order and to quash of the defendant, Levine Auto & Truck Parts, LLC's (Levine's Auto). The motion to quash is directed to subpoenas issued by the plaintiffs, Green and Pamela Green, his wife, (collectively, the plaintiffs), on February 8, 2024, to Jeffrey Levine, the former owner of Levine's Auto, and his wife, Anne Levine, who worked as a bookkeeper at Levine's Auto.[1] The motion for protective order addresses the subpoenas, interrogatories and requests for production dated January 13, 2024, and requests for admissions dated January 20, 2024. Levine Auto advances five reasons why these discovery tools are defective: 1. The subpoenas were issued within fifteen days of the date of the depositions and for a location further than 30 miles of the deponents’ residence in violation of Practice Book §§ 13-28 (c) & 13-29 (a), respectively; 2. There is no good faith basis for deposing Anne Levine because Jeffrey Levine has been identified as the person having the most knowledge relative to the plaintiffs’ allegations; 3. Jeffrey Levine should be protected from further annoyance, harassment, oppression and embarrassment during his deposition because the plaintiffs might seek to question the Levine's on allegations other than Levine Auto's purchase and sale of PPG Industries related products; 4. Levine Auto should not be obliged to respond to the January 13, 2024 interrogatories and requests for production because it has unequivocally stated that Levine Auto did not sell, distribute, manufacture or have anything to do with PPG benzene containing produces about which the plaintiffs seek information; and 5. The failure of the requests for admission directed to Levine Auto by the plaintiffs to comply with Practice Book § 13-22 (b) excuses any obligation to comply and, moreover, the subject of the request for admission are duplicative because they seek admissions relative to PPG products that Levine Auto has already indicated in discovery responses that it did not sell the products. Because the plaintiffs have acknowledged the need to comply with Practice Book §§ 13-28 (c) & 13-29 (a), this issue is moot. The court denies the motion on the remaining grounds for the reasons that follow.[2] *2 The following additional facts are relevant to this decision. On March 14, 2023, the plaintiffs issued their first set of interrogatories to all defendants. Levine Auto responded on June 13, 2023. The response contained the “preliminary statement” that “Defendant Levine Auto & Truck Parts, LLC did not manufacture, produce, process, package, relabel, market, sell, distribute, deliver or otherwise supply any of the products listed in paragraph number 5 of the ‘Definitions’ section of Plaintiff's interrogatories during the relevant time period stated in the complaint, and never sold any [of] said products to the Plaintiff's employer. Defendant will provide information only for the periods between 1968 and 2009, the period of the time stated by the Plaintiffs of Mr. Green's alleged exposure.” Mot. For Protective Order, # 338, Exh. D. While Levine Auto's motion did not identify the products listed in its motion, the subsequent January 13, 2024 interrogatories and request for production identified four products of interest, “PPG Lacquer Thinners, PPG Enamel Paint, PPG DP 90 Epoxy Primer and PPG 330 Wax and Grease Remover.” Id., Exh. E. In its June 13, 2023 response to interrogatory number two, which inquired as to whether Levine Auto, inter alia, sold or supplied the PPG products, Levine Auto indicated that it did not. The plaintiffs respond that Levine Auto limited its responses to the period from 1968 to 2009, while there is testimony that Green bought PPG products from Levine Auto between 2008 and 2014. This includes deposition testimony from Green that he began purchasing PPG paints from a Levine Auto store around 2008/2009 and stopped doing so around 2013. Moreover, his friend, Eric Dill, obtained paint from a Levine Auto store during this same time and both used the product. Green also bought PPG primers from Levine Auto until 2013. Finally, the plaintiffs obtained photographs of PPG products on the shelves of Levine Auto stores in East Hartford. Levine's argument, in essence that the plaintiffs should take its word for the proposition that it did not sell or distribute PPG products, is unavailing. Even in the absence of evidence to the contrary, the plaintiffs are entitled to investigate the assertion through the medium of discovery. The court therefore denies the motions on this basis. Levine Auto suggests that there is no good faith basis for seeking Anne Levine's deposition because Jeffrey Levine was disclosed as the person having the most knowledge of the plaintiffs’ claims. Levine Auto suggests that “there is no basis to suggest that Anne Levine would have any information that would be superior or beyond that of Jeffrey Levine, who was President and CEO of the company,” and that, having first conducted the deposition of Jeffrey Levine, there is no good faith basis to warrant deposing a bookkeeper. Mot. for Protective Order, # 338, p. 6. This argument misapprehends the standard for discovery, which is not that the object of discovery must be “necessary,” but that “it [is] reasonably probable that evidence outside the record will be required” and “if the discovery would be of assistance in the prosecution ... of the action” and “if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Practice Book § 13-2. The court finds that the demand for the deposition of Anne Levine meets this low bar and may not be prevented on the ground that another person may have superior knowledge. The motion to quash the subpoena to Anne Levine on this basis is denied. For the same reasons, this same order will apply in the event the plaintiffs seek to depose former Levine Auto employees. Levine Auto then requests a prophylactic order preventing the plaintiffs from engaging in a fishing expedition during deposition. It claims that counsel for the plaintiffs prior error in failing to obtain and confirm pro hoc vice status makes them likely to ignore the rules of conduct at deposition and asserts that the plaintiffs will “argue that they can use the deposition to inquire into everything and anything” including “matters that are beyond the scope of permissible inquiry.” The court declines to enter such an order on the generalized speculative grounds offered by Levine. Auto. “While the court, consistent with the statutory scheme has the right and authority to issue orders to protect a deponent ... such orders must be based upon findings by the court that are not pure speculation.” Rhode Island v. Subpoena, Superior Court, Judicial District of Stamford-Norwalk, Docket No. CV-19-6042349-S, 2019 WL 4667931, *3 (August 27, 2019, Genuario, J.) (69 Conn. L. Rptr. 154, 156). *3 Levine Auto next argues that it should not be required to respond to the plaintiffs’ first set of interrogatories and requests for production, dated January 13, 2024, because they are duplicative of the responded to March 14, 2023 interrogatories. This is especially so, in the view of Levine Auto, because Jeffrey Levine unequivocally stated that Levine Auto had nothing to do with PPG products in the first interrogatories. This argument ignores that no production requests were attached to the March 14, 2023 interrogatories while such are included in the January 13, 2024 discovery requests. Levine Auto made only the generalized comment that the interrogatories were duplicative but did not specify any duplications. The court's review reveals that only interrogatory number thirteen of the March 14, 2023 interrogatories is duplicative of any of the January 13, 2024 interrogatories, specifically interrogatory number one, because both asked for the locations of Levine Auto stores in Connecticut. To the extent that Levine Auto objected to interrogatory number thirteen as being irrelevant, immaterial and not reasonably calculated to lead to the discovery of admissible evidence, the court overrules that objection. The court otherwise denies the motion for protective order on this ground. Lastly, Levine Auto seeks relief from having to respond to requests for admissions because it seeks admissions that are duplicative of its responses to the March 14, 2023 interrogatories and because it failed to comply, without specifying how, with Practice Book § 13-22 (b). Practice Book § 13-22 addresses requests for admission and subsection (b) directs that the party serving the request shall not file it with the court but shall file a notice with the court stating that requests for admission have been served on another party. If this is indeed what Levine Auto relies on, it does appear that no such notice of having filed requests for admission was filed with the court. However, Levine Auto fails to provide any legal authority for the premise that this technical failure excuses the obligation for a response, nor is the court aware of any. Clearly, Levine Auto received the requests for admission. The court therefore rejects this argument as a basis for providing a protective order. Finally, Levine Auto's suggestion that because it has already responded to interrogatories -in which it has averred under oath that it did not sell any PPG products - is indicative of “counsels bad faith in willingness to abuse these proceedings to harass and annoy this defendant [Levine Auto]” by filing requests for admissions, is not persuasive. Indeed, it is likely because Levine Auto answered an interrogatory asking whether it sold any PPG products in the negative that the plaintiffs availed themselves of the right to file a request for admission. While Levine Auto has averred under oath that it did not sell PPG products, the plaintiffs have evidence that it did. The salutary purpose of a request for admission is to remove from dispute at trial issues that upon reasonable inquiry can be admitted; Pavlo v. Slattery, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-03-0083541-S, 2004 WL 424263, *4 (February 20, 2004, Bear, J.) (36 Conn. L. Rptr. 557, 559-60); and subjects to sanction, in the form of costs and reasonable attorney's fees, the improper denial of the admission where the truth of the matter, requested to be admitted is ultimately proven. See Practice Book § 13-25; Krasowski v. Fantarella, 51 Conn. App. 186, 195, 720 A.2d 1123 (1998) (Practice Book § 13-25 is in the nature of a sanction), cert. denied, 247 Conn. 961, 723 A.2d 815 (1999). This ground too is no basis to issue the protective order sought. For the foregoing reasons, Levine Auto's combined motion to quash and for protective order is denied. Levine Auto is ordered to provide responses to the January 13, 2024 interrogatories and requests for production within forty-five days of the date of this order. It is also ordered to provide answers to the plaintiffs’ January 20, 2024 requests for admissions within thirty days from the same date. Footnotes [1] A third subpoena duces tecum was issued to Irving Levine, Jeffrey's deceased father. [2] The court observes that ad hominem attacks in legal writing fail entirely to advance the legal arguments of, and reflect poorly on, the author. Legal advocacy is immeasurably superior when innocent of such polemics. Thus, in the present case, when counsel writes that “[t]here can only be two reasons why counsel would serve a subpoena on a person who passed [Irving Levine]. Either counsel is completely incompetent, or it was done intentionally,” no legal reasoning as to the merits of the proposition at issue may be discerned. All counsel are admonished to avoid such vitriol before this court and others.