Kopperl v. Bain et al
Ruling on Pending Discovery Motions: 55 Motion for Protective Order is granted in limited part, without prejudice to reconsideration if Judge Haight reinstates Count Nine of defendants' Amended Counterclaims at a later time; and 59 Motion f or Protective Order and 59 Motion to Quash are granted also without prejudice to reconsideration if Judge Haight reinstates Count Nine of defendants' Amended Counterclaims at a later time. See Attached. Signed by Judge Joan G. Margolis on 5/1/2014. (Watson, M.)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
KENT S. BAIN ET AL.
3:09 CV 1754 (CSH)
DATE: MAY 1, 2014
RULING ON PENDING DISCOVERY MOTIONS
The factual and procedural history behind this litigation is set forth in considerable
detail in three prior rulings in this case: the Ruling on Plaintiff's Motion to Dismiss Amended
Counterclaims of Certain Defendants, filed August 30, 2010 by Senior U.S. District Judge
Charles S. Haight, Jr. (Dkt. #35)["August 2010 Ruling"], this Magistrate Judge’s Ruling on
Pending Discovery Disputes, filed January 17, 2012 (Dkt. #65), and this Magistrate Judge's
Ruling on Defendants' Motion for Protective Order and to Quash Subpoenas, filed May 22,
2012 (Dkt. #79), familiarity with which is presumed. Defendants have filed a Motion for
Reconsideration (Dkt. #38), regarding the August 2010 Ruling, which is currently pending.
Under the latest scheduling order, all Motions for Summary Judgment are due within thirty
days of the Court's ruling on defendants' pending Motion to Dismiss. (Dkts. ##80-81; see
also Dkt. #36).
On July 15, 2011, plaintiff filed the pending Motion for Protective Order and brief in
support (Dkts. ##55-56),1 which sought to bar defendants from inquiring into areas that
were only relevant to defendants' counterclaims that had been dismissed without leave to
replead by Judge Haight in the August 2010 Ruling, in particular, Count Nine of defendants'
Copies of case law, from this and other districts, were attached.
Amended Counterclaims. (See Dkts. ##18, 35). Eleven days later, defendants filed their
brief in opposition. (Dkt. #57).2 On August 8, 2011, plaintiff filed his reply brief. (Dkt.
One week later, plaintiff filed his Motion for Protective Order and for Order to Quash
Subpoena and brief in support (Dkts. ##59-60),4 again to prevent defendants from seeking
documents and deposition testimony from Verizon, pursuant to a subpoena dated August 5,
2011, because the discovery sought is only relevant to Count Nine of defendants' Amended
Counterclaims, which was dismissed without leave to replead by Judge Haight. (See Dkt.
#35). On September 6, 2011, defendants filed their brief in opposition. (Dkt. #61). On
March 12, 2014, these two discovery motions were referred to this Magistrate Judge. (Dkt.
As the U.S. Supreme Court held in Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340,
352 (1978), "it is proper to deny discovery of matter that is relevant only to claims or
defenses that have been stricken[.]" (footnote omitted). Based upon this language in
Oppenheimer, judges in this district, as well as in other districts, have refused to allow
parties to pursue discovery regarding claims that previously have been dismissed. Jackson
v. AFSCME Local 196, No. 07 CV 471 (JCH), 2008 WL 1848900, at *3-4 (D. Conn. Apr. 25,
2008); see also Bourget v. Gov't Emp. Ins. Co., 313 F. Supp. 367, 372-73 (D. Conn. 1970),
The following six exhibits were attached: copy of plaintiff's deposition, taken on July 12,
2011 ["Plaintiff's Depo. Tr."](Exh. A); copy of computer log in activity (Exh. B); copy of a draft
Letter of Intent and Agreement in Principle, dated February 27, 2006 (Exh. C); copy of notes of
"Our deal, 11/1/06" (Exh. D); copy of notes "Andogenda Our deal, 11/1/06" (Exh. E); and copy of
e-mail, dated October 24, 2007 (Exh. F).
Another copy of a decision from the Middle District of Pennsylvania was attached.
Copies of the same case law are attached. See note 1 supra.
rev'd on other grounds, 456 F.2d 282 (2d Cir. 1972); Walsh v. U.S., No. 1:05-CV-0818, 2007
WL 2580627, at *2 (M.D. Pa. Aug. 22, 2007); Devlin v. Transp. Comm. Int'l Union, Nos. 95
Civ. 0752 (JFK/JCF), 95 Civ. 10838 (JFK/JC), 2000 WL 28173, at *5 (S.D.N.Y. Jan. 14, 2000).
As plaintiff appropriately acknowledges (Dkt. #56, at 4-5), if Judge Haight reaches a
different conclusion after ruling on defendants' Motion for Reconsideration, then defendant
would be entitled to discovery relating to Count Nine of the Amended Complaint. See Devlin,
2000 WL 28173, at *5.
In contrast, defendants argue that the deposition inquiries about computer fraud
were appropriate, as such testimony has a bearing upon plaintiff's credibility, in light of
plaintiff's alleged prior misconduct, particularly with regard to the issue of contract formation.
(Dkt. #57, at 5-11, 14-20). Defense counsel especially takes issue with the instructions of
plaintiff's counsel to his client not to answer questions regarding computer fraud. (Id. at 1214). Defense counsel recognizes that it will be up to trial judge to decide whether any of
plaintiff's alleged misconduct is admissible at trial under FED. R. EVID. 608(b)(1). (Id. at 1718).
A careful review of the transcript of plaintiff's deposition reveals that despite the
repetitive objections by plaintiff's counsel, plaintiff did respond to all the questions posed by
defense counsel regarding his access to the computer system of defendant Automotive
Restorations, Inc. ["ARI"] and to the e-mails of other individuals, prior to his termination on
October 13, 2009. (See, e.g., Plaintiff's Depo. Tr. at 7-65, 69-71, 89-96, 100-25, 132, 134,
137-41, 145-46, 149-52).5
There were also a few instances where plaintiff's counsel instructed his client not to
answer, but those questions related to attorney-client matters, and not to the computer fraud
issue. (Id. at 143-45).
A lengthy colloquy ensued when defense counsel inquired about plaintiff's attempts
to remotely access ARI's e-mail system after his termination, when plaintiff's counsel
instructed his client not to answer the questions. (Id. at 154-64). There also was a brief
colloquy between counsel regarding plaintiff's IP address (id. at 173-77), but then plaintiff
proceeded to answer multiple questions about his IP address. (Id. at 175-83, 187-92). A
brief colloquy between counsel occurred when defense counsel inquired about an attempt
on November 9, 2009 to access ARI's computer with an IP address that was the same as that
of plaintiff, with plaintiff's counsel again instructing his client not to answer. (Id. at 192-95).
Plaintiff did testify, however, as to remote access late on November 9, 2009 and again on
November 10, 2009, again over the objection of his own counsel. (Id. at 195-203).
Despite all the bluster in these briefs, there were only two instances when the
instructions of plaintiff's counsel not to answer resulted in a detour of defense counsel's line
of questioning, with plaintiff instead having answered the overwhelming majority of
questions directed to him regarding his alleged computer misuse, over the objection of his
counsel. Thus, this case is not similar to Rhea v. Uhry, No. 05 CV 189 (VLB), 2007 WL
2782512, at *1 (D. Conn. Sept. 21, 2007), cited by defendants, in which defense counsel
instructed his client not to answer 113 questions posed to defendant during his deposition
by the pro se plaintiff.
Because as of the moment Count Nine of defendants' Amended Counterclaims is no
longer part of this lawsuit, plaintiff's Motion for Protective Order (Dkt. #55) is granted with
respect to the two instances where plaintiff's counsel instructed his client not to answer the
pending questions regarding computer fraud, without prejudice to reconsideration if Judge
Haight reinstates Count Nine of defendants' Amended Counterclaims at a later time.
The same conclusion is reached regarding plaintiff's Motion for Protective Order and
for Order to Quash Subpoena (Dkt. #59), which seeks documents from Verizon pertaining
to plaintiff's alleged accessing of e-mails on the ARI systems on November 7, 8, 9, 10 and
15, 2009, after his termination. (Dkt. #59, Exh. A). Accordingly, plaintiff's Motion for
Protective Order and for Order to Quash Subpoena (Dkt. #59) is granted, without prejudice
to reconsideration if Judge Haight reinstates Count Nine of defendants' Amended
Counterclaims at a later time.
This is not a Recommended Ruling but a Ruling on discovery, the standard of review
of which is specified in 28 U.S.C. § 636; FED. R. CIV. P. 6(a), 6(e) & 72; and Rule 72.2 of the
Local Rules for United States Magistrate Judges. As such, it is an order of the Court unless
reversed or modified by the District Judge upon timely made objection.
See 28 U.S.C. § 636(b)(written objections to ruling must be filed within
fourteen days after service of same); FED. R. CIV. P. 6(a), 6(e) & 72; Rule 72.2 of the
Local Rules for United States Magistrate Judges, United States District Court for the District
of Connecticut; Small v. Secretary, H&HS, 892 F.2d. 15, 16 (2d Cir. 1989)(failure to file
timely objection to Magistrate Judge’s recommended ruling may preclude further
appeal to Second Circuit); Caidor v. Onondaga County, 517 F.3d 601, 603-05 (2d Cir.
2008)(failure to file timely objection to Magistrate Judge’s discovery ruling will
preclude further appeal to Second Circuit).6
If all counsel agree that a continued settlement conference before this Magistrate Judge
would be productive, they should contact Chambers accordingly. (See Dkts. ##69, 75).
Dated at New Haven, Connecticut, this 1st day of May, 2014.
_/s/ Joan G. Margolis, USMJ
Joan Glazer Margolis
United States Magistrate Judge
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