Handsome, Inc. et al v. Monroe et al

Filing 127

ORDER: The defendants' "motion to quash or modify the subpoena duces tecum of [Attorney] Cara Ann Ceraso" 57 and the "nonparty witness's motion to quash subpoena that seeks to produce documents" 73 are granted; the plaintiffs' "motion to compel disclosure of handwritten notes of non-party deponent [Attorney] Cara Ann Ceraso" 80 is denied. See attached ruling. Signed by Judge Donna F. Martinez on 1/31/14. (Constantine, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
HANDSOME, INC., et al.,

:
:
:
:
:
:
:
:
:

Plaintiffs,
v.
TOWN OF MONROE, et al.,
Defendants.

CASE NO.

3:11cv1288(RNC)

RULING AND ORDER
The plaintiffs, Handsome, Inc. and its officers, Todd and Mona
Cascella, bring this action pursuant to 42 U.S.C. § 1983 against
the Town of Monroe, the Monroe Planning and Zoning Commission
("Commission"), Scott Schatzlein, town engineer, Richard Zini,
Chairman of the Commission and Karen Martin, a Commission member.
The plaintiffs allege that the defendants deprived them of due
process, equal protection and their right of access to the courts.
Pending

before

the

court

are

three

motions

concerning

the

production of notes taken by an attorney for the defendants during
the defendant Commission's May 5, 2011 executive session: (1) the
defendants' "motion to quash or modify the subpoena duces tecum of
[Attorney] Cara Ann Ceraso" (doc. #57), (2) "nonparty witness's
motion to quash subpoena that seeks to produce documents" (doc.
#73) and (3) the plaintiffs' "motion to compel disclosure of
handwritten notes of non-party deponent [Attorney] Cara Ann Ceraso"
(doc. #80).

I.

Background
This is the latest round in a long-running dispute among the

parties over the use of land the plaintiffs own in the defendant
town.

In

March

2003,

the

defendant

Commission

approved

the

plaintiffs' application for a special exception permit for the
construction of an industrial use building at 125 Garder Road in
Monroe, Connecticut.

Before the permit was to expire on May 15,

2008, the plaintiffs requested a five-year extension of the permit.
In April 2008, the Commission denied the plaintiffs' request.

The

plaintiffs appealed the denial to the Superior Court.
The plaintiffs also had an affordable housing application for
a different property on Garder Road pending before the Commission.
Public hearings were held in April and May 2008.

In August 2008,

the Commission denied the affordable housing application.

(Doc.

#115, Ex. A.) The plaintiffs appealed the denial to Superior Court.
(Id.)

They also appealed the denial of a related inland wetlands

application.

In July 2009, the Commission and the plaintiffs

reached a settlement agreement regarding the plaintiffs' appeals as
to

the

affordable

application.

housing

application

and

inland

wetlands

(Id.)

With regard to the plaintiffs' appeal of the denial of their
request for an extension of the permit for 125 Garder Road, in
September 2010, the superior court (Owens, J.) sustained the
plaintiffs' appeal and held that "the commission has no option but

2

to approve the plaintiffs' request for an extension."

Handsome,

Inc. v. Monroe Planning and Zoning Commission, No. CV084025399,
2010 WL 4069761, at *6 (Conn. Super. Ct. Sept. 10, 2010).
Thereafter, on October 1, 2010, plaintiffs' counsel wrote a
letter to the Commission "requesting that the Commission issue the
five year permit extension pursuant to the Order of the Superior
Court . . . . The five year period should begin to run from the
date the extended permit is issued.

The Court's order is clear

that the extension is granted; therefore, no new conditions should
attach."
The

(Doc. #86, Ex. A.)
Commission

did

not

respond.

On

November

2,

2010,

plaintiffs' counsel sent another letter, stating that it had been
"more than 50 days since the Court's order" and "request[ing] that
this matter be placed on the Commission's next agenda for approval
of the permit in compliance with the Court's order."

(Doc. #59,

Ex. D.)1
At the end of April 2011, Monroe's First Selectman Steve
Vavrek ("Vavrek"), town engineer Scott Schatzlein ("Schatzlein")
and zoning enforcement officer Joseph Chapman ("Chapman") went to
125

Garder

Road

("Cascella").

and

spoke

to

the

plaintiff,

(Doc. #105, Cascella Aff. ¶7.)

Todd

Cascella

Schatzlein asked

Cascella why work was going on at the site when there was a cease
and desist order in effect.

Schatzlein also said that he could

1

Sometime after this, new counsel appeared on behalf of the
plaintiffs.
3

require Cascella to post a bond of $100,000.

Cascella protested

that there was no cease and desist order in effect and that the
court had held that the Commission could not attach new conditions
to the permit.
On May 2, 2011, Richard Zini, Chairman of the Commission, sent
an email to First Selectman Vavrek, town engineer Schatzlein, and
zoning enforcement officer Chapman stating that "work continues at
125 Garder Road. . . . This property owner is currently not within
zoning compliance and regulations. Please have someone stop by and
view the property, take pictures and log the observances."

(Doc.

#59, Ex. A.) He requested that First Selectman Vavrek contact Town
Attorney Jack Fracassini regarding issuing a cease and desist order
to the plaintiffs.

Finally, Zini asked that Cascella be sent a

registered letter to appear at the next Commission meeting. (Doc.
#59, Ex. A.)
The Commission placed the property on the agenda for the May
5, 2011 meeting.

Just before the meeting, the Town retained the

firm of Pullman & Comley, LLC to assist with enforcement matters,
including compliance with the superior court decision as to 125
Garder Road. (Doc. #93-13, McCreery Dep. at 6-7.) Attorney Edward
McCreery, a litigator, and an associate, Attorney Cara Ann Ceraso,
attended the meeting.

Plaintiff Cascella, accompanied by his

attorney, also attended the meeting.
Cascella Aff. ¶9.)

4

(Doc. #105, pl's ex. 15,

Before considering the matter of 125 Garder Road in regular
session, the Commission moved into executive session. Attorney
Ceraso attended the executive session and took handwritten notes.
After the Commission emerged from executive session, the Commission
voted to grant the extension permit as of March 2008, with the
result that the permit extended only through March of 2013.2

The

Commission also required a $100,000 bond and re-imposed various
conditions in the original approval, but emphasized each condition
and added requirements that road improvement plans, landscaping
plans, engineering reports and maps that had not been submitted
over the intervening years must now be filed.

The Commission

further stated that the town engineer would ascertain the amount of
any bonding requirement for the road improvements after the plans
were submitted.

Finally, the

Commission

stated

that

if

the

plaintiffs did not comply with the conditions within thirty days,
a cease and desist order would issue.

(Doc. #105, Ex. 14 at 2.)

After the May 5, 2011 meeting, multiple legal actions ensued.
The plaintiffs: (1) appealed the Commission's decision regarding
the permit extension, challenging the imposition of conditions
which were not part of the March 2003 special exception permit
approval and

the

March 2013

expiration date for

the

permit,

Handsome, Inc. v. Planning and Zoning Commission of the Town of
Monroe,

Superior

Court

of

Connecticut,

2

Judicial

District

of

Contrary to statute, no minutes of the executive session were
maintained. (Doc. #59, Ex. C.)
5

Fairfield at Bridgeport, Docket No. CV-11-6019523-S, (2) filed a
FOIA complaint regarding the executive session, In the matter of a
complaint
(3)

by

Handsome

commenced

the

Inc.,

instant

FOIC

Docket

lawsuit.

The

No.

2011-284,

defendant's

and

zoning

enforcement officer issued a cease and desist order to Handsome
instructing

it

to

Thereafter,

the

Town

injunctive relief.
of

the

Town

of

comply
of

with

the

Monroe

conditions of

initiated

a

the

permit.

lawsuit

seeking

See Joseph Chapman, Zoning Enforcement Officer

Monroe

v.

Handsome,

Inc.,

Superior

Court

of

Connecticut, Judicial District of Fairfield at Bridgeport, Docket
No. CV-11-6020905-S.

During the course of state litigation, the

superior court ruled that the Commission's discussion during its
executive session was not subject to the attorney-client privilege.
(Doc. #59, Ex. C.)
In June 2013, the plaintiffs issued a subpoena to Attorney
Ceraso for notes she took during the May 5, 2011 executive session.
(Doc. #73, Ex. A.)

In response, the defendants served a privilege

log asserting that the notes are protected work product. (Doc. #58,
Ex. A.) On June 18, 2013, the plaintiffs took Ceraso's deposition.
(Doc. #105, Ex. 19.) She recalled little of what transpired during
the

executive

session

and

had

not

reviewed

her

notes.

The

plaintiffs deposed all twelve of the Commission members, some
twice, as well as Attorney McCreery and First Selectman Vavrek,
regarding the executive session.

6

These motions followed.

The defendants and nonparty Attorney

Ceraso maintain that the plaintiffs' subpoena should be quashed
because the notes are work product and the plaintiffs have not
demonstrated that they "cannot, without undue hardship, obtain
their substantial equivalent by other means" as required by Fed. R.
Civ. P. 26(b)(3). (Doc. #86 at 8.) The plaintiffs contend that the
notes are not work product and, even if they are, they have shown
substantial need.
II.

Legal Standard
The work product doctrine is codified in Fed. R. Civ. P.

26(b)(3), which provides in relevant part that "[o]rdinarily, a
party may not discover documents . . . that are prepared in
anticipation of litigation or for trial by or for another party or
its representative (including the other party's attorney . . .) .
. . ."3

A document is prepared in anticipation of litigation if

"in light of the nature of the document and the factual situation
in the particular case, [it] can fairly be said to have been
3

As discussed infra, there are two types of work product.
They are generally referred to as ordinary (or fact) work product
and opinion work product. When deciding whether material is work
product, the distinction does not matter. The distinction becomes
important when determining how much protection to give the work
product material. Fact work product is discoverable if the party
seeking discovery demonstrates "a substantial need for the material
and an inability to obtain the substantial equivalent of the
information without undue hardship." Rule 26(b)(3)(A)(ii).
"In
contrast, opinion work product reveals the 'mental impressions,
conclusions, opinions, or legal theories of an attorney or other
representative,' and is entitled to greater protection than fact
work product." In re Grand Jury Subpoena Dated July 6, 2005, 510
F.3d 180, 183 (2d Cir. 2007). See Fed. R. Civ. P. 26(b)(3)(B).
7

prepared or obtained because of the prospect of litigation."
United States v. Adlman, 134 F.3d 1194, 1202 (2d Cir. 1998).
Whether work product protection applies turns on whether the
material "would have been prepared irrespective of the expected
litigation . . . ." Id. at 1204.

Work product protection is not

available for "documents that are prepared in the ordinary course
of business . . . ."

Id. at 1202.

The party seeking work product

protection bears the burden of proving that the sought documents
were "prepared in anticipation of litigation or for trial by or for
another party or its representative." QBE Ins. Corp. v. Interstate
Fire & Safety Equip. Co., Inc., No. 3:07cv1883(SRU), 2011 WL
692982, at *2 (D. Conn. Feb. 18, 2011).
III. Discussion
A.

Are the Notes are Work Product?
The defendants argue that the notes are work product because

they were prepared in anticipation of litigation.
the

October

1,

2010

letter

from

plaintiffs'

They point to

counsel

to

the

Commission, which insisted that the Commission could not impose new
conditions and that the five year period must run from the date the
extended permit issued. (Doc. #86, Ex. A.) Defendants contend that
"the letter, although not expressly, threatened litigation if the
Commission did not strictly comply."

(Doc. #58 at 6.)

The

defendants also emphasize the parties' history of litigation.
plaintiffs

previously

sued

the

8

Commission

regarding

The

their

affordable housing permit, wetlands application and request for an
extension of their original permit.
retained

litigation

counsel

The defendants note that they

before

the

Commission

meeting

specifically to assist with the approval process of the permit for
125 Garder Road.

Considering the totality of the circumstances,

defendants maintain, the notes were created because of anticipated
litigation.
The plaintiffs disagree.

They argue that when the Commission

failed to renew the permit following the court's September 2010
order, plaintiffs' counsel merely requested compliance.

According

to the plaintiffs, counsel's October 2010 letter "anticipated no
litigation if the commission complied with Judge Owens' order and
reissued the permit with the same conditions as before." (Doc. #59
at 8.)

Plaintiffs point to the time lag between the letter and the

Commission's hiring of Pullman & Comley, arguing that "the claim
that Attorney McCreery was hired in direct response to the October
1, 2010 letter is not credible."

(Doc. #59 at 8.)

They also note

to Attorney Ceraso's deposition testimony that she was unaware of
the October 2010 letter and that she took notes because that is her
custom.

(Doc. #115, Ex. 19 at 24, 28.)

The plaintiffs argue that

"[g]iven the innocuous nature of both [plaintiffs' counsels']
letters to the commission" and "the fact that no litigation . . .
followed until after the commission renewed the permit with onerous
new conditions attached, the claim that Attorney Ceraso made her

9

notes in anticipation of litigation is disingenuous at best."
(Doc. #59 at 8.)
On the record before the court, the court finds that the notes
were prepared in anticipation of litigation.
history of litigation.

The parties had a

See Brown v. Unified School Dist. No. 501,

No. 10–1096–JTM, 2011 WL 111693, at *3 (D. Kan. Jan. 13, 2011)
(where plaintiff had sued school district twice before and brought
an attorney with him to the meeting, "under the circumstances,
litigation was reasonably anticipated when [the attorney for the
defendant school district] prepared her notes.")

Prior to the

Commission meeting, the defendants visited the plaintiff, stated
that the site should not be operational and declared that the Town
could

impose

a

$100,000

bond.

As

evidenced

by

plaintiffs'

counsel's October 2010 letter and the defendants' proposed cease
and

desist

order,

the

parties

remained

in

dispute

over

the

effective date of the permit extension and whether the defendants
could add new conditions to the permit.

(Doc. #59, Ex. A, doc.

#86, Ex. A.) Finally, just before the Commission meeting where the
Garder Road project was to be discussed, the defendants hired
litigation counsel.

The plaintiffs' argument that Ceraso was

unaware of the October 2010 letter and that she took notes as a
matter of custom is unavailing.
fruit."

"[W]e must judge a tree by its

Hanson v. U.S. Agency for Intern. Development, 372 F.3d

286, 294 (4th Cir. 2004) (notwithstanding attorney's "disclaimer

10

that he was not acting in a legal capacity and his subsequent
affidavit to that effect," court determined that the document was
attorney-work product prepared in anticipation of litigation). The
Commission engaged litigation counsel from Pullman & Comley for the
May 5, 2011 meeting.

Attorney Ceraso created these notes during

the adjudication of the plaintiffs' permit extension, pursuant to
a remand order from the plaintiffs' prior zoning appeal.

In light

of this factual situation, the notes "can fairly be said to have
been prepared or obtained because of the prospect of litigation."
Adlman, 134 F.3d at 1202.
Properties,

Inc.,

247

See Equal Rights Center v. Post

F.R.D.

208,

211

(D.D.C.

2008)("while

[defendant] could not have been certain that [plaintiff] would file
suit against it, the fact that [plaintiff] had filed suit against
four other housing developers and sought media attention for this
'series' of lawsuits supports a finding that [defendant] had a
subjective and objectively reasonable belief that litigation was a
real possibility.")
B.

Have Plaintiffs Shown Substantial Need?
"Once a party establishes that its document is protected by

the work-product privilege, the burden shifts to the party seeking
discovery to prove that discovery is warranted." In re Petition of
MDM Marina Corp., No. 13cv597 (ENV)(VMS), 2013 WL 6711584, at *3
(E.D.N.Y. Dec. 18, 2013). "The degree of protection afforded under
the work product doctrine is dependent upon whether the work

11

product is ordinary or opinion work product." Loftis v. Amica Mut.
Ins. Co., 175 F.R.D. 5, 11 (D. Conn. 1997).

If a document is

ordinary work product, the requesting party (here, the plaintiffs)
must

demonstrate

"substantial

need

of

the

materials

in

the

preparation of the party's case and that the party is unable
without undue hardship to obtain the substantial equivalent of the
materials by other means." Fed. R. Civ. P. 26(b)(3).

Opinion work

product is entitled to greater protection, and, in order to obtain
such material, the party seeking disclosure must make a "far
stronger showing of necessity and unavailability by other means."
Upjohn Co. v. United States, 449 U.S. 383, 401 (1981).
The defendants argue that the plaintiffs cannot satisfy the
"substantial need" standard for ordinary work product.

They

contend that the plaintiffs have had ample opportunity to determine
what occurred during the executive session.

Defendants point out

that the plaintiffs deposed all the Commission members, some twice,
as well as Attorney McCreery and First Selectman Vavrek, and cite
authority

that

substantial

need

does

not

exist

where

information sought can be obtained through depositions.6

the
See,

e.g., 8 Wright, Miller & Marcus, Federal Practice & Procedure
§ 2025 at 538 (3rd ed. 2010) ("[D]iscovery of work product material
will be denied if the party seeking discovery can obtain the

6

The defendants point especially to the detailed testimony of
McCreery and Schatzlein about discussions during the executive
session. (Doc. #74, Ex. 1, 2.)
12

desired information by taking the depositions of witnesses.")
The plaintiffs maintain that they have made a sufficient
showing of substantial need and unavailability.

They argue that

they have overcome the qualified protection for ordinary work
product because no official minutes were kept and Ceraso's notes
are the "only contemporaneous account of what really happened in
the executive session."

(Doc. #59 at 4.)

Citing Coogan v. Cornet

Transp. Co., 199 F.R.D. 166, 167 (D. Md. 2001), they argue that
there is a "special value" to a contemporaneous statement. Because
of the defendants' legal challenges to the superior court's ruling
that the attorney client privilege had been waived, plaintiffs say
they were unable to depose Commission members until a year after
the executive session.

According to the plaintiffs, "nearly all

the commission members who attended the May 5, 2011 [executive
session] asserted in their depositions that [they] had little or no
recollection at all as to what occurred at the executive session."
(Doc. #59 at 5.)

They also contend that witnesses could not agree

as to whether First Selectman Vavrek attended the meeting, citing
conflicting deposition testimony from Chairman Zini, Jane Flader,
Patrick O'Hara, McCreery, and Ceraso.7

(Doc. #59 at 5, doc. #81.)

The plaintiffs' reliance on Coogan, which involved a motor
vehicle accident,

and

similar cases

7

involving

contemporaneous

First Selectman Vavrek testified that he did not attend the
meeting. Doc. #81, Ex. 8.
13

statements after an accident, is misplaced.

The defendant in

Coogan, a driver of one of two vehicles involved in an accident,
wrote an account of the incident.

The district court for the

District of Maryland held that "[a]ssuming (without deciding) that
[defendant's] statement was prepared in anticipation of litigation
. . . Plaintiffs are entitled to the statement because they have a
'substantial need' for it and cannot obtain its 'substantial
equivalent.'" 199 F.R.D. at 167.
that

"[s]tatements

of

either

In so concluding, the court held
the

parties

or

witnesses

taken

immediately after the accident and involving a material issue in an
action arising out of that accident, constitute 'unique catalysts
in the search for truth' in the judicial process.'" Id.

The court

found that the plaintiffs had "substantial need" for the statement
"as

evidence

purposes"

and

of

what

that

occurred

and

plaintiffs

possibly

"could

not

for

have

impeachment
obtained

the

substantial equivalent of this contemporaneous statement, i.e.,
another contemporaneous statement, without undue hardship." Id. at
168.
In this case, however, the plaintiffs had access to the
recollections of all the attendees of the executive session.
"Courts in this Circuit have found that 'substantial need' and
'undue hardship' do not exist where the information sought can be
obtained

through

depositions

or

other

discovery

methods."

Government Employees Ins. Co. v. Saco, Mo. CV 2012–5633(NGG)(MDG),

14

2013 WL 5502871, at *2 (E.D.N.Y. Oct. 2, 2013).
A witness's availability for a deposition defeats a claim
of substantial need for work product material because the
party seeking discovery can ask the witness himself about
the events in issue, and, if the witness recalls the
events in issue, the need for notes or other materials
prepared by opposing counsel is, thereby, eliminated. It
is always the case that a witness may lie at a deposition
or may not have an accurate recollection. However, if
those facts, without more, were sufficient to pierce a
claim of work product, work-product protection, at least
with respect to witness statements, would quickly become
meaningless.
A.I.A. Holdings, S.A. v. Lehman Bros., Inc., No. 97 Civ. 4978(LMM),
2002 WL 31385824, at *8 (S.D.N.Y. Oct. 21, 2002).

See Tribune Co.

v. York Holdings, Inc., 93 Civ. 7222(LAP), 1998 WL 175933 at *4
(S.D.N.Y. Apr. 14, 1998) ("'Substantial need' cannot be shown where
persons

with

equivalent

information

are

available

for

deposition.").
"No one doubts that production should be ordered if the
witness has a faulty memory and no longer remembers details of the
event."

8 Wright, Miller & Marcus, Federal Practice & Procedure

§ 2025 at 546 (3rd ed. 2010).

However, the plaintiffs' allegation

that "nearly all the commission members who attended the May 5,
2011" had "little or no recollection at all as to what occurred" is
conclusory and unsubstantiated.

The only evidence the plaintiffs

submitted in support of their assertion was deposition excerpts
from two attendees, Ceraso and Jane Flader, who were unable to

15

recall details.8

The record before the court does not lead to a

conclusion that the other attendees also were unable to remember
and provide
McCreery

and

testimony.

To

Schatzlein

the

offered

contrary,
by

the

the

depositions

defendants

are

of

very

detailed; they testified as to discussions regarding, inter alia,
the impact of the superior court decision, the setting of the bond,
the status of the property, and the date that should be set for the
renewal of the permit.

(Doc. #86, Ex C, D.)

The plaintiffs have not met the burden necessary to overcome
ordinary work product protection.

They have not demonstrated an

inability to obtain a substantial equivalent for Attorney Ceraso's
notes.

See

Feacher

v.

Intercontinental

Hotels

Group,

No.

3:06-CV-0877 (TJM/DEP), 2007 WL 3104329, at *4 (N.D.N.Y. Oct. 22,
2007)("A

trial

court

has

wide

discretion

in

determining

existence of substantial need and undue hardship.")

the

Because the

plaintiffs have not met the lesser burden associated with ordinary
work product, "it is unnecessary to consider whether and to what
extent any of this material constitutes opinion work product that
is discoverable, if at all, only on a more demanding standard . .
. ." Chevron Corp. v. Donziger, No. 11 Civ. 0691(LAK), 2013 WL
3294820, at *2 n.12 (S.D.N.Y. June 28, 2013).

The defendants'

"motion to quash or modify the subpoena duces tecum of Cara Ann

8

Plaintiffs submitted deposition excerpts of a few other
attendees but those excerpts only concerned whether First Selectmen
Vavrek attended the executive session.
16

Ceraso" (doc. #57) and "nonparty witness's motion to quash subpoena
that seeks to produce documents" (doc. #73) are granted.

The

plaintiffs' "motion to compel disclosure of handwritten notes of
non-party deponent Cara Ann Ceraso" (doc. #80) is denied.
SO ORDERED at Hartford, Connecticut this 31st day of January,
2014.
___________/s/________________
Donna F. Martinez
United States Magistrate Judge

17