Silano v. Wheeler

Filing 86

RULING denying 68 Motion for Sanctions. Signed by Judge Holly B. Fitzsimmons on 4/22/2014. (Katz, Samantha)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
VIRGINIA SILANO
v.
DANIEL WHEELER

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CIV. NO. 3:13CV185 (JCH)

RULING ON PLAINTIFF‟S MOTION FOR SANCTIONS FOR VIOLATION OF
PROTECTIVE ORDER [DOC. #66]
Plaintiff Virginia Silano brings this action pro se
pursuant to 42 U.S.C. §1983 against defendant Daniel Wheeler, a
Trumbull, Connecticut police officer.

Plaintiff alleges

wrongful arrest and malicious prosecution. [Doc. #35-1].1 Pending
before the Court is plaintiff‟s motion for sanctions against
defendant‟s attorney, Dennis Durao, for violating a protective
order. [Doc. #68].
#77].

Defendant opposes plaintiff‟s motion. [Doc.

After careful consideration, the Court DENIES plaintiff‟s

motion for sanctions, as articulated below.
BACKGROUND
On January 14, 2014, plaintiff filed a motion for
protective order, asking the Court to prevent defense counsel
from inquiring into the following matters at plaintiff‟s
deposition: plaintiff‟s five pending criminal actions; the 1973
drowning deaths of two girls from Trumbull; matters referenced
on plaintiff‟s privilege log; and recordings of Thomas Chetlen.
[Doc. #47].

At the time of plaintiff‟s deposition on January

27, 2014, the Court had not yet acted on plaintiff‟s motion for
1

Plaintiff is currently proceeding under a second amended complaint, which
Judge Hall permitted over defendant‟s objection. [Doc. #48].

protective order, but Attorney Durao represented that he would
not inquire into such matters. [Doc. #77, 2]. On February 20,
2014, Judge Hall granted plaintiff‟s motion for protective
order, absent objection. [Doc. #49].
Plaintiff alleges that Attorney Durao violated the terms of
the protective order in two respects – first, by distributing
copies of her deposition transcript, which speak to portions of
her privilege log, and second, by “deliberately delv[ing] into
matters of the privilege log to harm the plaintiff.” [Doc. #68,
¶11].

In addition to seeking sanctions, plaintiff also requests

that the Court: (1) enforce the prior protective order and seal
plaintiff‟s deposition transcript; (2) order Attorney Durao to
disclose the name of each person and/or agency to whom he
provided the transcript; (3) order Attorney Durao and/or his law
firm to provide plaintiff with a copy of her deposition
transcript free of charge; (4) order Attorney Durao and/or his
law firm to pay the cost of counsel to protect plaintiff from
any harm resulting from the transcript‟s distribution; and (5)
quash the subpoena served on attorney Ralph Crozier.2
LEGAL STANDARD
Plaintiff fails to cite any rule or authority upon which
she relies in seeking sanctions against Attorney Durao.

In

light of her pro se status, the Court assumes that she seeks
sanctions pursuant to the court‟s inherent power to manage its
affairs.

“[F]ederal courts have „well-acknowledged inherent

2

The subpoena served on Attorney Crozier is the subject of two other
motions, see doc. ##52, 67, and will be addressed in a separate ruling.
2

power to levy sanctions in response to abusive litigation
practices.”

DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124,

135 (2d Cir. 1998) (citation omitted).

“Because of the potency

of the court‟s inherent power, courts must take pains to
exercise restraint and discretion when wielding it.” Id. at 136.
As such, the Second Circuit “has required a finding of bad faith
for the imposition of sanctions under the inherent power
doctrine[,]” which must be shown by “(1) clear evidence or (2)
harassment or delay or … other improper purposes.” Id. (internal
citation and quotation marks omitted; ellipses in original); see
also DaCosta v. City of Danbury, No. 3:12CV1011(RNC), 2014 WL
819940, at *5 (D. Conn. March 3, 2014) (citation omitted)
(Noting that only a “particularized showing will support a
finding of bad faith.”).
DISCUSSION
Plaintiff first argues that Attorney Durao violated the
protective order by distributing copies of her deposition
transcript.

Plaintiff alleges that Attorney Durao represented

that Judge Hall‟s standing protective order prevented the
distribution and use of the transcript in other matters.
Plaintiff also alleges that she “relied on the legal advice and
honesty of Attorney Dennis Durao and [] proceeded with the
deposition in good faith[.]” [Id. at ¶7].

Attorney Durao denies

that he made such representations and/or provided legal advice.
Attorney Durao does, however, admit that he limitedly
distributed the deposition transcript to co-defense counsel in a
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pending state civil action brought by plaintiff against
defendant Wheeler and other third parties.3 Specifically,
portions of plaintiff‟s deposition transcript were referenced in
a motion for protective order. [Doc. #68, 19].4
The current record does not support a finding of bad faith
required for the imposition of sanctions. As defendant correctly
notes, there is nothing in the motion for protective order which
prevents defendant from distributing the deposition transcript.
Defendant is also correct that the deposition transcript is not
“designated material”, as defined by Judge Hall‟s standing
protective order.5 Nor does plaintiff allege any informal
agreement with Attorney Durao that her transcript would
constitute designated material.

Therefore, the Court fails to

find any violation of a protective order as a result of Attorney
Durao‟s distribution of plaintiff‟s deposition transcript. See
Burgess v. Town of Wallingford, No. 3:11-CV-1129 (CSH), 2012 WL
3

Defendant Wheeler was dismissed from the state court action on March 3,
2014. [Doc. #77, 5 n. 2].
4

The motion for protective order in the state court action requested that
plaintiff be prohibited from recording defendant Cooney‟s deposition or any
off record communications at the deposition. [Doc. #68, 20]. In support of
this request, the motion references portions of plaintiff‟s deposition
transcript where she admits to recording third parties and walking around
with a recorder in her pocket. [Id.]. It is also worth noting that plaintiff
has previously referenced some of these recordings in other public court
filings. See, e.g., doc. #28, ¶¶3, 6; doc. #46, 1-2.
5

Judge Hall‟s standing protective order provides that documents, materials
and information “may be designated by the producing party” as “either (a)
„CONFIDENTIAL‟ or (b) „CONFIDENTIAL ATTORNEYS‟ EYES ONLY.‟” [Doc. #7, ¶2].
The standing protective order further goes on to provide that any such
material shall not be used or disclosed for any purpose other than the
litigation. [Id. at ¶5]. The standing order also states that deposition
transcripts may be designated either when the testimony is recorded, or by
written notice within 10 days after the producing party‟s receipt of the
transcript. [Id. at ¶13]. There is no evidence before the Court that
plaintiff took any measures to designate her deposition transcript or
portions thereof in accordance with Judge Hall‟s standing protective order.
4

4344194, at *9 n. 17 (D. Conn. Sept. 21, 2012) (quoting 23 Am.
Jur. 2d Depositions and Discovery § 167 (Westlaw update Aug.
2012)) (“Absent a protective order, „the discovery rules place
no [specific] limitations on what a party may do with materials
obtained during discovery.‟”). The Court also finds that
plaintiff has failed to demonstrate any prejudice suffered as a
result of the limited distribution of the transcript.

Although

portions of it were utilized in support of an application for a
protective order, plaintiff has failed to show (1) whether the
motion was granted and (2) if so, how she was harmed by the
issuance of the protective order.

Moreover, plaintiff‟s

conclusory allegations regarding the potential use of her
deposition transcript in criminal proceedings are insufficient
to show prejudice, particularly in light of Attorney Durao‟s
representation that he only provided copies of the transcript to
co-counsel in the state civil action.

Finally, any alleged

future prejudice plaintiff may suffer is further diminished by
plaintiff‟s ability to obtain a copy of the deposition
transcript at her own expense.
Plaintiff next argues that Attorney Durao deliberately
delved into matters on the privilege log to harm plaintiff.
Again, the current record does not support a finding of bad
faith required for the imposition of sanctions.

The Court has

carefully reviewed applicable portions of plaintiff‟s deposition
transcript and agrees that plaintiff largely volunteered the
information she now complains of. Indeed, plaintiff attached a
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copy of the privilege log to the pending motion for sanctions,
thereby making its contents a matter of public record. [Doc.
#68, 14-17].

Therefore, in the absence of any clear evidence of

bad faith, the Court declines to award sanctions against
Attorney Durao, or otherwise order the relief plaintiff seeks.
CONCLUSION
Accordingly, plaintiff‟s motion for sanctions [Doc. #68] is
DENIED.6
This is not a Recommended Ruling. This is a discovery
ruling or order which is reviewable pursuant to the “clearly
erroneous” statutory standard of review. 28 U.S.C. §
636(b)(1)(A); Fed. R. Civ. P. 72(a); and D. Conn. L. Civ. R.
72.2. As such, it is an order of the Court unless reversed or
modified by the district judge upon motion timely made.
SO ORDERED at Bridgeport this 22nd day of April 2014.

______ /s/ ______________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

6

In light of plaintiff‟s pro se status, the Court construes her motions
liberally and interprets her filings as raising the strongest arguments
suggested. However, this does not excuse plaintiff from a basic
understanding of the Federal Rules of Civil Procedure. For example,
plaintiff fails to understand the difference between the relief afforded by a
protective order and an order sealing a document. Plaintiff also does not
appear to understand the difference between designating a document
“confidential” versus “privileged.” Although the Court appreciates that
plaintiff is not a lawyer, she, like all other federal litigants, must abide
by the rules and procedures applicable to civil litigation before this Court.
That includes understanding that the procedures applicable in state court,
where she is a frequent litigant, do not necessarily apply to a federal court
case.
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