Reprinted with permission from the August 25, 2008 edition of the Connecticut Law Tribune. © 2008 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.

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Week of August 25, 2008 • vol. 34, no. 34 www.ctlawtribune.com

Plaintiffs Get Jump On Deposing DefendantsJudge’s ruling riles defense attorneys

By THOMAS B. SCHEFFEY

In the first in-depth written decision onthe point, Waterbury Superior Court

Judge Jane Scholl has concluded that aplaintiff can file a notice of deposition withthe initial complaint. This tactical advan-tage gives the plaintiff first crack at diggingup — or nailing down — key informationin the case.

Scholl ruled that the Practice Book rules“do not restrict when notices of depositionsmay be served,” so long as the depositiontakes place at least 20 days after the case hasformally begun.

The decision is not sitting well withdefense lawyers. This “essentially meansthat a defendant can never take a plaintiff ’sdeposition first, which seems unfair,” saidDavid J. Robinson, one of the attorneysworking on the medical malpractice caseover which Scholl is presiding.

Scholl ruled Aug. 6 in a medical mal-practice case brought by clients of Silver,Golub & Teitell, a prominent Stamfordplaintiffs’ firm. Partners Richard A. Silverand Peter M. Dreyer used the proceduralone-two punch when they served NewMilford gynecologist Orlito A. Trias last fall,a on behalf of their clients, Allison andMichael Downs.

Even before Trias had a defense lawyer,he was served with the complaint and anotice of deposition on Sept. 6, 2007, with a“return day” of Oct. 2. The return day is, bypractice rule, a Tuesday, at least four weeksafter the complaint is filed in court, bywhich the plaintiff must have filed proofthat the writ, summons and complaint wereall properly served on the defendant. It’s theofficial starting date of a civil action.

In this case, Dreyer set the deposition forNov. 5, 2007.

Start Of StandoffHowever, on Oct. 18, Trias’s malpractice

insurance carrier called Silver, Golub andsaid it had just received the complaint, andrequested time to secure counsel. It asked topostpone the deposition, and the plaintiffs’lawyers agreed.

The doctor’s malpractice carrier selectedMadonna Sacco, a feisty med-mal defenselawyer who was then at Stratford’s Bai,Pollock, Blueweiss & Mulcahey (and whosince has moved to the Hartford firmknown as Danaher, Lagnese & Sacco). Afterpostponing the scheduled Nov. 5 deposi-tion of Dr. Trias, Sacco in late Novemberfiled notices to depose the plaintiffs on Jan.

21. When that day came, plaintiffs’ lawyerDreyer called to say his clients wouldn’tappear because he had served Trias first,and had priority over the defendant undercommon Connecticut practice.

On April 2, 2008, Robinson wrote Silvera one-line letter, saying the defense teamdid not “intend to produce Dr. Trias for adeposition until the depositions of theplaintiffs have been completed.” The battlewas joined.

Firing off a six-page motion to compeldeposition April 7, Dreyer argued thatPractice Book rule 13-26 allows a party totake depositions “at any time after the com-mencement of the action.”

Stamford attorney Peter M. Dreyer said other judges have accepted the notion that anotice of deposition can be filed along with the original complaint.

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Notice A Nullity?Sacco objected to Dreyer’s motion to

compel by citing Practice Book 13-2, whichstates that discovery can only take place in apending action.

Because the deposition notice was servedbefore the civil action’s official starting day,Sacco argued that it was a legal nullity.Sacco reasoned that she had filed the firstlegitimate notice of deposition after thecase was a “pending action,” and thusshould have priority in deposing the plain-tiffs first.

She contended that Silver had been criti-cized by New Haven Superior Court JudgeDavid W. Skolnick in a 2003 case for thepractice of filing the deposition notice andcomplaint at the same time. While Skolnickallowed it, he said he didn’t want his deci-sion to be viewed as a precedent, Sacconoted.

Dreyer countered that Skolnick’s rulingupheld the dual filing as legitimate. He alsocited a statement from the bench by then-Superior Court Judge Chase T. Rogers, not-ing that it makes a certain amount of sensefor the defendant to be deposed first, par-ticularly in a malpractice case. “[T]he plain-tiffs are not going to be contributing muchto the true issues in the case,” she noted,such as whether there was a breach of themedical standard of care, or whether therewas proximate cause with regard to theinjuries.

Misquoting Rule?In his reply to Sacco’s objection, Dreyer

wrote that she simply misquoted Rule 13-2and took it out of context. Furthermore,there is no statute, Practice Book rule orcase law that favors having the plaintiffsdeposed first, he added.

Sacco, in turn, wrote that since the plain-tiffs have the burden of proving their mal-practice case, they should be deposed first.In this case, she said, Dr. Trias should be“given the fair opportunity to find out whatthis case is about.” (Plaintiff Allison Downscontends that she developed ovarian cancerafter Trias performed a partial hysterec-tomy, and that he had negligently failed toremove both of her ovaries.)

In lively oral argument before Scholl July21, Sacco argued that the practice of filing adeposition notice simultaneously with thecomplaint was never intended by the legis-lature, the Practice Book or by any commonlaw rationale. Although Dreyer contendshis firm doesn’t always seek a defendant’sdeposition from the start, Sacco said, “in allof the Silver, Golub & Teitell cases whereMr. Silver is the controlling attorney, it hap-pens.” She said: “The trend they’re trying tocreate in a very astute and formidable way isto take advantage of a loophole. It’s notwhat was ever intended.”

Dreyer stuck to his original argumentthat the benefits of practice rules can fallunevenly to one party or the other, but they

must be followed nonetheless.

Judge’s Opinion Scholl, in her written opinion, dismissed

the language of Practice Book Rule 13-2,outlining the scope of discovery, as inappli-cable. A notice of deposition is not discov-ery, so it needn’t be delayed, like other dis-covery, until a case is pending, the judgewrote. What is persuasive is the languageof 13-26, which states that “at any time afterthe commencement of the action or pro-ceeding” a party may “take the deposition ofany person, including a party.”

And case law is clear that commence-ment of an action is not the return date,Scholl concluded. Commencement ofaction occurs once the writ, summons andcomplaint have been served, she stated.

David Robinson, one of Sacco’s partnersat Danaher, Lagnese, said Scholl’s ruling istougher-minded than some remedies sug-gested by her peers. “This is an issue that’sarisen before, and in other cases, judgeshave allowed us to depose both sides on thesame day,” said Robinson.

Allowing plaintiffs to file depositionnotices with the complaint, he said, “essen-tially means that a defendant can never takea plaintiff ’s deposition first, which seemsunfair. In ordinary litigation, the plaintiffhas the burden of proof and has to put ontheir case first. Here they’re doing just theopposite.” ■