Free Motion to Quash - District Court of Connecticut - Connecticut

Case 3:03-cv-00943-AWT

Document 155

Filed 03/18/2008

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

GARY SESSION Plaintiff, vs. CITY OF NEW HAVEN, STEPHEN COPPOLA & EDWIN RODRIGUEZ Defendants.

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CIV NO. 3:03CV00943 (AWT)

MARCH 18, 2008

MOTION TO QUASH OR MODIFY SUBPOENA AND FOR PROTECTIVE ORDER Chief Francisco Ortiz, who is not a party in the above-captioned matter, hereby respectfully moves this Court to quash or modify the Subpoena served upon Chief Ortiz (see copy of subpoena, attached hereto as Exhibit A) and requests this court to enter a Protective Order for certain records requested in the subpoena served upon Chief Ortiz, to the extent such records exist. Chief Ortiz further moves this Court to limit the scope of his deposition to exclude matters seeking to conjure evidence to support a Rule 60(b) motion. "The proper method of testing the validity of a subpoena duces tecum issued without a previous judicial determination of the propriety and sufficiency of the application ORAL ARGUMENT IS NOT REQUESTED

OFFICE OF THE CORPORATION COUNSEL · CITY OF NEW HAVEN 165 Church Street, New Haven, CT 06510 Telephone (203) 946-7958 · Facsimile (203) 946-7942 · Juris No. 42715

Case 3:03-cv-00943-AWT

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is by a motion to quash." Jackson v. AFSCME LOCAL, 196, 246 F.R.D. 410 (D.Conn. 2007). Defendant City of New Haven's Motion for Summary Judgment in this matter was granted by this Court on September 28, 2007. The matter was never appealed. Plaintiff is currently attempting to re-litigate the heretofore adjudicated Monell claim by mining information from Chief Ortiz regarding affidavits he signed in the City's Motion for Summary Judgment. Several requests in the instant Subpoena for Chief Francisco Ortiz seek information that is admittedly aimed solely at building plaintiff's case for file a Rule 60(b) motion (see Email dated 3/5/08, attached hereto as Exhibit B). Specifically, Item 11 seeks "[a]ll documents reviewed by or relied upon by you in connection with the preparation and execution of all affidavits signed by you in this case." Item 12 seeks "[a]ll documents evidencing any investigation or inquiry ordered or conducted by you or any other officer in the New Haven Police Department in support of the allegations contained in the affidavits signed by you in this case" Item 13 seeks "[a]ll documents evidencing any investigation ordered by you or your predecessor, Melvin Wearing or any other officer of the New Haven Police

OFFICE OF THE CORPORATION COUNSEL · CITY OF NEW HAVEN 165 Church Street, New Haven, CT 06510 Telephone (203) 946-7958 · Facsimile (203) 946-7942 · Juris No. 42715

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Department into the actions of Edwin Rodriguez and Stephen Coppola as alleged in the Plaintiff's complaint in this case." Item 16 seeks "[a]ll documents evidencing any investigation conducted by the New Haven Police Department into the actions of Edwin Rodriguez in connection with a photo identification procedure involving Angel Garcia." As one of plaintiff's several counsel concedes, requests no. 11, 12, 13 bear no demonstrated relevance to the instant matter and current parties in the case. Said

requests are overly broad and unduly burdensome and harassing, and production of the requested documents is not likely to lead to the disclosure of admissible evidence. Item no. 16 also admittedly serves the plaintiff's purpose of creating the basis for a Rule 60 motion. Plaintiff's characterization of the request as seeking information as to Rodriguez's state of mind at the time of an alleged act of misconduct does not legitimize the request because the investigation, if any, would not necessary reveal Rodriguez's state of mind at the time in question, which is wholly unrelated to the instant matter. Edwin Rodriguez is the best source of information as to his state of mind. In addition Chief Ortiz is not the sole source of information for said request.

OFFICE OF THE CORPORATION COUNSEL · CITY OF NEW HAVEN 165 Church Street, New Haven, CT 06510 Telephone (203) 946-7958 · Facsimile (203) 946-7942 · Juris No. 42715

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WHEREFORE, the deponent Francisco Ortiz moves this Court to quash or modify the subpoena duces tecum and requests a protective order and an order limiting the scope of his deposition. THE DEPONENT, FRANCISCO ORTIZ

BY:/s/______________________ Michael A. Wolak, III Assistant Corporation Counsel City of New Haven Office of Corporation Counsel 165 Church Street New Haven, CT 06510 Tel. #: (203)946-7970 Fax #: (203) 946-7942 E-mail: [email protected] Fed. Bar #ct12681 His Attorney

OFFICE OF THE CORPORATION COUNSEL · CITY OF NEW HAVEN 165 Church Street, New Haven, CT 06510 Telephone (203) 946-7958 · Facsimile (203) 946-7942 · Juris No. 42715

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CERTIFICATION I hereby certify that a copy of the foregoing Motion to Quash was mailed on July 10, 2006 to the following counsel of record, to wit: Roy S. Ward, Esq. 3695 Post Road, Suite 203 Southport, CT 06890 Karen L. Mayer 66 Field Point Road Greenwich, CT 06830 Meghan K. Gallagher, Esq. Susman, Duffy & Segaloff, P.C. 55 Whitney Avenue New Haven, CT 06510 /s/________________________ Michael A. Wolak, III

OFFICE OF THE CORPORATION COUNSEL · CITY OF NEW HAVEN 165 Church Street, New Haven, CT 06510 Telephone (203) 946-7958 · Facsimile (203) 946-7942 · Juris No. 42715

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AFFIDAVIT Personally appeared Michael A. Wolak, III, who does hereby state as follows: 1. 2. 3. I am over the age of 18 years and believe in the obligation of an oath. I am an Assistant Corporation Counsel for the City of New Haven. I have extensively and in good faith conferred with counsel for the plaintiffs

in this matter in an attempt to resolve the dispute regarding the subpoena for Chief Francisco Ortiz without court action.

/s/__________________________ Michael A. Wolak, III

Personally appeared Michael A. Wolak, III, who subscribed and swore to the truth of the foregoing before me this 18th day of March, 2008.

__________________________________ Notary Public / Commissioner of the Superior Court

OFFICE OF THE CORPORATION COUNSEL · CITY OF NEW HAVEN 165 Church Street, New Haven, CT 06510 Telephone (203) 946-7958 · Facsimile (203) 946-7942 · Juris No. 42715