Cheshire Academy motion for protective order

DOCKET NO. HHD-CV 19-6111053-5

SUPERIOR COURT

THEODORE AND SONIA MANCINI PPA MICHAEL MANCINI, Plaintiffs,

J.D. of HARTFORD

V.

at HARTFORD

CHESHIRE ACADEMY, ET AL., Defendants.

JULY 10, 2019

CHESHIRE ACADEMY'S MOTION FOR A PROTECTIVE ORDER Pursuant to Connecticut Practice Book ยง 13-5 and Connecticut General Statutes ยง 52196a(d), Defendant The Cheshire Academy ("Cheshire Academy"), ~ moves for a protective order prohibiting Plaintiffs from engaging in discovery while the Defendants' Special Motion to Dismiss (Doc. No. 101.00) is pending. Plaintiffs, in an effort to circumvent the stay of discovery in this case, have been contacting Cheshire Academy students in an attempt to obtain information. That is improper, and is causing further interference with Cheshire Academy's relationship with its students and apprehension amongst members of the Cheshire Academy community. The Court should preclude Plaintiffs from engaging in discovery, including but not limited to contacting Cheshire Academy students in an attempt to gain information.

I.

BACKGROUND On June 13, 2019, the Defendants filed a Special Motion to Dismiss pursuant to

Connecticut's "anti-SLAPP" statute, Conn. Gen. Stat. ยง 52-196a. (Doc. No. 101.00; see also Doc. No. 102.00 (Defendants' Memorandum of Law in Support of their Special Motion).)

Defendants' Special Motion to Dismiss under the "anti-SLAPP" statute stayed all discovery in this case pending the resolution of Defendants' Special Motion. See, e.g., Conn.

Gen. Stat. ยง 52-196a(d) ("The court shall stay all discovery upon the filing of a special motion to The Cheshire Academy is identified incorrectly in Plaintiffs' complaint as "Cheshire Academy."

dismiss. The stay of discovery shall remain in effect until the court grants or denies the special motion to dismiss and any interlocutory appeal thereof.").

Counsel for Defendants has since learned that Plaintiffs are engaging in discovery in this case. Specifically, a Cheshire Academy student received a message from Michael Mancini that stated: "My attorney is looking for kids to contact that can explain what happened during all the incidents during the past year. My attorney would like to be able to ask you questions about what happened and any thing else you can give. . . ." The message in question is attached as Exhibit A. Michael also provided the student in question with his counsel's phone number.

(Exhibit A.) Michael contacted an unknown number of other students as well, and several students have reached out to Cheshire Academy personnel as a result.

When counsel for Defendants learned that Michael was contacting students at the request of counsel for Plaintiffs, counsel for Defendants contacted counsel for Plaintiffs to request that counsel for Plaintiffs refrain from contacting potential fact witnesses and instruct his clients and Michael to do the same. A copy of counsel for Defendants' email is attached as Exhibit B. As of this filing, counsel for Defendants has not received a response from Plaintiffs' counsel.

II.

LEGAL STANDARD Practice Book ยง 13-5 provides, in relevant part: "Upon motion by a party from whom

discovery is sought, and for good cause shown, the judicial authority may make any order which justice requires to protect a party from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the

scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the judicial authority . . . ." Conn. Prac. Book ยง 13-5.

"The party seeking a protective order under Practice Book ยง 13-5 bears the burden of establishing the contemplated good cause." Netscout Sys., Inc. v. Gartner, Inc., No. FS1-FSTCV14-6022988, 2016 WL 5339454, at *3 (Conn. Super. Ct. Aug. 22, 2016). "Good cause has been defined as a sound basis or legitimate need to take judicial action." Estate of Cook v. Hall, No. NNH-CV10-6010851, 2011 WL 783612, at *4 (Conn. Super. Ct. Feb. 9, 2011) (internal quotation marks omitted). "The extent of discovery and use of protective orders is clearly within the discretion of the trial judge." Id. "It is within the sound discretion of the trial court to grant or deny discovery." Sachs v. Sachs, 22 Conn. App. 410, 417 (1990). The Court "may make any order which justice requires to protect a party," Webster Bank, N.A. v. Frasca, 183 Conn. App. 249, 278-79 (2018), including an order that "discovery may be had only on specified terms and conditions." Conn. Prac. Book ยง 13-5.

III.

ARGUMENT The Court should enter a protective order prohibiting Plaintiffs from conducting any

discovery in this case, including but not limited to contacting and attempting to interview Cheshire Academy students.

Plaintiffs' efforts violate the stay on discovery in this case.

Regardless, the Court should prohibit Plaintiffs from contacting Cheshire Academy students because that contact increases apprehension regarding Plaintiffs and Michael and otherwise interferes with Cheshire Academy's relationship with its students.

A.

Plaintiffs Should Not Be Contacting Witnesses in Light of ยง 52-196a(d)

Good cause exists for the Court to enter a protective order prohibiting Plaintiffs from engaging in discovery because ยง 52-196a(d) explicitly provides that discovery in this case is

stayed as a result of Defendants' Special Motion to Dismiss. See, e.g., Day v. Dodge, No. KNLCV 1860353625, 2019 WL 994532, at * 1 (Conn. Super. Ct. Jan. 25, 2019).

Plaintiffs are nevertheless attempting to interview Cheshire Academy students, who, according to Plaintiffs, are apparently potential fact witnesses in this case. That violates the stay on discovery in this case. Indeed, Plaintiffs are likely attempting to interview these witnesses because they know they cannot subpoena and/or depose them or otherwise obtain the information they possess because of the stay on discovery in this case. Plaintiffs attempt to contact witnesses is, at absolute best for them, nothing more than an improper attempt to circumvent the stay on discovery in this case. The Court should not allow it.

B.

Contacting Students is Otherwise Improper at the Present Time

Even ignoring the stay of discovery in effect as a result of § 52-196a(d), good cause exists for the Court to order Plaintiffs not to attempt to contact Cheshire Academy students or their parents or, for that matter, other individuals associated with Cheshire Academy, at least until the Court rules on Defendants' Special Motion to Dismiss. As discussed in more detail in Defendants' Memorandum of Law in Support of their Special Motion to Dismiss, and the affidavits attached thereto, Plaintiffs and Michael Mancini have had a negative impact on the School community and have caused several adults and students to be apprehensive about Michael. (Doc. No. 102.00 at 14, Ex. A. at ¶¶ 15, 18; Ex. B. at ~ 18; Ex. M at ¶ 5.)2 Head of School Julie Anderson explained that she "had serious concerns about Michael causing negativity in the School community and causing people to be apprehensive of Michael." (Doc. No. 102.00 at Ex. A. ¶ 18.) Indeed, the fact that Michael's contacts are causing apprehension among Cheshire Academy's students is readily apparent from the fact that several students have

Z References are to the page numbers at the bottom of each page, which are different than the page numbers identified in the overall filing.

contacted Cheshire Academy personnel regarding Michael's messages. The Court should protect Cheshire Academy's students from further annoyance and apprehension as a result of Michael's efforts to contact them by precluding Plaintiffs and Michael from contacting them, at least until such time as the Court rules on the Defendants' Special Motion to Dismiss. The Court's ruling on Defendants' Special Motion may result in the dismissal of this action.

IV.

CONCLUSION The Court should prohibit Plaintiffs from engaging in discovery in accordance with the

mandate of ยง 52-196a and to avoid what is premature and potentially unnecessary annoyance and apprehension to Cheshire Academy's students. The Court should therefore grant Defendant Cheshire Academy's Motion and prohibit Plaintiffs from contacting Cheshire Academy students.

DEFENDANT THE CHESHIRE ACADEMY By: /s/Brendan N. Goolev James M. Sconzo Jillian R. Orticelli Brendan N. Gooley CARLTON FIELDS One State Street, Suite 1800 Hartford, CT 06103 Tel.: 860-392-5000 Fax: 860-392-5058 jsconzo@carltonfields.com jorticelli@carltonfields.com bgooley@carltonfields.com Juris No. 420124 Its Attorneys

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CERTIFICATE OF SERVICE This is to certify that on this 10th day of July, 2019, a copy of the foregoing has or will immediately be served upon the following counsel of record: James F. Sullivan Howard, Kohn, Sprague & FitzGerald, LLP 237 Buckingham Street P.O. Box 261798 Hartford, CT 06106 Tel: 860-525-3101 Fax: 860-247-4201 Jfs(a~hksflaw.com CounselfoN Plaints

/s/Brendan N. Gool Brendan N. Gooley

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11:41 AM

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michaelmancini66

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, My attorney is looking fc~r Hey kids to contact that can explain what happened during all the incidents during the past year. My attorney would like to be able to ask you questions about what happened and any thing else you can give.

If you're interested can you please send me a phone # or email address that he can contact you by

~~~

This is purely so the attorney can contact you and speak with you. This does not commit you to show up in court or pay fees. Your name will not be associated with the case.

Can I have your athorneys name and number

Hold on

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James Sullivan 860-525-3101 (office #) Double tap to like

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From: "Sconzo, James M." <JSconzo(~carltonfields.com> Date: July 9, 2019 at 9:28:06 PM EDT To: "James Sullivan <jfs@hksflaw. com>" <jfs e,hksflaw.com> Subject: Cease and Desist Jamie, It has come to our attention that you are instructing your client to contact students at Cheshire Academy. Whether you have done that or not, your client is doing this. This must stop now or we will be back in court immediately.

Jim

Sent from my iPhone