Agnes SQUEO, Fiduciary of the Estate of Stephen J. Squeo et al. v. The NORWALK HOSPITAL ASSOCIATION et al No. CV095012548 Superior Court of Connecticut, Judicial District of Stamford–Norwal December 16, 2011 Jennings, Jr., Alfred J., Superior Court Judge Memorandum of Decision on Defendant's Motions1 To Inspect Electronic Storage Devices, Computer and Cell Phone *1 The factual background and procedural posture of this case were set forth in this court's Memorandum of Decision on Plaintiff's Objections to Defendant's Requests for Inspection of Plaintiff's Computer. Squeo v. Norwalk Hospital Association, Superior Court, Judicial District of Stamford/Norwalk at Stamford, Docket No. CV09–5012548S (December 14, 2010, Jennings, J.), 2011 Ct.Sup. 1252, 51 CLR 149. I will quote from that opinion to frame the background for this decision, which is a continuation of the same discovery dispute between the parties: This is an action by the parents and the estate of Stephen J. Squeo, deceased, against the Norwalk Hospital and a nurse practitioner at the hospital. The first count is a wrongful death claim brought by the estate fiduciary claiming professional negligence. The second count is brought by the parents individually, claiming bystander emotional distress. The underlying facts are that Stephen Squeo, who suffered from schizophrenia and substance abuse with a history of suicide attempts, lived with his parents at their home in Norwalk. On August 14, 2007 the parents called the Norwalk Police Department to report that their son was suicidal. Upon arrival at the home the police observed the parents running from the residence and pointing to Kendall School. They informed the officers that their son had run to the rear of the school carrying an electrical type cord. The officers apprehended Stephen Squeo and had him taken by ambulance for psychiatric evaluation at Norwalk Hospital where he had received psychiatric treatment since August of 2004 allegedly including instances where he had used illegal drugs and had attempted suicide. He was admitted to the hospital at 10:53 p.m. on August 14 and underwent a psychiatric assessment by a nurse practitioner. Stephen was released from the hospital the following morning He walked alone to his parent's home where he hanged himself by a cord from a tree resulting in his death after the parents had found him and cut him down. The issues presently to be decided concern the defendants' requests for discovery relating to the claim of damages in the wrongful death count that “Stephen Squeo has lost the ability to enjoy life's pleasures due to his death.” Claiming that the plaintiffs have raised as an issue in this case the decedent's quality of life given his long psychiatric history and issues involving illegal drug usage, the defendants posed interrogatories seeking information about Stephen's cell phone and email usage and computer access on or before the date of his death. The parents answered that Stephen did have his own cell phone and provided the requested information about that account, and did not have access to any other cell phone. They said that he did not have his cell phone with him on the date of his death. They also answered that Stephen had “access to parent's computer but rarely used it,” and had his own AOL email account, and provided the email address. Defendants then requested production of Stephen's cell phone and the parent's computer “for purposes of a forensic inspection, examination and analysis, including the non-destructive retrieval of electronic data, by the defendants' forensic computer experts.” *2 The court sustained the plaintiff parents' objection to the defendant's request to inspect the parents' computer. The two motions to inspect now before the court repeat the request to inspect the parents' computer. The plaintiffs object on grounds of law of the case, and on the same grounds as they objected a year ago, that the request is overbroad, unnecessary, and a violation of the parents' privacy. Defendants claim that their request is not foreclosed by the doctrine of law of the case, because there are new and overriding circumstances arising from subsequent developments in the case which relate to areas where the court “left the door open to revisiting its ruling.” In my opinion of December 10, 2010 I said, in sustaining the objection, “The order sought by the defendants herein is too broad, being unlimited in time or subject matter or privileged status, and lacks any probable showing that there is anything actually stored on the parents' computer which would be relevant to this case or lead to the discovery of admissible evidence, or that plaintiffs would be unable or unwilling to disclose any such information if it does exist on their computer.” Squeo, supra, at 1255. Defendants claim that they have now demonstrated: “(a) the extent to which the decedent had spent time accessing social networking sites from [the parents'] personal computer; and (b) the parents' apparent lack of will and/or ability to retrieve and disclose any relevant information that exists on their computer.” [Second] Motion to Inspect, October 21, 2011 (No. 250). Aside from mere assertions of those claims, however, there is little in the way or factual evidence to support them. After the court's initial ruling the defendants served on December 30, 2010 a followup production request asking the plaintiff parents to produce all electronic files created, drafted, generated, saved, or otherwise stored on their computer by their deceased son Stephen. The parents responded on February 16, 2011 saying that they checked Stephen's email account and provided certain documents to their attorney.[2] Defendant then served followup interrogatories asking plaintiffs to explain the manner of their inspection or search of their computer and whether or not they requested or employed the assistance of anyone else in conducting that inspection or search. Plaintiffs answered that they did not seek or request the assistance of anyone else and that “The computer utilized by Stephen is no longer in use because it is outdated and crashed several times. When it was operating, I checked Stephen's email account and I provided my counsel with those emails. Stephen did not store anything on the computer and Stephen infrequently used the computer. All MySpace correspondence was also provided to my counsel.” Plaintiffs and their daughter, Stephen's sister, are providing authorizations for defendants to obtain copies of records including but not limited to messages from August 2006 through August 2007 directed to AOL, Facebook, and MySpace. This court (Mottolese, J.) has granted motions for the appointment of commissions to issue subpoenas and conduct depositions of Facebook and MySpace. Facebook has proposed a Consent Order pursuant to which they would produce records. AOL has requested a notarized consent signed by Stephen's sister Regina Squeo who was the billing contact on the AOL account. Plaintiffs are in the process of obtaining for the defendants that consent from Ms. Squeo who lives in Texas. Defendants state concerns without any factual basis that these companies will produce “some” but not “all” documents in response to subpoenas to be served upon them. Defendants also profess without any factual support that these social network sites would not “have access to documents and other data that is stored on the plaintiffs' computer, which is likely to contain different information” and that “plaintiffs have conducted only a perfunctory search of their computer.” The only actual fact alleged by the defendants in support of these assertions is that the plaintiffs in their Objection to Production dated March 8, 2011 (No. 219) stated that “Decedent Stephen Squeo did not have a MySpace account but rather was on his sister's account,” but defendants claim “In fact, the decedent had maintained a MySpace account separately from his sister's account, and the decedent's brother now controls the content of the decedent's account.” In support of that statement they cite Docket Entry No. 220, which is their March 18, 2011 reply to plaintiff's foregoing objection to production of documents to which they attach copies of pages from two separate MySpace Accounts in the names of “Stephen Squid” and “Regina.” This one simple mistake, if was a mistake of the parents, does not establish, as defendants claim, the parents' “apparent lack of will and/or ability to retrieve and disclose any relevant information that exists on their computer or the extent to which the decedent had spent time accessing social networking sites from his parents' computer.” *3 The plaintiffs are obviously cooperating with defendants in making it possible for defendants to obtain discovery from third parties of emails, and social network postings of decedent which may lead to discovery of admissible evidence on the issue of his life's activities in the year prior to his death. The court has issued orders for the issuance of compulsory process to compel those third parties to produce those documents. The third-party requests are limited to items particularly applicable to the decedent himself during a limited relevant time period. The requested forensic examination of the defendant parents' computer, on the other hand, has no such limitations. It is the parents' computer, not the decedent's. Although the parents admit that Stephen did use it infrequently it is very likely—almost certain—that their computer contains the personal and private communication to and from the parents, and their personal and private information, pictures, and/or documents not only over the final year of Stephen's life but during the entire time they owned the computer, which they have characterized as “outdated.” And the more recent disclosures indicate a likelihood that the personal communications and documents of Stephen's two siblings, not parties to this lawsuit, might also be available on a forensic search of their parents' computer. The Revisions to the Connecticut Practice Book adopted at the June 20, 2011 annual meeting of the Judges of the Superior Court[3] include a new provision (subsection 9) to Section 13–5 on the standards for determining whether justice requires the entry of a protective order. The new provision allows a protective order setting “specified terms and conditions relating to the discovery of electronically stored information, taking into account the amount in controversy, the resources of the parties, the importance of the issues, and the importance of the requested discovery in resolving the issues.” The Commentary to the amendment to Section 13–5 lists the following “appropriate considerations” in the decision whether or not, or to what extent, to issue a protective order in connection with requested electronic discovery: (1) the specificity of the discovery request; (2) the quantity of information available from other and more easily accessed sources; (3) the failure to produce relevant information that seems likely to have existed but is no longer available from more easily accessed sources; (4) the likelihood of finding relevant responsive information that cannot be obtained from other, more easily accessed sources; (5) predictions as to the importance and usefulness of the further information; and (6) a party's willingness to voluntarily bear the cost of discovery. On weighing and balancing these factors the court concludes that the requested forensic examination of the plaintiffs' personal computer should not be allowed. There is no specificity to the request. It is sweeping in scope and unlimited in time (except by the age of the computer). Defendants have already developed some information (including some actual postings to decedent's MySpace account) from some undisclosed other source, and the compulsory process of this court has been put in motion to assist them in gathering such information from third parties. There is no showing—only speculation—that the plaintiffs have failed to produce relevant information that seems likely to exist. To the contrary, the plaintiffs—except for declining to turn over their computer for a comprehensive forensic analysis—have cooperated with defendants' requests by providing authorizations for third parties to release any such information even to the point of seeking a release signed by their daughter Regina Squeo in Texas, a non-party to this lawsuit. The likelihood of obtaining relevant information to be subpoenaed from third parties is unknown, their initial resistance to providing such information voluntarily notwithstanding. There are no predictions—nor could there be at this point-of the importance or usefulness of the further information sought. Defendants are willing to bear the cost of the requested forensic examination, but that factor alone cannot outweigh the other considerations. *4 The privacy concerns which the court cited in the first ruling are also a relevant factor here. The net cast by the defendants has great potential to yield personal and private data and information of family members other than the decedent and even private information of the decedent himself which would be irrelevant to this action. Recognizing the potential for such an invasion of privacy, the defendants have now offered to establish a protocol whereby the plaintiffs would have an opportunity to review any document recovered by the forensic inspection before the defendants and then disclose only those materials created, drafted, generated, saved, or otherwise stored by the decedent. While that would be somewhat of an alleviating factor, privacy is not preserved just because one's adversary lacks access to the private information. The fact that one's private and personal information unrelated to this lawsuit would be available to and reviewed by a stranger such as the forensic examiner or his or her staff would still be seriously invasive and worthy of concern. Defendant's citation of this court's decision in Chalikis v. Zucker, Superior Court, Judicial District of Stamford/Norwalk at Stamford, Docket No. CV05–5000207S (June 2, 2006, Jennings, J.) 2006 WL 2730352, *1 (Conn.Super.2006), for the proposition that private and embarrassing content of office notes of a party's counselor are not immune to disclosure is misplaced. In Chalikis a loss of consortium plaintiff had voluntarily made known to the defendant the existence of specific notes made by her counselor during a relevant time period, but was seeking a protective order permitting redaction of certain entries in those notes which might be embarrassing to third parties. That is not at all the situation before the court in this case. We are not dealing with any documentary evidence known to exist. We are dealing with a request for a sweeping procedure which might or might not produce relevant documents but would in the process inevitably produce irrelevant and /or private items. And the privacy concerns of the Squeo plaintiffs are not necessarily to protect them from embarrassment. One's financial documents, tax returns, passwords, or family pictures or correspondence with friends and family need not be of an embarrassing nature to be entitled to privacy protection. Order For the foregoing reasons the Defendants' Motion to Inspect Electronic Storage Devices, Computers and Cell Phones dated August 8, 2011 (No. 236), and Defendants' Motion to Inspect Electronic Storage Devices, Computers and Cell Phones dated October 21, 2011 (No. 250) are both denied. Footnotes [1] There are two such motions, identically entitled: No. 236, dated August 8, 2011, and No. 250, dated October 21, 2011. The latter came up before the undersigned on the non-arguable short calendar of October 24, 2011, and the court “took the papers.” On close examination the “motion” of October 21, 2011 is actually a reply memorandum responding the plaintiff's objection (No. 249) to the first motion (No. 236). This Memorandum of Decision will be the court's ruling on both motions. [2] There is nothing in the record as to whether or not all of those documents were produced to defendants' counsel by plaintiffs' counsel. Defendants state that “plaintiff produced a handful of email messages from a MySpace account” and there in no allegation that plaintiff's' counsel is withholding any relevant documents. [3] The 2011 amendments to the Practice Book will take effect in about two weeks, on January 1, 2012. The court nonetheless can rely on them as guidance to the court in exercising its inherent right and power to supervise discovery proceedings in a case before the court, especially when there is no equivalent provision in the existing rules.