DocketNumber: No. CV99 033 57 62 S
Citation Numbers: 2000 Conn. Super. Ct. 10096
Judges: MORAGHAN, JUDGE. CT Page 10097
Filed Date: 8/21/2000
Status: Non-Precedential
Modified Date: 4/17/2021
The original employment agreement, which is included as plaintiff's Exhibit A, contains three relevant clauses. Item three provides for Seifert's compensation package, including "project management fees," similar to commissions, for his contributions to Nemeth/Martin's consulting business. Item five contains a covenant not to compete. On March 23, 1998, he signed an amended employment agreement that expanded the covenant not to compete.
In the first count of his revised complaint, Seifert alleges that he "wished to enter into a business which would be in direct competition with Nemeth/Martin, Inc. He claims that there are actual bona fide and substantial questions and issues in dispute between the parties, and a substantial uncertainty as to their legal relationship growing out of the covenants not to compete as stated.
In the second count, he asserts that he is owed four hundred five thousand five hundred sixty-five dollars and eighteen ($405,565.18) cents in compensation for fees earned prior to termination, and that he is owed ninety-five thousand ($95,000) dollars for certain administrative fees that Nemeth/Martin allegedly deducted from his paycheck, even though the employment agreements do not provide for such deductions. Seifert also seeks legal fees and costs.
In response to Seifert's complaint, Nemeth/Martin has filed a two-count substitute counterclaim. Count one alleges that the defendant has met all of its obligations under the terms of its employment agreement with the plaintiff. Despite the defendant's compliance with all the terms of the parties' agreement, the plaintiff has initiated the instant lawsuit. As a result of the plaintiffs breach of contract, the defendant has suffered monetary damages. Count two claims that the plaintiff has deprived Nemeth/Martin of the benefits to which it is entitled under the agreement. The plaintiffs filing of the instant lawsuit was not motivated by an honest mistake as to his rights and duties under the agreement, but rather by his desire to circumvent his obligations of non-competition CT Page 10098 under the agreement. As a result of the plaintiffs breach of the implied covenant of good faith and fair dealing inherent in the agreement, the defendant has been damaged.
On March 27, 2000, Nemeth/Martin provided notice to Seifert of its intent to depose him on April 30, 2000, and it also requested that he produce an extensive list of documents. On March 31, 2000, Seifert filed a motion for a protective order to limit the scope of the deposition and the documents which must be produced. Nemeth/Martin has objected to the motion for a protective order.
"The granting or denial of a discovery request rests in the sound discretion of the court. . . . That discretion is limited, however, by the provisions of the rules pertaining to discovery; Practice Book [§§ 13-2 through 13-5]. . . ." (Citations omitted.) Standard TallowCorp. v. Jowdy,
In the defendant's notice of deposition, Nemeth/Martin requested, pursuant to Practice Book §
Seifert seeks a protective order from the court arguing that the discovery requests regarding his compliance with the covenant not to compete are irrelevant to the issues raised in Nemeth/Martin's substitute counterclaim or Seifert's revised complaint, and further that Nemeth/Martin is attempting to embark on a fishing expedition to uncover confidential and proprietary information of Seifert. The grounds for Nemeth/Martin's counterclaim are breach of contract and breach of the implied covenant of good faith and fair dealing. In its discovery request, however, Nemeth/Martin seeks documents, and presumably testimony, regarding Seifert's compliance with the covenant not to compete found in the employment agreements.1 As Seifert correctly notes, nowhere in the substitute counterclaim does Nemeth/Martin allege that Seifert violated the covenant not to compete; the counterclaim alleges only that Seifert filed the current action to circumvent his obligations of non-competition.
A subpoena [duces tecum] is an appropriate process for the production of documents that are relevant to the matter before the court. . . . It may not be used, however, for the purpose of conducting a fishing expedition into the papers of a party or a stranger to the proceedings." (Citations omitted.) Three S. Development Co. v. Santore,
To reiterate, count one of the substitute counterclaim alleges that Seifert breached the employment agreements by bringing this lawsuit even though "the defendant has met all of its obligations under the terms of its employment agreement with the plaintiff." (Substitute Complaint, first count, ¶ 6.) Count two alleges that Seifert also breached the implied covenant of good faith and fair dealing by bringing this lawsuit. The counterclaim does not allege a violation of the covenant not to compete.
Nemeth/Martin argues that because Seifert alleges in count two of his revised complaint that Nemeth/Martin breached the employment agreements by failing to pay him in accordance with the terms of the agreements, he places his own performance under the contract in issue. The defendant cites Automobile Ins. Co. v. Model Family Laundries. Inc.,
This argument is hardly persuasive. While one cannot collect for breach of contract if one has not himself performed his obligations under it, clauses of a contract that are by their nature and purpose susceptible to division and apportionment are severable. See Venture Partners. Ltd. v.Synapse Technologies. Inc.,
Seifert has accurately characterized the notice of deposition as a fishing expedition. This court agrees with that characterization. The motion for protective order is, accordingly, granted as to information regarding Seifert's compliance with the covenant not to compete.
Moraghan, J.