DocketNumber: No. CV93 0132284 S
Citation Numbers: 1995 Conn. Super. Ct. 1302
Judges: D'ANDREA, J.
Filed Date: 2/9/1995
Status: Non-Precedential
Modified Date: 4/17/2021
Pursuant to Practice Book § 219, a party may obtain discovery of materials prepared in anticipation of litigation CT Page 1303 only upon a showing of "substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent by other means."
Neither the Appellate nor the Supreme Court have addressed the question presented; however, all of the Superior Court decisions addressing this issue have required production of nonparty witness statements. These decisions hold that eyewitness statements are essential to a party in preparing his/her case; a party clearly has substantial need of them. Wilks v. Town ofRidgefield, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 211099 (10 C.L.T. No. 8, p. 17, October 28, 1983; Ishikawa v. McDonald, Superior Court, judicial district of New Haven at New Haven, Docket No. 176935 (7 C.L.T. No. 3, p. 11, January 5, 1981). Further, if a witness gives two accounts of the same event, one near the time of the event and one substantially later in time, the later account is not the "substantial equivalent" of the prior. "A statement of an eyewitness is a particularly fresh account of a person's perception which often cannot be duplicated from a later memory."Lopez v. Transportation General, Inc., Superior Court, judicial district of Middlesex at Middletown, Docket No. CV-930070336S (
Furthermore, although the plaintiff has disclosed Post's name, address, and telephone number, obtaining an independent statement would cause the defendant undue hardship. The defendant represented that it has tried numerous times to contact the witness, by telephone and by mail, but has received no response. The court in Bevilacqua v. Novak, supra,
Finally, according to all of the foregoing decisions, any statement the defendant may be able obtain directly from Post would not be the substantial equivalent of the prior statement Post gave the plaintiff. Although neither party specified precisely when Post gave his statement, at oral argument the defendant represented — and the plaintiff did not contest — that Post gave his statement to the plaintiff much closer to the date of the accident than he might now give a statement to the defendant.2 Thus, Post's recollection of the accident was presumably fresher when he spoke to the plaintiff and that statement therefore presumably the more accurate and detailed. Even if the defendant were to obtain a separate statement, it would not have the benefit of Post's fresher, more detailed and accurate recollection of the accident. All of the foregoing decisions hold that under these circumstances, the defendant would not be obtaining a substantially equivalent statement. "A statement of an eyewitness is a particularly fresh account of a person's perception which often cannot be duplicated from a later memory." Lopez v. Transportation General, Inc., supra,
The defendant has satisfied the requirements of Practice Book § 219 for discovery of materials prepared in anticipation of litigation. The defendant's motion to compel production of Post's statement is granted; the plaintiff's objection is overruled.3
D'ANDREA, J.