Journal Publishing Company, Inc. v. the Hartford Courant Company

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION This is a case of first impression. This matter is before the court on a "Petition to Perpetuate Testimony, Conduct Depositions and to Order Production of Documents Before Action," dated September 5, 2000, sounding in a bill of discovery under General Statutes § 52-156a and Practice Book § 13-18, filed by the Journal Publishing Company, Inc. (the "Petitioner"), seeking a court order ordering The Hartford Courant Company (the "Respondent") to disclose certain contracts.

The court makes the following findings of fact. Both the Petitioner and the Respondent have entered into agreements with cartoon syndicators which license them to publish certain cartoons. Under the terms of their respective contracts, the Petitioner and the Respondent were both precluded from publishing a cartoon prior to its publication date. At some point, the Respondent began publishing its Sunday edition on Saturday CT Page 6562 afternoon and amended its contract with the syndicators so that it could publish Sunday comic strips on Saturday, prior to their publication date. Under the terms of that amended agreement the syndicators agreed not to permit the Petitioner to publish the Sunday comic strips on Saturday. Both a syndicator and the Respondent have acknowledged to the Petitioner the existence of such a preclusive contractual provision.

A bill of discovery is an independent equitable action designed to obtain evidence or use in an action other than the one in which it is filed. Berger v. Cuomo, 230 Conn. 1, 6-7, 644 A.2d 333 (1994). In order for relief to be granted, the Petitioner must establish four prerequisites. The Petitioner must establish that: first, the material sought is necessary or helpful to prove claims in a suit which has been filed or is about to be filed; second, the Petitioner has no other adequate means of discovering the information; third, there is a good faith basis to conclude that the information sought is material and necessary; and, fourth, there are detailed facts establishing probable cause to bring such potential action. Id., 6-7. The Petitioner must have more than a mere suspicion. Id., 7.

The information the Petitioner seeks is the only evidence of and means of discovering the, exact nature of the Respondent's conduct. Unless the Petitioner knows what the provision states it will be unable to ascertain whether the Respondent has acted in a way which violates the laws of the state. The court finds that the Petitioner has established that the material sought is necessary or helpful to prove claims in a suit to be filed.

The Petitioner sought copies or a description of the preclusive contractual provisions from both the syndicators and from the Respondent to no avail; and, therefore has no alternative means of obtaining the information other than by a court order.

Assuming the statements of the syndicators and the Respondent are true and the inference drawn therefrom are true, there is a good faith basis to conclude that the information sought is material and necessary for the Movant to determine whether it believes the Respondent has violated the law.

The Petitioner presented detailed facts establishing probable cause to believe that the Petitioner has a cause of action against the Respondent on one or more of the bases stated in its motion. The probable cause standard is a relatively low standard. Probable cause requires "reasonable basis to suspect or reasonably persuade an impartial and reasonable person to believe that what is claimed is true." Olson v.Accessory Controls Equipment Corp., 254 Conn. 145, 179, 757 A.2d 14 CT Page 6563 (2000). The Petitioner asserts that the Respondent's conduct may violate its rights in one or more of the three ways: first, as a tortious interference with its contractual rights under its contracts with the syndicators; second, that it violated General Statutes § 42-110a et seq. ("the Connecticut Unfair Trade Practices Act"); and third, that it violated General Statutes § 35-24 et seq. (the "Connecticut Antitrust Act").

Connecticut has long recognized a cause of action for interference with contractual relationship or financial expectation. Buckley v. Scorer, 2 Day (Conn.) 531 (1807). That cause of action remains viable today.Capitol City Personnel Services, Inc. v. Franklin, 52 Conn. App. 783,727 A.2d 1284 (1999). Based on the facts introduced by the Petitioner, the court finds it a reasonable basis to believe that the Respondent modified its contract with the syndicators with the intention of limiting the Petitioner's contractual rights. Thus, the court finds probable cause to believe that the Petition may have a cause of action against the Respondent. R an W Hat Shop, Inc. v. Sculley, 98 Conn. 1, 118 A. 55 (1922).

Based on the facts abduced, the court finds that there is reason to believe that the Respondent violated the Connecticut Unfair Trade Practices Act by engaging in unscrupulous or oppressive acts, causing a substantial injury to the readers of the Petitioner's publication and to the Petitioner. Cheshire Mortgage Services, Inc. v. Montes, 223 Conn. 80,108-15, 612 A.2d 1130 (1992).

Finally, the court finds reasonable basis to conclude that the Respondent persuaded the syndicators to refuse to deal with the Petitioner in violation of the Antitrust Act.

The Petitioner does not have to state the claim which it seeks to assert "with technical precision," but only to state facts which tend to support a cause of action. Berger v. Cuomo, supra, 230 Conn. 8; see alsoPottetti v. Clifford, 146 Conn. 252, 259, 150 A.2d 207 (1959). Therefore, the Respondent's argument that there is no basis for an antitrust claim is not dispositive.

The Respondent calls the court's attention to judges' "increasingly active role in weeding out at the pleading stage antitrust claims that are fundamentally flawed."¹ That argument begs the point. In essence, the Respondent argues that the court should deny the bill of discovery in the interest of judiciary efficiency. Quite the contrary, the purpose of the bill of discovery is to promote judicial efficiency by enabling a potential plaintiff to determine whether it indeed has a cause of action. By granting the bill of discovery, the court can better assure CT Page 6564 that a fundamentally flawed lawsuit is not filed. In fact, our Supreme Court has held that a "bill of discovery is favored in equity, [and] it should be granted unless there is some well founded objection against the exercise of the court's discretion." Berger v. Cuomo, supra, 230 Conn. 6; see also Pottetti v. Clifford, supra, 146 Conn. 257. The Respondent's objection begs the question and therefore is not sufficient to warrant a denial of the motion.

The court orders the Respondent to disclose to the Petitioner that portion or portions of any and all contracts and other agreements with any and all syndicators with which both the Petitioner and the Respondent contract for the publication of comic strips which entitle the Respondent to publish the Sunday comic strips on Saturday and prevent the Petitioner from doing the same.

Bryant, J.