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DOCKET NO.: FST-CV19-5022735-S : SUPERIOR COURT
:
RAY C. JOHNSON, ET AL. : J.D. OF STAMFORD
:
v. : AT STAMFORD
:
VITA BUILT LLC, ET AL. : MARCH 24, 2024
DEFENDANTS’ OBJECTON TO PLAINTIFFS’
MOTION FOR SANCTIONS
Defendants, Vita Built, LLC and Vita Design Group, LLC (hereinafter referred to as
“Defendants”), respectfully submit this objection to plaintiffs’, Ray C. Johnson and Indre L.
Johnson’s, (hereinafter referred to as “Plaintiffs”) Motion for Sanctions, dated March 12, 2024.
(Entry # 217). Plaintiffs' Motion for Sanctions is based upon claims similar to those outlined in
their Motion for Default submitted on December 21, 2023 (#217). The Defendants filed an
objection to the Plaintiffs’ Motion for Default, and they incorporate those objections and related
arguments into their objection to Plaintiffs’ Motion for Sanctions (#220). Defendants request that
the Court sustain their objection and deny Plaintiffs’ Motion for Sanctions.
I. Preliminary Statement
Plaintiffs allege claims for breach of contract, reformation of contract, breach of the
implied duty of good faith and fair dealing, negligent misrepresentation, fraudulent inducement,
negligence and violation of CUTPA. Defendants, architectural and construction firms, asserted
counter claims for breach of additional fee and profit-sharing agreement, breach of the covenant
of good faith and fair dealing and violation of the CUTPA.
There has been extensive litigation, including three amended complaints, a PJR hearing
in favor of the defendants, appeal of the Court’s PJR decision, Defendants motion for summary
judgment, and motions to compel discovery. Plaintiff previously moved to compel several times
on issues that were presumably, resolved, but improperly raised once again by Plaintiffs in their
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Motion for Default and Nonsuit (#217), and in their Motion for Sanctions pursuant to Practice
Book § 13-14 (#261) presently before the Court.
Plaintiffs allege in their Motion for Sanctions that Defendants lied to the Court regarding
the disclosure of two categories of discovery: Smartsheet files and information regarding the
Defendants’ move to Puerto Rico. (#261). Plaintiffs claim that Defendants manipulated and
destroyed relevant Smartsheet evidence. Further, Plaintiffs claim that Defendants intentionally
concealed information regarding the timing and circumstances of their move to Puerto Rico in
2017. Contrary to the allegations in the motion, Defendants made diligent and good faith efforts
to produce all documents under their possession and control including an electronic license for
Smartsheet files, and fully complied with all Court Orders. Plaintiffs, however, claim that the
Defendants either altered or destroyed Smartsheets that allegedly show mathematical
calculations regarding their joint venture agreement with Defendants that show the intent of the
agreement. In this case, there is no evidence of document destruction or deliberate non-
compliance on the part of the Defendants.
II. Legal Standard
Generally, “[t]he decision to enter [discovery] sanctions ... and, if so, what sanction or
sanctions to impose, is a matter within the sound discretion of the trial court.” (Internal quotation
marks omitted.) Evans v. General Motors Corp., 277 Conn. 496, 523, 893 A.2d 371 (2006).
“In order for a trial court's order of sanctions [pursuant to Practice Book § 13-14] for violation of
a discovery order to withstand scrutiny, three requirements must be met. First, the order to be
complied with must be reasonably clear.... Second, the record must establish that the order was in
fact violated.... [And] [t]hird, the sanction imposed must be proportional to the violation.”
(Internal quotation marks omitted.) Magana v. Wells Fargo Bank, N.A., 164 Conn. App. 729,
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733, 138 A.3d 966 (2016); see Millbrook Owners Ass'n, Inc. v. Hamilton Standard, 257 Conn. 1,
15, 776 A.2d 1115, 1125 (2001). Even so, “the court’s discretion should be exercised mindful of
the policy preference to bring about a trial on the merits of a dispute whenever possible and to
secure for the litigant his day in court.” (Internal quotation marks omitted.) Milbrook, 257 Conn.
1, 16, 776 A.2d 1115, 1125.
In order for the court to allow an adverse inference to be drawn against a party who
destroyed the evidence in a civil case, the trier of fact must be satisfied that the party who seeks
the inference has proven the following: (1) the spoilation was intentional; (2) the destroyed
evidence is relevant to the issue or matter for which the party seeks the inference; and (3) the
party who seeks the inference must have acted with due diligence with respect to the spoliated
evidence. Beers v. Bayliner Maine Corp., 236 Conn. 769, 775-78, 675 A.2d 829, 832-33 (1996).
“[W]e adopt the rule of the majority of the jurisdictions that have addressed the issue in a civil
context, which is that the trier of fact may draw an inference from the intentional spoliation of
evidence that the destroyed evidence would have been unfavorable to the party that destroyed it.”
Beers v. Bayliner Marine Corp., 236 Conn. 769, 775, 675 A.2d 829, 832 (1996) “Finally ... the
trier of fact ... is not required to draw the inference that the destroyed evidence would be
unfavorable but ... it may do so upon being satisfied that the above conditions have been met.”
(Internal quotation marks omitted.) Surrells v. Belinke, 95 Conn. App. 764, 898 A.2d (2006).
III. The Plaintiffs’ Smartsheet Inc. Subpoena Production Fails
to Support Plaintiffs’ Claims of Spoliation
Despite Defendants’ production of electronic access to all of Plaintiffs’ Smartsheet files
that existed prior to this lawsuit and pursuant to Plaintiffs’ document demand for files from
2016-2019, Plaintiffs claimed that the Defendants wrongfully altered or destroyed Smartsheet
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files. Plaintiffs claim that the Smartsheet Inc. production confirmed that Defendants deliberately
obfuscated and manipulated self-selected native Smartsheet files that Defendants produced.
Plaintiffs claim that Defendants only produced a “self-selection of thirty native files
prepared in the Smartsheet program,” but that the subpoena of Smartsheet Inc.’s documents
identified fifty-one responsive Smartsheet files. (#220, page 6, Exhibit A). Many of these
Smartsheet files, however, are irrelevant and were created after the commencement of this
action. Some of these files were created six weeks after the sale of the property, but before the
lawsuit as a template for other projects that have nothing to do with this case. Others pertain to
work for the owner who bought the property from the Plaintiffs and have nothing to do with this
case. Thus, Plaintiffs cannot prove that the Defendants failed to produce documents based upon
their proffered list in Exhibit A (#220, Exhibit A).
Rather, Defendants have shown that they produced all the Smartsheets in accordance
with the Plaintiffs’ production Request #18 and the Instructions, producing Smartsheets within
their possession and control within the time frame of September 1, 2016, through December 24,
2019.” (#185, Exhibit A).
Defendants Notice of Compliance, dated June 16, 2023, stated the following in the
supplemental response to production Request 18 demanding “All files prepared in the Smartsheet
program concerning the Property, including all native files of same.” (#201). Defendants
responded, “In addition to the Smartsheet PDFs produced on February 17, 2023, see the attached
corresponding excel spreadsheets via Defendants’ Supplemental Production subfolder entitled,
‘RFP 19 Smartsheets - Excel Spreadsheets.’ All Smartsheet files, PDF and Excel, were created /
generated and downloaded from the www.smartsheet.com website. Spreadsheet formulas do not
transfer when excel files are downloaded from the website.” (#201). In July 2023, Defendants
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gave Plaintiffs full administrative access to the project’s Smartsheets with ability to view cell
history going back to the inception of each Smartsheet. Plaintiffs were also given printouts
showing the history of the Smartsheets.
Plaintiffs base their Motion for Sanctions on the false premise that Smartsheets Inc.
confirmed that critically relevant mathematical formulas and calculations were destroyed. There
is no evidence whatsoever to support this claim and the Affidavit filed by Smartsheet in this
action fails to give the Plaintiffs’ spoliation claim any credence. Plaintiffs wrongly claim that
Defendants destroyed the following three files (Motion for Sanctions, pages 9 and 10), but as
demonstrated below, nothing was destroyed or lost; instead, it was all contained within the
Smartsheet cell history, to which the Plaintiffs had electronic access.
A. Plaintiffs incorrectly allege the following three files were deleted:
1. 281 Compo Beach Rd. Financials Shared – Plaintiffs claim that Smartsheet
confirmed that this file was deleted and no longer exists. (#220, page 9). This file, however, was
not destroyed. Rather, it was renamed “281 Compo Rd. S., Financials, Revised/base 31JAN17.”
In fact, this sheet was shared with the Plaintiffs, and they have on-line administrative access with
cell history. As a matter of fact, Defendants produced an excel sheet concerning this file.
2. 2/5/17_ 281 Compo Rd S, Financials, 1FEB17 – Plaintiffs claim that Smartsheet
confirmed that this file was deleted and no longer exists, but there is no evidence whatsoever that
Smartsheet Inc. made this claim. (#220, page 9-10). Rather, this sheet exists and was created in
2020, and is not responsive to Plaintiffs’ Request number 18 for Smartsheet native files used by
the parties throughout the negotiations; and outside the time period demanded in the Plaintiff’s
Instructions in Plaintiffs’ Interrogatories and Requests for Production to Defendants, May 31,
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2022, Paragraph number 8, “the relevant time period for the Interrogatories and Requests shall
be September 1, 2016 through December 24, 2019.” (Emphasis added).
3. 281 Compo Rd S, Financials, 1FEB18 rev. – Plaintiffs state that Smartsheet
confirmed that Defendant deleted this file without any proof. (#220, page 10). This Smartsheet
was not destroyed, but rather, produced to Plaintiffs with a full license to access the Smartsheet
and cell history.
As demonstrated above, Defendants have not deleted any files, but instead produced all
Smartsheets to Plaintiffs with a license to access the sheets electronically and were also provided
in excel format. Any changes to the sheet are in the cell history and can be changed back.
B. Plaintiffs wrongly claim that the the following files were spoliated because they were
allegedly altered:
1. 281 Compo Rd. S, Financials, 1FEB17, Revised. (#220, page 7). The original
sheets were produced to Plaintiffs in excel format, and Plaintiffs were given an electronic license
to access the Smartsheet, cell history and activity log was provided. One cell change was made
and seen in the cell history. To the extent a formula used the cell changed, numerous other cells
changed using the assigned formula. Thus, one change could have resulted in many other cells
changing too. But it all relates to the one change. These are immaterial changes and can be
reversed. Nothing was deleted or destroyed.
2. 281 Compo Rd. S. Financials, 1FEB18, revised. (#220, page 8). Three cell
changes were made and are seen in the cell history. These are immaterial changes and can be
reversed. Nothing was deleted or destroyed.
3. 281 Compo Rd. S. Financials, Revised/base 31 JAN17. (#220, page 8).
Immaterial changes can be reversed and are fully recorded in the visible cell history. Nothing
was deleted or destroyed.
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4. V.3 281 Compo Rd. S., Financials, 1FEB17. (#220, page 8). Plaintiffs claim that
the risk sharing framework as well as various calculations were changed. Plaintiffs falsely claim
that this Smartsheet spreadsheet was created on June 17, 2019. Rather, this Smartsheet was made
on February 1, 2017, and there were no changes to the Smartsheet after December 2019. The cell
history and the creation date are available and visible to the Plaintiffs.
5. V.1/281 Compo BEACH Rd., Financial Report. (#220, page 8). This sheet was
never shared with Plaintiffs during the project. It was not used as a reference for project and
never finished. Internally, it was reviewed for five days in January 2017 then archived and not
referred to internally again. It was shared with Plaintiffs through discovery as instructed in July
2023. The few changes made in 2021 are immaterial, can be reversed, and are fully recorded in
the visible cell history. Nothing was deleted or destroyed.
a. IJ Print 2/2/17 281 Compo Rd. S Financials 1FEB17. (#220, page 10).
Plaintiffs misleadingly claim that this sheet was altered with 606 changes. This particular
Smartsheet was created on January 23, 2020, from the historical data from “281 Compo Rd. S
Financials, 1FEB17, rev.” which the Defendants produced through electronic access to
Smartsheets. With respect to this particular re-creation, Plaintiffs’ Instructions to their
Interrogatories and Requests for Production to Defendants limit the time period for the
Smartsheet files to September 1, 2016, through December 24, 2019.” (#185, Exhibit A). This
document created in 2020 is outside the time period specifically requested by the Plaintiff and
has no relevance to the parties’ agreements in 2017 at issue in this case.
b. IJ Print 2/5/17 281 Compo Rd S Financials 1FEB17. (#220, page 10).
Plaintiffs again claim that this sheet was altered with 606 changes. This Smartsheet was created
on January 23, 2020, by using the historical data from “281 Compo Rd S Financials, 1FEB17,
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rev.” The Plaintiffs’ Instructions for their Interrogatories and Requests for Production specify a
time limit for the Smartsheet files from September 1, 2016, to December 24, 2019. This
document, created in 2020, falls outside the time frame demanded by the Plaintiffs.
c. Copy of 281 Compo Rd S Financials 1 FEB17, Revised. (#220, page 11).
Plaintiffs claim that the sheet is altered with over 522 changes. Similarly, this Smartsheet was
created by taking a copy of “281 Compo Rd S, Financials, 1FEB17, revised.” The Smartsheet
created on January 23, 2020, was made after the commencement of the lawsuit and is beyond the
timeframe requested by the Plaintiffs in their discovery demands.
d. Copy of 281 Compo Rd S Financials Revised. (#220, page 11). Plaintiffs allege
that there were 651 changes made. The Smartsheet was created on March 17, 2021, after the start
of this lawsuit. And, as stated with the documents above, this Smartsheet was well outside the
discovery timeframe identified in Plaintiffs’ Instructions to their Requests for Production and
Interrogatories that demanded information from September 1, 2016, to December 24, 2019.
The Plaintiffs erroneously claim that the Smartsheets had been wrongfully altered or
destroyed. Plaintiffs are incorrectly citing Smartsheets that are irrelevant and were created after
the time period demanded in the Requests for Production and Interrogatories. (#--). These
Smartsheets bear no relevance to the parties’ intent to enter into any agreement. It is evident that
the Plaintiffs lacked an understanding of how to utilize the Smartsheets program, which
inherently tracks changes and alterations that are fully accessible. Indeed, Smartsheet alterations
can be undone, and nothing was permanently destroyed in this case. Therefore, the documents
obtained for Smartsheet Inc. fail to substantiate the Plaintiffs’ claims of spoliation.
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IV. Plaintiff Incorrectly Claims that Defendants Withheld Information and
Concealed their Business Motives Regarding their Move to Puerto Rico
Plaintiffs claim that Defendants failed to disclose the existence of their company, Hurri-
Homes in Puerto Rico that would have established the substantial planning and business motives
in moving to Puerto Rico in 2017. There is no evidence of “substantial planning.” In September
2017, the Defendants relocated to Puerto Rico with the aim of expanding their architectural
business while intending to maintain a business presence in Connecticut. Defendants
communicated to the Plaintiffs their intention to maintain a business in Connecticut and in Puerto
Rico. One month after their move, Hurricane Maria hit Puerto Rico. Precisely because of
Hurricane Maria, Defendants created the concept of hurricane proof homes, which became a
business. The concept turned into business was known as Hurri-Homes, a prefab hurricane proof
home to help supply residents with quick housing needs as a result from the damage of Hurricane
Maria. Defendants never ceased their business operations in Connecticut at any time. As a result,
the Plaintiffs fail to demonstrate the substantial planning and business rationale behind
Defendants’ decision to move to Puerto Rico, as such motives are non-existent. Plaintiffs cannot
show how information regarding Defendants alleged substantial planning and business motives
are relevant to any important issue in this case. Clearly, this does not justify the imposition of
sanctions.
Further and more importantly, the Plaintiffs fail to point to a specific discovery request
that could arguably have required the Defendants to produce the Hurri-Homes information. See
Requests for Production ##’s 21 – 29. Instead, they accurately assert the information was not
produced but wholly fail to justify the grounds asserted with a discovery request, court order or
otherwise.
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V. The History of this Case Shows the Defendants’ Good Faith Efforts and Compliance
with the Court’s Discovery Orders Negating Plaintiffs’ Claim for Sanctions
The Plaintiffs have failed to meet a crucial condition for sanctions. Their proposed
motion relies on the Defendants’ alleged failure to comply with the Court’s orders. The Court’s
orders in this case pertain to thoroughly searching for and producing Smartsheets from the time
period of September 2016 through December 2019 (Plaintiffs’ Production Request 18, Docket
Entry #185, Exh. A), as well as information regarding the Defendants’ relocation to Puerto Rico
(Requests 23, 24, 25 & 29, #185, Exh. A). Plaintiffs, however, have not shown the Defendants’
violation of the Court’s clear and unambiguous rulings as required under Connecticut law to
impose sanctions. Magana v. Wells Fargo Bank, N.A., 164 Conn. App. 729, 733, 138 A.3d 966
(2016); Millbrook, supra, 257 Conn. at 15, 776 A.2d 1115.
Since the onset of discovery proceedings, Defendants have demonstrated good faith
efforts to comply with all discovery requests and Court orders. Defendants have communicated
with Plaintiffs’ counsel and the Court throughout the discovery process, promptly addressing any
concerns and have met their discovery obligations under the Court Orders. The Defendants have
not been found to violate any Court orders, and the Plaintiffs have not been able to cite any
specific violation of any Court order warranting sanctions in this case.
The Court granted Defendants’ motion for extensions of time to respond to Plaintiffs’
demands as evidenced by the following procedural history. In response to Plaintiffs’ First Motion
for Compliance, Defendants moved for an extension of time in which to respond and/or object to
Plaintiffs’ discovery demands and interrogatories, dated May 31, 2022. The Court granted the
Defendants’ motion for extension of time until August 29, 2022, to object and respond to the
Plaintiffs’ demands (#186.01.). In compliance with the Court’s Order, on August 9, 2022,
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Defendants served and filed their Notice of Objection to Plaintiffs’ Interrogatories and Requests
for Production. (#187).
On September 15, 2023, Plaintiff filed a Second Motion for Order of Compliance.
(#188). On November 28, 2022, the Court ordered compliance by January 6, 2023, on any
interrogatories and document requests to which no objections were filed and ordered the
attorneys to file affidavits concerning all resolutions and unresolved matters on which the parties
assert the Court must rule. (#188.01). Per the Court’s Order, counsel for the parties met on or
about December 8, 2022, and conferred on the discovery objections. Counsel for the Plaintiffs
filed a Notice of Compliance with the notes that accurately reflected their discussion which the
Court had ordered. (#197, Exhibit A). Defendants complied with the Court’s order of November
28, 2022 (#188.01).
On January 5, 2023, Defendants requested a second extension of time until February 6,
2023 (#189), to comply with the Court’s Order of Compliance (#188.01), in order to gather the
necessary information and documentation to supplement Defendants’ responses to the Plaintiffs’
discovery requests. The following day, however, on January 6, 2023, Plaintiffs made a Motion
for Default and Nonsuit (#192) against Defendants claiming that the Defendants failed to comply
with the Court’s Order. (188.01). The Court denied Plaintiff’s Motion for Default and Nonsuit
and granted Defendants’ request for an extension (#189.01, 192.01). Defendants were in
compliance and had not violated any Court Order.
On February 6, 2023, Defendants made a third request for an extension of time for two
weeks until February 20, 2023, to respond to Plaintiff’s discovery demands (#194), which the
Court granted (#194.01). Thereafter, Defendants filed a Notice of Compliance asserting that they
provided responses and documentation in compliance with Plaintiffs’ Interrogatories and
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Requests for Production (#195). The Defendants complied with the Court regarding discovery.
(#194.01)
On March 17, 2023, Plaintiffs made a Motion for Compliance (#196). On April 17, 2023,
the Court granted Plaintiffs’ motion and ordered compliance by May 18, 2023. Regarding the
same demands currently in question, the Court issued the following Order of production:
“Request 18: Smartsheet Native Files: Defendants are to conduct a thorough search for
documents responsive to these requests and produce all responsive documents.” (#196.01).
“Requests 23, 24, 25 & 29: Documents concerning Defendants’ move to Puerto Rico:
Defendants are to conduct a thorough search for documents responsive to these requests that
show the timing and circumstances around the move to Puerto Rico and produce all such
responsive documents. Defendants should detail in their response (a) which custodians were
searched, (b) what search terms were used, and (c) the timeframe for the searches.” (#196.01).
The Court granted Defendants an extension of fifteen days, until June 2, 2023, to comply
with the production Order due to a conflict with counsel’s trial schedule (#199, 199.01). On June
5, 2023, Plaintiff moved for default and failure to comply with the Court Order, which the Court
denied (#200). The Court held that “The plaintiff’s motion is denied based on the defendants’
representation of full compliance.” (#200.01). The Defendants had in fact complied with all of
the Court’s Orders up until this date.
As noted above and contrary to Plaintiffs’ interpretation, Defendants demonstrated a
willingness to cooperate fully in facilitating the exchange of information. The Court fully granted
Defendants extensions that were required in order to confer with counsel, add new electronic
search terms with the involvement of the court and supplement their discovery responses if
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needed. Contrary to the Plaintiffs’ claims, Defendants did not violate any Court Order regarding
discovery. Defendants had fully complied with the Court’s Orders in this case.
Finally, on June 17, 2023, Defendants filed a Notice of Compliance with Plaintiffs’
requests for production (#201). Plaintiffs objected to Defendants’ Notice of Compliance (#202),
and the Court sustained the objection (#202.01). The Plaintiffs argued the Defendants did a
“discovery dump” of 1,500 documents, and that Defendants “failed to produce the native
Smartsheet files in response to document request 18, as ordered by the Court.” (#202).
Plaintiffs’ document request number 18 demanded the following:
“18. All files prepared in the Smartsheet program concerning the Property, including all
native files of the same.”
Plaintiffs’ Instructions to their Interrogatories and Requests for Production to Defendants
limit the time period for the Smartsheet files. It states:
“8. Unless a particular Interrogatory or Request states otherwise, the relevant time period
for the Interrogatories and Requests shall be September 1, 2016, through December 24, 2019.” (#
185, Exh. A).
Defendants produced electronic access to Smartsheet’s cloud platform in accordance with
the Plaintiffs’ demands, instructions and the Court’s previously mentioned orders. Concerning
the Smartsheet marked as Exhibit D during the PJR hearing, the Plaintiffs already possessed the
document, as it had been presented in its entirety at a previous hearing. (#203). The Court noted
that “[t]he defendant agrees to provide all outstanding discovery by agreement by August 1,
2023, as stated on the record by July 17, 2023.” (#202.01). The Defendants were in compliance
with the Court and agreed to a thorough search despite the fact they had already produced the
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demanded documents. By the end of July 2023, Plaintiffs had full electronic access to all of the
Smartsheet files that were created before the commencement of this lawsuit.
Shortly after accessing the Smartsheet program, the Plaintiffs incorrectly made a claim
that information had been “wrongfully altered or destroyed.” (#217, Exhibit G, letter dated
August 24, 2023). In response, on August 23, 2023, it was apparent that the Plaintiffs failed to
understand how to use the Smartsheets program which keeps track of changes and alterations
that are fully accessible. (#217, Exhibit G). After August 25, 2023, until December 2023, the
Plaintiffs never made a claim about Smartsheet access, ability to review history or sought
assistance in the use of the program as offered.
Plaintiffs have not identified any prejudice suffered due to the alleged incomplete
production. They have had access to relevant documents and have not proven that they are
substantially disadvantaged in presenting their case. Plaintiff cannot show any intentional
withholding of documents, destruction of evidence or intentional non-compliance on the part of
the Defendants. Rather, the Defendants have unequivocally affirmed their compliance with
discovery demands throughout this litigation and adhered to all Court orders. Therefore, the
Court should deny Plaintiffs’ Motion for Sanctions.
VI. The Attorney Affidavit Fails to Establish that a Court Order to be Complied
With was In Fact Violated
Defendants have diligently adhered to their discovery obligations, promptly responding
to all requests and cooperating with the Plaintiffs’ demands. Despite any perceived delays, the
Defendants fulfilled their obligations in a timely manner and pursuant to the Court’s orders. On
this basis, an award of attorneys’ fees would be unjust and unwarranted.
In this context, “a trial court properly exercises its discretion in imposing a sanction for a
violation of a [court's discovery] order when (1) the order to be complied with is reasonably
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clear, (2) the record establishes that the order was in fact violated, and (3) the sanction imposed
is proportionate to the violation.” Ridgaway v. Mount Vernon Fire Ins. Co., supra, at 71, 176
A.3d 1167. To be upheld on appeal, the order of sanctions must satisfy each of these three
requirements. Millbrook Owners Assn., Inc. v. Hamilton Standard, supra, at 17–18, 776 A.2d
1115. In this case, Plaintiffs fail to establish each of these three requirements.
Plaintiffs cannot establish that Defendants violated any discovery Order in this case. In
order for a court to impose sanctions based on a party's failure to comply with the court's
discovery order, “the record must establish that the [discovery] order was in fact violated.”
Millbrook Owners Assn., Inc. v. Hamilton Standard, supra, 257 Conn. at 17, 776 A.2d 1115. Our
determination of whether an order for sanctions satisfies “[t]his requirement poses a question of
fact ....” Id., at 17–18, 776 A.2d 1115. Thus, to determine whether an order for sanctions satisfies
this requirement, we review the court's finding to determine whether it is clearly erroneous. Id.,
at 18, 776 A.2d 1115. There is no evidence of misconduct on the Defendants’ part. Defendants
asserted their objection to the plaintiff’s application for attorney’s fees at the July 17, 2023
proceeding.
Defendants followed the Court’s orders regarding discovery and requested extensions of
time when needed, which were granted by the Court. Further, the Court did not award attorney’s
fees in this case. Mr. Wright’s stated in his Affidavit that attorney’s fees should be granted for
the following motions and the Court ruled on those motions as follows:
1. Plaintiff’s Motion for Default for Failure to Comply with Order (#200). Denied
(#200.01). Defendants were not in default. Therefore, Plaintiffs have no right to attorneys’ fees.
2. Plaintiff’s Third Motion for Compliance and the Reply in further support thereof
(#196, 198). The Court ordered compliance by 5 / 18 /2023 and directed that Defendants
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conduct a thorough search and produce responsive documents (#196.01). Defendants complied
with the Court’s Order as stated above. Plaintiffs are not entitled to attorney’s fees.
3. Plaintiffs’ Objection to Defendants’ Notice of Compliance (#202). Sustained by
the Court. (#202.01). The Court ordered the Defendants to provide all outstanding discovery by
August 1, 2023. Prior to August 1, 2023, Defendants had not only produced all documents in
their possession and control, but also provided Plaintiffs with a license to access the Smartsheets.
On this basis and as stated above, Plaintiffs cannot prove any violation of the Court’s Order
regarding outstanding discovery that supports Plaintiffs’ claim for attorneys’ fees.
4. Plaintiffs’ Request for Argument (#240) the Caseflow request (#205) and
preparation for oral argument on July 17, 2023. Plaintiffs cannot substantiate any violation of a
Court order pertaining to outstanding discovery that entitles them to fees here.
Any alleged deficiencies are simply not grounded in reality as the Defendants have made
every effort to ensure full disclosure. Plaintiff fails to show any intentional noncompliance by the
Defendants. Defendants respectfully urge the Court to deny the Plaintiffs’ request for attorney’s
fees.
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VII. Conclusion
WHEREFORE, the Defendants respectfully request that this Court sustain their objection
and deny Plaintiffs’ Motion for Sanctions, and such other and further relief as this court deems
appropriate.
THE DEFENDANTS,
By: /s/ 305547
Bruce L. Elstein, Esq.,
Juris No. 035172
Goldman Gruder & Woods, LLC
105 Technology Drive
Trumbull, CT 06611
Tel.: (203) 880-5333
Fax: (203) 880-5332
belstein@goldgru.com
CERTIFICATION
I hereby certify that a copy of the foregoing was mailed or electronically delivered on the
above date to all counsel and self-represented parties of record and that written consent for
electronic delivery was received from all counsel and self-represented parties of record who were
electronically served:
Liam S. Burke
RUSSO & RIZIO LLC
10 Sasco Hill Road
Fairfield, CT 06824
liam@russorizio.com
/s/ 305547
Bruce L. Elstein, Esq.
Commissioner of the Superior Court
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Preview
DOCKET NO.: FST-CV19-5022735-S : SUPERIOR COURT : RAY C. JOHNSON, ET AL. : J.D. OF STAMFORD : v. : AT STAMFORD : VITA BUILT LLC, ET AL. : MARCH 24, 2024 DEFENDANTS’ OBJECTON TO PLAINTIFFS’ MOTION FOR SANCTIONS Defendants, Vita Built, LLC and Vita Design Group, LLC (hereinafter referred to as “Defendants”), respectfully submit this objection to plaintiffs’, Ray C. Johnson and Indre L. Johnson’s, (hereinafter referred to as “Plaintiffs”) Motion for Sanctions, dated March 12, 2024. (Entry # 217). Plaintiffs' Motion for Sanctions is based upon claims similar to those outlined in their Motion for Default submitted on December 21, 2023 (#217). The Defendants filed an objection to the Plaintiffs’ Motion for Default, and they incorporate those objections and related arguments into their objection to Plaintiffs’ Motion for Sanctions (#220). Defendants request that the Court sustain their objection and deny Plaintiffs’ Motion for Sanctions. I. Preliminary Statement Plaintiffs allege claims for breach of contract, reformation of contract, breach of the implied duty of good faith and fair dealing, negligent misrepresentation, fraudulent inducement, negligence and violation of CUTPA. Defendants, architectural and construction firms, asserted counter claims for breach of additional fee and profit-sharing agreement, breach of the covenant of good faith and fair dealing and violation of the CUTPA. There has been extensive litigation, including three amended complaints, a PJR hearing in favor of the defendants, appeal of the Court’s PJR decision, Defendants motion for summary judgment, and motions to compel discovery. Plaintiff previously moved to compel several times on issues that were presumably, resolved, but improperly raised once again by Plaintiffs in their 1 Motion for Default and Nonsuit (#217), and in their Motion for Sanctions pursuant to Practice Book § 13-14 (#261) presently before the Court. Plaintiffs allege in their Motion for Sanctions that Defendants lied to the Court regarding the disclosure of two categories of discovery: Smartsheet files and information regarding the Defendants’ move to Puerto Rico. (#261). Plaintiffs claim that Defendants manipulated and destroyed relevant Smartsheet evidence. Further, Plaintiffs claim that Defendants intentionally concealed information regarding the timing and circumstances of their move to Puerto Rico in 2017. Contrary to the allegations in the motion, Defendants made diligent and good faith efforts to produce all documents under their possession and control including an electronic license for Smartsheet files, and fully complied with all Court Orders. Plaintiffs, however, claim that the Defendants either altered or destroyed Smartsheets that allegedly show mathematical calculations regarding their joint venture agreement with Defendants that show the intent of the agreement. In this case, there is no evidence of document destruction or deliberate non- compliance on the part of the Defendants. II. Legal Standard Generally, “[t]he decision to enter [discovery] sanctions ... and, if so, what sanction or sanctions to impose, is a matter within the sound discretion of the trial court.” (Internal quotation marks omitted.) Evans v. General Motors Corp., 277 Conn. 496, 523, 893 A.2d 371 (2006). “In order for a trial court's order of sanctions [pursuant to Practice Book § 13-14] for violation of a discovery order to withstand scrutiny, three requirements must be met. First, the order to be complied with must be reasonably clear.... Second, the record must establish that the order was in fact violated.... [And] [t]hird, the sanction imposed must be proportional to the violation.” (Internal quotation marks omitted.) Magana v. Wells Fargo Bank, N.A., 164 Conn. App. 729, 2 733, 138 A.3d 966 (2016); see Millbrook Owners Ass'n, Inc. v. Hamilton Standard, 257 Conn. 1, 15, 776 A.2d 1115, 1125 (2001). Even so, “the court’s discretion should be exercised mindful of the policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court.” (Internal quotation marks omitted.) Milbrook, 257 Conn. 1, 16, 776 A.2d 1115, 1125. In order for the court to allow an adverse inference to be drawn against a party who destroyed the evidence in a civil case, the trier of fact must be satisfied that the party who seeks the inference has proven the following: (1) the spoilation was intentional; (2) the destroyed evidence is relevant to the issue or matter for which the party seeks the inference; and (3) the party who seeks the inference must have acted with due diligence with respect to the spoliated evidence. Beers v. Bayliner Maine Corp., 236 Conn. 769, 775-78, 675 A.2d 829, 832-33 (1996). “[W]e adopt the rule of the majority of the jurisdictions that have addressed the issue in a civil context, which is that the trier of fact may draw an inference from the intentional spoliation of evidence that the destroyed evidence would have been unfavorable to the party that destroyed it.” Beers v. Bayliner Marine Corp., 236 Conn. 769, 775, 675 A.2d 829, 832 (1996) “Finally ... the trier of fact ... is not required to draw the inference that the destroyed evidence would be unfavorable but ... it may do so upon being satisfied that the above conditions have been met.” (Internal quotation marks omitted.) Surrells v. Belinke, 95 Conn. App. 764, 898 A.2d (2006). III. The Plaintiffs’ Smartsheet Inc. Subpoena Production Fails to Support Plaintiffs’ Claims of Spoliation Despite Defendants’ production of electronic access to all of Plaintiffs’ Smartsheet files that existed prior to this lawsuit and pursuant to Plaintiffs’ document demand for files from 2016-2019, Plaintiffs claimed that the Defendants wrongfully altered or destroyed Smartsheet 3 files. Plaintiffs claim that the Smartsheet Inc. production confirmed that Defendants deliberately obfuscated and manipulated self-selected native Smartsheet files that Defendants produced. Plaintiffs claim that Defendants only produced a “self-selection of thirty native files prepared in the Smartsheet program,” but that the subpoena of Smartsheet Inc.’s documents identified fifty-one responsive Smartsheet files. (#220, page 6, Exhibit A). Many of these Smartsheet files, however, are irrelevant and were created after the commencement of this action. Some of these files were created six weeks after the sale of the property, but before the lawsuit as a template for other projects that have nothing to do with this case. Others pertain to work for the owner who bought the property from the Plaintiffs and have nothing to do with this case. Thus, Plaintiffs cannot prove that the Defendants failed to produce documents based upon their proffered list in Exhibit A (#220, Exhibit A). Rather, Defendants have shown that they produced all the Smartsheets in accordance with the Plaintiffs’ production Request #18 and the Instructions, producing Smartsheets within their possession and control within the time frame of September 1, 2016, through December 24, 2019.” (#185, Exhibit A). Defendants Notice of Compliance, dated June 16, 2023, stated the following in the supplemental response to production Request 18 demanding “All files prepared in the Smartsheet program concerning the Property, including all native files of same.” (#201). Defendants responded, “In addition to the Smartsheet PDFs produced on February 17, 2023, see the attached corresponding excel spreadsheets via Defendants’ Supplemental Production subfolder entitled, ‘RFP 19 Smartsheets - Excel Spreadsheets.’ All Smartsheet files, PDF and Excel, were created / generated and downloaded from the www.smartsheet.com website. Spreadsheet formulas do not transfer when excel files are downloaded from the website.” (#201). In July 2023, Defendants 4 gave Plaintiffs full administrative access to the project’s Smartsheets with ability to view cell history going back to the inception of each Smartsheet. Plaintiffs were also given printouts showing the history of the Smartsheets. Plaintiffs base their Motion for Sanctions on the false premise that Smartsheets Inc. confirmed that critically relevant mathematical formulas and calculations were destroyed. There is no evidence whatsoever to support this claim and the Affidavit filed by Smartsheet in this action fails to give the Plaintiffs’ spoliation claim any credence. Plaintiffs wrongly claim that Defendants destroyed the following three files (Motion for Sanctions, pages 9 and 10), but as demonstrated below, nothing was destroyed or lost; instead, it was all contained within the Smartsheet cell history, to which the Plaintiffs had electronic access. A. Plaintiffs incorrectly allege the following three files were deleted: 1. 281 Compo Beach Rd. Financials Shared – Plaintiffs claim that Smartsheet confirmed that this file was deleted and no longer exists. (#220, page 9). This file, however, was not destroyed. Rather, it was renamed “281 Compo Rd. S., Financials, Revised/base 31JAN17.” In fact, this sheet was shared with the Plaintiffs, and they have on-line administrative access with cell history. As a matter of fact, Defendants produced an excel sheet concerning this file. 2. 2/5/17_ 281 Compo Rd S, Financials, 1FEB17 – Plaintiffs claim that Smartsheet confirmed that this file was deleted and no longer exists, but there is no evidence whatsoever that Smartsheet Inc. made this claim. (#220, page 9-10). Rather, this sheet exists and was created in 2020, and is not responsive to Plaintiffs’ Request number 18 for Smartsheet native files used by the parties throughout the negotiations; and outside the time period demanded in the Plaintiff’s Instructions in Plaintiffs’ Interrogatories and Requests for Production to Defendants, May 31, 5 2022, Paragraph number 8, “the relevant time period for the Interrogatories and Requests shall be September 1, 2016 through December 24, 2019.” (Emphasis added). 3. 281 Compo Rd S, Financials, 1FEB18 rev. – Plaintiffs state that Smartsheet confirmed that Defendant deleted this file without any proof. (#220, page 10). This Smartsheet was not destroyed, but rather, produced to Plaintiffs with a full license to access the Smartsheet and cell history. As demonstrated above, Defendants have not deleted any files, but instead produced all Smartsheets to Plaintiffs with a license to access the sheets electronically and were also provided in excel format. Any changes to the sheet are in the cell history and can be changed back. B. Plaintiffs wrongly claim that the the following files were spoliated because they were allegedly altered: 1. 281 Compo Rd. S, Financials, 1FEB17, Revised. (#220, page 7). The original sheets were produced to Plaintiffs in excel format, and Plaintiffs were given an electronic license to access the Smartsheet, cell history and activity log was provided. One cell change was made and seen in the cell history. To the extent a formula used the cell changed, numerous other cells changed using the assigned formula. Thus, one change could have resulted in many other cells changing too. But it all relates to the one change. These are immaterial changes and can be reversed. Nothing was deleted or destroyed. 2. 281 Compo Rd. S. Financials, 1FEB18, revised. (#220, page 8). Three cell changes were made and are seen in the cell history. These are immaterial changes and can be reversed. Nothing was deleted or destroyed. 3. 281 Compo Rd. S. Financials, Revised/base 31 JAN17. (#220, page 8). Immaterial changes can be reversed and are fully recorded in the visible cell history. Nothing was deleted or destroyed. 6 4. V.3 281 Compo Rd. S., Financials, 1FEB17. (#220, page 8). Plaintiffs claim that the risk sharing framework as well as various calculations were changed. Plaintiffs falsely claim that this Smartsheet spreadsheet was created on June 17, 2019. Rather, this Smartsheet was made on February 1, 2017, and there were no changes to the Smartsheet after December 2019. The cell history and the creation date are available and visible to the Plaintiffs. 5. V.1/281 Compo BEACH Rd., Financial Report. (#220, page 8). This sheet was never shared with Plaintiffs during the project. It was not used as a reference for project and never finished. Internally, it was reviewed for five days in January 2017 then archived and not referred to internally again. It was shared with Plaintiffs through discovery as instructed in July 2023. The few changes made in 2021 are immaterial, can be reversed, and are fully recorded in the visible cell history. Nothing was deleted or destroyed. a. IJ Print 2/2/17 281 Compo Rd. S Financials 1FEB17. (#220, page 10). Plaintiffs misleadingly claim that this sheet was altered with 606 changes. This particular Smartsheet was created on January 23, 2020, from the historical data from “281 Compo Rd. S Financials, 1FEB17, rev.” which the Defendants produced through electronic access to Smartsheets. With respect to this particular re-creation, Plaintiffs’ Instructions to their Interrogatories and Requests for Production to Defendants limit the time period for the Smartsheet files to September 1, 2016, through December 24, 2019.” (#185, Exhibit A). This document created in 2020 is outside the time period specifically requested by the Plaintiff and has no relevance to the parties’ agreements in 2017 at issue in this case. b. IJ Print 2/5/17 281 Compo Rd S Financials 1FEB17. (#220, page 10). Plaintiffs again claim that this sheet was altered with 606 changes. This Smartsheet was created on January 23, 2020, by using the historical data from “281 Compo Rd S Financials, 1FEB17, 7 rev.” The Plaintiffs’ Instructions for their Interrogatories and Requests for Production specify a time limit for the Smartsheet files from September 1, 2016, to December 24, 2019. This document, created in 2020, falls outside the time frame demanded by the Plaintiffs. c. Copy of 281 Compo Rd S Financials 1 FEB17, Revised. (#220, page 11). Plaintiffs claim that the sheet is altered with over 522 changes. Similarly, this Smartsheet was created by taking a copy of “281 Compo Rd S, Financials, 1FEB17, revised.” The Smartsheet created on January 23, 2020, was made after the commencement of the lawsuit and is beyond the timeframe requested by the Plaintiffs in their discovery demands. d. Copy of 281 Compo Rd S Financials Revised. (#220, page 11). Plaintiffs allege that there were 651 changes made. The Smartsheet was created on March 17, 2021, after the start of this lawsuit. And, as stated with the documents above, this Smartsheet was well outside the discovery timeframe identified in Plaintiffs’ Instructions to their Requests for Production and Interrogatories that demanded information from September 1, 2016, to December 24, 2019. The Plaintiffs erroneously claim that the Smartsheets had been wrongfully altered or destroyed. Plaintiffs are incorrectly citing Smartsheets that are irrelevant and were created after the time period demanded in the Requests for Production and Interrogatories. (#--). These Smartsheets bear no relevance to the parties’ intent to enter into any agreement. It is evident that the Plaintiffs lacked an understanding of how to utilize the Smartsheets program, which inherently tracks changes and alterations that are fully accessible. Indeed, Smartsheet alterations can be undone, and nothing was permanently destroyed in this case. Therefore, the documents obtained for Smartsheet Inc. fail to substantiate the Plaintiffs’ claims of spoliation. 8 IV. Plaintiff Incorrectly Claims that Defendants Withheld Information and Concealed their Business Motives Regarding their Move to Puerto Rico Plaintiffs claim that Defendants failed to disclose the existence of their company, Hurri- Homes in Puerto Rico that would have established the substantial planning and business motives in moving to Puerto Rico in 2017. There is no evidence of “substantial planning.” In September 2017, the Defendants relocated to Puerto Rico with the aim of expanding their architectural business while intending to maintain a business presence in Connecticut. Defendants communicated to the Plaintiffs their intention to maintain a business in Connecticut and in Puerto Rico. One month after their move, Hurricane Maria hit Puerto Rico. Precisely because of Hurricane Maria, Defendants created the concept of hurricane proof homes, which became a business. The concept turned into business was known as Hurri-Homes, a prefab hurricane proof home to help supply residents with quick housing needs as a result from the damage of Hurricane Maria. Defendants never ceased their business operations in Connecticut at any time. As a result, the Plaintiffs fail to demonstrate the substantial planning and business rationale behind Defendants’ decision to move to Puerto Rico, as such motives are non-existent. Plaintiffs cannot show how information regarding Defendants alleged substantial planning and business motives are relevant to any important issue in this case. Clearly, this does not justify the imposition of sanctions. Further and more importantly, the Plaintiffs fail to point to a specific discovery request that could arguably have required the Defendants to produce the Hurri-Homes information. See Requests for Production ##’s 21 – 29. Instead, they accurately assert the information was not produced but wholly fail to justify the grounds asserted with a discovery request, court order or otherwise. 9 V. The History of this Case Shows the Defendants’ Good Faith Efforts and Compliance with the Court’s Discovery Orders Negating Plaintiffs’ Claim for Sanctions The Plaintiffs have failed to meet a crucial condition for sanctions. Their proposed motion relies on the Defendants’ alleged failure to comply with the Court’s orders. The Court’s orders in this case pertain to thoroughly searching for and producing Smartsheets from the time period of September 2016 through December 2019 (Plaintiffs’ Production Request 18, Docket Entry #185, Exh. A), as well as information regarding the Defendants’ relocation to Puerto Rico (Requests 23, 24, 25 & 29, #185, Exh. A). Plaintiffs, however, have not shown the Defendants’ violation of the Court’s clear and unambiguous rulings as required under Connecticut law to impose sanctions. Magana v. Wells Fargo Bank, N.A., 164 Conn. App. 729, 733, 138 A.3d 966 (2016); Millbrook, supra, 257 Conn. at 15, 776 A.2d 1115. Since the onset of discovery proceedings, Defendants have demonstrated good faith efforts to comply with all discovery requests and Court orders. Defendants have communicated with Plaintiffs’ counsel and the Court throughout the discovery process, promptly addressing any concerns and have met their discovery obligations under the Court Orders. The Defendants have not been found to violate any Court orders, and the Plaintiffs have not been able to cite any specific violation of any Court order warranting sanctions in this case. The Court granted Defendants’ motion for extensions of time to respond to Plaintiffs’ demands as evidenced by the following procedural history. In response to Plaintiffs’ First Motion for Compliance, Defendants moved for an extension of time in which to respond and/or object to Plaintiffs’ discovery demands and interrogatories, dated May 31, 2022. The Court granted the Defendants’ motion for extension of time until August 29, 2022, to object and respond to the Plaintiffs’ demands (#186.01.). In compliance with the Court’s Order, on August 9, 2022, 10 Defendants served and filed their Notice of Objection to Plaintiffs’ Interrogatories and Requests for Production. (#187). On September 15, 2023, Plaintiff filed a Second Motion for Order of Compliance. (#188). On November 28, 2022, the Court ordered compliance by January 6, 2023, on any interrogatories and document requests to which no objections were filed and ordered the attorneys to file affidavits concerning all resolutions and unresolved matters on which the parties assert the Court must rule. (#188.01). Per the Court’s Order, counsel for the parties met on or about December 8, 2022, and conferred on the discovery objections. Counsel for the Plaintiffs filed a Notice of Compliance with the notes that accurately reflected their discussion which the Court had ordered. (#197, Exhibit A). Defendants complied with the Court’s order of November 28, 2022 (#188.01). On January 5, 2023, Defendants requested a second extension of time until February 6, 2023 (#189), to comply with the Court’s Order of Compliance (#188.01), in order to gather the necessary information and documentation to supplement Defendants’ responses to the Plaintiffs’ discovery requests. The following day, however, on January 6, 2023, Plaintiffs made a Motion for Default and Nonsuit (#192) against Defendants claiming that the Defendants failed to comply with the Court’s Order. (188.01). The Court denied Plaintiff’s Motion for Default and Nonsuit and granted Defendants’ request for an extension (#189.01, 192.01). Defendants were in compliance and had not violated any Court Order. On February 6, 2023, Defendants made a third request for an extension of time for two weeks until February 20, 2023, to respond to Plaintiff’s discovery demands (#194), which the Court granted (#194.01). Thereafter, Defendants filed a Notice of Compliance asserting that they provided responses and documentation in compliance with Plaintiffs’ Interrogatories and 11 Requests for Production (#195). The Defendants complied with the Court regarding discovery. (#194.01) On March 17, 2023, Plaintiffs made a Motion for Compliance (#196). On April 17, 2023, the Court granted Plaintiffs’ motion and ordered compliance by May 18, 2023. Regarding the same demands currently in question, the Court issued the following Order of production: “Request 18: Smartsheet Native Files: Defendants are to conduct a thorough search for documents responsive to these requests and produce all responsive documents.” (#196.01). “Requests 23, 24, 25 & 29: Documents concerning Defendants’ move to Puerto Rico: Defendants are to conduct a thorough search for documents responsive to these requests that show the timing and circumstances around the move to Puerto Rico and produce all such responsive documents. Defendants should detail in their response (a) which custodians were searched, (b) what search terms were used, and (c) the timeframe for the searches.” (#196.01). The Court granted Defendants an extension of fifteen days, until June 2, 2023, to comply with the production Order due to a conflict with counsel’s trial schedule (#199, 199.01). On June 5, 2023, Plaintiff moved for default and failure to comply with the Court Order, which the Court denied (#200). The Court held that “The plaintiff’s motion is denied based on the defendants’ representation of full compliance.” (#200.01). The Defendants had in fact complied with all of the Court’s Orders up until this date. As noted above and contrary to Plaintiffs’ interpretation, Defendants demonstrated a willingness to cooperate fully in facilitating the exchange of information. The Court fully granted Defendants extensions that were required in order to confer with counsel, add new electronic search terms with the involvement of the court and supplement their discovery responses if 12 needed. Contrary to the Plaintiffs’ claims, Defendants did not violate any Court Order regarding discovery. Defendants had fully complied with the Court’s Orders in this case. Finally, on June 17, 2023, Defendants filed a Notice of Compliance with Plaintiffs’ requests for production (#201). Plaintiffs objected to Defendants’ Notice of Compliance (#202), and the Court sustained the objection (#202.01). The Plaintiffs argued the Defendants did a “discovery dump” of 1,500 documents, and that Defendants “failed to produce the native Smartsheet files in response to document request 18, as ordered by the Court.” (#202). Plaintiffs’ document request number 18 demanded the following: “18. All files prepared in the Smartsheet program concerning the Property, including all native files of the same.” Plaintiffs’ Instructions to their Interrogatories and Requests for Production to Defendants limit the time period for the Smartsheet files. It states: “8. Unless a particular Interrogatory or Request states otherwise, the relevant time period for the Interrogatories and Requests shall be September 1, 2016, through December 24, 2019.” (# 185, Exh. A). Defendants produced electronic access to Smartsheet’s cloud platform in accordance with the Plaintiffs’ demands, instructions and the Court’s previously mentioned orders. Concerning the Smartsheet marked as Exhibit D during the PJR hearing, the Plaintiffs already possessed the document, as it had been presented in its entirety at a previous hearing. (#203). The Court noted that “[t]he defendant agrees to provide all outstanding discovery by agreement by August 1, 2023, as stated on the record by July 17, 2023.” (#202.01). The Defendants were in compliance with the Court and agreed to a thorough search despite the fact they had already produced the 13 demanded documents. By the end of July 2023, Plaintiffs had full electronic access to all of the Smartsheet files that were created before the commencement of this lawsuit. Shortly after accessing the Smartsheet program, the Plaintiffs incorrectly made a claim that information had been “wrongfully altered or destroyed.” (#217, Exhibit G, letter dated August 24, 2023). In response, on August 23, 2023, it was apparent that the Plaintiffs failed to understand how to use the Smartsheets program which keeps track of changes and alterations that are fully accessible. (#217, Exhibit G). After August 25, 2023, until December 2023, the Plaintiffs never made a claim about Smartsheet access, ability to review history or sought assistance in the use of the program as offered. Plaintiffs have not identified any prejudice suffered due to the alleged incomplete production. They have had access to relevant documents and have not proven that they are substantially disadvantaged in presenting their case. Plaintiff cannot show any intentional withholding of documents, destruction of evidence or intentional non-compliance on the part of the Defendants. Rather, the Defendants have unequivocally affirmed their compliance with discovery demands throughout this litigation and adhered to all Court orders. Therefore, the Court should deny Plaintiffs’ Motion for Sanctions. VI. The Attorney Affidavit Fails to Establish that a Court Order to be Complied With was In Fact Violated Defendants have diligently adhered to their discovery obligations, promptly responding to all requests and cooperating with the Plaintiffs’ demands. Despite any perceived delays, the Defendants fulfilled their obligations in a timely manner and pursuant to the Court’s orders. On this basis, an award of attorneys’ fees would be unjust and unwarranted. In this context, “a trial court properly exercises its discretion in imposing a sanction for a violation of a [court's discovery] order when (1) the order to be complied with is reasonably 14 clear, (2) the record establishes that the order was in fact violated, and (3) the sanction imposed is proportionate to the violation.” Ridgaway v. Mount Vernon Fire Ins. Co., supra, at 71, 176 A.3d 1167. To be upheld on appeal, the order of sanctions must satisfy each of these three requirements. Millbrook Owners Assn., Inc. v. Hamilton Standard, supra, at 17–18, 776 A.2d 1115. In this case, Plaintiffs fail to establish each of these three requirements. Plaintiffs cannot establish that Defendants violated any discovery Order in this case. In order for a court to impose sanctions based on a party's failure to comply with the court's discovery order, “the record must establish that the [discovery] order was in fact violated.” Millbrook Owners Assn., Inc. v. Hamilton Standard, supra, 257 Conn. at 17, 776 A.2d 1115. Our determination of whether an order for sanctions satisfies “[t]his requirement poses a question of fact ....” Id., at 17–18, 776 A.2d 1115. Thus, to determine whether an order for sanctions satisfies this requirement, we review the court's finding to determine whether it is clearly erroneous. Id., at 18, 776 A.2d 1115. There is no evidence of misconduct on the Defendants’ part. Defendants asserted their objection to the plaintiff’s application for attorney’s fees at the July 17, 2023 proceeding. Defendants followed the Court’s orders regarding discovery and requested extensions of time when needed, which were granted by the Court. Further, the Court did not award attorney’s fees in this case. Mr. Wright’s stated in his Affidavit that attorney’s fees should be granted for the following motions and the Court ruled on those motions as follows: 1. Plaintiff’s Motion for Default for Failure to Comply with Order (#200). Denied (#200.01). Defendants were not in default. Therefore, Plaintiffs have no right to attorneys’ fees. 2. Plaintiff’s Third Motion for Compliance and the Reply in further support thereof (#196, 198). The Court ordered compliance by 5 / 18 /2023 and directed that Defendants 15 conduct a thorough search and produce responsive documents (#196.01). Defendants complied with the Court’s Order as stated above. Plaintiffs are not entitled to attorney’s fees. 3. Plaintiffs’ Objection to Defendants’ Notice of Compliance (#202). Sustained by the Court. (#202.01). The Court ordered the Defendants to provide all outstanding discovery by August 1, 2023. Prior to August 1, 2023, Defendants had not only produced all documents in their possession and control, but also provided Plaintiffs with a license to access the Smartsheets. On this basis and as stated above, Plaintiffs cannot prove any violation of the Court’s Order regarding outstanding discovery that supports Plaintiffs’ claim for attorneys’ fees. 4. Plaintiffs’ Request for Argument (#240) the Caseflow request (#205) and preparation for oral argument on July 17, 2023. Plaintiffs cannot substantiate any violation of a Court order pertaining to outstanding discovery that entitles them to fees here. Any alleged deficiencies are simply not grounded in reality as the Defendants have made every effort to ensure full disclosure. Plaintiff fails to show any intentional noncompliance by the Defendants. Defendants respectfully urge the Court to deny the Plaintiffs’ request for attorney’s fees. 16 VII. Conclusion WHEREFORE, the Defendants respectfully request that this Court sustain their objection and deny Plaintiffs’ Motion for Sanctions, and such other and further relief as this court deems appropriate. THE DEFENDANTS, By: /s/ 305547 Bruce L. Elstein, Esq., Juris No. 035172 Goldman Gruder & Woods, LLC 105 Technology Drive Trumbull, CT 06611 Tel.: (203) 880-5333 Fax: (203) 880-5332 belstein@goldgru.com CERTIFICATION I hereby certify that a copy of the foregoing was mailed or electronically delivered on the above date to all counsel and self-represented parties of record and that written consent for electronic delivery was received from all counsel and self-represented parties of record who were electronically served: Liam S. Burke RUSSO & RIZIO LLC 10 Sasco Hill Road Fairfield, CT 06824 liam@russorizio.com /s/ 305547 Bruce L. Elstein, Esq. Commissioner of the Superior Court 17 18