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DOCKET NO. (X06) UWY-CV21-5028294-S
NANCY BURTON : SUPERIOR COURT
Plaintiff :
: COMPLEX LITIGATION
v. : DOCKET
: AT WATERBURY
DAVID PHILIP MASON, Et Al. :
Defendants : JANUARY 10, 2022
OBJECTION TO NOTICES OF DEPOSITION
AND MOTION FOR PROTECTIVE ORDER
Defendants, State of Connecticut Department of Agriculture (“Department”), Bryan P.
Hurlburt, Commissioner of Agriculture (“Commissioner”), and Charles DellaRocco, State
Animal Control Officer (hereinafter referred to collectively as “State Defendants”) hereby object
to Plaintiff’s Notices of Deposition for Commissioner Hurlburt and Officer DellaRocco.
(Attachments A & B.) State Defendants hereby move for protective order to prohibit said
depositions. Said depositions are designed primarily to harass and not to produce relevant
evidence. Furthermore, as a practical matter, said depositions should by stayed until a resolution
of the pending Motion to Strike Plaintiff’s remaining count. (Motion to Strike, Entry No.
257.00.) The Motion to Strike is fully briefed and ready for argument. Should the Court permit
the noticed depositions to proceed, State Defendants seek a limited protective order to ensure any
deposition is restricted to the merits of the remaining claim.
I. COMPLETE PROTECTIVE ORDER
In ruling on discovery matters, including motions to quash deposition notices and
subpoenas, the court is obligated to take a reasoned and logical approach to the relevant contest
between the parties. Pizzoni v. Essent Healthcare of Connecticut, Inc., Docket No.
CV166014136S, 2019 Conn. Super. LEXIS 481, at *15 (Super. Mar. 8, 2019). The court has the
power to “impose protective orders and conditions when the interests of justice seem to require
such action . . . The court must make such determinations in the light of the particular
circumstances of the case." Shuckra v. Sencio, Docket No. 020816539, 2002 Conn. Super.
LEXIS 3510, at *3-4 (Super. Oct. 23, 2002) (granting motion to stay discovery and to quash
deposition subpoenas where defendant was seeking to abuse civil discovery process to solicit
privileged information to use in a separate pending criminal trial.) Plaintiff’s prolific history as a
pro se litigator has shown that she is not interested in obtaining evidence that is relevant to her
claims. Plaintiff has continued to devote the majority of her motion practice to push meritless
allegations of animal abuse by the State, (Motion for Injunction, Entry No. 274.00; Motion for
Judgment, Entry No. 275.00.); despite the fact that her claims related to animal cruelty were
dismissed months ago. (Mem. of Decision, Entry No. 232.00.) Upon information and belief,
Defendant is seeking to depose Commissioner Hurlburt and Officer DellaRocco purely to harass
them and continue her baseless allegations of animal abuse by the Department of Agriculture.
In addition to this action and the pending action in Hartford Superior Court pertaining to
the final disposition of the goats, there are still the ongoing criminal animal cruelty matters
pending in the Danbury GA 3. Both matters are in pre-trial status. Plaintiff has a pending
criminal matter for cruelty to animals and obstruction of an animal control officer, pursuant to
Conn. Gen. Stat. § 22-365. (D03D-CR20-0190471-S). Defendant also has a pending criminal
matter for sixty-five counts of animal cruelty, related to the facts of the case at the Hartford
Superior Court. (D03D-CR21-0191750-S). The Department of Agriculture was the applicant on
the arrest warrant for that matter. As a result, agents of the Department of Agriculture, including
Officer DellaRocco, are integral to the pending criminal matter. Allowing the deposition to go
forward may compromise and interfere with the criminal proceedings.
In certain circumstances, “the state’s ability to protect the public's interest in prosecuting
crime would be thwarted if the plaintiffs, intentionally or unintentionally, were permitted to
circumvent the criminal discovery process by accessing the more liberal discovery available in
civil litigation.” Estate of Cook v. Hall, Docket No. NNHCV106010851, 2011 Conn. Super.
LEXIS 264, at *15 (Super. Feb. 9, 2011). “Where there are parallel civil and criminal
proceedings, the court has authority to stay discovery . . . if required by the interests of justice.”
Id. at *12. Under certain circumstances, it is appropriate to restrict depositions when there are
pending criminal matters. Mateus v. Thomas, Docket No. CV040489457S, 2005 Conn. Super.
LEXIS 3148, at *4 (Super. Nov. 9, 2005) (deposition postponed indefinitely where deponent was
a defendant in a pending criminal matter and attempted to exploit civil discovery procedure).
To avoid harassment of the State and interference with the pending criminal matters, the
noticed depositions should not proceed. They will not lead to relevant admissible evidence and
may jeopardize a pending criminal matter that the State is directly involved in. The Court should
enter a complete protective order to bar the requested depositions. At the very least, the noticed
depositions should be stayed pending a resolution of State Defendants’ Motion to Strike
Plaintiff’s remaining claim under 42 U.S.C. § 1983. (Motion to Strike, Entry No. 257.00.)
II. LIMITED PROTECTIVE ORDER
Plaintiff’s penchant for seeking irrelevant and immaterial documents and information
from State Defendants, in the related matter in the Hartford Superior Court, is well documented.
Nearly all of those requests are not remotely related to the merits of that case. Defendant has
abused motion and discovery practice to seek to visit the goats at a secure Department of
Corrections facility, collect goat milk for radiation testing, obtain information about other animal
cruelty cases not related to her case, and physically inspect the Large Animal Rehabilitation
Center (“Center”) where the goats are being rehabilitated. Because of this demonstrated history
of abuse, if the depositions are allowed to proceed, State Defendants are seeking a protective
order to ensure that the requested depositions are orderly, professional and, above all, pertinent
to the pending litigation. State Defendants may reasonably seek protection from limitless inquiry
into matters which are either confidential or serve no legitimate purpose aimed at the discovery
of relevant evidence. Rousseau v. Perricone, Docket No. FA104049533, 2011 Conn. Super.
LEXIS 995, at *3 (Super. Apr. 25, 2011). The Court’s discretion applies to decisions concerning
whether the information is material, privileged, substantially more available to the disclosing
party, or within the disclosing party's knowledge, possession or power. TelAid Indus. v. Tricomm
Group, Inc., 2007 Conn. Super. LEXIS 293, *6. Any deposition testimony solicited must be
narrowly tailored to inquiries that are designed to discover admissible evidence, and not simply
an opportunity to berate, attack and harass agents of the Department of Agriculture.
A. STATE’S ACTIVITIES AFTER MARCH 10, 2021
Plaintiff should not be permitted to inquire about the activities and operations of the
Department as it pertains to the management of the goats at the Center, or other activities, after
March 10, 2021. The staff’s activities, operations, and identities, as it relates to the Center and
the goats, are not probative of any material facts relevant to Plaintiff’s claims. Nearly all of
Plaintiff’s claims have been dismissed. (Mem. Of Decision, Entry No. 232.00.) The only
remaining claims are based on alleged constitutional violations, pursuant to 42 U.S.C. § 1983, by
the Commissioner and Officer DellaRocco, in their personal capacity. These claims are
premised on an unsupported claim that the search and seizure warrant was in some way
fraudulent or defective. Events following the execution of the warrant and information related to
the goats are not probative of Plaintiff’s remaining claim. Information about the current
maintenance of the goats will not lead to admissible evidence to support constitutional claims
stemming from the application of the search warrant that predated the seizure of the goats.
Should Plaintiff be permitted to inquire on matters related to Department activities, after March
10, 2021, the deposition will not lead to admissible relevant evidence. Any deposition inquiry
should exclude events after March 10, 2021, including the management and rehabilitation of the
goats at the Center.
B. DELIBERATIVE PROCESS
Plaintiff should not be permitted to inquire into matters that are subject to the deliberative
process privilege and are not discoverable. The deliberative process privilege (sometimes known
as the executive privilege or the official information privilege) has long been recognized as
necessary to protect the administrative decision-making process. United States v. Morgan, 313
U.S. 409, 422 (1941); Zinker v. Doty, 637, F.Supp. 138 (D. Conn. 1986). The privilege protects
intra-governmental communications comprising a part of the process through which
governmental decisions are made and policies formulated. Id. Internal communications,
including e-mail, among Department of Agriculture staff during their animal cruelty
investigation are not discoverable. A document is within the scope of the deliberative process
privilege if it is deliberative and pre-decisional. Renegotiation Board v. Grumman Aircraft
Engineering Corp., 421 U.S. 168, 184 (1975). Deliberative communications about the
determination to seek a search warrant are subject to the privilege. Any deposition inquiry
should exclude internal communications and personal notes that are subject to the deliberative
process privilege.
C. ATTORNEY-CLIENT PRIVILEGE
Plaintiff should not be permitted to inquire into matters that are subject to the attorney
client privilege. "Communications protected by the attorney-client privilege are not
discoverable. Practice Book [13-2]." Tunick v. Day, Berry & Howard, 40 Conn. Supp. 216, 218,
(1984). Plaintiff may not inquire into communications between the Department of Agriculture
and the Office of the Attorney General, leading up to, during, and after the seizure of the goats.
The attorney client privilege protects communications necessary for the agency to obtain legal
advice. Thus, where (1) legal advice of any kind (2) is sought from an attorney (3) the
communications relating to that purpose, (4) made in confidence by the client, are permanently
protected from disclosure (5) except that the privilege may be waived. Shew v. Freedom of
Information Commissioner, 245 Conn. 149, 157 (1998). Any deposition inquiry should exclude
communications subject to the attorney-client privilege.
III. CONCLUSION
For all the foregoing reasons State Defendants respectfully requests that the Court enter a
complete protective order to avoid the proposed depositions. In the alternative, the deposition
should be stayed until a resolution of the pending Motion to Strike. To the extent the Court
permits the depositions to go forward, State Defendants request a protective order that is
narrowly tailored to avoid harassment, interference with the criminal matter and is designed to
lead to non-privileged, relevant evidence.
DEFENDANTS
STATE OF CONNECTICUT
DEPARTMENT OF AGRICULTURE
BRYAN P. HURLBURT, COMMISSIONER OF
AGRICULTURE
CHARLES DELLAROCCO, STATE ANIMAL
CONTROL OFFICER
WILLIAM TONG
ATTORNEY GENERAL
BY: ___434270_____________________________
Jonathan E. Harding
Assistant Attorney General
Juris No. 434270
165 Capitol Ave.
Hartford, CT 06106
CERTIFICATION
I hereby certify that a copy of the forgoing Objection and Motion for Protective Order was
delivered electronically to the following counsel and self-represented parties January 10, 2022:
Nancy Burton
154 Highland Ave.
Rowayton, CT 06853
NancyBurtonCT@aol.com
Robert Scott Hillson, Esq.
53 State Street
Boston, MA 02109
rhillson@rubinrudman.com
Philip T. Newbury, Jr., Esq.
Howd & Ludorf, LLC
65 Wethersfield Avenue
Hartford, CT 06114
pnewbury@hl-law.com
Steve Stafstrom, Esq.
Pullman & Comley, LLC
850 Main Street, P.O. Box 7006
Bridgeport, CT 06601
sstafstrom@pullcom.com
James N. Tallberg, Esq.
Kimberly A. Bosse, Esq.
Karsten & Tallberg, LLC
500 Enterprise Dr., Suite 4B
Rocky Hill, CT 06067
jtallberg@kt-lawfirm.com
kbosse@kt-lawfirm.com
Alexander William Ahrens, Esq.
Melick & Porter, LLC
900 Main Street South
Suite 102
Southbury, CT 06488
____434270_________________________
Jonathan E. Harding
Commissioner of the Superior Court
ATTACHMENT A
ATTACHMENT B
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in New Haven County
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DOCKET NO. (X06) UWY-CV21-5028294-S NANCY BURTON : SUPERIOR COURT Plaintiff : : COMPLEX LITIGATION v. : DOCKET : AT WATERBURY DAVID PHILIP MASON, Et Al. : Defendants : JANUARY 10, 2022 OBJECTION TO NOTICES OF DEPOSITION AND MOTION FOR PROTECTIVE ORDER Defendants, State of Connecticut Department of Agriculture (“Department”), Bryan P. Hurlburt, Commissioner of Agriculture (“Commissioner”), and Charles DellaRocco, State Animal Control Officer (hereinafter referred to collectively as “State Defendants”) hereby object to Plaintiff’s Notices of Deposition for Commissioner Hurlburt and Officer DellaRocco. (Attachments A & B.) State Defendants hereby move for protective order to prohibit said depositions. Said depositions are designed primarily to harass and not to produce relevant evidence. Furthermore, as a practical matter, said depositions should by stayed until a resolution of the pending Motion to Strike Plaintiff’s remaining count. (Motion to Strike, Entry No. 257.00.) The Motion to Strike is fully briefed and ready for argument. Should the Court permit the noticed depositions to proceed, State Defendants seek a limited protective order to ensure any deposition is restricted to the merits of the remaining claim. I. COMPLETE PROTECTIVE ORDER In ruling on discovery matters, including motions to quash deposition notices and subpoenas, the court is obligated to take a reasoned and logical approach to the relevant contest between the parties. Pizzoni v. Essent Healthcare of Connecticut, Inc., Docket No. CV166014136S, 2019 Conn. Super. LEXIS 481, at *15 (Super. Mar. 8, 2019). The court has the power to “impose protective orders and conditions when the interests of justice seem to require such action . . . The court must make such determinations in the light of the particular circumstances of the case." Shuckra v. Sencio, Docket No. 020816539, 2002 Conn. Super. LEXIS 3510, at *3-4 (Super. Oct. 23, 2002) (granting motion to stay discovery and to quash deposition subpoenas where defendant was seeking to abuse civil discovery process to solicit privileged information to use in a separate pending criminal trial.) Plaintiff’s prolific history as a pro se litigator has shown that she is not interested in obtaining evidence that is relevant to her claims. Plaintiff has continued to devote the majority of her motion practice to push meritless allegations of animal abuse by the State, (Motion for Injunction, Entry No. 274.00; Motion for Judgment, Entry No. 275.00.); despite the fact that her claims related to animal cruelty were dismissed months ago. (Mem. of Decision, Entry No. 232.00.) Upon information and belief, Defendant is seeking to depose Commissioner Hurlburt and Officer DellaRocco purely to harass them and continue her baseless allegations of animal abuse by the Department of Agriculture. In addition to this action and the pending action in Hartford Superior Court pertaining to the final disposition of the goats, there are still the ongoing criminal animal cruelty matters pending in the Danbury GA 3. Both matters are in pre-trial status. Plaintiff has a pending criminal matter for cruelty to animals and obstruction of an animal control officer, pursuant to Conn. Gen. Stat. § 22-365. (D03D-CR20-0190471-S). Defendant also has a pending criminal matter for sixty-five counts of animal cruelty, related to the facts of the case at the Hartford Superior Court. (D03D-CR21-0191750-S). The Department of Agriculture was the applicant on the arrest warrant for that matter. As a result, agents of the Department of Agriculture, including Officer DellaRocco, are integral to the pending criminal matter. Allowing the deposition to go forward may compromise and interfere with the criminal proceedings. In certain circumstances, “the state’s ability to protect the public's interest in prosecuting crime would be thwarted if the plaintiffs, intentionally or unintentionally, were permitted to circumvent the criminal discovery process by accessing the more liberal discovery available in civil litigation.” Estate of Cook v. Hall, Docket No. NNHCV106010851, 2011 Conn. Super. LEXIS 264, at *15 (Super. Feb. 9, 2011). “Where there are parallel civil and criminal proceedings, the court has authority to stay discovery . . . if required by the interests of justice.” Id. at *12. Under certain circumstances, it is appropriate to restrict depositions when there are pending criminal matters. Mateus v. Thomas, Docket No. CV040489457S, 2005 Conn. Super. LEXIS 3148, at *4 (Super. Nov. 9, 2005) (deposition postponed indefinitely where deponent was a defendant in a pending criminal matter and attempted to exploit civil discovery procedure). To avoid harassment of the State and interference with the pending criminal matters, the noticed depositions should not proceed. They will not lead to relevant admissible evidence and may jeopardize a pending criminal matter that the State is directly involved in. The Court should enter a complete protective order to bar the requested depositions. At the very least, the noticed depositions should be stayed pending a resolution of State Defendants’ Motion to Strike Plaintiff’s remaining claim under 42 U.S.C. § 1983. (Motion to Strike, Entry No. 257.00.) II. LIMITED PROTECTIVE ORDER Plaintiff’s penchant for seeking irrelevant and immaterial documents and information from State Defendants, in the related matter in the Hartford Superior Court, is well documented. Nearly all of those requests are not remotely related to the merits of that case. Defendant has abused motion and discovery practice to seek to visit the goats at a secure Department of Corrections facility, collect goat milk for radiation testing, obtain information about other animal cruelty cases not related to her case, and physically inspect the Large Animal Rehabilitation Center (“Center”) where the goats are being rehabilitated. Because of this demonstrated history of abuse, if the depositions are allowed to proceed, State Defendants are seeking a protective order to ensure that the requested depositions are orderly, professional and, above all, pertinent to the pending litigation. State Defendants may reasonably seek protection from limitless inquiry into matters which are either confidential or serve no legitimate purpose aimed at the discovery of relevant evidence. Rousseau v. Perricone, Docket No. FA104049533, 2011 Conn. Super. LEXIS 995, at *3 (Super. Apr. 25, 2011). The Court’s discretion applies to decisions concerning whether the information is material, privileged, substantially more available to the disclosing party, or within the disclosing party's knowledge, possession or power. TelAid Indus. v. Tricomm Group, Inc., 2007 Conn. Super. LEXIS 293, *6. Any deposition testimony solicited must be narrowly tailored to inquiries that are designed to discover admissible evidence, and not simply an opportunity to berate, attack and harass agents of the Department of Agriculture. A. STATE’S ACTIVITIES AFTER MARCH 10, 2021 Plaintiff should not be permitted to inquire about the activities and operations of the Department as it pertains to the management of the goats at the Center, or other activities, after March 10, 2021. The staff’s activities, operations, and identities, as it relates to the Center and the goats, are not probative of any material facts relevant to Plaintiff’s claims. Nearly all of Plaintiff’s claims have been dismissed. (Mem. Of Decision, Entry No. 232.00.) The only remaining claims are based on alleged constitutional violations, pursuant to 42 U.S.C. § 1983, by the Commissioner and Officer DellaRocco, in their personal capacity. These claims are premised on an unsupported claim that the search and seizure warrant was in some way fraudulent or defective. Events following the execution of the warrant and information related to the goats are not probative of Plaintiff’s remaining claim. Information about the current maintenance of the goats will not lead to admissible evidence to support constitutional claims stemming from the application of the search warrant that predated the seizure of the goats. Should Plaintiff be permitted to inquire on matters related to Department activities, after March 10, 2021, the deposition will not lead to admissible relevant evidence. Any deposition inquiry should exclude events after March 10, 2021, including the management and rehabilitation of the goats at the Center. B. DELIBERATIVE PROCESS Plaintiff should not be permitted to inquire into matters that are subject to the deliberative process privilege and are not discoverable. The deliberative process privilege (sometimes known as the executive privilege or the official information privilege) has long been recognized as necessary to protect the administrative decision-making process. United States v. Morgan, 313 U.S. 409, 422 (1941); Zinker v. Doty, 637, F.Supp. 138 (D. Conn. 1986). The privilege protects intra-governmental communications comprising a part of the process through which governmental decisions are made and policies formulated. Id. Internal communications, including e-mail, among Department of Agriculture staff during their animal cruelty investigation are not discoverable. A document is within the scope of the deliberative process privilege if it is deliberative and pre-decisional. Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S. 168, 184 (1975). Deliberative communications about the determination to seek a search warrant are subject to the privilege. Any deposition inquiry should exclude internal communications and personal notes that are subject to the deliberative process privilege. C. ATTORNEY-CLIENT PRIVILEGE Plaintiff should not be permitted to inquire into matters that are subject to the attorney client privilege. "Communications protected by the attorney-client privilege are not discoverable. Practice Book [13-2]." Tunick v. Day, Berry & Howard, 40 Conn. Supp. 216, 218, (1984). Plaintiff may not inquire into communications between the Department of Agriculture and the Office of the Attorney General, leading up to, during, and after the seizure of the goats. The attorney client privilege protects communications necessary for the agency to obtain legal advice. Thus, where (1) legal advice of any kind (2) is sought from an attorney (3) the communications relating to that purpose, (4) made in confidence by the client, are permanently protected from disclosure (5) except that the privilege may be waived. Shew v. Freedom of Information Commissioner, 245 Conn. 149, 157 (1998). Any deposition inquiry should exclude communications subject to the attorney-client privilege. III. CONCLUSION For all the foregoing reasons State Defendants respectfully requests that the Court enter a complete protective order to avoid the proposed depositions. In the alternative, the deposition should be stayed until a resolution of the pending Motion to Strike. To the extent the Court permits the depositions to go forward, State Defendants request a protective order that is narrowly tailored to avoid harassment, interference with the criminal matter and is designed to lead to non-privileged, relevant evidence. DEFENDANTS STATE OF CONNECTICUT DEPARTMENT OF AGRICULTURE BRYAN P. HURLBURT, COMMISSIONER OF AGRICULTURE CHARLES DELLAROCCO, STATE ANIMAL CONTROL OFFICER WILLIAM TONG ATTORNEY GENERAL BY: ___434270_____________________________ Jonathan E. Harding Assistant Attorney General Juris No. 434270 165 Capitol Ave. Hartford, CT 06106 CERTIFICATION I hereby certify that a copy of the forgoing Objection and Motion for Protective Order was delivered electronically to the following counsel and self-represented parties January 10, 2022: Nancy Burton 154 Highland Ave. Rowayton, CT 06853 NancyBurtonCT@aol.com Robert Scott Hillson, Esq. 53 State Street Boston, MA 02109 rhillson@rubinrudman.com Philip T. Newbury, Jr., Esq. Howd & Ludorf, LLC 65 Wethersfield Avenue Hartford, CT 06114 pnewbury@hl-law.com Steve Stafstrom, Esq. Pullman & Comley, LLC 850 Main Street, P.O. Box 7006 Bridgeport, CT 06601 sstafstrom@pullcom.com James N. Tallberg, Esq. Kimberly A. Bosse, Esq. Karsten & Tallberg, LLC 500 Enterprise Dr., Suite 4B Rocky Hill, CT 06067 jtallberg@kt-lawfirm.com kbosse@kt-lawfirm.com Alexander William Ahrens, Esq. Melick & Porter, LLC 900 Main Street South Suite 102 Southbury, CT 06488 ____434270_________________________ Jonathan E. Harding Commissioner of the Superior Court ATTACHMENT A ATTACHMENT B