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DOCKET
DOCKET NO.NO.FST-CV20-6047029-S
FST-CV20-6047029-S : SUPERIOR COURT
DEUTSCHE BANK AG, : J.D. OF STAMFORD-
PLAINTIFF, NORWALK
VS. :
AT STAMFORD
:
CAROLINE VIK, ET AL, : JANUARY 14, 2022
Defendant.
OBJECTION TO MOTION FOR PROTECTIVE ORDER
Deutsche Bank AG (“DBAG”) is attempting to turn this litigation into a game of
blindman’s bluff. See Tessmann v. Tiger Lee Construction Co., 228 Conn. 42, 50 (1993)
(“[T]he purpose of the rules of discovery is to make a trial less a game of blindman's
bluff and more a fair contest with the basic issues and facts disclosed to the fullest
practicable extent.”) (quoting United States v. Procter & Gamble Co., 356 U.S. 677, 682
(1958)). With its motion for protective order, it continues its modus operandi of
misrepresenting facts and advancing legal positions that are inconsistent with past
positions it has taken. Contrary to DBAG’s current arguments, there can be no question
that the law of the case requires that the parties—both parties—participate in discovery
in connection with each of the pending motions to dismiss—including the motions to
dismiss pursuant to the doctrine of forum non conveniens and the prior pending action
doctrine.
There can also be no question that Defendants Alexander Vik and Caroline Vik
(“the Viks”) are entitled to take the depositions of the corporate officers of DBAG. See
Practice Book § 13-26 (“The attendance of a party deponent or of an officer, director, or
managing agent of a party may be compelled by notice to the named person or such
person's attorney . . . “). Cf. Fustolo v. Howe, No. CV206045692S, 2020 WL 1923708,
at *2 (Sommer, J.) (Mar. 13, 2020) (“There is . . . no basis for the argument that noticing
1
the deposition of the CEO of a corporate plaintiff is harassment.”); Netscout Sys., Inc. v.
Gartner, Inc., No. FS1FSTCV146022988S, 2016 WL 5339454, at *3 (Lee, J.) (Aug. 22,
2016) (“Generally, a party is free to notice and compel the deposition of an officer of a
party corporation.”).
Indeed, pursuant to Connecticut’s well-established rules of practice, “[d]iscovery
shall be permitted if the disclosure sought would be of assistance in the prosecution or
defense of the action and ifit can be provided by the disclosing party or person with
substantially greater facility than itcould otherwise be obtained by the party seeking
disclosure.” Practice Book § 13-2. Here, the depositions of DBAG’s corporate officers,
regarding the basis for DBAG’s allegation that Connecticut has jurisdiction over Mr. Vik
and that Connecticut is an appropriate forum for this litigation, fall well-within this liberal
standard. DBAG does not have the right to bring this action, invoke this Court’s
jurisdiction, subject the Viks to the discovery process and then refuse to participate in
the same. This Court should deny DBAG’s motion for a protective order.
A. Factual Background
For more than five years, DBAG has been engaged in litigation concerning
related matters in Norway, its chosen forum. The present case, filed in June 2020, is
duplicative of the matters in Norway and should be dismissed, as there is no reason for
this parallel proceeding, other than to harass the Viks. Based on DBAG’s own prior
words, this case concerns a Norwegian asset (Confirmit AS) which is still the focus of
significant litigation in Norway by DBAG, alleged activity by the Viks and others located
in Norway, and allegations that meritless litigation was pursued and meritless defenses
asserted in Norway, even though Alexander Vik never did so, and no court found any of
2
the cases or defenses to be vexatious, frivolous or without merit.1 Not only are the
relevant witnesses, evidence and potential parties located in Norway, but acceptance of
DBAG’s claims in this case would necessarily require this Court to make findings about
the merits of litigations in Norway under Norwegian procedural and substantive law.
That is absurd, but is exactly what DBAG has the audacity to ask this Court to do.
Norway has a significant interest in this matter, while Connecticut has none.
The Viks filed its four motions to dismiss on October 22, 2020 (Doc. Nos. 109,
111, 113 and 115). After hearing argument on the motions, the Court (Krumeich, J.)
denied the motion based on the litigation privilege on March 4, 2021 (Doc. No. 135).
The Viks appealed the denial, and that appeal is pending. Judge Krumeich did not rule
on the remaining motions instead ordering that the Court would hear “evidence” on the
motions “when the matters are ready to be heard.” (Doc. No. 115.02).
Since then, through discovery, the Viks have attempted to gain knowledge about
all of DBAG’s actions in Norway, which are not accessible to the public, and many of
which do not involve the Viks as parties, so that the Viks can further support their
pending motions to dismiss based on the doctrines of forum non conveniens and prior
pending action. In addition to written discovery requests, the Viks issued a deposition
notice to DBAG pursuant to Practice Book § 13-27(h) on topics including those raised
by the forum non conveniens and prior pending action motions. That deposition did not
go forward as the Viks began a lengthy good faith effort to obtain compliance with the
written discovery requests from DBAG, which effort was ultimately unsuccessful.
1
To be clear, Mr. Vik was not a party to any of the underlying litigation that DBAG
alleges was frivolous or vexatious. He is now a party to actions DBAG has brought in
Norway which mirror this one.
3
Now that the Viks have sought judicial intervention in connection with DBAG’s
woefully incomplete production, DBAG has pivoted to the ludicrous position that the
Viks are not entitled to discovery at all. While it is difficult enough for the Viks to defend
themselves against a massive global bank asserting wild and unsubstantiated claims, it
would be next to impossible if the Viks are unable to conduct the discovery they have
been pursuing for more than six months, including deposing some of DBAG’s officers. If
successful in blocking discovery, DBAG will frustrate the Viks’ ability to prepare for the
hearings on the pending motions to dismiss.
To that end, with its Motion for Protective Order, DBAG seeks to avoid the
depositions of its officers altogether. It advances its newly crafted arguments that (1) the
Viks are not entitled to discovery and (2) that the only permissible discovery relates to
the personal jurisdiction motion filed by Mr. Vik. DBAG has never once explicated these
positions to the Court or to the Viks. It makes these arguments despite the fact that it
already—selectively—produced 20,000 documents to date from the Norwegian cases.
Clearly, that document dump, which it now characterizes as having been produced as a
“courtesy”, is only part of the mountain of evidence existing in Norway, and
demonstrates why the forum non conveniens motion must be granted.2
Clearly, DBAG is trying to hide behind its lawyers, and deny the Viks the
opportunity to discover the details of the prior cases and current cases pending in
Norway. This information is relevant and necessary to show this Court that this case is
2 Put differently, DBAG’s position is that because it “voluntarily” selected “some”
information to provide to the Viks in response to their discovery requests, itno longer
needs to participate in the discovery process. Clearly, this is not how the system works.
Responding by disclosing only “some of the efforts by Deutsche Bank to collect the
English Judgment” does not comport with the rules of discovery. It is also an implicit
admission that it has not complied with its obligations.
4
not only duplicative of the cases in Norway, but that the bulk of the evidence and almost
all of the potential witnesses are situated in Norway. DBAG also knows that the Viks
have no way of obtaining this discovery except from DBAG. The Viks were not parties in
most of the Norwegian cases, and public access is limited at best.3
If DBAG’s arguments that the Viks were not entitled to discovery and that
discovery in connection with the forum non conveniens and prior pending action
motions to dismiss had any merit, DBAG would have made them a long time ago. It’s
only objective now is apparently to stymie the Viks’ efforts to discover what has been
going on in the Norwegian courts. DBAG clearly does not want the Court to learn about
those litigations, the similar issues raised in them, and the location of documents and
witnesses. DBAG thus seeks to prevent discovery so that the Viks are unable to
discover what is critical for the forum non conveniens and prior pending action motions
and force the Viks to rely only on the documents DBAG selectively provided because,
as they claim, they were just being nice.4
3 In its Memorandum of Law in Support of its Discovery Objections dated December 20,
2021, DBAG claims that the Viks’ attempts to obtain “all pleadings or other submissions
to the Court” is “exceedingly burdensome” for “public information, but Mr. Vik himself
was a party to most of these actions and therefore has access to the very documents
that Defendants demand from Deutsche Bank.” See MOL, p. 9. See also DBAG’s
Responses to Interrogatories Nos. 3 and 4. This claim is patently false, and is again
inconsistent with other statements made by DBAG. For example, in its Motion for
Protective Order, DBAG acknowledges that Norway’s court system “does not maintain a
publicly available docket.” Motion, p. 13. In its response to Requests to Admit No. 10,
DBAG further admitted that Mr. Vik was “not a named party in any of the litigation
matters referenced in the Complaint other than the action pending in this Court brought
by Deutsche Bank against SHI and Mr. Vik…”
4 As is its habit, with its motion for protective order, DBAG is focused more on lodging
gratuitous attacks on Mr. Vik’s character and asserting unsubstantiated claims of delay
rather than focusing on the discovery issues at hand and its prior positions in this case.
To that end, it is curious that DBAG would posit that the Viks’ goal in noticing these
depositions is “to quibble over discovery as a means to delay these proceedings.”
5
B. Legal Standard
In Connecticut, discovery “shall be permitted” whenever it(a) is “material to the
subject matter involved in the pending action,” (b) “would be of assistance in the
prosecution or defense of the action,” or (c) is “reasonably calculated to lead to the
discovery of admissible evidence.” Practice Book § 13-2. This rule “liberally permits
discovery of information ‘material to the subject matter involved in the pending action.’”
Lougee v. Grinnell, 216 Conn. 483, 489 (1990), overruled in part on other grounds by
State v. Salmon, 250 Conn. 147, 154-55 (1999). To obtain such information, a party has
the right to freely command the attendance at a deposition of a party, “or of an officer,
director, or managing agent of a party,” as long as the request is material to the action
or would assist in its defense. See Practice Book §§ 13-2; 13-26.
Though the scope of permissible discovery is within this Court's discretion, “[t]hat
discretion is limited, however, by . . . the mandatory provision that discovery ‘shall be
permitted if the disclosure sought would be of assistance in the production or defense of
the action.’” Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 57-59 (1983). Connecticut
Practice Book § 13-5 permits a party to move for a protective order when “justice
requires,” but a protective order can be entered only for “good cause shown.” Practice
Book § 13-5. “To determine whether good cause exists, courts balance ‘the need for
information against the injury that might result if uncontrolled disclosure is compelled.’”
Motion, p. 11. DBAG is the one who has initiated this discovery dispute by filing its
motion for protective order. Any delay that occurs from the deposition notices is due to
DBAG’s conduct, not the Viks. To that end, DBAG has asked that these depositions not
go forward until the Court rules on this Motion for Protective Order. DBAG’s allegation
that “Judge Krumeich warn[ed] of Defendants’ Delay Tactics” is also flatly wrong. See
Motion, p. 6. To the contrary, Judge Krumeich expressly found that the Viks’ appeal had
not been taken for delay. See Docket Entry No. 138.00, p. 2.
6
Goral v. LibertyMut. Ins. Co., CV-14-6050834-S, 2016 WL 4203094, at *2 (Wilson, J.)
(July 7, 2016) (denying protective order that would bar second deposition of plaintiff).
“[O]ur discovery rules do not exempt a prospective deponent from testifying merely
because the applicant has access to alternative sources of information.” Lougee, 216
Conn. at 491.
Courts have “consistently” held that “the party seeking a protective order . . .
bears the burden of establishing the contemplated good cause.” Netscout Sys., Inc.,
2016 WL 5339454, at *3 (quoting Cadavid v. Ranginwala, No. CV-12-6014019-S, 2015
WL 6763192 (Heller, J.) (Oct. 13, 2015)). To meet that burden, the party resisting
discovery must make “a particular and specific demonstration of fact, as distinguished
from stereotyped and conclusory statements.” Thomas v. Response Ins. Co., No. CV08-
6000662-S, 2009 WL 5184190, at *1-*3 (Hartmere, J.) (Oct. 26, 2009) (denying
protective order based on claims that examination under oath would be “onerous”
“because these arguments are entirely conclusory and unsupported by specific facts”).
C. Legal Analysis
DBAG has not even come close to demonstrating “good cause” to warrant the
imposition of a blanket protective order preventing the depositions of its corporate
officers. The Court should reject DBAG’s newly crafted, and, quite frankly, unusual,
arguments that only DBAG has the right to conduct discovery and the Viks do not, and
that no discovery is permissible in connection with the upcoming evidentiary hearing on
the forum non conveniens and prior pending action motions to dismiss. These
arguments are in direct conflict with past arguments made by DBAG—that both parties
are entitled to participate in the discovery process in connection with all three of the
7
pending motions to dismiss. Moreover, it cannot seriously be disputed that the Viks
have the right to depose some of DBAG’s corporate officers in order to fully and fairly
participate in the upcoming evidentiary hearings on the pending motions to dismiss and
to defend themselves against DBAG’s unsubstantiated claims. The deposition notices
are not intended to “harass” or “burden” DBAG. They are an appropriate discovery tool,
as permitted by the Connecticut rules of practice and the relevant decisional law.
1. The Viks are Entitled to Discovery in Connection with the
Pending Motions to Dismiss Pursuant to the Doctrines of
Forum Non Conveniens and Prior Pending Action
The driving argument in DBAG’s motion as to why this Court should grant ita
protective order to shield some of its corporate officers from being deposed is that the
Viks are not entitled to any discovery in connection with the pending motions to dismiss
pursuant to the doctrine of forum non conveniens and prior pending action. See Motion
for Protective Order, pp. 2, 12-14. To that end, DBAG states, “Defendants have offered
no basis for serving discovery requests on Deutsche Bank related to their FNC and PPA
Motions.” Id. at 12. To the extent that it is unclear, the “basis” for these discovery
requests arises out of Judge Krumeich’s prior orders, DBAG’s own prior positions, the
Case Management Order and the relevant decisional law.
a. Judge Krumeich’s Ordered the Parties to Participate in
Discovery in Connection with All Three Pending Motions
DBAG appears to have overlooked the express orders in this case establishing
that the parties have the right to participate in the discovery process in connection with
all three pending motions to dismiss. Judge Krumeich stated as follows:
The Court has stayed discovery on the merits but has ordered that
discovery may proceed as to jurisdictional facts prior to a hearing
on these motions that will be held after the limited discovery
permitted by the order. These motions and the discovery related
8
thereto are independent of the motion on appeal that the parties
agreed could be decided on the face of the complaint. The parties
were engaged in good faith efforts to resolve discovery disputes
about jurisdictional facts when the appeal was filed and discovery
was halted. The evidentiary hearing on the pending motions to
dismiss cannot be scheduled without resolution of any disputes and
undertaking jurisdictional discovery, which will likely take
considerable time to resolve and complete prior to the hearing.
April 21, 2021 Court Order (Krumeich, J.) (Docket Entry No. 138.02). This order was in
addition to the Court’s March 2, 2021 order that: “The Court will hear evidence in
support of defendants’ motion to dismiss for forum non conveniens . . .” (Docket Entry
No. 113.02).
These orders clearly provide both parties with the right to conduct discovery
relevant to all three pending motions to dismiss. This order is the law of the case.
See Breen v. Phelps, 186 Conn. 86, 99 (1982) (“The law of the case…expresses the
practice of judges generally to refuse to reopen what has been decided and is not a
limitation on their power.... A judge should hesitate to change his own rulings in a case
and should be even more reluctant to overrule those of another judge.” (citations
omitted)). See also Arizona v. California, 460 U.S. 605, 618 (1983) (“As most commonly
defined, the [law of the case] doctrine posits that when a court decides upon a rule of
law, that decision should continue to govern the same issues in subsequent stages in
the same case).
b. DBAG’s Prior Position That The Parties Have the Right
to Discovery in Connection With All Three Pending
Motions to Dismiss
Not only did Judge Krumeich order that the parties participate in discovery in
connection with all the pending motions to dismiss—including the forum non conveniens
and prior pending action motions—but DBAG’s current position that it does not have to
9
provide any information in connection with these motions is directly contrary to previous
positions that DBAG itself has taken in this case. Among them are the following:
In DBAG’s November 6, 2020 Objection to Defendants’ Motion for Protective
Order, (Docket Entry No. 121.00), DBAG argued in support of its pending discovery
requests that,
Much of this discovery will also assist the Court in assessing
Defendants’ motion to dismiss on the basis of forum non
conveniens. See Temlock v. Temlock, 95 Conn. App. 505, 517
(2006) (trial court abused its discretion in declining to conduct an
evidentiary hearing on the public and private interest factors
relevant to forum non conveniens analysis).
Id. at p. 13.
Then, in its December 18, 2020 Objection to the Viks’ forum non conveniens
motion to dismiss, DBAG specifically attacked the Viks’ failure to provide specific details
about the evidence located in Norway, stating that “Defendants similarly fail to offer any
details regarding the ‘physical materials’ that they claim exist in Norway and have some
unspecified evidentiary value.” (Doc. Entry No. 126.00, p. 15). To that end, DBAG asked
the Court to “dismiss” the Viks’ motion “for its failure to identify any Norwegian sources
of proof with the requisite specificity. . . . Those materials relate to pre-litigation
Norwegian proceedings and involve underlying objectives and governing law that are
separate and apart from those at issue here.” Id.
In its March 25, 2021 Motion for an Order Terminating the Stay, DBAG
specifically acknowledged that the Court had ordered the parties to participate in
discovery in connection with all three motions, stating as follows,
Following fulsome briefing and oral argument, this Court issued a series of
orders and decisions on the motions to dismiss: . . . Ordering limited
10
discovery and an evidentiary hearing in order to resolve Defendants’
Pending Motions (Dkt. Nos. 109.02, 135.00, 113.02, 115.02).
Id. at pp. 3-4. DBAG further argued that,
The ‘due administration of justice’ also justifies terminating the stay to
permit the parties to proceed with the evidentiary hearing on the Pending
Motions and to participate in discovery relevant to that hearing.
Id. at p. 6. Clearly, DBAGs use of the plural “Pending Motions” was meant to include
more than just the singular personal jurisdiction motion. In fact, DBAG specifically
defined “Pending Motions” in its motion to include all three motions:
Deutsche Bank seeks termination of the stay for the purpose of permitting the
completion of discovery and an evidentiary hearing concerning Defendants'
pending motions to dismiss on the basis of forum non conveniens (Dkt. No.
115.00), the prior pending action doctrine (Dkt. No. 113.00), and lack of personal
jurisdiction (Dkt. 109.00) (together, the "Pending Motions").
Id. at p. 6. It is absurd for DBAG to argue, on the one hand, that the stay should be
terminated to allow discovery on all three motions, and then to argue to this Court, on
the other hand, that the Viks are not entitled to conduct discovery on those same
motions.
When the Viks sought to transfer this case to the Complex Litigation Docket,
DBAG objected, and in its Objection, expressly acknowledged the Viks’ ability to
conduct discovery on the three pending motions, and even argued that the case should
stay with Judge Krumeich because he had authorized discovery on the motions.
DBAG’s own words in its Objection could not be clearer:
On March 12, 2021, Judge Krumeich issued another decision on
Defendants’ motions to dismiss based on the prior pending action
doctrine and forum non conveniens, authorizing discovery relating
to those motions and instructing that the relevant evidence also be
considered at an evidentiary hearing.
11
See DBAG’s objection to CLD dated June 21, 2021 (Doc. No. 143).
Then, on July 20, 2021, this Court held a status conference, and ordered the
parties to file a Joint Scheduling Order, and, if unable to agree on one, to each file
proposed scheduling orders. (Doc. No. 152.01). By this point in time, DBAG had already
received the Viks’ First Set of Jurisdictional Interrogatories, Requests for Production and
Requests to Admit dated July 9, 2021. At the time of the status conference, DBAG knew
the Viks’ written discovery focused primarily on the issues raised in the motions based
on the doctrines of forum non conveniens and prior pending action. DBAG did not argue
at the status conference that the Viks’ discovery should be limited to the motion on
personal jurisdiction.
Since the parties could not agree on a joint scheduling order, each filed a
proposed schedule. In DBAG’s Motion to Approve Proposed Scheduling Order filed on
August 6, 2021, it expressly recognized the need for discovery on the three pending
motions:
The proposed schedule is limited to discovery and a hearing with
respect to Defendants’ pending motion for lack of personal
jurisdiction (Dkt. # 109.00), motion to dismiss on grounds of forum
non conveniens (Dkt. # 113.00), and request to stay this action in
favor of an action pending in Norway (Dkt. # 115.00).
See DBAG’s Motion to Approve Proposed Scheduling Order filed on August 6, 2021
(Doc. No. 159). Not only did DBAG not claim that discovery should be limited to only
the motion on personal jurisdiction, but its own proposed schedule explicitly
provided for discovery on the three pending motions.5
5 Later in the memo, DBAG argued that the Viks’ proposed schedule contemplates that
they will conduct discovery relevant to the forum non conveniens motion, but have not
demonstrated a need to do so. The Court did not accept this limitation in its Case
12
Consistent with DBAG’s proposal, the Viks’ proposed scheduling order
contemplated a reasonable schedule for the significant work required to conduct
discovery concerning the motions, to retain and disclose experts on Norwegian law
which may be necessary for the motions concerning forum non conveniens and prior
pending action, and then prepare for the evidentiary hearings on the motions. The Viks
were clear that the discovery they sought included depositions to address the motions
to dismiss on forum non conveniens and prior pending action. Doc. No. 158.
On August 9, 2021, the Court issued the Case Management Order setting a
hearing on the three motions to dismiss, and a schedule for discovery relating to all
three motions. The Court’s order did not limit discovery to only the motion to dismiss
concerning personal jurisdiction.
In light of DBAG’s repeated arguments to this Court that the parties are entitled
to take discovery in connection with the upcoming evidentiary hearing on the pending
forum non conveniens and prior pending action motions to dismiss, and this Court’s
acceptance of those arguments, DBAG should be estopped from now arguing
otherwise. See Dougan v. Dougan, 301 Conn. 361, 372–73 (2011) (“Typically, judicial
estoppel will apply if: 1) a party's later position is clearly inconsistent with its earlier
position; 2) the party's former position has been adopted in some way by the court in the
earlier proceeding; and 3) the party asserting the two positions would derive an unfair
advantage against the party seeking estoppel.”).
c. The Relevant Decisional Law Requires an Evidentiary
Hearing in Connection with the Forum Non Conveniens
Motion
Management Order. (Doc. No. 160.01)
13
Even if the law of the case did not permit the Viks to conduct discovery in
connection with the forum non conveniens motion to dismiss, and even ifDBAG itself
had not already conceded (and argued repeatedly) that discovery is necessary in
connection with the forum non conveniens motion to dismiss, the relevant decisional law
would still require it.
Our Appellate Court has specifically held that where there are disputed issues of
fact in connection with a forum non conveniens motion to dismiss, it would be an abuse
of discretion for the trial court to not hold an evidentiary hearing. See Temlock v.
Temlock, 95 Conn. App. 505, 517 (2006). Reversing and remanding trial court’s
decision granting a forum non conveniens motion to dismiss without first holding an
evidentiary hearing, the Appellate Court explained,
The court's determination was made without an evidentiary hearing
and in reliance solely on counsel's assertion, which clearly is
problematic. “[I]tis well settled that statements of counsel are not
evidence.” As we have often stated, “[g]enerally, when the exercise
of the court's discretion depends on issues of fact which are
disputed, due process requires that a trial-like hearing be held, in
which an opportunity is provided to present evidence and to cross-
examine adverse witnesses.” Clearly, an evidentiary hearing was
required to resolve the disputed facts in the present case. In
addition, the level of analysis required by Durkin was absent. In
light of the private and public factors that must be weighed before
determining whether the doctrine of forum non conveniens should
be applied, we conclude that the court abused its discretion by not
affording the plaintiff the opportunity for an evidentiary hearing.
Id. (internal citations omitted).
DBAG is certainly aware of this law, as DBAG itself cited the Temlock decision in
support of its request that the Court terminate the appellate stay to permit discovery in
connection with all the pending motions to dismiss. See Pl.’s Objection to Defendants’
Motion for Protective Order dated Nov. 6, 2020, (Docket Entry No. 121.00), p. 13. It
14
goes without saying that when the parties must participate in an evidentiary hearing,
they must also be permitted to conduct discovery in advance of that hearing. See
Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 57-60 (1983).
2. Both Parties Have the Right to Conduct Discovery
DBAG’s argument that only DBAG has the right to conduct discovery, and the
Viks do not, and that “Connecticut courts routinely allow jurisdictional discovery of this
type and with these limitations,” is equally specious. See Motion, p. 2. The Viks are
aware of no case in Connecticut that has issued such a one-sided order and the cases
upon which DBAG relies are no exception. See Pl.’s Motion for Protective Order, p. 2
(citing Kenny v. Banks, 289 Conn. 529, 533-34 (2008); Standard Tallow Corp. v. Jowdy,
190 Conn. 48, 51 (1983); Rubenstein v. Reservation Services International Inc., 2016
WL 8468082, at *3 (Conn. Super. Ct. Dec. 22, 2016)). The issue in these cases was
whether the trial court had erred in granting motions to dismiss without first affording the
plaintiff an evidentiary hearing on the issue of personal jurisdiction. That question, and,
accordingly, the courts’ resulting decisions, are completely inapposite to DBAG’s
unusual claim here, which is that only one party has the right to conduct discovery in
connection with the upcoming hearings, while the other party does not.
If anything, the cases cited by DBAG in fact make clear that such an outcome
would be an abuse of discretion. See Standard Tallow Corp. v. Jowdy, 190 Conn. 48,
59–60 (1983) (“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, as stated in § 218. A
complete denial of discovery, however, is seldom within the court's discretion unless the
15
court finds that one or more of the limitations on discovery expressed above applies.”).
While it is true of course that DBAG bears the burden of proving personal
jurisdiction, that does not mean that the Viks must sit silently with their proverbial hands
tied behind their back without the ability to conduct discovery of their own to contest
jurisdiction, or to show that Connecticut is an inappropriate forum. The Court should
reject DBAG’s claim otherwise.
3. The Depositions are Not Intended to Burden and Harass DBAG
DBAG’s arguments about alleged harassment, annoyance, and burden are
nothing but smokescreens for DBAG’s real concern—that the Viks’ depositions may
result in the discovery of evidence detrimental to DBAG’s case. The protective order
that DBAG seeks is unfounded and is clearly part of DBAG’s continued efforts to
obstruct the Viks’ legitimate discovery efforts. Indeed, the Connecticut Supreme Court
already rejected the same arguments that DBAG makes now in Lougee v. Grinnell, 216
Conn. 483, 491 (1990), overruled in part on other grounds by State v. Salmon, 250
Conn. 147 (1999), and the Court’s decision in that case is determinative here.
In Lougee, the plaintiff sought to depose the former CEO of the defendant
tobacco company. The CEO moved to quash the deposition and for a protective order,
arguing that the information sought in the deposition was immaterial to the issues before
the court and was unnecessarily duplicative. Specifically, the CEO claimed that the
Preview
DOCKET DOCKET NO.NO.FST-CV20-6047029-S FST-CV20-6047029-S : SUPERIOR COURT DEUTSCHE BANK AG, : J.D. OF STAMFORD- PLAINTIFF, NORWALK VS. : AT STAMFORD : CAROLINE VIK, ET AL, : JANUARY 14, 2022 Defendant. OBJECTION TO MOTION FOR PROTECTIVE ORDER Deutsche Bank AG (“DBAG”) is attempting to turn this litigation into a game of blindman’s bluff. See Tessmann v. Tiger Lee Construction Co., 228 Conn. 42, 50 (1993) (“[T]he purpose of the rules of discovery is to make a trial less a game of blindman's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.”) (quoting United States v. Procter & Gamble Co., 356 U.S. 677, 682 (1958)). With its motion for protective order, it continues its modus operandi of misrepresenting facts and advancing legal positions that are inconsistent with past positions it has taken. Contrary to DBAG’s current arguments, there can be no question that the law of the case requires that the parties—both parties—participate in discovery in connection with each of the pending motions to dismiss—including the motions to dismiss pursuant to the doctrine of forum non conveniens and the prior pending action doctrine. There can also be no question that Defendants Alexander Vik and Caroline Vik (“the Viks”) are entitled to take the depositions of the corporate officers of DBAG. See Practice Book § 13-26 (“The attendance of a party deponent or of an officer, director, or managing agent of a party may be compelled by notice to the named person or such person's attorney . . . “). Cf. Fustolo v. Howe, No. CV206045692S, 2020 WL 1923708, at *2 (Sommer, J.) (Mar. 13, 2020) (“There is . . . no basis for the argument that noticing 1 the deposition of the CEO of a corporate plaintiff is harassment.”); Netscout Sys., Inc. v. Gartner, Inc., No. FS1FSTCV146022988S, 2016 WL 5339454, at *3 (Lee, J.) (Aug. 22, 2016) (“Generally, a party is free to notice and compel the deposition of an officer of a party corporation.”). Indeed, pursuant to Connecticut’s well-established rules of practice, “[d]iscovery shall be permitted if the disclosure sought would be of assistance in the prosecution or defense of the action and ifit can be provided by the disclosing party or person with substantially greater facility than itcould otherwise be obtained by the party seeking disclosure.” Practice Book § 13-2. Here, the depositions of DBAG’s corporate officers, regarding the basis for DBAG’s allegation that Connecticut has jurisdiction over Mr. Vik and that Connecticut is an appropriate forum for this litigation, fall well-within this liberal standard. DBAG does not have the right to bring this action, invoke this Court’s jurisdiction, subject the Viks to the discovery process and then refuse to participate in the same. This Court should deny DBAG’s motion for a protective order. A. Factual Background For more than five years, DBAG has been engaged in litigation concerning related matters in Norway, its chosen forum. The present case, filed in June 2020, is duplicative of the matters in Norway and should be dismissed, as there is no reason for this parallel proceeding, other than to harass the Viks. Based on DBAG’s own prior words, this case concerns a Norwegian asset (Confirmit AS) which is still the focus of significant litigation in Norway by DBAG, alleged activity by the Viks and others located in Norway, and allegations that meritless litigation was pursued and meritless defenses asserted in Norway, even though Alexander Vik never did so, and no court found any of 2 the cases or defenses to be vexatious, frivolous or without merit.1 Not only are the relevant witnesses, evidence and potential parties located in Norway, but acceptance of DBAG’s claims in this case would necessarily require this Court to make findings about the merits of litigations in Norway under Norwegian procedural and substantive law. That is absurd, but is exactly what DBAG has the audacity to ask this Court to do. Norway has a significant interest in this matter, while Connecticut has none. The Viks filed its four motions to dismiss on October 22, 2020 (Doc. Nos. 109, 111, 113 and 115). After hearing argument on the motions, the Court (Krumeich, J.) denied the motion based on the litigation privilege on March 4, 2021 (Doc. No. 135). The Viks appealed the denial, and that appeal is pending. Judge Krumeich did not rule on the remaining motions instead ordering that the Court would hear “evidence” on the motions “when the matters are ready to be heard.” (Doc. No. 115.02). Since then, through discovery, the Viks have attempted to gain knowledge about all of DBAG’s actions in Norway, which are not accessible to the public, and many of which do not involve the Viks as parties, so that the Viks can further support their pending motions to dismiss based on the doctrines of forum non conveniens and prior pending action. In addition to written discovery requests, the Viks issued a deposition notice to DBAG pursuant to Practice Book § 13-27(h) on topics including those raised by the forum non conveniens and prior pending action motions. That deposition did not go forward as the Viks began a lengthy good faith effort to obtain compliance with the written discovery requests from DBAG, which effort was ultimately unsuccessful. 1 To be clear, Mr. Vik was not a party to any of the underlying litigation that DBAG alleges was frivolous or vexatious. He is now a party to actions DBAG has brought in Norway which mirror this one. 3 Now that the Viks have sought judicial intervention in connection with DBAG’s woefully incomplete production, DBAG has pivoted to the ludicrous position that the Viks are not entitled to discovery at all. While it is difficult enough for the Viks to defend themselves against a massive global bank asserting wild and unsubstantiated claims, it would be next to impossible if the Viks are unable to conduct the discovery they have been pursuing for more than six months, including deposing some of DBAG’s officers. If successful in blocking discovery, DBAG will frustrate the Viks’ ability to prepare for the hearings on the pending motions to dismiss. To that end, with its Motion for Protective Order, DBAG seeks to avoid the depositions of its officers altogether. It advances its newly crafted arguments that (1) the Viks are not entitled to discovery and (2) that the only permissible discovery relates to the personal jurisdiction motion filed by Mr. Vik. DBAG has never once explicated these positions to the Court or to the Viks. It makes these arguments despite the fact that it already—selectively—produced 20,000 documents to date from the Norwegian cases. Clearly, that document dump, which it now characterizes as having been produced as a “courtesy”, is only part of the mountain of evidence existing in Norway, and demonstrates why the forum non conveniens motion must be granted.2 Clearly, DBAG is trying to hide behind its lawyers, and deny the Viks the opportunity to discover the details of the prior cases and current cases pending in Norway. This information is relevant and necessary to show this Court that this case is 2 Put differently, DBAG’s position is that because it “voluntarily” selected “some” information to provide to the Viks in response to their discovery requests, itno longer needs to participate in the discovery process. Clearly, this is not how the system works. Responding by disclosing only “some of the efforts by Deutsche Bank to collect the English Judgment” does not comport with the rules of discovery. It is also an implicit admission that it has not complied with its obligations. 4 not only duplicative of the cases in Norway, but that the bulk of the evidence and almost all of the potential witnesses are situated in Norway. DBAG also knows that the Viks have no way of obtaining this discovery except from DBAG. The Viks were not parties in most of the Norwegian cases, and public access is limited at best.3 If DBAG’s arguments that the Viks were not entitled to discovery and that discovery in connection with the forum non conveniens and prior pending action motions to dismiss had any merit, DBAG would have made them a long time ago. It’s only objective now is apparently to stymie the Viks’ efforts to discover what has been going on in the Norwegian courts. DBAG clearly does not want the Court to learn about those litigations, the similar issues raised in them, and the location of documents and witnesses. DBAG thus seeks to prevent discovery so that the Viks are unable to discover what is critical for the forum non conveniens and prior pending action motions and force the Viks to rely only on the documents DBAG selectively provided because, as they claim, they were just being nice.4 3 In its Memorandum of Law in Support of its Discovery Objections dated December 20, 2021, DBAG claims that the Viks’ attempts to obtain “all pleadings or other submissions to the Court” is “exceedingly burdensome” for “public information, but Mr. Vik himself was a party to most of these actions and therefore has access to the very documents that Defendants demand from Deutsche Bank.” See MOL, p. 9. See also DBAG’s Responses to Interrogatories Nos. 3 and 4. This claim is patently false, and is again inconsistent with other statements made by DBAG. For example, in its Motion for Protective Order, DBAG acknowledges that Norway’s court system “does not maintain a publicly available docket.” Motion, p. 13. In its response to Requests to Admit No. 10, DBAG further admitted that Mr. Vik was “not a named party in any of the litigation matters referenced in the Complaint other than the action pending in this Court brought by Deutsche Bank against SHI and Mr. Vik…” 4 As is its habit, with its motion for protective order, DBAG is focused more on lodging gratuitous attacks on Mr. Vik’s character and asserting unsubstantiated claims of delay rather than focusing on the discovery issues at hand and its prior positions in this case. To that end, it is curious that DBAG would posit that the Viks’ goal in noticing these depositions is “to quibble over discovery as a means to delay these proceedings.” 5 B. Legal Standard In Connecticut, discovery “shall be permitted” whenever it(a) is “material to the subject matter involved in the pending action,” (b) “would be of assistance in the prosecution or defense of the action,” or (c) is “reasonably calculated to lead to the discovery of admissible evidence.” Practice Book § 13-2. This rule “liberally permits discovery of information ‘material to the subject matter involved in the pending action.’” Lougee v. Grinnell, 216 Conn. 483, 489 (1990), overruled in part on other grounds by State v. Salmon, 250 Conn. 147, 154-55 (1999). To obtain such information, a party has the right to freely command the attendance at a deposition of a party, “or of an officer, director, or managing agent of a party,” as long as the request is material to the action or would assist in its defense. See Practice Book §§ 13-2; 13-26. Though the scope of permissible discovery is within this Court's discretion, “[t]hat discretion is limited, however, by . . . the mandatory provision that discovery ‘shall be permitted if the disclosure sought would be of assistance in the production or defense of the action.’” Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 57-59 (1983). Connecticut Practice Book § 13-5 permits a party to move for a protective order when “justice requires,” but a protective order can be entered only for “good cause shown.” Practice Book § 13-5. “To determine whether good cause exists, courts balance ‘the need for information against the injury that might result if uncontrolled disclosure is compelled.’” Motion, p. 11. DBAG is the one who has initiated this discovery dispute by filing its motion for protective order. Any delay that occurs from the deposition notices is due to DBAG’s conduct, not the Viks. To that end, DBAG has asked that these depositions not go forward until the Court rules on this Motion for Protective Order. DBAG’s allegation that “Judge Krumeich warn[ed] of Defendants’ Delay Tactics” is also flatly wrong. See Motion, p. 6. To the contrary, Judge Krumeich expressly found that the Viks’ appeal had not been taken for delay. See Docket Entry No. 138.00, p. 2. 6 Goral v. LibertyMut. Ins. Co., CV-14-6050834-S, 2016 WL 4203094, at *2 (Wilson, J.) (July 7, 2016) (denying protective order that would bar second deposition of plaintiff). “[O]ur discovery rules do not exempt a prospective deponent from testifying merely because the applicant has access to alternative sources of information.” Lougee, 216 Conn. at 491. Courts have “consistently” held that “the party seeking a protective order . . . bears the burden of establishing the contemplated good cause.” Netscout Sys., Inc., 2016 WL 5339454, at *3 (quoting Cadavid v. Ranginwala, No. CV-12-6014019-S, 2015 WL 6763192 (Heller, J.) (Oct. 13, 2015)). To meet that burden, the party resisting discovery must make “a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements.” Thomas v. Response Ins. Co., No. CV08- 6000662-S, 2009 WL 5184190, at *1-*3 (Hartmere, J.) (Oct. 26, 2009) (denying protective order based on claims that examination under oath would be “onerous” “because these arguments are entirely conclusory and unsupported by specific facts”). C. Legal Analysis DBAG has not even come close to demonstrating “good cause” to warrant the imposition of a blanket protective order preventing the depositions of its corporate officers. The Court should reject DBAG’s newly crafted, and, quite frankly, unusual, arguments that only DBAG has the right to conduct discovery and the Viks do not, and that no discovery is permissible in connection with the upcoming evidentiary hearing on the forum non conveniens and prior pending action motions to dismiss. These arguments are in direct conflict with past arguments made by DBAG—that both parties are entitled to participate in the discovery process in connection with all three of the 7 pending motions to dismiss. Moreover, it cannot seriously be disputed that the Viks have the right to depose some of DBAG’s corporate officers in order to fully and fairly participate in the upcoming evidentiary hearings on the pending motions to dismiss and to defend themselves against DBAG’s unsubstantiated claims. The deposition notices are not intended to “harass” or “burden” DBAG. They are an appropriate discovery tool, as permitted by the Connecticut rules of practice and the relevant decisional law. 1. The Viks are Entitled to Discovery in Connection with the Pending Motions to Dismiss Pursuant to the Doctrines of Forum Non Conveniens and Prior Pending Action The driving argument in DBAG’s motion as to why this Court should grant ita protective order to shield some of its corporate officers from being deposed is that the Viks are not entitled to any discovery in connection with the pending motions to dismiss pursuant to the doctrine of forum non conveniens and prior pending action. See Motion for Protective Order, pp. 2, 12-14. To that end, DBAG states, “Defendants have offered no basis for serving discovery requests on Deutsche Bank related to their FNC and PPA Motions.” Id. at 12. To the extent that it is unclear, the “basis” for these discovery requests arises out of Judge Krumeich’s prior orders, DBAG’s own prior positions, the Case Management Order and the relevant decisional law. a. Judge Krumeich’s Ordered the Parties to Participate in Discovery in Connection with All Three Pending Motions DBAG appears to have overlooked the express orders in this case establishing that the parties have the right to participate in the discovery process in connection with all three pending motions to dismiss. Judge Krumeich stated as follows: The Court has stayed discovery on the merits but has ordered that discovery may proceed as to jurisdictional facts prior to a hearing on these motions that will be held after the limited discovery permitted by the order. These motions and the discovery related 8 thereto are independent of the motion on appeal that the parties agreed could be decided on the face of the complaint. The parties were engaged in good faith efforts to resolve discovery disputes about jurisdictional facts when the appeal was filed and discovery was halted. The evidentiary hearing on the pending motions to dismiss cannot be scheduled without resolution of any disputes and undertaking jurisdictional discovery, which will likely take considerable time to resolve and complete prior to the hearing. April 21, 2021 Court Order (Krumeich, J.) (Docket Entry No. 138.02). This order was in addition to the Court’s March 2, 2021 order that: “The Court will hear evidence in support of defendants’ motion to dismiss for forum non conveniens . . .” (Docket Entry No. 113.02). These orders clearly provide both parties with the right to conduct discovery relevant to all three pending motions to dismiss. This order is the law of the case. See Breen v. Phelps, 186 Conn. 86, 99 (1982) (“The law of the case…expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power.... A judge should hesitate to change his own rulings in a case and should be even more reluctant to overrule those of another judge.” (citations omitted)). See also Arizona v. California, 460 U.S. 605, 618 (1983) (“As most commonly defined, the [law of the case] doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case). b. DBAG’s Prior Position That The Parties Have the Right to Discovery in Connection With All Three Pending Motions to Dismiss Not only did Judge Krumeich order that the parties participate in discovery in connection with all the pending motions to dismiss—including the forum non conveniens and prior pending action motions—but DBAG’s current position that it does not have to 9 provide any information in connection with these motions is directly contrary to previous positions that DBAG itself has taken in this case. Among them are the following: In DBAG’s November 6, 2020 Objection to Defendants’ Motion for Protective Order, (Docket Entry No. 121.00), DBAG argued in support of its pending discovery requests that, Much of this discovery will also assist the Court in assessing Defendants’ motion to dismiss on the basis of forum non conveniens. See Temlock v. Temlock, 95 Conn. App. 505, 517 (2006) (trial court abused its discretion in declining to conduct an evidentiary hearing on the public and private interest factors relevant to forum non conveniens analysis). Id. at p. 13. Then, in its December 18, 2020 Objection to the Viks’ forum non conveniens motion to dismiss, DBAG specifically attacked the Viks’ failure to provide specific details about the evidence located in Norway, stating that “Defendants similarly fail to offer any details regarding the ‘physical materials’ that they claim exist in Norway and have some unspecified evidentiary value.” (Doc. Entry No. 126.00, p. 15). To that end, DBAG asked the Court to “dismiss” the Viks’ motion “for its failure to identify any Norwegian sources of proof with the requisite specificity. . . . Those materials relate to pre-litigation Norwegian proceedings and involve underlying objectives and governing law that are separate and apart from those at issue here.” Id. In its March 25, 2021 Motion for an Order Terminating the Stay, DBAG specifically acknowledged that the Court had ordered the parties to participate in discovery in connection with all three motions, stating as follows, Following fulsome briefing and oral argument, this Court issued a series of orders and decisions on the motions to dismiss: . . . Ordering limited 10 discovery and an evidentiary hearing in order to resolve Defendants’ Pending Motions (Dkt. Nos. 109.02, 135.00, 113.02, 115.02). Id. at pp. 3-4. DBAG further argued that, The ‘due administration of justice’ also justifies terminating the stay to permit the parties to proceed with the evidentiary hearing on the Pending Motions and to participate in discovery relevant to that hearing. Id. at p. 6. Clearly, DBAGs use of the plural “Pending Motions” was meant to include more than just the singular personal jurisdiction motion. In fact, DBAG specifically defined “Pending Motions” in its motion to include all three motions: Deutsche Bank seeks termination of the stay for the purpose of permitting the completion of discovery and an evidentiary hearing concerning Defendants' pending motions to dismiss on the basis of forum non conveniens (Dkt. No. 115.00), the prior pending action doctrine (Dkt. No. 113.00), and lack of personal jurisdiction (Dkt. 109.00) (together, the "Pending Motions"). Id. at p. 6. It is absurd for DBAG to argue, on the one hand, that the stay should be terminated to allow discovery on all three motions, and then to argue to this Court, on the other hand, that the Viks are not entitled to conduct discovery on those same motions. When the Viks sought to transfer this case to the Complex Litigation Docket, DBAG objected, and in its Objection, expressly acknowledged the Viks’ ability to conduct discovery on the three pending motions, and even argued that the case should stay with Judge Krumeich because he had authorized discovery on the motions. DBAG’s own words in its Objection could not be clearer: On March 12, 2021, Judge Krumeich issued another decision on Defendants’ motions to dismiss based on the prior pending action doctrine and forum non conveniens, authorizing discovery relating to those motions and instructing that the relevant evidence also be considered at an evidentiary hearing. 11 See DBAG’s objection to CLD dated June 21, 2021 (Doc. No. 143). Then, on July 20, 2021, this Court held a status conference, and ordered the parties to file a Joint Scheduling Order, and, if unable to agree on one, to each file proposed scheduling orders. (Doc. No. 152.01). By this point in time, DBAG had already received the Viks’ First Set of Jurisdictional Interrogatories, Requests for Production and Requests to Admit dated July 9, 2021. At the time of the status conference, DBAG knew the Viks’ written discovery focused primarily on the issues raised in the motions based on the doctrines of forum non conveniens and prior pending action. DBAG did not argue at the status conference that the Viks’ discovery should be limited to the motion on personal jurisdiction. Since the parties could not agree on a joint scheduling order, each filed a proposed schedule. In DBAG’s Motion to Approve Proposed Scheduling Order filed on August 6, 2021, it expressly recognized the need for discovery on the three pending motions: The proposed schedule is limited to discovery and a hearing with respect to Defendants’ pending motion for lack of personal jurisdiction (Dkt. # 109.00), motion to dismiss on grounds of forum non conveniens (Dkt. # 113.00), and request to stay this action in favor of an action pending in Norway (Dkt. # 115.00). See DBAG’s Motion to Approve Proposed Scheduling Order filed on August 6, 2021 (Doc. No. 159). Not only did DBAG not claim that discovery should be limited to only the motion on personal jurisdiction, but its own proposed schedule explicitly provided for discovery on the three pending motions.5 5 Later in the memo, DBAG argued that the Viks’ proposed schedule contemplates that they will conduct discovery relevant to the forum non conveniens motion, but have not demonstrated a need to do so. The Court did not accept this limitation in its Case 12 Consistent with DBAG’s proposal, the Viks’ proposed scheduling order contemplated a reasonable schedule for the significant work required to conduct discovery concerning the motions, to retain and disclose experts on Norwegian law which may be necessary for the motions concerning forum non conveniens and prior pending action, and then prepare for the evidentiary hearings on the motions. The Viks were clear that the discovery they sought included depositions to address the motions to dismiss on forum non conveniens and prior pending action. Doc. No. 158. On August 9, 2021, the Court issued the Case Management Order setting a hearing on the three motions to dismiss, and a schedule for discovery relating to all three motions. The Court’s order did not limit discovery to only the motion to dismiss concerning personal jurisdiction. In light of DBAG’s repeated arguments to this Court that the parties are entitled to take discovery in connection with the upcoming evidentiary hearing on the pending forum non conveniens and prior pending action motions to dismiss, and this Court’s acceptance of those arguments, DBAG should be estopped from now arguing otherwise. See Dougan v. Dougan, 301 Conn. 361, 372–73 (2011) (“Typically, judicial estoppel will apply if: 1) a party's later position is clearly inconsistent with its earlier position; 2) the party's former position has been adopted in some way by the court in the earlier proceeding; and 3) the party asserting the two positions would derive an unfair advantage against the party seeking estoppel.”). c. The Relevant Decisional Law Requires an Evidentiary Hearing in Connection with the Forum Non Conveniens Motion Management Order. (Doc. No. 160.01) 13 Even if the law of the case did not permit the Viks to conduct discovery in connection with the forum non conveniens motion to dismiss, and even ifDBAG itself had not already conceded (and argued repeatedly) that discovery is necessary in connection with the forum non conveniens motion to dismiss, the relevant decisional law would still require it. Our Appellate Court has specifically held that where there are disputed issues of fact in connection with a forum non conveniens motion to dismiss, it would be an abuse of discretion for the trial court to not hold an evidentiary hearing. See Temlock v. Temlock, 95 Conn. App. 505, 517 (2006). Reversing and remanding trial court’s decision granting a forum non conveniens motion to dismiss without first holding an evidentiary hearing, the Appellate Court explained, The court's determination was made without an evidentiary hearing and in reliance solely on counsel's assertion, which clearly is problematic. “[I]tis well settled that statements of counsel are not evidence.” As we have often stated, “[g]enerally, when the exercise of the court's discretion depends on issues of fact which are disputed, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross- examine adverse witnesses.” Clearly, an evidentiary hearing was required to resolve the disputed facts in the present case. In addition, the level of analysis required by Durkin was absent. In light of the private and public factors that must be weighed before determining whether the doctrine of forum non conveniens should be applied, we conclude that the court abused its discretion by not affording the plaintiff the opportunity for an evidentiary hearing. Id. (internal citations omitted). DBAG is certainly aware of this law, as DBAG itself cited the Temlock decision in support of its request that the Court terminate the appellate stay to permit discovery in connection with all the pending motions to dismiss. See Pl.’s Objection to Defendants’ Motion for Protective Order dated Nov. 6, 2020, (Docket Entry No. 121.00), p. 13. It 14 goes without saying that when the parties must participate in an evidentiary hearing, they must also be permitted to conduct discovery in advance of that hearing. See Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 57-60 (1983). 2. Both Parties Have the Right to Conduct Discovery DBAG’s argument that only DBAG has the right to conduct discovery, and the Viks do not, and that “Connecticut courts routinely allow jurisdictional discovery of this type and with these limitations,” is equally specious. See Motion, p. 2. The Viks are aware of no case in Connecticut that has issued such a one-sided order and the cases upon which DBAG relies are no exception. See Pl.’s Motion for Protective Order, p. 2 (citing Kenny v. Banks, 289 Conn. 529, 533-34 (2008); Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 51 (1983); Rubenstein v. Reservation Services International Inc., 2016 WL 8468082, at *3 (Conn. Super. Ct. Dec. 22, 2016)). The issue in these cases was whether the trial court had erred in granting motions to dismiss without first affording the plaintiff an evidentiary hearing on the issue of personal jurisdiction. That question, and, accordingly, the courts’ resulting decisions, are completely inapposite to DBAG’s unusual claim here, which is that only one party has the right to conduct discovery in connection with the upcoming hearings, while the other party does not. If anything, the cases cited by DBAG in fact make clear that such an outcome would be an abuse of discretion. See Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 59–60 (1983) (“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, as stated in § 218. A complete denial of discovery, however, is seldom within the court's discretion unless the 15 court finds that one or more of the limitations on discovery expressed above applies.”). While it is true of course that DBAG bears the burden of proving personal jurisdiction, that does not mean that the Viks must sit silently with their proverbial hands tied behind their back without the ability to conduct discovery of their own to contest jurisdiction, or to show that Connecticut is an inappropriate forum. The Court should reject DBAG’s claim otherwise. 3. The Depositions are Not Intended to Burden and Harass DBAG DBAG’s arguments about alleged harassment, annoyance, and burden are nothing but smokescreens for DBAG’s real concern—that the Viks’ depositions may result in the discovery of evidence detrimental to DBAG’s case. The protective order that DBAG seeks is unfounded and is clearly part of DBAG’s continued efforts to obstruct the Viks’ legitimate discovery efforts. Indeed, the Connecticut Supreme Court already rejected the same arguments that DBAG makes now in Lougee v. Grinnell, 216 Conn. 483, 491 (1990), overruled in part on other grounds by State v. Salmon, 250 Conn. 147 (1999), and the Court’s decision in that case is determinative here. In Lougee, the plaintiff sought to depose the former CEO of the defendant tobacco company. The CEO moved to quash the deposition and for a protective order, arguing that the information sought in the deposition was immaterial to the issues before the court and was unnecessarily duplicative. Specifically, the CEO claimed that the