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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. : APRIL 15, 2024
MOTION FOR SANCTIONS, MOTION TO DISQUALIFY
MOTION TO COMPEL AND MOTION TO PRECLUDE
Defendants, Vita Built, LLC and Vita Design Group, LLC (hereinafter referred to as
“Defendants”), hereby move to compel documents obtained ex parte by plaintiffs, Ray C. Johnson
and Indre L. Johnson (referred to as “Plaintiffs”), pursuant to subpoena of Kathleen Vita [#216,
216.01]. Defendants further move to preclude: the testimony at trial of Kathleen Vita; all
documents obtained from Kathleen Vita; and all testimony concerning any such documentation.
[#216, 216.01]. Defendants also move for sanctions and disqualification of Plaintiffs’ counsel
based on their improper use of the subpoena to obtain documents from non-party Kathleen Vita
without conducting a deposition.
I. Statement of the Case
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,
and negligent violation of Conn. Gen. Stat. § 42-110(b) et seq. regarding the design and
construction of a house in Westport. [#211, 211.01]. Defendants, architectural and construction
firms, asserted counterclaims for breach of additional fee and profit-sharing agreement, breach of
the covenant of good faith and fair dealing and violation of the Connecticut Unfair Trade Practices
Act. [# 133]. There has been extensive litigation, including three amended complaints, PJR
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GOLDMAN, GRUDER & WOODS, LLC • ATTORNEYS AT LAW
105 TECHNOLOGY DRIVE • TRUMBULL, CONNECTICUT 06611 • (203) 880-5333 •
JURIS NO. 035172
hearings resulting in a decision in favor of the Defendants, a successful appeal of the court’s PJR
decision by the Plaintiffs, Defendants’ Motion for Summary Judgment, motions to compel
discovery, and Plaintiffs’ Motion for Default Judgment currently pending before the Court. This
case is scheduled to commence trial in May 2024.
On December 19, 2023, the Plaintiffs made a Motion for Commission to take out of state
deposition of non-party, Kathleen Vita and to subpoena documents. [#216]. Kathleen Vita is the
sister of defendant, Lucien Vita and a former business partner in a start-up company called Hurri-
Homes in Puerto Rico.
On December 22, 2023, Defendants filed a Motion for Protective Order and objected to the
Plaintiffs’ Motion for Commission on the basis that the request was overly broad, and likely to
include unrelated personal financial information regarding Defendants’ other clients. [#219].
On January 2, 2024, the Court granted Plaintiffs’ Motion for Commission for Kathleen Vita’s
deposition and Subpoena Duces Tecum [#216.01] and denied Defendants’ Motion for a Protective
Order. [#219.01], holding that the commission will assist in the discovery of information within
the scope of Practice Book § 13-2.
Plaintiffs claim that Kathleen Vita had information regarding the supposed substantial
planning and business rationale behind Defendants’ decision to move to Puerto Rico and
specifically demanded the following from Kathleen Vita in the subpoena [#216]:
1. All documents and communications received from or sent to Lucien Vita and/or
Maria Vita regarding their business dealings in Puerto Rico, as referenced in that
particular civil case currently pending in the United States District Court for the
District of New Jersey titled Kathleen Vita vs. Lucien Vita, et al., No. 2:21-cv-
11060-SRC-ESK
2. All documents concerning Hurri-Homes L.L.C.
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GOLDMAN, GRUDER & WOODS, LLC • ATTORNEYS AT LAW
105 TECHNOLOGY DRIVE • TRUMBULL, CONNECTICUT 06611 • (203) 880-5333 •
JURIS NO. 035172
3. All documents evidencing or relating to the alleged continuing course of conduct
by Lucien Vita and Maria Vita involving misrepresentations in the course of
contract negotiations and business dealings.” [#216]
Plaintiffs and their attorneys, however, never deposed Kathleen Vita, but rather as recited
by the Plaintiffs themselves, obtained records directly from Ms. Vita by virtue of the subpoena,
which violated the subpoena process and Court Order. [#216.01]. Plaintiffs’ counsel then used this
improperly obtained evidence in their brief entitled, Supplemental Information to Motion for
Default against the Defendants. [#256, pages 11-16]. In their motion, Defendants claimed that
“[n]ewly discovered information confirms Defendants misrepresented material facts and omitted
relevant and material information about the timing and circumstances of their move to Puerto Rico
in 2017.” [#256, page 11]. Defendants admitted in their Supplemental Information to Motion for
Default that they obtained documents from Kathleen Vita. [#216, page 11]. The Defendants’
document request included the following in the subpoena:
1. All documents and communications received from or sent to Lucien Vita
and/or Maria Vita regarding their business dealings in Puerto Rico, as referenced
in that particular civil case currently pending in the United States District Court for
the District of New Jersey titled Katheleen Vita vs. Lucien Vita, et al., No. 2:21-
cv-11060-SRC-ESK, attached hereto as Exhibit A.
2. All documents concerning Hurri-Homes L.L.C., as referenced in Exhibit A.
3. All documents evidencing or relating to the alleged continuing course of conduct
by Lucien Vita and Maria Vita involving misrepresentations in the course of
contract negotiations and business dealings, as referenced in Exhibit A.
[#216].
Plaintiffs received the documents from Kathleen Vita that they referenced in their brief
without a deposition and without notice to Defendants. [#256, pages 11-16]. As a result,
Defendants’ counsel consulted with Plaintiffs’ counsel and requested copies of Kathleen Vita’s
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GOLDMAN, GRUDER & WOODS, LLC • ATTORNEYS AT LAW
105 TECHNOLOGY DRIVE • TRUMBULL, CONNECTICUT 06611 • (203) 880-5333 •
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documents. (Exhibit A). Plaintiffs’ counsel incorrectly responded that there was no obligation to
share Kathleen Vita’s documents with Defendants. (Exhibit A). Plaintiffs’ counsel subsequently
produced some documents, but it remains uncertain whether the documents sent via email by
counsel constitute the complete disclosure of the file obtained from Kathleen Vita. On this basis,
Defendants move to compel production of documents Plaintiffs received from Kathleen Vita.
Plaintiffs’ counsel, however, should not have accepted documents from non-party witness,
Kathleen Vita, unless it was done in accordance the Court’s commission, the subpoena and in the
presence of opposing counsel at a deposition. In this case, Plaintiffs’ counsel abused the subpoena
power by improperly obtaining a non-party’s documents without a deposition and without
notifying Defendants’ counsel. Courts have imposed sanctions in similar circumstances including
the preclusion of the improperly obtained documents, monetary sanctions and the disqualification
of the offending attorney as detailed below.
II. Legal Standard
a. The Motion to Comply and Motion to Preclude
Connecticut Practice Book Section 13-14 authorizes the Court to order compliance and
sanctions for a party’s failure to obey orders to provide discovery.
Under Practice Book § 13-14(a):
“[i]f any party has failed to ... respond to requests for production ... or has failed
otherwise substantially to comply with any other discovery order made pursuant to
Sections 13-6 through 13-11, the judicial authority may, on motion, make such
order proportional to the noncompliance as the ends of justice require.” Practice
Book § 13-14(a).
Practice Book § 13-14(b) provides that:
“[s]uch orders may include the following: (1) An order of compliance; (2) The
award to the discovering party of the costs of the motion, including a reasonable
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GOLDMAN, GRUDER & WOODS, LLC • ATTORNEYS AT LAW
105 TECHNOLOGY DRIVE • TRUMBULL, CONNECTICUT 06611 • (203) 880-5333 •
JURIS NO. 035172
attorneys fee; (3) The entry of an order that the matters regarding which the
discovery was sought or other designated facts shall be taken to be established for
the purposes of the action in accordance with the claim of the party obtaining the
order; (4) The entry of an order prohibiting the party who has failed to comply from
introducing designated matters in evidence; (5) An order of dismissal, nonsuit or
default.” Practice Book § 13-14(b).
According to Practice Book Sec. 13-14(b)(4), the Court can preclude a party as a sanction
for a party’s failure to comply with a discovery order.
b. The Law Regarding Depositions Compelled by Subpoena and Production of
Documents
The Connecticut Practice book does not permit the Plaintiffs’ counsel to unilaterally obtain
documents through use of a subpoena without a deposition. Practice Book § 13-26 provides in
relevant part:
“[A]ny party who has appeared in a civil action ... may, at any time after the
commencement of the action ... in accordance with the procedures set forth in this
chapter, take the testimony of any person, including a party, by deposition upon
oral examination. The attendance of witnesses may be compelled by subpoena as
provided in Section 13-28.”
Practice Book § 13-28(c) provides, in relevant part:
“A subpoena issued for the taking of a deposition may command the person to
whom it is directed to produce and permit inspection and copying of designated
books, papers, documents or tangible things which constitute or contain matters
within the scope of examination permitted by Sections 13-2 through 13-5 ...”
Similarly, the Connecticut General Statutes do not permit the Plaintiffs’ counsel to obtain
documents through use of a subpoena without a deposition. Conn. Gen. Stat. § 52–148a and § 52–
148e. The Connecticut General Statutes § 52-148a controls the taking of depositions and
Connecticut General Statutes § 52-148e covers the use of a subpoena in a deposition context.
Connecticut General Statutes § 52–148a, compliance with which is a pre-requisite to the issuance
of a subpoena pursuant to § 52–148e, is concerned solely with the taking of “testimony of any
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GOLDMAN, GRUDER & WOODS, LLC • ATTORNEYS AT LAW
105 TECHNOLOGY DRIVE • TRUMBULL, CONNECTICUT 06611 • (203) 880-5333 •
JURIS NO. 035172
person by deposition.” Section 148e allows for the issuance of a subpoena so that the would-be
deponent is compelled and required to appear for the giving of deposition testimony. In connection
with this authority, Section 148e(b) permits that a deponent may be commanded “to produce and
permit the inspection and copying of designated books, papers, documents or tangible things.”
As explained below, Plaintiffs’ counsel procedure in obtaining documents from Kathleen
Vita are in violation of Connecticut’s discovery rules.
c. Connecticut Case Law Regarding the Misuse of the Subpoena Power
The use of subpoena power to unilaterally obtain records has long been disallowed by
Connecticut courts. The Court in Morgante v. Carpenter, No. UWY-CV-18-6043762 S, 2022 WL
1059559, at *6 (Conn. Super. Ct. Mar. 4, 2022) (Pierson, J.) held that it was impermissible for a
requesting party to review, on an ex parte basis, records obtained pursuant to a subpoena duces
tecum issued in connection with a records deposition. The Morgante Court held this to be the case,
particularly in the face of a motion to quash because such a procedure “circumvents the protections
our law affords parties to prevent or limit document production, based on a claim of privilege or
other appropriate legal grounds, and to seek judicial review and adjudication of any such claim.”
Id., at *6.
Similarly, in Carroll, the Court precluded the use of employment records wrongfully
obtained via subpoena. Carroll v. Carrol, No. FA990090676S, 2003 WL 21403892 (Conn. Super.
Ct. June 10, 2003) (Aurigemma, J.). The Court summarized the law governing subpoena power,
and cited to several Superior Court discussions as follows:
“The familiar process by which the production of documents in the hands
of third persons is secured is the subpoena duces tecum. One upon whom such
process is served is bound to produce the required document. The production thus
compelled does not, however, signify a delivery of the papers into the hands of the
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GOLDMAN, GRUDER & WOODS, LLC • ATTORNEYS AT LAW
105 TECHNOLOGY DRIVE • TRUMBULL, CONNECTICUT 06611 • (203) 880-5333 •
JURIS NO. 035172
party calling for their production or of his counsel, or a submission of them to his
examination; neither does such a consequence necessarily follow. The production
which the possessor of the papers is required to make consists of bringing them into
court and putting them into its control. Having by this act complied with the order
of production, the producer may ask the court to pass upon any claim of privilege,
or to make a personal inspection of the document or documents to determine their
relevancy or their relevant parts before their submission to counsel; and to make
any proper order for the protection, in such submission, of the interests of the
producer, as, for example, by withholding from the view of counsel any irrelevant
matter which he ought not to be permitted to examine.”
Even if Mr. Rugar's employment records had not been protected from
disclosure by § 31-128f the plaintiff's counsel should not have accepted these
records from the non-party witness unless she was in court in the presence of the
judge and opposing counsel. The power to issue a subpoena duces tecum is not the
equivalent of an attorney's license to obtain "discovery" from a non-party. Where
the subpoena power has been abused in this fashion, courts have imposed sanctions,
including preclusion of the improperly obtained documents, monetary sanctions,
and disqualification of the offending attorney.
In Martini v. Shelter Rock Realty, 1996 Ct. Sup. 459, 15 Conn. L. Rptr. 610,
No. 113425, Superior Court, Judicial District of Waterbury, Judge Pellegrino ruled
that where an attorney served a subpoena duces tecum on a physician in connection
with a deposition, and the deposition did not take place, but the physician sent the
subpoenaed records to the attorney, that it was improper for the attorney to copy
the records. He stopped short of granting the plaintiff’s motion to disqualify the
offending attorney because the attorney averred that he had sealed the records
without inspecting them. However, Judge Pellegrino did entertain the plaintiff's
motion for monetary sanctions.
In David v. Alves, Superior Court, Judicial District of Fairfield at
Bridgeport, No. 0333683 (May 19, 1997), Judge Rush held that it was not
appropriate for counsel to excuse a plaintiff's doctor in return for forwarding
medical records.
In McLaughlin v. McNeil, Superior Court, Judicial District of Fairfield at
Bridgeport, No. 0328787 (July 23, 1998), Judge Ford granted a motion to disqualify
defense counsel, a motion for protective order and a motion for sanctions when
counsel cancelled a deposition after receipt of subpoenaed records.
In Smith v. Douglass, Superior Court, Judicial District of Fairfield at
Bridgeport, No. 0336713 (February 6, 1999), Judge Melville disqualified defense
counsel for improperly obtaining records ex parte by means of a subpoena duces
tecum, stating that the practice was "reprehensible and not in our rules of practice.
And for that reason, I think it is important that the message get out to all people so
that his situation does not occur again.”
Carroll, at *2-3.
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GOLDMAN, GRUDER & WOODS, LLC • ATTORNEYS AT LAW
105 TECHNOLOGY DRIVE • TRUMBULL, CONNECTICUT 06611 • (203) 880-5333 •
JURIS NO. 035172
III. Argument
a. Motion to Compel and Motion to Preclude
Defendants request that the Court grant Defendants’ Motion to Compel and Motion to
Preclude. Defendants seek production of all documents obtained by Plaintiffs by virtue of the
Subpoena Duces Tecum [#216]. Defendants further request that the Court order the Plaintiffs to
immediately fully disclose each and every means they used to obtain documents and to cooperate
fully with the demand for Kathleen Vita’s documents in accordance with Practice Book § 13-28.
The failure to follow proper discovery methods warrants preclusion and sanctions under § 13-14(a)
and (b).
Plaintiffs’ blatant violation of the subpoena process and abandonment of the deposition
of Kathleen Vita has hindered the discovery process and unfairly prejudiced the defense. Conn.
Gen. Stat. § 52-148a and § 52-148e; Practice Book § 13-26, 13-27, 13-28. Sanctioning Plaintiffs
with preclusion is appropriate under Practice Book §13-14 (a) and (b), and §13-28, and necessary
to remedy the harm caused by Plaintiffs’ failure to produce the requested documents. Defendants
respectfully request that this Court grant the Motion to Preclude Kathleen Vita’s testimony and
documents at trial as a sanction for Plaintiffs’ surreptitious method it used to obtain documents in
violation of subpoena power and/or including an appropriate remedy under Practice Book §13-
14(a) and (b), and §13-28.
b. Plaintiffs’ Counsel Should be Disqualified and Sanctioned
At the very least, the Court should preclude Plaintiffs from introducing at trial testimony
and evidence obtained from Kathleen Vita. However, given the unlawful, egregious, and extremely
troubling nature of Plaintiffs’ counsel’s conduct, Defendants also move for disqualification and
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GOLDMAN, GRUDER & WOODS, LLC • ATTORNEYS AT LAW
105 TECHNOLOGY DRIVE • TRUMBULL, CONNECTICUT 06611 • (203) 880-5333 •
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sanctions based on the improper use of the subpoena power to obtain documents from Kathleen
Vita. Conn. Gen. Stat. § 52-148a, § 52-148e; Practice Book § 13-26, 13-27, 13-28.
On January 2, 2024, the Court granted Plaintiffs an Order appointing commission to take
the out of state deposition and subpoena documents from Kathleen Vita. [#216, 216.01]. The
subpoena requests all documents and communications regarding Defendants business dealings in
Puerto Rico, Hurri-Homes, LLC, and alleged misrepresentations made in their course of contract
negotiations and business dealings. [#216]. Plaintiffs’ counsel’s broad request likely encompasses
confidential items regarding other unrelated transactions.
Even more concerning is the fact that Plaintiffs’ counsel obtained a commission from the
Court to depose Kathleen Vita, circumvented the subpoena and received documents without a
deposition. [#216]. On April 2, 2024, Plaintiffs’ counsel admitted possessing documents that were
obtained ex parte without Kathleen Vita’s deposition. (Exhibit A). They later emailed some of
these documents to Defendants’ counsel. (Exhibit A). Plaintiffs’ counsel did not inform
Defendants’ counsel about the ex parte acquisition of the documents from Kathleen Vita until
confronted after referencing them in their Supplemental Information in Support of Motion for
Default against the Defendants. [#256, pages 11-16].
In Morgante v. Carpenter, supra, the Court held that the defendant’s issuance of a subpoena
duces tecum was an attempt to circumvent standard discovery procedures, and that a subpoena
duces tecum cannot be used to obtain a party’s records unilaterally from a health care provider.
The Court in Morgante sanctioned the defendant from using at trial any document obtained
pursuant to the subpoena duces tecum and from eliciting any testimony concerning any such
documentation. The Court found that “[w]hile a subpoena duces tecum may obligate a third party
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GOLDMAN, GRUDER & WOODS, LLC • ATTORNEYS AT LAW
105 TECHNOLOGY DRIVE • TRUMBULL, CONNECTICUT 06611 • (203) 880-5333 •
JURIS NO. 035172
to produce documents, that obligation does not give the requesting party the right to examine the
requested documents on an ex parte basis, in advance of a duly noticed records deposition, as was
done by the defendant’s counsel here.” Morgante v. Carpenter, No. UWY-CV-18-6043762 S,
2022 WL 1059559, at *4 (Conn. Super. Ct. Mar. 4, 2022).
Similar to Morgante, Plaintiffs’ counsel deliberately disregarded the Connecticut Rules of
Practice and the Court Order granting the commission for the deposition of Kathleen Vita outlined
in Practice Book § 13-26, 13-27, 13-28. [216.01]. Therefore, sanctions, such as monetary penalties
and the disqualification of counsel, are warranted. As noted above, a Subpoena Duces Tecum
without a deposition is not permissible under Connecticut law and constitutes an abuse of the
subpoena power granted to Plaintiffs’ counsel as commissioners of the Superior Court. See Conn.
Gen. Stat. § 52-148a and § 52-148e.
Furthermore, Plaintiffs’ counsel’s failure to comply with discovery obligations and their
unethical conduct warrant disqualification under the Rules of Professional Conduct, Rule 3.4,
Fairness to Opposing Counsel and Rule 8.4(d), Misconduct. The trial court has very broad
discretion in dealing with conduct of counsel. Weller v. Fish Transport Co., 192 A. 317, 123 Conn.
49 (1937).
The Rules of Professional Conduct, Rule 3.4, Fairness to Opposing Party and Counsel
states the following in part:
A lawyer shall not:
(1) Unlawfully obstruct another party's access to evidence or unlawfully alter,
destroy or conceal a document or other material having potential evidentiary value.
A lawyer shall not counsel or assist another person to do any such act;
(2) Falsify evidence, counsel or assist a witness to testify falsely, or offer an
inducement to a witness that is prohibited by law;
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GOLDMAN, GRUDER & WOODS, LLC • ATTORNEYS AT LAW
105 TECHNOLOGY DRIVE • TRUMBULL, CONNECTICUT 06611 • (203) 880-5333 •
JURIS NO. 035172
(3) Knowingly disobey an obligation under the rules of a tribunal except for an
open refusal based on an assertion that no valid obligation exists;
(4) In pretrial procedure, make a frivolous discovery request or fail to make
reasonably diligent effort to comply with a legally proper discovery request by an
opposing party…
CT R RPC Rule 3.4
The Rules of Prof. Conduct, Rule 8.4, state in part that it is professional misconduct for a
lawyer to:
(1) Violate or attempt to violate the Rules of Professional Conduct, knowingly
assist or induce another to do so, or do so through the acts of another;
(2) Commit a criminal act that reflects adversely on the lawyer's honesty,
trustworthiness or fitness as a lawyer in other respects;
(3) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(4) Engage in conduct that is prejudicial to the administration of justice…
CT R RPC Rule 8.4
Plaintiffs’ counsel’s conduct was unfair to the Defendants, contravening Rule of
Professional Conduct 3.4(1) as they obstructed access to information and improperly used this
evidence in their Supplemental Information to Motion for Default against Defendants. [#256].
Additionally, they knowingly disregarded their obligation pursuant to Court order to depose
Kathleen Vita in violation of Rule 3.4(3). [#216]. Further, Plaintiffs’ counsel violated Rule of
Professional Conduct 8.4 (1), (3) and (4) because they engage in dishonest conduct that is
prejudicial to Defendants and the administration of justice.
In light of these facts, the Court should impose sanctions and disqualify Plaintiffs’ counsel
for failure to comply with the Court’s commission for the deposition of Kathleen Vita and the
Subpoena Duces Tecum. The Court’s commission expressly authorized Plaintiffs subpoena of
Kathleen Vita, but Plaintiffs’ conduct in circumventing the subpoena process undermines the
integrity of the legal process and unfairly prejudices the interests of the Defendants.
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GOLDMAN, GRUDER & WOODS, LLC • ATTORNEYS AT LAW
105 TECHNOLOGY DRIVE • TRUMBULL, CONNECTICUT 06611 • (203) 880-5333 •
JURIS NO. 035172
IV. Conclusion
Plaintiffs and their attorney’s actions have obstructed the fair resolution of this case and
have prejudiced the Defendants’ rights. Defendants respectfully request that their Motion to
Disqualify, Motion for Sanctions, Motion to Compel and Motion to Preclude be granted and that
appropriate relief be imposed.
WHEREFORE, Defendants request the Court grant:
1. Defendants’ Motion to Compel Plaintiffs and Plaintiffs’ counsel to produce all
documents obtained from Kathleen Vita.
2. Defendants’ Motion to Preclude Plaintiffs, their counsel and witnesses from
referencing, and using at trial any document obtained from Kathleen Vita, and from eliciting any
testimony concerning such documentation; and /or an order pursuant to Practice Book § 13-14(a)
and (b).
3. Defendants’ Motion for Sanctions against Plaintiffs’ counsel, including but not
limited to monetary sanctions and costs, and attorney’s fees incurred.
4. Defendants’ Motion to Disqualify Plaintiffs’ counsel from representing Plaintiffs
in this case.
5. Such other and further relief as this court deems appropriate.
DEFENDANTS,
By: /s/ 305547
Bruce L. Elstein
Goldman, Gruder & Woods, LLC
105 Technology Drive
Trumbull, CT 06611
Tel.: 203-880-5333
Fax: 203-880-5332
belstein@goldgru.com
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GOLDMAN, GRUDER & WOODS, LLC • ATTORNEYS AT LAW
105 TECHNOLOGY DRIVE • TRUMBULL, CONNECTICUT 06611 • (203) 880-5333 •
JURIS NO. 035172
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 Burke, Esq.
Russo and Rizio, LLC
10 Sasco Hill Road
Fairfield, CT 06824
liam@russorizio.com
/s/ 305547
Bruce L. Elstein
Commissioner of the Superior Court
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GOLDMAN, GRUDER & WOODS, LLC • ATTORNEYS AT LAW
105 TECHNOLOGY DRIVE • TRUMBULL, CONNECTICUT 06611 • (203) 880-5333 •
JURIS NO. 035172
EXHIBIT A
Camille Bryan
From: Robert Russo
Sent: Tuesday, April 2, 2024 4:46 PM
PM
To: Bruce Elstein; Liam Burke; Amanda Heffernan
Cc: Carmen Chapman
Subject: RE: Kathleen Vita
Attachments: Hurri Homes Account Documents from First Bank.pdf; Maria Vita Account Docments
(Banco Popular).pdf; Investment
Investment Agreement Between Kathleen and Lucien.pdf;
doc07190020240402154343.pdf
Follow Up Flag: Follow up
Flag Status: Flagged
Bruce, Kathleen Vita did not produce anything as a result of the subpoena. In fact, we never conducted the
deposition. However, Ms. Vita has shared the attached documents with our clients. I do not believe these were a
result of the subpoena, nor do I believe I am currently under any obligation to share them with you,
you, but I am doing
so anyway.
-Rob
■
Robert D. Russo
Managing Partner, Russo & Rizio, LLC
(203) 254-7579 |] rob@russorizio.com |I
10« A L4
www.russorizio.com |I
10 Sasco Hill Road, Fairfield, CT 06824
10
Russo & Rizio's Vermont Office
E
IfIf you would like to schedule a time to talk with me, either by phone, Microsoft Teams or in person, you
may do so by clicking this link:
https://outlook.office365.com/owa/calendar/RussoRizioLLC1@russorizio.com/bookings/
https://outlook.o%ice365.com/owa/calendar/RussoRizioLLC1@russorizio.com/bookings/
From: Bruce Elstein
Sent: Tuesday, April 2, 2024 4:30 PM
To: Liam Burke ; Amanda Heffernan
Cc: Carmen Chapman ; Robert Russo
Subject: RE: Kathleen Vita
There has been no response.
including all
Absent the production by noon, April 3, 2024, of all documents obtained and the date(s) thereof, including
correspondence associated therewith, we will avail the defendants of all rights available to them for the misuse
and abuse of subpoena power.
Bruce L. Elstein
Goldman, Gruder & Woods, LLC
105 Technology Drive
06611
Trumbull, CT 06611
11
203.880.5333
belstein@goldgru.com
be\stein@goldgru.com
From: Bruce Elstein
Sent: Monday, April 1, 2024 9:34 AM
To: Liam Burke ; Amanda Heffernan
Cc: Carmen Chapman
Subject: Kathleen Vita
From various filings,
filings, you have indicated receipt of documents from her by virtue of the subpoena.
Please provide all of those correspondence and documents asap.
If there is any issue with that, please advise immediately.
Bruce L. Elstein
Goldman, Gruder & Woods, LLC
105 Technology Drive
Trumbull, CT 06611
06611
203.880.5333
belstein@goldgru.com
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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. : APRIL 15, 2024 MOTION FOR SANCTIONS, MOTION TO DISQUALIFY MOTION TO COMPEL AND MOTION TO PRECLUDE Defendants, Vita Built, LLC and Vita Design Group, LLC (hereinafter referred to as “Defendants”), hereby move to compel documents obtained ex parte by plaintiffs, Ray C. Johnson and Indre L. Johnson (referred to as “Plaintiffs”), pursuant to subpoena of Kathleen Vita [#216, 216.01]. Defendants further move to preclude: the testimony at trial of Kathleen Vita; all documents obtained from Kathleen Vita; and all testimony concerning any such documentation. [#216, 216.01]. Defendants also move for sanctions and disqualification of Plaintiffs’ counsel based on their improper use of the subpoena to obtain documents from non-party Kathleen Vita without conducting a deposition. I. Statement of the Case 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, and negligent violation of Conn. Gen. Stat. § 42-110(b) et seq. regarding the design and construction of a house in Westport. [#211, 211.01]. Defendants, architectural and construction firms, asserted counterclaims for breach of additional fee and profit-sharing agreement, breach of the covenant of good faith and fair dealing and violation of the Connecticut Unfair Trade Practices Act. [# 133]. There has been extensive litigation, including three amended complaints, PJR 1 GOLDMAN, GRUDER & WOODS, LLC • ATTORNEYS AT LAW 105 TECHNOLOGY DRIVE • TRUMBULL, CONNECTICUT 06611 • (203) 880-5333 • JURIS NO. 035172 hearings resulting in a decision in favor of the Defendants, a successful appeal of the court’s PJR decision by the Plaintiffs, Defendants’ Motion for Summary Judgment, motions to compel discovery, and Plaintiffs’ Motion for Default Judgment currently pending before the Court. This case is scheduled to commence trial in May 2024. On December 19, 2023, the Plaintiffs made a Motion for Commission to take out of state deposition of non-party, Kathleen Vita and to subpoena documents. [#216]. Kathleen Vita is the sister of defendant, Lucien Vita and a former business partner in a start-up company called Hurri- Homes in Puerto Rico. On December 22, 2023, Defendants filed a Motion for Protective Order and objected to the Plaintiffs’ Motion for Commission on the basis that the request was overly broad, and likely to include unrelated personal financial information regarding Defendants’ other clients. [#219]. On January 2, 2024, the Court granted Plaintiffs’ Motion for Commission for Kathleen Vita’s deposition and Subpoena Duces Tecum [#216.01] and denied Defendants’ Motion for a Protective Order. [#219.01], holding that the commission will assist in the discovery of information within the scope of Practice Book § 13-2. Plaintiffs claim that Kathleen Vita had information regarding the supposed substantial planning and business rationale behind Defendants’ decision to move to Puerto Rico and specifically demanded the following from Kathleen Vita in the subpoena [#216]: 1. All documents and communications received from or sent to Lucien Vita and/or Maria Vita regarding their business dealings in Puerto Rico, as referenced in that particular civil case currently pending in the United States District Court for the District of New Jersey titled Kathleen Vita vs. Lucien Vita, et al., No. 2:21-cv- 11060-SRC-ESK 2. All documents concerning Hurri-Homes L.L.C. 2 GOLDMAN, GRUDER & WOODS, LLC • ATTORNEYS AT LAW 105 TECHNOLOGY DRIVE • TRUMBULL, CONNECTICUT 06611 • (203) 880-5333 • JURIS NO. 035172 3. All documents evidencing or relating to the alleged continuing course of conduct by Lucien Vita and Maria Vita involving misrepresentations in the course of contract negotiations and business dealings.” [#216] Plaintiffs and their attorneys, however, never deposed Kathleen Vita, but rather as recited by the Plaintiffs themselves, obtained records directly from Ms. Vita by virtue of the subpoena, which violated the subpoena process and Court Order. [#216.01]. Plaintiffs’ counsel then used this improperly obtained evidence in their brief entitled, Supplemental Information to Motion for Default against the Defendants. [#256, pages 11-16]. In their motion, Defendants claimed that “[n]ewly discovered information confirms Defendants misrepresented material facts and omitted relevant and material information about the timing and circumstances of their move to Puerto Rico in 2017.” [#256, page 11]. Defendants admitted in their Supplemental Information to Motion for Default that they obtained documents from Kathleen Vita. [#216, page 11]. The Defendants’ document request included the following in the subpoena: 1. All documents and communications received from or sent to Lucien Vita and/or Maria Vita regarding their business dealings in Puerto Rico, as referenced in that particular civil case currently pending in the United States District Court for the District of New Jersey titled Katheleen Vita vs. Lucien Vita, et al., No. 2:21- cv-11060-SRC-ESK, attached hereto as Exhibit A. 2. All documents concerning Hurri-Homes L.L.C., as referenced in Exhibit A. 3. All documents evidencing or relating to the alleged continuing course of conduct by Lucien Vita and Maria Vita involving misrepresentations in the course of contract negotiations and business dealings, as referenced in Exhibit A. [#216]. Plaintiffs received the documents from Kathleen Vita that they referenced in their brief without a deposition and without notice to Defendants. [#256, pages 11-16]. As a result, Defendants’ counsel consulted with Plaintiffs’ counsel and requested copies of Kathleen Vita’s 3 GOLDMAN, GRUDER & WOODS, LLC • ATTORNEYS AT LAW 105 TECHNOLOGY DRIVE • TRUMBULL, CONNECTICUT 06611 • (203) 880-5333 • JURIS NO. 035172 documents. (Exhibit A). Plaintiffs’ counsel incorrectly responded that there was no obligation to share Kathleen Vita’s documents with Defendants. (Exhibit A). Plaintiffs’ counsel subsequently produced some documents, but it remains uncertain whether the documents sent via email by counsel constitute the complete disclosure of the file obtained from Kathleen Vita. On this basis, Defendants move to compel production of documents Plaintiffs received from Kathleen Vita. Plaintiffs’ counsel, however, should not have accepted documents from non-party witness, Kathleen Vita, unless it was done in accordance the Court’s commission, the subpoena and in the presence of opposing counsel at a deposition. In this case, Plaintiffs’ counsel abused the subpoena power by improperly obtaining a non-party’s documents without a deposition and without notifying Defendants’ counsel. Courts have imposed sanctions in similar circumstances including the preclusion of the improperly obtained documents, monetary sanctions and the disqualification of the offending attorney as detailed below. II. Legal Standard a. The Motion to Comply and Motion to Preclude Connecticut Practice Book Section 13-14 authorizes the Court to order compliance and sanctions for a party’s failure to obey orders to provide discovery. Under Practice Book § 13-14(a): “[i]f any party has failed to ... respond to requests for production ... or has failed otherwise substantially to comply with any other discovery order made pursuant to Sections 13-6 through 13-11, the judicial authority may, on motion, make such order proportional to the noncompliance as the ends of justice require.” Practice Book § 13-14(a). Practice Book § 13-14(b) provides that: “[s]uch orders may include the following: (1) An order of compliance; (2) The award to the discovering party of the costs of the motion, including a reasonable 4 GOLDMAN, GRUDER & WOODS, LLC • ATTORNEYS AT LAW 105 TECHNOLOGY DRIVE • TRUMBULL, CONNECTICUT 06611 • (203) 880-5333 • JURIS NO. 035172 attorneys fee; (3) The entry of an order that the matters regarding which the discovery was sought or other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; (4) The entry of an order prohibiting the party who has failed to comply from introducing designated matters in evidence; (5) An order of dismissal, nonsuit or default.” Practice Book § 13-14(b). According to Practice Book Sec. 13-14(b)(4), the Court can preclude a party as a sanction for a party’s failure to comply with a discovery order. b. The Law Regarding Depositions Compelled by Subpoena and Production of Documents The Connecticut Practice book does not permit the Plaintiffs’ counsel to unilaterally obtain documents through use of a subpoena without a deposition. Practice Book § 13-26 provides in relevant part: “[A]ny party who has appeared in a civil action ... may, at any time after the commencement of the action ... in accordance with the procedures set forth in this chapter, take the testimony of any person, including a party, by deposition upon oral examination. The attendance of witnesses may be compelled by subpoena as provided in Section 13-28.” Practice Book § 13-28(c) provides, in relevant part: “A subpoena issued for the taking of a deposition may command the person to whom it is directed to produce and permit inspection and copying of designated books, papers, documents or tangible things which constitute or contain matters within the scope of examination permitted by Sections 13-2 through 13-5 ...” Similarly, the Connecticut General Statutes do not permit the Plaintiffs’ counsel to obtain documents through use of a subpoena without a deposition. Conn. Gen. Stat. § 52–148a and § 52– 148e. The Connecticut General Statutes § 52-148a controls the taking of depositions and Connecticut General Statutes § 52-148e covers the use of a subpoena in a deposition context. Connecticut General Statutes § 52–148a, compliance with which is a pre-requisite to the issuance of a subpoena pursuant to § 52–148e, is concerned solely with the taking of “testimony of any 5 GOLDMAN, GRUDER & WOODS, LLC • ATTORNEYS AT LAW 105 TECHNOLOGY DRIVE • TRUMBULL, CONNECTICUT 06611 • (203) 880-5333 • JURIS NO. 035172 person by deposition.” Section 148e allows for the issuance of a subpoena so that the would-be deponent is compelled and required to appear for the giving of deposition testimony. In connection with this authority, Section 148e(b) permits that a deponent may be commanded “to produce and permit the inspection and copying of designated books, papers, documents or tangible things.” As explained below, Plaintiffs’ counsel procedure in obtaining documents from Kathleen Vita are in violation of Connecticut’s discovery rules. c. Connecticut Case Law Regarding the Misuse of the Subpoena Power The use of subpoena power to unilaterally obtain records has long been disallowed by Connecticut courts. The Court in Morgante v. Carpenter, No. UWY-CV-18-6043762 S, 2022 WL 1059559, at *6 (Conn. Super. Ct. Mar. 4, 2022) (Pierson, J.) held that it was impermissible for a requesting party to review, on an ex parte basis, records obtained pursuant to a subpoena duces tecum issued in connection with a records deposition. The Morgante Court held this to be the case, particularly in the face of a motion to quash because such a procedure “circumvents the protections our law affords parties to prevent or limit document production, based on a claim of privilege or other appropriate legal grounds, and to seek judicial review and adjudication of any such claim.” Id., at *6. Similarly, in Carroll, the Court precluded the use of employment records wrongfully obtained via subpoena. Carroll v. Carrol, No. FA990090676S, 2003 WL 21403892 (Conn. Super. Ct. June 10, 2003) (Aurigemma, J.). The Court summarized the law governing subpoena power, and cited to several Superior Court discussions as follows: “The familiar process by which the production of documents in the hands of third persons is secured is the subpoena duces tecum. One upon whom such process is served is bound to produce the required document. The production thus compelled does not, however, signify a delivery of the papers into the hands of the 6 GOLDMAN, GRUDER & WOODS, LLC • ATTORNEYS AT LAW 105 TECHNOLOGY DRIVE • TRUMBULL, CONNECTICUT 06611 • (203) 880-5333 • JURIS NO. 035172 party calling for their production or of his counsel, or a submission of them to his examination; neither does such a consequence necessarily follow. The production which the possessor of the papers is required to make consists of bringing them into court and putting them into its control. Having by this act complied with the order of production, the producer may ask the court to pass upon any claim of privilege, or to make a personal inspection of the document or documents to determine their relevancy or their relevant parts before their submission to counsel; and to make any proper order for the protection, in such submission, of the interests of the producer, as, for example, by withholding from the view of counsel any irrelevant matter which he ought not to be permitted to examine.” Even if Mr. Rugar's employment records had not been protected from disclosure by § 31-128f the plaintiff's counsel should not have accepted these records from the non-party witness unless she was in court in the presence of the judge and opposing counsel. The power to issue a subpoena duces tecum is not the equivalent of an attorney's license to obtain "discovery" from a non-party. Where the subpoena power has been abused in this fashion, courts have imposed sanctions, including preclusion of the improperly obtained documents, monetary sanctions, and disqualification of the offending attorney. In Martini v. Shelter Rock Realty, 1996 Ct. Sup. 459, 15 Conn. L. Rptr. 610, No. 113425, Superior Court, Judicial District of Waterbury, Judge Pellegrino ruled that where an attorney served a subpoena duces tecum on a physician in connection with a deposition, and the deposition did not take place, but the physician sent the subpoenaed records to the attorney, that it was improper for the attorney to copy the records. He stopped short of granting the plaintiff’s motion to disqualify the offending attorney because the attorney averred that he had sealed the records without inspecting them. However, Judge Pellegrino did entertain the plaintiff's motion for monetary sanctions. In David v. Alves, Superior Court, Judicial District of Fairfield at Bridgeport, No. 0333683 (May 19, 1997), Judge Rush held that it was not appropriate for counsel to excuse a plaintiff's doctor in return for forwarding medical records. In McLaughlin v. McNeil, Superior Court, Judicial District of Fairfield at Bridgeport, No. 0328787 (July 23, 1998), Judge Ford granted a motion to disqualify defense counsel, a motion for protective order and a motion for sanctions when counsel cancelled a deposition after receipt of subpoenaed records. In Smith v. Douglass, Superior Court, Judicial District of Fairfield at Bridgeport, No. 0336713 (February 6, 1999), Judge Melville disqualified defense counsel for improperly obtaining records ex parte by means of a subpoena duces tecum, stating that the practice was "reprehensible and not in our rules of practice. And for that reason, I think it is important that the message get out to all people so that his situation does not occur again.” Carroll, at *2-3. 7 GOLDMAN, GRUDER & WOODS, LLC • ATTORNEYS AT LAW 105 TECHNOLOGY DRIVE • TRUMBULL, CONNECTICUT 06611 • (203) 880-5333 • JURIS NO. 035172 III. Argument a. Motion to Compel and Motion to Preclude Defendants request that the Court grant Defendants’ Motion to Compel and Motion to Preclude. Defendants seek production of all documents obtained by Plaintiffs by virtue of the Subpoena Duces Tecum [#216]. Defendants further request that the Court order the Plaintiffs to immediately fully disclose each and every means they used to obtain documents and to cooperate fully with the demand for Kathleen Vita’s documents in accordance with Practice Book § 13-28. The failure to follow proper discovery methods warrants preclusion and sanctions under § 13-14(a) and (b). Plaintiffs’ blatant violation of the subpoena process and abandonment of the deposition of Kathleen Vita has hindered the discovery process and unfairly prejudiced the defense. Conn. Gen. Stat. § 52-148a and § 52-148e; Practice Book § 13-26, 13-27, 13-28. Sanctioning Plaintiffs with preclusion is appropriate under Practice Book §13-14 (a) and (b), and §13-28, and necessary to remedy the harm caused by Plaintiffs’ failure to produce the requested documents. Defendants respectfully request that this Court grant the Motion to Preclude Kathleen Vita’s testimony and documents at trial as a sanction for Plaintiffs’ surreptitious method it used to obtain documents in violation of subpoena power and/or including an appropriate remedy under Practice Book §13- 14(a) and (b), and §13-28. b. Plaintiffs’ Counsel Should be Disqualified and Sanctioned At the very least, the Court should preclude Plaintiffs from introducing at trial testimony and evidence obtained from Kathleen Vita. However, given the unlawful, egregious, and extremely troubling nature of Plaintiffs’ counsel’s conduct, Defendants also move for disqualification and 8 GOLDMAN, GRUDER & WOODS, LLC • ATTORNEYS AT LAW 105 TECHNOLOGY DRIVE • TRUMBULL, CONNECTICUT 06611 • (203) 880-5333 • JURIS NO. 035172 sanctions based on the improper use of the subpoena power to obtain documents from Kathleen Vita. Conn. Gen. Stat. § 52-148a, § 52-148e; Practice Book § 13-26, 13-27, 13-28. On January 2, 2024, the Court granted Plaintiffs an Order appointing commission to take the out of state deposition and subpoena documents from Kathleen Vita. [#216, 216.01]. The subpoena requests all documents and communications regarding Defendants business dealings in Puerto Rico, Hurri-Homes, LLC, and alleged misrepresentations made in their course of contract negotiations and business dealings. [#216]. Plaintiffs’ counsel’s broad request likely encompasses confidential items regarding other unrelated transactions. Even more concerning is the fact that Plaintiffs’ counsel obtained a commission from the Court to depose Kathleen Vita, circumvented the subpoena and received documents without a deposition. [#216]. On April 2, 2024, Plaintiffs’ counsel admitted possessing documents that were obtained ex parte without Kathleen Vita’s deposition. (Exhibit A). They later emailed some of these documents to Defendants’ counsel. (Exhibit A). Plaintiffs’ counsel did not inform Defendants’ counsel about the ex parte acquisition of the documents from Kathleen Vita until confronted after referencing them in their Supplemental Information in Support of Motion for Default against the Defendants. [#256, pages 11-16]. In Morgante v. Carpenter, supra, the Court held that the defendant’s issuance of a subpoena duces tecum was an attempt to circumvent standard discovery procedures, and that a subpoena duces tecum cannot be used to obtain a party’s records unilaterally from a health care provider. The Court in Morgante sanctioned the defendant from using at trial any document obtained pursuant to the subpoena duces tecum and from eliciting any testimony concerning any such documentation. The Court found that “[w]hile a subpoena duces tecum may obligate a third party 9 GOLDMAN, GRUDER & WOODS, LLC • ATTORNEYS AT LAW 105 TECHNOLOGY DRIVE • TRUMBULL, CONNECTICUT 06611 • (203) 880-5333 • JURIS NO. 035172 to produce documents, that obligation does not give the requesting party the right to examine the requested documents on an ex parte basis, in advance of a duly noticed records deposition, as was done by the defendant’s counsel here.” Morgante v. Carpenter, No. UWY-CV-18-6043762 S, 2022 WL 1059559, at *4 (Conn. Super. Ct. Mar. 4, 2022). Similar to Morgante, Plaintiffs’ counsel deliberately disregarded the Connecticut Rules of Practice and the Court Order granting the commission for the deposition of Kathleen Vita outlined in Practice Book § 13-26, 13-27, 13-28. [216.01]. Therefore, sanctions, such as monetary penalties and the disqualification of counsel, are warranted. As noted above, a Subpoena Duces Tecum without a deposition is not permissible under Connecticut law and constitutes an abuse of the subpoena power granted to Plaintiffs’ counsel as commissioners of the Superior Court. See Conn. Gen. Stat. § 52-148a and § 52-148e. Furthermore, Plaintiffs’ counsel’s failure to comply with discovery obligations and their unethical conduct warrant disqualification under the Rules of Professional Conduct, Rule 3.4, Fairness to Opposing Counsel and Rule 8.4(d), Misconduct. The trial court has very broad discretion in dealing with conduct of counsel. Weller v. Fish Transport Co., 192 A. 317, 123 Conn. 49 (1937). The Rules of Professional Conduct, Rule 3.4, Fairness to Opposing Party and Counsel states the following in part: A lawyer shall not: (1) Unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act; (2) Falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law; 10 GOLDMAN, GRUDER & WOODS, LLC • ATTORNEYS AT LAW 105 TECHNOLOGY DRIVE • TRUMBULL, CONNECTICUT 06611 • (203) 880-5333 • JURIS NO. 035172 (3) Knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists; (4) In pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party… CT R RPC Rule 3.4 The Rules of Prof. Conduct, Rule 8.4, state in part that it is professional misconduct for a lawyer to: (1) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (2) Commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; (3) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (4) Engage in conduct that is prejudicial to the administration of justice… CT R RPC Rule 8.4 Plaintiffs’ counsel’s conduct was unfair to the Defendants, contravening Rule of Professional Conduct 3.4(1) as they obstructed access to information and improperly used this evidence in their Supplemental Information to Motion for Default against Defendants. [#256]. Additionally, they knowingly disregarded their obligation pursuant to Court order to depose Kathleen Vita in violation of Rule 3.4(3). [#216]. Further, Plaintiffs’ counsel violated Rule of Professional Conduct 8.4 (1), (3) and (4) because they engage in dishonest conduct that is prejudicial to Defendants and the administration of justice. In light of these facts, the Court should impose sanctions and disqualify Plaintiffs’ counsel for failure to comply with the Court’s commission for the deposition of Kathleen Vita and the Subpoena Duces Tecum. The Court’s commission expressly authorized Plaintiffs subpoena of Kathleen Vita, but Plaintiffs’ conduct in circumventing the subpoena process undermines the integrity of the legal process and unfairly prejudices the interests of the Defendants. 11 GOLDMAN, GRUDER & WOODS, LLC • ATTORNEYS AT LAW 105 TECHNOLOGY DRIVE • TRUMBULL, CONNECTICUT 06611 • (203) 880-5333 • JURIS NO. 035172 IV. Conclusion Plaintiffs and their attorney’s actions have obstructed the fair resolution of this case and have prejudiced the Defendants’ rights. Defendants respectfully request that their Motion to Disqualify, Motion for Sanctions, Motion to Compel and Motion to Preclude be granted and that appropriate relief be imposed. WHEREFORE, Defendants request the Court grant: 1. Defendants’ Motion to Compel Plaintiffs and Plaintiffs’ counsel to produce all documents obtained from Kathleen Vita. 2. Defendants’ Motion to Preclude Plaintiffs, their counsel and witnesses from referencing, and using at trial any document obtained from Kathleen Vita, and from eliciting any testimony concerning such documentation; and /or an order pursuant to Practice Book § 13-14(a) and (b). 3. Defendants’ Motion for Sanctions against Plaintiffs’ counsel, including but not limited to monetary sanctions and costs, and attorney’s fees incurred. 4. Defendants’ Motion to Disqualify Plaintiffs’ counsel from representing Plaintiffs in this case. 5. Such other and further relief as this court deems appropriate. DEFENDANTS, By: /s/ 305547 Bruce L. Elstein Goldman, Gruder & Woods, LLC 105 Technology Drive Trumbull, CT 06611 Tel.: 203-880-5333 Fax: 203-880-5332 belstein@goldgru.com 12 GOLDMAN, GRUDER & WOODS, LLC • ATTORNEYS AT LAW 105 TECHNOLOGY DRIVE • TRUMBULL, CONNECTICUT 06611 • (203) 880-5333 • JURIS NO. 035172 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 Burke, Esq. Russo and Rizio, LLC 10 Sasco Hill Road Fairfield, CT 06824 liam@russorizio.com /s/ 305547 Bruce L. Elstein Commissioner of the Superior Court 13 GOLDMAN, GRUDER & WOODS, LLC • ATTORNEYS AT LAW 105 TECHNOLOGY DRIVE • TRUMBULL, CONNECTICUT 06611 • (203) 880-5333 • JURIS NO. 035172 EXHIBIT A Camille Bryan From: Robert Russo Sent: Tuesday, April 2, 2024 4:46 PM PM To: Bruce Elstein; Liam Burke; Amanda Heffernan Cc: Carmen Chapman Subject: RE: Kathleen Vita Attachments: Hurri Homes Account Documents from First Bank.pdf; Maria Vita Account Docments (Banco Popular).pdf; Investment Investment Agreement Between Kathleen and Lucien.pdf; doc07190020240402154343.pdf Follow Up Flag: Follow up Flag Status: Flagged Bruce, Kathleen Vita did not produce anything as a result of the subpoena. In fact, we never conducted the deposition. However, Ms. Vita has shared the attached documents with our clients. I do not believe these were a result of the subpoena, nor do I believe I am currently under any obligation to share them with you, you, but I am doing so anyway. -Rob ■ Robert D. Russo Managing Partner, Russo & Rizio, LLC (203) 254-7579 |] rob@russorizio.com |I 10« A L4 www.russorizio.com |I 10 Sasco Hill Road, Fairfield, CT 06824 10 Russo & Rizio's Vermont Office E IfIf you would like to schedule a time to talk with me, either by phone, Microsoft Teams or in person, you may do so by clicking this link: https://outlook.office365.com/owa/calendar/RussoRizioLLC1@russorizio.com/bookings/ https://outlook.o%ice365.com/owa/calendar/RussoRizioLLC1@russorizio.com/bookings/ From: Bruce Elstein Sent: Tuesday, April 2, 2024 4:30 PM To: Liam Burke ; Amanda Heffernan Cc: Carmen Chapman ; Robert Russo Subject: RE: Kathleen Vita There has been no response. including all Absent the production by noon, April 3, 2024, of all documents obtained and the date(s) thereof, including correspondence associated therewith, we will avail the defendants of all rights available to them for the misuse and abuse of subpoena power. Bruce L. Elstein Goldman, Gruder & Woods, LLC 105 Technology Drive 06611 Trumbull, CT 06611 11 203.880.5333 belstein@goldgru.com be\stein@goldgru.com From: Bruce Elstein Sent: Monday, April 1, 2024 9:34 AM To: Liam Burke ; Amanda Heffernan Cc: Carmen Chapman Subject: Kathleen Vita From various filings, filings, you have indicated receipt of documents from her by virtue of the subpoena. Please provide all of those correspondence and documents asap. If there is any issue with that, please advise immediately. Bruce L. Elstein Goldman, Gruder & Woods, LLC 105 Technology Drive Trumbull, CT 06611 06611 203.880.5333 belstein@goldgru.com LEAP Email Reference |F:32a2cdb6-8a67-49d3-a038-ce11aad4c224|M:7d553f4d-6dfc-4525-9671-11e5b2d93f40|O:52c582aa-01a4-5e46-b78f-4b579154940e| [F:32a2cdb6-8a67-49d3-a038-ce11aad4c224[M:7d553f4d-6dfc-4525-9671-1105b2d93140/0:52c582aa-01a4-5e46-b781-4b579154940e] (Please do not delete) 2