August 19, 1998 98-R-0957
FROM: Susan Price-Livingston, Research Attorney
RE: Pre-Litigation Subpoenas
You asked when an attorney investigating whether of not to file a lawsuit can subpoena financial records of a potential defendant. As you know, the Office of Legislative Research cannot give legal opinions and this should not be considered such.
Connecticut's state and federal court rules allow people thinking of filing lawsuits (or their attorneys) to force others to give them documents under some circumstances. Although the state and federal rules are different, both require the person who wants to obtain documents to get a court order first. And both require him to serve copies of his court order request on all interested parties, give them time to file written objections, and in some cases, to appear and argue before a judge can order documents to be turned over. A court will not order document production unless it finds that the requesting person has a legitimate need for it.
We found no reported case in which an attorney obtained financial information in the pre-litigation phase without first getting court permission. And while there is no specific rule about who can issue subpoenas in this special proceeding, attorneys routinely sign and serve subpoenas to get documents in other discovery settings once a lawsuit has been filed.
STATE COURT PRACTICE
Many states have rules and regulations that specify the scope of pre-litigation discovery. According to one commentator, the majority of the cases in which the courts have discussed the propriety of such actions have involved the discovery of documents (12 ALR 5th 577, § 2). Discovery generally has been allowed where what was sought was discovery of specific bank records (id.). Because of the factual differences present in these cases and state-by-state procedural variations, however, it would be extremely difficult to formulate a universal rule in this area.
Connecticut's state court procedure for getting documents before filing a lawsuit is by filing with the court a complaint (sometimes called a petition) for a bill of discovery (Practice Book § 235). The bill is within the court's inherent power and has been used here for more than 150 years (Moller and Horton, Connecticut Practice Book Annotated, § 235). As with any other civil complaint, the plaintiff must serve all interested parties. Those served can file written objections and motions within time limits set by the rules.
The complaint can be filed either by a person who is considering filing suit or by his attorney. It must show probable cause that the requested information is both material and necessary for the proof of his action. To do this, he must show both that there is a potential legal claim and that he is making his request for pre-litigation discovery in good faith.
When documents are sought, the complaint must specifically describe them and explain why they are needed. In a lead case, the Connecticut Supreme Court cautioned against abusing the procedure: “[A plaintiff] should not be allowed to indulge a hope that a thorough ransacking of any information and material which the defendant may possess would turn up evidence helpful to his case” (Berger v. Cuomo, 230 Conn. 1, 7 (1994)).
The bill of discovery procedure has been successfully used in at least one instance to obtain financial records in advance of litigation. In Berger v. Cuomo the court allowed the plaintiff to get copies of agreements between his business partner (Cuomo) and the bank holding the partnership's notes. The potential causes of action in that case were: (1) Cuomo's forfeiture of his partnership interest; (2) contribution from Cuomo to the partnership for its continuing shortfall; (3) fraudulent conveyance by Cuomo of the plaintiff or the partnership's interests; and (4) an accounting of funds while the partnership was managed by Cuomo.
Although the mechanics of obtaining documents after getting such an order is not spelled out in either the procedural rules or caselaw, it appears that an attorney can subpoena financial records before filing suit once the court has granted his request for them in a bill of discovery.
In Connecticut's federal district court, the method of getting documentary material in advance of trial is by filing a petition to perpetuate testimony that includes a request that a person bring specific documents to a deposition (Petition of Ingersoll-Rand Co., 35 F.R.D. 122 (S.D.N.Y. 1964)). The petition must be verified (sworn) and must show:
1. that the petitioner expects to be a party to a federal court action but is presently unable to bring it;
2. the subject matter of the expected action and the petitioner's legal interest in it;
3. the facts which the petitioner wants to establish by the proposed testimony and the reasons for wanting to perpetuate it;
4. the names or a description of the persons the petitioner expects will be adverse parties and their addresses if known; and
5. the names and addresses of the persons to be examined and the substance of the testimony which the petitioner expects to elicit from each (FRCP 27(a)(1)).
The federal rule requires notice and service on all persons named in the petition, and allows the court to appoint an attorney to represent persons who cannot be served with legal process. As in state court, the granting of a petition lies within the discretion of the trial judge, and cannot occur without his first having given those named in the petition a chance to object. The broad legal standard for granting a request is that ”the perpetuation of testimony may prevent a failure or delay of justice” (Id.).