Summary
referring to Connecticut rules of practice
Summary of this case from Main St. Am. Assurance Co. v. SavalleOpinion
No. 18584.
2012-07-31
WOODBURY KNOLL, LLC, et al. v. SHIPMAN AND GOODWIN, LLP, et al.
Harold B. Finn III, Stamford, with whom were Donna Nelson Heller, Bridgeport, and Tony Miodonka, Stamford, for the plaintiff in error (Finn, Dixon & Herling, LLP). Patrick M. Noonan, with whom, on the brief, was Matthew H. Geelan, Guilford, for the defendants in error (Shipman & Goodwin, LLP, et al.).
Harold B. Finn III, Stamford, with whom were Donna Nelson Heller, Bridgeport, and Tony Miodonka, Stamford, for the plaintiff in error (Finn, Dixon & Herling, LLP). Patrick M. Noonan, with whom, on the brief, was Matthew H. Geelan, Guilford, for the defendants in error (Shipman & Goodwin, LLP, et al.).
Barbara L. Cox, New Haven, for the plaintiffs in the underlying action (Woodbury Knoll, LLC, et al.).
NORCOTT, ZARELLA, McLACHLAN, EVELEIGH, HARPER, VERTEFEUILLE and ESPINOSA, Js.
ZARELLA, J.
This case originally was argued before a panel of this court consisting of Justices Norcott, Zarella, McLachlan, Eveleigh, Harper and Vertefeuille. Thereafter, Judge Espinosa was added to the panel, and she has read the record and briefs and listened to the recording of oral argument.
The primary issue is whether a nonparty attorney may bring a writ of error from a trial court's order requiring the attorney to comply with a clear and definite discovery request. The plaintiff in error, Finn, Dixon & Herling, LLP (Finn Dixon), brought this writ of error from an order of the trial court requiring it to comply with a subpoena duces tecum issued by the defendants in error, Shipman & Goodwin, LLP, and Carolyn Cavolo (defendants), who are also the defendants in the underlying case. Finn Dixon contends that the trial court improperly denied its motion to quash, in which it claimed that the defendants sought materials protected by the attorney-client privilege and the attorney work product doctrine. We conclude that (1) the trial court's order is an appealable final judgment, and (2) the trial court improperly denied Finn Dixon's motion to quash the subpoena.
The record reveals the following undisputed facts that are relevant to our resolution of this matter. The plaintiffs in the underlying legal malpractice action, Woodbury Knoll, LLC, Woodbury Knoll II, LLC, Paredim Partners, LLC, and David Parisier (plaintiffs), brought the action against the defendants, alleging that the defendants negligently had represented the plaintiffs in connection with certain real estate transactions. In essence, the plaintiffs alleged that, as a result of the defendants' negligent failure to discover the fraudulent conduct of Andrew Kissel, a party to those real estate transactions, the plaintiffs were subject to a variety of foreclosure actions and related legal proceedings. To represent them in connection with those proceedings, the plaintiffs engaged Finn Dixon. The plaintiffs allege that, as the result of the defendants' failure to discover Kissel's fraud, they incurred damages of $4,288,674.60, which consisted of settlement payments in the amount of $2,917,000 and attorney's fees paid to Finn Dixon in the amount of $1,371,647.60, for which they seek reimbursement from the defendants.
After the plaintiffs brought the underlying legal malpractice action, the defendants served a notice of deposition and subpoena duces tecum on Finn Dixon's custodian of records, directing the custodianto produce, inter alia, “[a]ll documents, including without limitation, notes, memoranda, e-mails, pleadings, document production, billing statements, time records, and every other form of written, typewritten, printed or computer-generated material” relating to Finn Dixon's representation of the plaintiffs for the period from October 13, 2004, through December 4, 2009, the date of the subpoena. In response, and pursuant to Practice Book §§ 13–5 and 13–28(e), Finn Dixon and the plaintiffs filed separate objections, motions to quash the subpoena and motions for protective orders, claiming, inter alia, that much of the material requested was covered by the attorney-client privilege and the work product doctrine. The defendants then filed an objection to Finn Dixon's motions to quash and for a protective order, a reply to Finn Dixon's objection, and a motion to compel production of unredacted copies of all attorney's billing statements and time entries that formed the basis of the plaintiffs' claim for damages. The trial court overruled Finn Dixon's objection to the subpoena, denied Finn Dixon's motion to quash and granted the defendants' motion to compel (discovery order).
.Practice Book § 13–5 provides in relevant part: “Upon motion by a party from whom discovery is sought, and for good cause shown, the judicial authority may make any order which justice requires to protect a party from annoyance, embarrassment, oppression, or undue burden or expense....”
.Practice Book § 13–28(e) provides in relevant part: “The court in which the cause is pending ... may, upon motion made promptly and, in any event, at or before the time for compliance specified in a subpoena authorized by subsection (b) of this section, (1) quash or modify the subpoena if it is unreasonable and oppressive or if it seeks the production of materials not subject to production under the provisions of subsection (c) of this section....”
The trial court stated in its order on the motion to compel: “The court has accepted the plaintiffs' invitation ... to treat this motion as a ruling on [the] plaintiffs' objections to discovery. Objection overruled.”
Thereafter, Finn Dixon brought this writ of error, claiming that the trial court improperly had overruled its objection to the defendants' subpoena and denied its motion to quash. To perfect the record for review by this court, Finn Dixon filed a notice pursuant to Practice Book § 64–1, stating that the trial court had not issued a memorandum of decision in connection with its ruling. In response to this notice, the trial court issued a “supplemental” memorandum of decision explaining its ruling. Finn Dixon then filed a motion for further articulation of the trial court's ruling. In response, the trial court ordered the parties to submit briefs on the issues raised in the motion for articulation and ordered them to appear for oral argument. After hearing the parties' arguments, the trial court issued an articulation in which it stated that it had overruled Finn Dixon's objection to the subpoena duces tecum and denied its motion to quash because “[1] the subpoena was not unduly burdensome, [2] a blanket assertion of the [work product doctrine] is inadequate, [3] the work product [doctrine] is not absolute and [is] subject to the court's discretion, [4] even if privileged, under the implied waiver or ‘at issue’ exception, the materials [sought] were disclosable, [5] [Finn Dixon] has no standing as both the attorney-client privilege and the work product [doctrine] belong to the client, [6] the information sought is essential and cannot be otherwise obtained and [7] its disclosure can lead to the discovery of information [that is] material to the claims and defenses of the parties.”
.Practice Book § 64–1 provides in relevant part: “(a) The court shall state its decision either orally or in writing, in all of the following ... (6) in making any other rulings that constitute a final judgment for purposes of appeal under Section 61–1, including those that do not terminate the proceedings....
“(b) If the trial judge fails to file a memorandum of decision or sign a transcript of the oral decision in any case covered by subsection (a), the appellant may file with the appellate clerk an original and three copies of a notice that the decision has not been filed in compliance with subsection (a). The notice shall specify the trial judge involved and the date of the ruling for which no memorandum of decision was filed. The appellate clerk shall promptly notify the trial judge of the filing of the appeal and the notice. The trial court shall thereafter comply with subsection (a).”
Meanwhile, the defendants filed with this court a motion to dismiss Finn Dixon's writ of error, claiming, inter alia, that it had not been brought from a final judgment of the trial court, as required by Practice Book § 72–1(a). We denied the motion but, thereafter, ordered the parties to be prepared to address the issue at oral argument before this court.
.Practice Book § 72–1(a) provides in relevant part: “Writs of error for errors in matters of law only may be brought from a final judgment of the superior court to the supreme court....”
I
We first address whether the discovery order is an appealable final judgment because it implicates this court's subject matter jurisdiction over Finn Dixon's writ of error. See, e.g., State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983) (“[b]ecause our jurisdiction over appeals ... is prescribed by statute, we must always determine the threshold question of whether the appeal is taken from a final judgment before considering the merits of the claim”). We conclude that the discovery order constitutes an appealable final judgment under Curcio.
Finn Dixon argues that the order was an appealable final judgment because Finn Dixon was not a party to the underlying action and had no interest in the merits of the case or its outcome; rather, its interest is of a professional nature, namely, in protecting the confidentiality of privileged materials and work product, and, once the privileged materials and work product are disclosed, their confidentiality will be permanently lost. In support of this argument, Finn Dixon relies on State v. Curcio, supra, 191 Conn. at 31, 463 A.2d 566, and Abreu v. Leone, 291 Conn. 332, 347, 968 A.2d 385 (2009). In response, the defendants contend that the ordinary rule that discovery orders are not appealable final judgments applies to the trial court's order in the present case.
Specifically, Finn Dixon claims that the discovery order is appealable because it is a final judgment under the second prong of Curcio. See State v. Curcio, supra, 191 Conn. at 31, 463 A.2d 566 (“[a]n otherwise interlocutory order is appealable in two circumstances: [1] [when] the order or action terminates a separate or distinct proceeding, or [2] [when] the order or action so concludes the rights of the parties that further proceedings cannot affect them”). Finn Dixon further relies on Abreu for the proposition that policy considerations may sometimes inform whether a discovery order can be appealed. In this case, Finn Dixon claims that preserving the attorney-client privilege and work product confidentiality and the mandates of the Rules of Professional Conduct constitute important policy considerations that militate in favor of concluding that the discovery order in the present case is an appealable final judgment. Thus, reasonsFinn Dixon, a nonparty attorney need not be held in contempt for failing to obey a discovery order before appealing from it.
We agree with Finn Dixon that the present case is governed by our decision in Abreu v. Leone, supra, 291 Conn. at 332, 968 A.2d 385, in that the discovery order satisfied the first prong of Curcio. Like the discovery order in Abreu, the discovery order in the present case satisfies the first prong of Curcio because it terminated a separate and distinct proceeding against a nonparty. We further conclude that a counterbalancing factor exists to justify not subjecting Finn Dixon to the ordinary rule that one must be held in contempt in order to challenge a trial court's discovery order, namely, the concern of requiring an attorney, as an officer of the court, to violate a court order and otherwise to behave inconsistently with the Rules of Professional Conduct in order to bring an appeal.
Although Finn Dixon primarily argued that the discovery order satisfied the second prong of Curcio, its reliance on Abreu necessarily implicates the first prong of Curcio. We also note that “concerns regarding subject matter jurisdiction implicate [this] court's fundamental authority and may properly be raised and decided by the court sua sponte”; Soracco v. Williams Scotsman, Inc., 292 Conn. 86, 91, 971 A.2d 1 (2009); and that “[t]his court is not limited in its disposition of a case to claims raised by the parties and has frequently acted sua sponte [on] grounds of which the parties were not previously apprised.” (Internal quotation marks omitted.) State v. Badgett, 200 Conn. 412, 432 n. 10, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S.Ct. 423, 93 L.Ed.2d 373 (1986).
Curcio is the foundational case governing whether an otherwise interlocutory order is appealable. A trial court's ruling may be appealed if it (1) “terminates a separate or distinct proceeding,” or (2) “so concludes the rights of the parties that further proceedings cannot affect them.” State v. Curcio, supra, 191 Conn. at 31, 463 A.2d 566. Writs of error may be brought only from a final judgment of the trial court; Practice Book § 72–1(a); and, therefore, Curcio must be satisfied. With regard to discovery orders, this court has noted that these orders generally do not satisfy either prong of Curcio and that, “in order for appellate jurisdiction to be appropriate, a party challenging the validity of a subpoena or discovery order ordinarily must have been found in contempt of the subpoena.” (Emphasis added.) Office of the Governor v. Select Committee of Inquiry, 271 Conn. 540, 570, 858 A.2d 709 (2004). We have noted, however, that appeals from discovery disputes “are more fact specific than would appear at first blush”; Abreu v. Leone, supra, 291 Conn. at 346, 968 A.2d 385; and, accordingly, we have held on several occasions that one may bring an appeal challenging a discovery order without first being held in contempt for failing to comply with such an order. See id. at 348–50, 968 A.2d 385;Seymour v. Seymour, 262 Conn. 107, 108–109, 809 A.2d 1114 (2002); Lougee v. Grinnell, 216 Conn. 483, 486–87, 582 A.2d 456 (1990), overruled in part on other grounds by State v. Salmon, 250 Conn. 147, 735 A.2d 333 (1999).
Abreu is directly on point. In that case, the intervening plaintiff, the department of children and families (department), appealed from an order compelling the plaintiff, Joseph Abreu, to respond to deposition questions that arose in a separate proceeding. Abreu v. Leone, supra, 291 Conn. at 334, 968 A.2d 385. In that proceeding, the defendant minor child, Karissa Leone, through her parent and next friend, brought a claim against the department, alleging that she had been injured by Geovanny M., a minor child and ward of the state, while playing at school. Id. at 334–35 and n. 1, 968 A.2d 385. Leone sought to discover whether the department was negligent in that it knew or should have known of Geovanny M.'s violent propensities. Id. at 334–35 n. 1, 968 A.2d 385. “Pursuant to that action, a notice of deposition and subpoena duces tecum [were] issued to [Abreu, the alleged foster parent of Geovanny M.]. [Abreu] thereafter filed [an] independent action in the Superior Court ... asking the court to quash the subpoena and for a protective order from the deposition on the ground that he [was] prohibited, under General Statutes (Sup.2006) § 17a–28, from disclosing the matters sought to be discovered in the underlying proceeding, namely, information about a foster child. The department ... filed a brief in support of [Abreu's] position.” Id. at 334–35, 968 A.2d 385. The trial court noted the potential applicability of § 17a–28 but allowed the deposition to go forward on the basis that Leone might seek information not covered by the statute. Id. at 335, 968 A.2d 385.
General Statutes (Sup.2006) § 17a–28 (b) prohibits the unauthorized disclosure of confidential records maintained by the department, and General Statutes (Sup.2006) § 17a–28 (n)(1) provides a mechanism for an aggrieved party or his or her representative to bring an action to prevent such disclosure.
Hereinafter, all references to § 17a–28 are to the version appearing in the 2006 supplement to the 2005 revision of the General Statutes.
During the deposition, Abreu declined, on counsel's advice, to answer various questions on the ground that doing so would violate § 17a–28. Id. at 336, 968 A.2d 385. “Thereafter, the parties filed cross motions, seeking either to compel or to avoid the disclosures and for monetary sanctions. The trial court ... declined to impose monetary sanctions but ordered [Abreu] to answer the disputed questions. The department filed a motion to reargue, which the court denied. The department thereafter appealed from the trial court's order to the Appellate Court. [Abreu] did not file a separate appeal, relying instead on the department to protect his confidentiality interests underlying § 17a–28 (b). The Appellate Court sua sponte issued an order directing the parties to appear and give reasons, if any, why the appeal should not be dismissed for lack of a final judgment.... After a hearing, the Appellate Court dismissed the appeal. This court thereafter granted the department's petition for certification to appeal, limited to the following question: ‘Did the Appellate Court properly dismiss [the] appeal for lack of a final judgment?’ ” (Citations omitted.) Id. at 337–38, 968 A.2d 385.
To determine whether there was subject matter jurisdiction, this court reviewed its final judgment jurisprudence regarding appeals from discovery orders and identified three points salient to determining whether a discovery order could be considered an appealable final judgment. First, “the court's focus in determining whether there is a final judgment is on the order immediately appealed, not [on] the underlying action that prompted the discovery dispute.” (Emphasis added.) Id. at 345, 968 A.2d 385. Second, determining whether an otherwise non-appealable discovery order may be appealed is a “fact specific” inquiry, and the court should treat each appeal accordingly. Id. at 346, 968 A.2d 385. Third, “although the appellate final judgment rule is based partly on the policy against piecemeal appeals and the conservation of judicial resources ... there [may be] a counterbalancing factor”that militates against requiring a party to be held in contempt in order to bring an appeal from a discovery order. Id. at 347–48, 968 A.2d 385.
In this sense, the relevant consideration is whether the order is sufficiently clear and defined. In cases in which the trial court's order was open-ended or when it was unclear whether the objecting party would ultimately have complied with the order, this court has declined to treat the challenged discovery order as a final judgment. See Presidential Capital Corp. v. Reale, 240 Conn. 623, 626, 633, 692 A.2d 794 (1997); Barbato v. J. & M. Corp., 194 Conn. 245, 248–50, 478 A.2d 1020 (1984).
“[T]he present case [like Abreu] is distinguishable from Barbato and Presidential Capital Corp. for several reasons. First, in those cases, the party [had] ‘not yet appeared before the trial court to answer any questions'; Barbato v. J. & M. Corp., supra, 194 Conn. at 248–49, 478 A.2d 1020; and the trial court [had] yet to consider what requests for information, if any, it [would] direct the appellants to answer. Presidential Capital Corp. v. Reale, supra, 240 Conn. at 633, 692 A.2d 794. Unlike [in] Presidential Capital Corp., in the present case there are no further proceedings before the Superior Court involving [Finn Dixon] because the questions have been propounded and the trial court unequivocally has ruled what must occur—[a] certain identified [discovery request] must be [complied with].... Unlike [in] Barbato, in the present case, it is known whether [Finn Dixon] will refuse to [comply with] the [discovery request made] by the defendant[s], and it is known whether the trial court will uphold the privilege as to the [discovery request]. Unlike [in] Presidential Capital Corp., the trial court in the present case has considered what requests for information it will direct [Finn Dixon] to [comply with], and [Finn Dixon] has decided what information [it] is unwilling or unable to provide.” (Internal quotation marks omitted.) Abreu v. Leone, supra, 291 Conn. at 345–46, 968 A.2d 385.
With these points in mind, the court concluded that Abreu's challenge to the discovery order was an appealable final judgment. See id. at 349–50, 968 A.2d 385. Specifically, the court reasoned that (1) Abreu's challenge was a separate and distinct proceeding from the action that Leone had initiated against the department; id. at 348–49, 968 A.2d 385; and (2) policy considerations militated against requiring a foster parent to choose between violating § 17a–28 and facing criminal sanctions, or being held in contempt in order to challenge the discovery order. See id. at 347–48, 968 A.2d 385. Simply put, requiring a contempt finding as a predicate to appellate review, in this circumstance, would undermine the child welfare system. See id. at 348, 968 A.2d 385.
The present case is identical in all material respects to Abreu. In both cases, the appellant or plaintiff in error challenged a clear and definite discovery order, which was based on the trial court's final and comprehensive ruling, and the appellant or plaintiff in error perfected the record for appeal. See id. at 337–38, 345–46, 968 A.2d 385. Under these circumstances, “there are no further proceedings before the Superior Court involving the [person or persons subject to the discovery order] because the questions have been propounded and the trial court has unequivocally ruled what must occur,” that is, the discovery order must be complied with, which, in turn, terminates a separate and distinct proceeding. Id. at 345–46, 968 A.2d 385. Furthermore, in both cases, the appellant or plaintiff in error is a nonparty to the underlying action. In Abreu, the nonparty foster parent challenged, as a plaintiff in a separate proceeding, a discovery order that arose in a case between two other parties. See id. at 334–35, 968 A.2d 385. Similarly in the present case, Finn Dixon is not involved in any way with the lawsuit between the plaintiffs and the defendants. Finn Dixon is involved only insofar as its records custodian has been ordered to comply with the discovery order. For these reasons alone, then, the discovery order in the present case is a final judgment because it satisfies the first prong of Curcio, just as the discovery order in Abreu constituted a final judgment because it arose out of a separate proceeding brought by a nonparty. See id. at 349, 968 A.2d 385; see also Lougee v. Grinnell, supra, 216 Conn. at 487, 582 A.2d 456 (“a proceeding that will not result in a later judgment from which [the subpoenaed nonparty] can then appeal ... falls within the first prong of the test of finality of judgment[s] stated in ... Curcio ” [internal quotation marks omitted] ).
In Abreu, the department appealed, apparently on behalf of Abreu, the plaintiff in the proceeding challenging the discovery order. See Abreu v. Leone, supra, 291 Conn. at 334–35, 968 A.2d 385. In the present case, the nonparty plaintiff in error, Finn Dixon, brought a writ of error challenging the discovery order.
Additionally, as in Abreu, there are compelling policy reasons not to require Finn Dixon to be subjected to a contempt ruling in order to obtain appellate review of the discovery order. In Abreu, the court focused on the effect that holding a foster parent in contempt would have on the child welfare system—both with regard to the child and to the department—not on whether Abreu, the foster parent, could prevail on his challenge to the discovery order. See Abreu v. Leone, supra, 291 Conn. at 347–48, 968 A.2d 385. The relevant policy consideration turned on using a finding of contempt as the only means for Abreu to protect himself from potential liability under § 17a–28. In the present case, Finn Dixon faces similarly conflicting options. Finn Dixon is a law firm, and it and its lawyer members are bound by the Rules of Professional Conduct. Under the Rules of Professional Conduct, Finn Dixon has an obligation—as we discuss further in this opinion—to prevent the disclosure of all privileged and confidential materials relating to the representation of its clients. See generally Rules of Professional Conduct 1.6. Nevertheless, the only means for Finn Dixon, which is not a party to the underlying action, to fulfill this obligation is to disobey a court order and to be held in contempt. In that sense, to force Finn Dixon to be held in contempt for its good faith objection to the discovery order on the basis of the attorney-client privilege and the work product doctrine would, at best, elevate form over substance; see Abreu v. Leone, supra, 291 Conn. at 348, 968 A.2d 385; and, at worst, place Finn Dixon and other similar individuals or groups in an incongruous position with regard to their obligations under the Rules of Professional Conduct.
To be clear, policy concerns are not a factor under either prong of Curcio, and, accordingly, it would be inappropriate to rely on policy alone to justify allowing an appeal under Curcio. Cf. General Statutes § 52–265a (a) (“any party to an action who is aggrieved by an order or decision of the Superior Court in an action which involves a matter of substantial public interest and in which delay may work a substantial injustice, may appeal under this section from the order or decision to the Supreme Court”).
Nevertheless, this court never has held that policy considerations are wholly irrelevant to a Curcio analysis. Rather, policy can provide support for determining whether it is appropriate to “deem interlocutory orders or rulings to have the attributes of a final judgment....” BNY West. Trust v. Roman, 295 Conn. 194, 202, 990 A.2d 853 (2010). Indeed, this court previously has looked to policy to help inform its decision of whether it would be wise jurisprudence to deem an otherwise interlocutory order a final judgment. See, e.g., Abreu v. Leone, supra, 291 Conn. at 347–48, 968 A.2d 385; see also CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375, 402–403, 685 A.2d 1108 (1996) (“[A]lthough the appellate final judgment rule is based partly on the policy against piecemeal appeals and the conservation of judicial resources ... there is a counterbalancing factor in this situation. Requiring the postponement of an appeal of a sanctions order until the final judgment in the underlying action could well result in an appeal from a judgment that has nothing to do with the issues on appeal.... Similarly, if the client lost in the trial court but there were no good faith grounds of appeal going to the merits of the trial [court's] judgment, the appeal of the sanctions order would be only artificially linked to the judgment on appeal. Neither scenario commends itself as wise jurisprudence.” [Citation omitted; emphasis added.] ), overruled on other grounds by State v. Salmon, supra, 250 Conn. at 147, 735 A.2d 333. Thus, to the extent that our Curcio analysis is guided by policy concerns over piecemeal litigation, there may be instances in which these concerns are outweighed by countervailing considerations.
To be sure, the problem lies not with the fact that the discovery order in this case requires the disclosure of potentially privileged materials. The Rules of Professional Conduct provide that an attorney may divulge such materials in certain circumstances. See Rules of Professional Conduct 1.6(a) and (c)(4) (“[a] lawyer shall not reveal information relating to representation of a client” but “[a] lawyer may reveal such information to the extent the lawyer reasonably believes necessary to ... [c]omply with ... a court order” [emphasis added] ). In doing so, however, an attorney is nevertheless obliged to disclose only what is necessary and to challenge the court order when he or she believes that such disclosure is not necessary. See Rules of Professional Conduct 1.6, commentary. As the commentary to rule 1.6 provides, “[a] fundamental principle in the client-lawyer relationship is that, in the absence of the client's informed consent, the lawyer must not reveal information relating to the representation.” Rules of Professional Conduct 1.6, commentary. Furthermore, “[a] lawyer may be ordered to reveal information relating to the representation of a client by a court.... Absent informed consent of the client to do otherwise, the lawyer should assert on behalf of the client all nonfrivolous claims that the order is not authorized by other law or that the information sought is protected against disclosure by the attorney-client privilege or other applicable law.” (Emphasis added.) Rules of Professional Conduct 1.6, commentary. Moreover, “[s]ubsection (c) permits but does not require the disclosure of information relating to a client's representation to accomplish the purposes specified in subsections (c)(1) through (c)(4).” Rules of Professional Conduct 1.6, commentary. See generally General Statutes § 1–25.
.General Statutes § 1–25 governs oaths for various offices and, with regard to the oath for attorneys, provides: “You solemnly swear or solemnly and sincerely affirm, as the case may be, that you will do nothing dishonest, and will not knowingly allow anything dishonest to be done in court, and that you will inform the court of any dishonesty of which you have knowledge; that you will not knowingly maintain or assist in maintaining any cause of action that is false or unlawful; that you will not obstruct any cause of action for personal gain or malice; but that you will exercise the office of attorney, in any court in which you may practice, according to the best of your learning and judgment, faithfully, to both your client and the court; so help you God or upon penalty of perjury.” (Emphasis added.)
Thus, a tension arises from requiring an attorney to take every step necessary to safeguard his or her client's interest by preventing disclosure of privileged and confidential material but limiting a nonparty attorney's means to challenge a discovery order solely by disobeying that order and appealing the subsequent contempt finding. In other words, by not allowing a direct appeal from the discovery order itself, a nonparty attorney, as an officer of the court, has no choice but to defy a court order if he or she believes that the order is contrary to law. Rule 3.4 of the Rules of Professional Conduct, however, provides in relevant part that “[a] lawyer shall not ... (3) [k]nowingly disobey an obligation under the rules of a tribunal....” Additionally, rule 8.4 of the Rules of Professional Conduct provides in relevant part that “[i]t is professional misconduct for a lawyer to ... (1) [v]iolate 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....” Thus, a nonparty attorney or law firm, such as Finn Dixon, faces a real dilemma. Because the attorney is obliged to protect the client's interest, the attorney should challenge any discovery order that requires disclosure of privileged or confidential material. If the trial court overrules the attorney's objection to the discovery order, the attorney should consider whether to bring an appeal. In these circumstances, if we did not allow an appeal, then the only means for a nonparty attorney to seek review of the ruling would be to disobey the court's order and to be held in contempt. In other words, the only way for a nonparty attorney to obtain review of a trial court order he or she believes is erroneous is to violate, or at least to disregard, the Rules of Professional Conduct.
There is yet another problem with relying on a finding of contempt as the sole means, and thus the only safeguard, available to a nonparty attorney seeking to assert a claim of privilege. Simply put, it transforms contempt, which should be considered an important and drastic power of the court, into nothing more than a procedural mechanism to bring an appeal. As Justice Vertefeuille noted during oral argument in this case, it is highly unlikely that a judge would imprison an attorney simply because the attorney refused to comply with a discovery order. The more probable scenario is that the judge would find the attorney in contempt, perhaps merely as a matter of formality, in order to allow the attorney to appeal the contested discovery order. This, however, undermines the court's power of contempt. The contempt penalty is one of the court's most important and deeply rooted enforcement powers. See, e.g., Papa v. New Haven Federation of Teachers, 186 Conn. 725, 737–38, 444 A.2d 196 (1982) ( “The court's authority to impose civil contempt penalties arises not from statutory provisions but from the common law. Potter v. Board of Selectmen, [174 Conn. 195, 197, 384 A.2d 369 (1978) ]; Welch v. Barber, 52 Conn. 147, 156 [1884];Huntington v. McMahon, 48 Conn. 174, 196 [1880]. The penalties which may be imposed, therefore, arise from the inherent power of the court to coerce compliance with its orders. In Connecticut, the court has the authority in civil contempt to impose on the contemnor either incarceration or a fine or both.”). Relying on it as a mere procedural vehicle to obtain a final judgment runs the risk of trivializing this power.
We decline to apply our final judgment jurisprudence in a manner that requires a nonparty attorney, in his or her role as an officer of the court, to disobey a court order as the sole means of raising a good faith challenge to a discovery order in order to satisfy his or her professional obligation to the client. No persuasive reason exists to prevent a nonparty attorney from raising such a challenge by direct appeal. Allowing these appeals will not open the floodgates to numerous discovery order appeals, as they are far less common than typical discovery requests between parties for privileged communications. Moreover, an attorney already can decline to comply with a discovery order and be held in contempt. A nonparty attorney likely would raise the objection regardless of whether the proper means was through contempt or a direct appeal because an attorney has a significant interest in objecting to the discovery order to maintain the privilege and confidentiality. See PSE Consulting, Inc. v. Frank Mercede & Sons, Inc., 267 Conn. 279, 329–30, 838 A.2d 135 (2004) (“On numerous occasions we have reaffirmed the importance of the attorney-client privilege and have recognized the long-standing, strong public policy of protecting attorney-client communications.... In Connecticut, the attorney-client privilege protects both the confidential giving of professional advice by an attorney acting in the capacity of a legal advisor to those who can act on it, as well as the giving of information to the lawyer to enable counsel to give sound and informed advice.... The privilege fosters full and frank communications between attorneys and their clients and thereby promote[s] the broader public interests in the observation of law and [the] administration of justice.” [Internal quotation marks omitted.] ); see also Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 130 S.Ct. 599, 606, 175 L.Ed.2d 458 (2009) (“acknowledg[ing] the importance of the attorney-client privilege, which is one of the oldest recognized privileges for confidential communications” [internal quotation marks omitted] ); cf. Hickman v. Taylor, 329 U.S. 495, 510–12, 67 S.Ct. 385, 91 L.Ed. 451 (1947) (noting importance of attorney's interest in preserving confidentiality of work product). Simply put, any concern over a flood of discovery order appeals is both misinformed and speculative. Indeed, we need look no further than the fact that, in the three years since Abreu was decided, no flood of appeals from discovery orders has occurred.
In that connection, allowing an appeal from a discovery order by a nonparty claiming a privilege will not have a detrimental effect on judicial resources or on the timely resolution of the underlying action. The present case provides a clear example. According to the dissent, Finn Dixon should have elected to challenge the discovery order by refusing to comply with it, being held in contempt, and then appealing from the contempt ruling. Yet, this process, from the standpoint of judicial resources, would be no different from allowing Finn Dixon to appeal directly from the discovery order. In both cases, the party seeking to discover Finn Dixon's documents must wait for the appeal process to conclude before it receives, or knows that it will not receive, the requested documents. Also, in both cases, the underlying action could continue with other discovery and pretrial actions notwithstanding the ongoing challenge to the discovery order, a fact that also supports our conclusion that the issuance of a discovery order against a nonparty represents a separate and distinct proceeding for the purposes of the first prong of Curcio.
More fundamentally, we repeatedly have stated that the attorney-client privilege is foundational to our legal system. “Connecticut has a long-standing, strong public policy of protecting attorney-client communications.... This privilege was designed, in large part, to encourage full disclosure by a client to his or her attorney so as to facilitate effective legal representation.... Rule 1.6(a) of the Rules of Professional Conduct effectuates that goal by providing in relevant part that [a] lawyer shall not reveal information relating to representation of a client unless the client consents after consultation.... The attorney-client privilege seeks to protect a relationship that is a mainstay of our system of justice.... Indeed, this court has stated: It is obvious that professional assistance would be of little or no avail to the client, unless his legal adviser were put in possession of all the facts relating to the subject matter of inquiry or litigation, which, in the indulgence of the fullest confidence, the client could communicate. And it is equally obvious that there would be an end to all confidence between the client and attorney, if the latter was at liberty or compellable to disclose the facts of which he had thus obtained possession; and hence it has become a settled rule of evidence, that the confidential attorney, solicitor or counselor can never be called as a witness to disclose papers committed or communications made to him in that capacity, unless the client himself consents to such disclosure.” (Citations omitted; internal quotation marks omitted.) Gould, Larson, Bennet, Wells & McDonnell, P.C. v. Panico, 273 Conn. 315, 321–22, 869 A.2d 653 (2005); see also Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., 249 Conn. 36, 47–51, 730 A.2d 51 (1999) (grantinginterlocutory appeal from discovery order under General Statutes § 52–265a principally on issues implicating need to preserve attorney-client privilege); J. Sexton, “A Post- Upjohn Consideration of the Corporate Attorney–Client Privilege,” 57 N.Y.U. L.Rev. 443, 445 (1982) (“[T]he attorney-client privilege is ‘the oldest of the privileges for confidential communications' know to the common law. Indeed, ‘[t]he history of this privilege goes back to the reign of Elizabeth I, where the privilege already appears as unquestioned.’ The privilege, based initially [on] ‘the oath and honor of the attorney,’ embodied the notion that a gentleman never revealed confidences....”). Thus, there are strong policy considerations for excepting a nonparty attorney asserting a claim of privilege from the ordinary rule requiring a party to be held in contempt prior to being able to challenge a discovery order.
In sum, there is no compelling reason to prevent a nonparty attorney from directly appealing from a discovery order on the basis of an asserted privilege, and there are significant considerations that militate against requiring a nonparty attorney to be held in contempt first. We conclude, therefore, in accordance with the first prong of Curcio and the principles espoused in Abreu, that the discovery order in the present case is an appealable final judgment.
II
Before proceeding to the merits of Finn Dixon's writ of error, we pause to address the dissent's analysis of our final judgment precedent in order to identify precisely the issue presented by this case. The dissent disagrees that a claim of attorney-client privilege justifies allowing a nonparty attorney to appeal from an interlocutory discovery order and instead concludes that the discovery order in this case does not satisfy either prong of Curcio. The dissent also restricts Abreu's reasoning to only the narrowest of circumstances.We find the dissent's analysis in this context unconvincing.
The dissent first rejects Finn Dixon's argument that its interest in preserving the attorney-client privilege satisfies the second prong of Curcio, relying principally on Melia v. Hartford Fire Ins. Co., 202 Conn. 252, 258, 520 A.2d 605 (1987) (“[o]ur concern for the efficient operation of the judicial system, which is the practical consideration behind the policy against piecemeal litigation inherent in the final judgment rule, has induced us to dismiss appeals [when] statutorily created rights of privacy, no less significant than the right of confidentiality for attorney-client communications, have been at stake”). This reliance is misplaced. The court in Melia held that an assertion of a privilege, standing alone, is insufficient to transform an ordinary discovery dispute between parties into an appealable final judgment under the second prong of Curcio. Melia, thus, is inapposite with respect to the issue of whether a nonparty'sobjection to a discovery order satisfies the first prong of Curcio. In order to determine whether such an objection satisfies the first prong, the relevant analysis is found in Abreu, not Melia. Because the procedural posture of the discovery order in the present case is virtually identical to the one in Abreu, and because the discovery order further implicates policy considerations that militate against an overly formulaic application of our final judgment jurisprudence, we conclude that Finn Dixon properly may bring its writ of error. Accordingly, we disagree with the dissent's contrary reasoning that (1) the present discovery order is not the result of a separate proceeding but, rather, part of an ongoing civil action, and (2) “there is no principled reason to treat parties and nonparties differently in this context because both classes are exposed to the same threat of irremediable harm from a nonappealable discovery order....”
Accordingly, we do not dispute that Finn Dixon's claim under the second prong is likely meritless under Melia. In Melia, the court dismissed the defendant's claim that the appeal satisfied the second prong of Curcio, concluding that the disclosure of privileged documents did not significantly terminate the party's rights. See Melia v. Hartford Fire Ins. Co., supra, 202 Conn. at 257, 520 A.2d 605 (“In arguing that this appeal from a disclosure order falls within the second Curcio alternative, that the rights of a party be so concluded that further proceedings cannot affect them, the defendant concedes that adequate relief from most erroneous discovery rulings that are also prejudicial can be obtained on appeal after trial. It maintains, however, that the privacy interests protected by the attorney-client privilege cannot be completely restored once they have been invaded by a disclosure order. It is true that a remand for a new trial resulting from an erroneous order to disclose information protected by the privilege cannot wholly undo the consequences of its violation, though the rights of the client in respect to use of privileged material during further proceedings in the litigation can be adequately safeguarded. Vindication at the appellate level can seldom regain all that has been lost by an erroneous determination of a cause in the trial court.... The same imperfection in the appellate remedy would be present if the attorney-client privilege were violated, not by a pretrial disclosure order ... but by a ruling on evidence during trial, which would have to await final judgment for appellate review unless trials were to be interrupted whenever such a ruling occurred.” [Citation omitted; internal quotation marks omitted.] ). Thus, it is clear that the court's discussion in Melia of the relative importance of the attorney-client privilege focused on whether the parties could ever repair the harm caused by disclosure and whether this harm was significant enough to satisfy the second prong of Curcio. For those reasons, Melia does not inform our analysis of whether a discovery order against a nonparty satisfies the first prong of Curcio.
For the same reason, we distinguish the facts of Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., supra, 249 Conn. at 36, 730 A.2d 51, from the facts of the present case. Metropolitan Life Ins. Co., like Melia, concerned whether an interlocutory appeal from a discovery order satisfied the second prong of Curcio. Relying on Melia, the court concluded that it did not. See id. at 42, 46, 730 A.2d 51. The court, however, allowed the appeal under § 52–265a. Id. at 50–51, 730 A.2d 51. The court found that a matter of substantial public interest was implicated, principally on the ground that the appeal concerned the attorney-client privilege, “the importance of which [this court] ... recently [had] reaffirmed.” Id. at 48, 730 A.2d 51.
The dissent's concern over creating separate rules is misplaced. A different rule for nonparties would not undermine the rules governing the discovery process between parties in any manner. Indeed, as Abreu demonstrates, this court has allowed a nonparty to appeal from a discovery order when the order satisfies Curcio without causing harm to the trial process. Moreover, a principled distinction exists, namely, that a discovery order affecting a nonparty likely will satisfy the first prong of Curcio; see Abreu v. Leone, supra, 291 Conn. at 348, 968 A.2d 385; whereas one affecting a party in a case will not. See, e.g., Ruggiero v. Fuessenich, 237 Conn. 339, 345–46, 676 A.2d 1367 (1996) (“[a] party to a pending case does not institute a separate and distinct proceeding merely by filing a petition for discovery or other relief that will be helpful in the preparation and prosecution of that case” [emphasis added] ).
We also are unpersuaded by the dissent's varying explanations of why the discovery order in the present case, which was directed against a nonparty, does not constitute a separate proceeding but the discovery order that was challenged in Abreu did. The dissent disavows any reading of Abreu that a discovery order directed at a nonparty is appealable when it satisfies the first prong of Curcio. Instead, the dissent would draft a rule permitting appeals only if the discovery order “threatens an important public policy” and subsequently could not be appealed by the party challenging it. In other words, the dissent announces a new final judgment test for discovery orders that is different from the test for other interlocutory rulings. We decline to adopt a new final judgment rule in this case.
The dissent's principal argument in this regard concerns Ruggiero v. Fuessenich, supra, 237 Conn. at 345–46, 676 A.2d 1367. In Ruggiero, however, the court held that discovery issues between parties do not constitute separate and distinct proceedings under the first prong of Curcio. It did not address the issue of a discovery order directed against a nonparty, which is more appropriately analyzed under Abreu and Lougee.
More importantly, the dissent's interpretation of Abreu ignores (1) the plain language and holding of that decision, a fact that the dissent concedes, and (2) our related jurisprudence concerning the applicability of the first prong of Curcio to discovery orders affecting nonparties. In that connection, we note that the dissent's insistence on reviewing, under the second prong of Curcio, all discovery orders affecting nonparties is not supported by the text of that case. The second prong of Curcio focuses on the “rights of the parties....” State v. Curcio, supra, 191 Conn. at 31, 463 A.2d 566. By contrast, the first prong of Curcio concerns the nature of the “proceeding[s]....” Id. We see no reason either to deviate from the language of Curcio or to upend our final judgment jurisprudence.
The dissent partially justifies this by reasoning that some language in Abreu demonstrates that the court, in its analysis, conflated the first and second prongs of Curcio. We agree that the language in Abreu that the dissent quotes is unclear with regard to whether the court relied on the first or second prong of Curcio. This portion of Abreu, however, is mere dictum because the court concluded, relying in part on Lougee v. Grinnell, supra, 216 Conn. at 487, 582 A.2d 456, that the discovery order satisfied the first prong of Curcio. Abreu v. Leone, supra, 291 Conn. at 341, 968 A.2d 385 (“we conclude that the first Curcio prong is satisfied” and “need not address the parties' arguments regarding the second prong of Curcio ”); see also id. at 349, 968 A.2d 385 (“as in Lougee, the first prong of Curcio has been satisfied”).
In the end, we are not convinced by the dissent's conclusion that Abreu's analysis of the first prong of Curcio is inapplicable to the present case or, alternatively, that Abreu should be overruled. As we previously stated, both cases present virtually identical procedural postures and both properly can be analyzed under the first prong of Curcio. The discovery order in the present case constitutes a final judgment because it terminated a separate and distinct proceeding and thus satisfied the first prong of Curcio. Additionally, it implicates important policy considerations that militate against requiring an officer of the court who also is not a party to the underlying action to be held in contempt of court in order to be able to seek appellate review.
Lastly, we disagree with the dissent's conclusion that an attorney's interest in preserving the attorney-client privilege and the confidentiality of work product is no more significant than the client's interest. This reflects a misunderstanding of the relevant policy considerations. The threshold question in determining the policy considerations implicated in the present case is not whether the attorney's interest is greater than the client's or whether the parties could adequately repair the harm caused by a disclosure of privileged material. Cf. Melia v. Hartford Fire Ins. Co., supra, 202 Conn. at 257, 520 A.2d 605. Rather, the policy consideration in this case is whether the attorney's interest in preserving the privilege, and the potential for sanctions, provides a sufficient justification for allowing Finn Dixon to seek appellate review of a discovery order. An attorney has an affirmative obligation to invoke the attorney-client privilege when the substance of privileged communications is sought, and, unlike the client, cannot unilaterally waive such privilege. Furthermore, an attorney is subject to significant sanctions if he or she fails to assert and defend the privilege. Thus, these professional and ethical constraints, as a matter of policy, elevate the duty to protect the privilege that all attorneys assume to a level of greater significance than the privilege itself, thereby highlighting the policy implications for allowing interlocutory appeals from adverse rulings. This increased significance militates against an overly rigid, formulaic application of our final judgment jurisprudence and instead compels the conclusion, in accordance with Abreu and Curcio, that the discovery order in the present case is an appealable final judgment.
III
We now address whether the trial court properly ordered Finn Dixon to comply with the defendants' subpoena, which directed Finn Dixon to disclose all materials relating to its representation of the plaintiffs. We begin with the applicable standard of review.
“Practice Book § 13–14(a) provides in relevant part that a trial court ‘may, on [a] motion [relating to discovery],make such order as the ends of justice require.’ Consequently, although we review the trial court's factual findings to determine whether they are clearly erroneous, ‘the granting or denial of a discovery request rests in the sound discretion of the court.’ ... Provided the trial court properly interpreted the pertinent statutes, a question over which this court has plenary review ... that decision will be reversed only if such an order constitutes an abuse of that discretion.” (Citations omitted.) Babcock v. Bridgeport Hospital, 251 Conn. 790, 819–20, 742 A.2d 322 (1999). Under the abuse of discretion standard, “[w]e must make every reasonable presumption in favor of the trial court's action.... The trial court's exercise of its discretion will be reversed only [when] the abuse of discretion is manifest or [when] injustice appears to have been done.” (Internal quotation marks omitted.) State v. Erickson, 297 Conn. 164, 176, 997 A.2d 480 (2010).
Finn Dixon raises five claims in support of its contention that the trial court's discovery order was clearly erroneous. The first claim concerns whether the trial court incorrectly concluded that Finn Dixon lacked standing to object to the order. The remaining four claims concern whether the trial court correctly concluded that the subpoenaed materials were discoverable and not privileged. We first address the trial court's decision with respect to Finn Dixon's standing.
In its articulation, the trial court stated, as a ground for denying Finn Dixon's objection to the subpoena, that Finn Dixon had no standing to assert the attorney-client privilege. This is incorrect. Although we have stated that the attorney-client privilege is held by the client, this refers to which party has the ability to unilaterally waive the privilege. See Gebbie v. Cadle Co., 49 Conn.App. 265, 274, 714 A.2d 678 (1998) (“[t]he power to waive the attorney-client privilege rests with the client or with his attorney acting with his authority ” [emphasis added] ). The fact that the client can elect to waive the privilege does not prevent his or her attorney from claiming it, especially when the client is not present. Indeed, as the commentary to rule 1.6 of the Rules of Professional Conduct makes clear, the attorney has an obligation to make that claim. See id. at 274 n. 7, 714 A.2d 678 (“[w]hile it is true that the allowable scope of inquiry at a discovery deposition clearly exceeds the boundaries of admissible evidence ... this does not relieve the attorney of the duty to uphold the attorney-client privilege” [citation omitted; internal quotation marks omitted] ). We therefore conclude that Finn Dixon properly may challenge the discovery order on the basis of the attorney-client privilege.
Finn Dixon's remaining claims all concern whether the trial court incorrectly concluded that the requested materials were not, or no longer, protected by the attorney-client privilege or the work product doctrine. In essence, Finn Dixon argues that the trial court abused its discretion when it ordered Finn Dixon to comply with a subpoena that, on its face, clearly requested privileged and protected materials. Finn Dixon notes that the subpoena sought all materials relating to Finn Dixon's representation of the plaintiffs, without regard to their relevance to the underlying action, and that some of these materials necessarily would contain privileged communications and protected work product. We agree with Finn Dixon that the subpoena inappropriatelysought materials containing privileged communications.
Specifically, Finn Dixon challenges the trial court's discovery order because (1) Practice Book § 13–3(a) prohibits a judicial authority from ordering disclosure of protected work product, (2) the plaintiffs did not unilaterally waive any work product protection of the requested materials when they commenced the underlying action, (3) the plaintiffs did not unilaterally waive the attorney-client privilege with respect to the requested materials when they commenced the underlying action, and (4) the defendants failed to demonstrate any need for the privileged communications between Finn Dixon and the plaintiffs.
Because we conclude that the court abused its discretion solely on the basis of its decision to grant the defendants' request for privileged, attorney-client communications, we do not reach Finn Dixon's claims regarding the work product doctrine. See, e.g., Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., supra, 249 Conn. at 51 n. 17, 730 A.2d 51.
First, the request for any and all documents relating to Finn Dixon's representation of the plaintiffs clearly embodied a request for privileged materials. “[W]ith respect to privilege claims generally, we have held that [when] the confidential status of otherwise discoverable information is apparent, a claim of privilege may be disposed of without further inquiry.” Babcock v. Bridgeport Hospital, supra, 251 Conn. at 847, 742 A.2d 322. Thus, the subpoena inappropriately sought privileged materials in violation of Practice Book §§ 13–2,13–26 and 13–28. For this reason alone, it would have been proper for the trial court to grant Finn Dixon's motion to quash the subpoena.
.Practice Book § 13–2 addresses the scope of discovery and provides in relevant part: “In any civil action ... a party may obtain ... discovery of information or disclosure, production and inspection of papers, books, documents and electronically stored information material to the subject matter involved in the pending action, which are not privileged....” (Emphasis added.)
.Practice Book § 13–26 addresses the scope of depositions and provides in relevant part: “[S]ubject to the provisions of Sections 13–2 through 13–5, any party ... may ... take the testimony of any person ... by deposition upon oral examination. The attendance of witnesses may be compelled by subpoena as provided in Section 13–28....”
.Practice Book § 13–28 provides in relevant part: “(c) 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 the examination permitted by Sections 13–2 through 13–5....” (Emphasis added.)
We note that the trial court stated in its articulation that Practice Book § 1–8 provides for a liberal interpretation of the rules of practice “in any case [in which] it shall be manifest that a strict adherence to them will work surprise or injustice,” and should be applied to the underlying discovery dispute because the requested materials will be relevant to deciding the issues in the case. Although we agree that this is the correct interpretation of Practice Book § 1–8, we disagree that the failure to apply the rules liberally in this case will work an injustice. As this court has made clear, “[m]erely because the communications are relevant does not place them at issue.” Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., supra, 249 Conn. at 54, 730 A.2d 51. The trial court appeared to have conflated the relevance of the privileged communications with their discoverability, without explaining why it was necessary to allow the defendants to subpoena privileged materials. We conclude that neither the defendants nor the trial court justified the liberal interpretation of the relevant rules of practice in this case.
The subpoena in this case also violated the time restraints imposed by Practice Book § 13–28(c), which requires that “any subpoena issued to a person commanding the production of documents or other tangible things at a deposition shall not direct compliance within less than fifteen days from the date of service thereof.” The defendants' subpoena is dated December 4, 2009, and directed Finn Dixon's custodian of records to appear, with the subpoenaed materials, on December 16, 2009, less than fifteen days later.
The defendants argue that Finn Dixon failed to properly invoke the attorney-client privilege, and thus waived it, because Babcock further held that, “to establish an exemption from disclosure [the claim] must not be couched in conclusory language or generalized allegations ... but should be sufficiently detailed, without compromising the asserted right to confidentiality....” (Internal quotation marks omitted.) Id. at 828, 742 A.2d 322. The defendants misconstrue this statement in Babcock, which refers to whether a specific statutory exemption to disclosure applies. That statute, General Statutes § 19a–17b, bars the discovery of records of a medical review committee engaged in peer review. In Babcock, we determined that the burden rests on the party asserting the statutory privilege to demonstrate that the materials sought to be discovered relate to a committee's peer review, as the statute precluded the discovery of only those materials generated by a medical review committee. See id. at 821–22, 836, 742 A.2d 322. Thus, Babcock and the other cases on which the defendants rely for this proposition are distinguishable, as they all involve instances in which the privileged nature of the materials was not facially apparent. In the present case, by contrast, the subpoena sought any and all materials relating to Finn Dixon's representation of the plaintiffs, which necessarily would include privileged, attorney-client communications.
.General Statutes § 19a–17b (d) provides in relevant part: “The proceedings of a medical review committee conducting a peer review shall not be subject to discovery or introduction into evidence in any civil action for or against a health care provider arising out of the matters which are subject to evaluation and review by such committee, and no person who was in attendance at a meeting of such committee shall be permitted or required to testify in any such civil action as to the content of such proceedings....”
In that connection, we reject the defendants' suggestion that Finn Dixon had an affirmative obligation to submit a privilege log, detailing the specific materials sought and the reason why they are privileged, in order to maintain the confidentiality of those materials. No provision of the rules of practice, and no decision by this court or the Appellate Court, requires that any person claiming the attorney-client privilege has the burden to provide a privilege log at the time the claim of privilege is made. Instead, the customary practice is that the trial court may order the party claiming the privilege to compile and produce a privilege log, which the opposing party and the trial court will then examine. See, e.g., Kenny v. Woods Restoration Services, Inc., Superior Court, judicial district of Hartford, Docket No. CV–06–4021690–S, 2007 WL 806055 (February 20, 2007) (attorney-client privilege); Fiddner v. Dhumale, Superior Court, judicial district of Danbury, Docket No. CV–03–0350306–S, 2005 WL 376593 (January 11, 2005) (peer review privilege); see also Collins v. Anthem Health Plans, Inc., Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. CV–99–0156198–S, 2002 WL 1837872 (July 9, 2002) (32 Conn. L. Rptr. 464) (“[w]hile courts sometimes require parties who are withholding documents on the basis of claims of privilege to supply ... a log of the withheld items, neither the [rules of practice] nor case law suggests any reason to impose on a party the burden of preparing a log of documents not within the scope of discovery simply because an adversary seeks broader discovery”). Indeed, we have implicitly approved of this procedure. See Babcock v. Bridgeport Hospital, supra, 251 Conn. at 832, 742 A.2d 322 (noting that trial court “afforded the defendants numerous opportunities and ample means by which to establish the privilege,” including ordering submission of privilege log); cf. Hutchinson v. Farm Family Casualty Ins. Co., 273 Conn. 33, 37, 50, 867 A.2d 1 (2005) (when attorney-client privilege was not waived and no exceptions applied, trial court improperly ordered in camera review of privileged documents). Moreover, unlike typical claims of attorney-client privilege in discovery disputes between parties, Finn Dixon is not a party to the underlying litigation and could not reasonably be expected to maintain a readily available privilege log in connection with the litigation. It therefore would unfairly penalize Finn Dixon in this case to conclude that the attorney-client privilege does not apply simply because Finn Dixon did not compile and produce a privilege log of all of its materials relating to its representation of the plaintiffs, in all matters, for a case in which it also was not a party.
Notwithstanding the foregoing, the defendants, relying on the trial court's articulation, also claim that the plaintiffs waived any privilege when they brought the underlying action against the defendants because they placed their privileged communications “at issue.” “[T]he ‘at issue,’ or implied waiver, exception is invoked only when the contents of the legal advice [are] integral to the outcome of the legal claims of the action.... Such is the case when a party specifically pleads reliance on an attorney's advice as an element of a claim or defense, voluntarily testifies regarding portions of the attorney-client communication, or specifically places at issue, in some other manner, the attorney-client relationship. In those instances the party has waived the right to confidentiality by placing the content of the attorney's advice directly at issue because the issue cannot be determined without an examination of that advice. ‘If the information is actually required for a truthful resolution of the issue on which the party has raised ... the party must either waive the attorney-client privilege as to that information or it should be prevented from using the privileged information to establish the elements of the case.’ ...
“ Merely because the communications are relevant does not place them at issue.... If admitting that one relied on legal advice in making a legal decision put the communications relating to the advice at issue, such advice would be at issue whenever the legal decision was litigated. If that were true, the at issue doctrine would severely erode the attorney-client privilege and undermine the public policy considerations [on] which it is based.” (Citations omitted; emphasis added.) Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., supra, 249 Conn. at 52–54, 730 A.2d 51.
In the present case, the plaintiffs have not pleaded reliance on any information or advice from Finn Dixon that might be found in the requested privileged materials, and, thus, it is not apparent that the plaintiffs have waived the privilege. See, e.g., id. at 54–55, 730 A.2d 51. Nevertheless, the defendants reason as follows: The plaintiffs' complaint and request for damages placed Finn Dixon's representation of the plaintiffs at issue because a determination of damages turns on the reasonableness of settlements entered into by the plaintiffs. The reasonableness of these settlements, according to the defendants, further turns on the reasonableness of Finn Dixon's advice, and, therefore, the plaintiffs have placed these communications at issue and cannot invoke the attorney-client privilege to prevent their disclosure. We reject this line of reasoning.
Neither this court nor the Appellate Court has held that the reasonableness of a settlement is necessarily determined by the advice that the settling party receives from counsel. To the contrary, we have held that “[t]he reasonableness of [a] settlement ... should be examined under an objective standard.” (Emphasis added.) Id. at 55, 730 A.2d 51. “It would be quite different if the [plaintiffs] sought to prove reasonableness based [on] the advice of counsel. In that instance, counsel's advice would be at issue ... but that is not the situation in the present case. Accordingly, although the reasonableness of the settlements is directly at issue, the exact communications between the [plaintiffs] and [Finn Dixon] regarding the decision to settle, which would aid only in a subjective determination, are not at issue.” Id. at 56, 730 A.2d 51; see also Black v. Goodwin, Loomis & Britton, Inc., 239 Conn. 144, 161 and n. 17, 681 A.2d 293 (1996) (citing, with approval, trial court's instruction to jury that “[t]he test as to whether the settlement is reasonable is what a reasonably prudent person in the position of the [d]efendant would have settled for considering the liability and damage aspects of the [p]laintiff's claim, as well as the risk of going to trial” [internal quotation marks omitted] ).
The defendants provide only one potentially persuasive authority for their argument to the contrary. In Rutgard v. Haynes, 185 F.R.D. 596 (S.D.Cal.1999), the defendant, Richard Haynes, represented the plaintiff, Jeffrey Jay Rutgard, in a civil antitrust suit. See id. at 597. That case was unsuccessful, and both Rutgard and Haynes were sued for malicious prosecution. See id. Rutgard was represented by new counsel in the malicious prosecution action; id. at 598; and settled the case on that counsel's advice. See id. at 599. Rutgard then brought a legal malpractice action against Haynes and sought attorney's fees and costs incurred in the malicious prosecution action as well as the settlement amount. See id. at 597–98.
The question before the court was whether Rutgard, by virtue of the malpractice action, waived the attorney-client privilege for communications between him and his new attorney while the new attorney represented Rutgard during the malicious prosecution case. Id. at 598. The court noted that, generally, a malpractice action against former counsel does not serve to waive the attorney-client privilege as to successive representation. Id. at 598–99. The court further noted that simply seeking attorney's fees would not place a plaintiff's communications with subsequent counsel at issue. Id. at 599. Nevertheless, the court reasoned that Rutgard “also [was] attempting to recover the amount he paid to settle the malicious prosecution suit” and “this claim for damages puts ‘in issue’ the reasonableness of that settlement.” Id.
We are not persuaded by the reasoning in Rutgard for two reasons. First, the decision appears to be an outlier, as the vast majority of jurisdictions that have addressed the issue have concluded that the privilege is not waived simply because a plaintiff is seeking to recover the amount of a settlement that arose out of a claim resulting from the alleged malpractice of the plaintiff's former counsel. See, e.g., Miller v. Superior Court, 111 Cal.App.3d 390, 394–95, 168 Cal.Rptr. 589 (1980); Fischel & Kahn, Ltd. v. van Straaten Gallery, Inc., 189 Ill.2d 579, 590, 244 Ill.Dec. 941, 727 N.E.2d 240 (2000); Jakobleff v. Cerrato, Sweeney & Cohn, 97 App.Div.2d 834, 835–36, 468 N.Y.S.2d 895 (1983). Second, a closer examination of Rutgard reveals that its reasoning stands on questionable grounds. The court in Rutgard based much of its holding on Fischel & Kahn, Ltd. v. van Straaten Gallery, Inc., 301 Ill.App.3d 336, 234 Ill.Dec. 773, 703 N.E.2d 634 (1998). See Rutgard v. Haynes, supra, 185 F.R.D. at 598–99. The Illinois Appellate Court's decision in Fischel & Kahn, Ltd., however, was subsequently reversed by the Illinois Supreme Court in Fischel & Kahn, Ltd. v. van Straaten Gallery, Inc., supra, 189 Ill.2d at 581, 244 Ill.Dec. 941, 727 N.E.2d 240.
The facts and issues contained in Fischel & Kahn, Ltd. align with those in the present case. Fischel & Kahn, Ltd. (Fischel) had represented van Straaten Gallery, Inc. (van Straaten) in previous business deals that gave rise to litigation. See Fischel & Kahn, Ltd. v. van Straaten Gallery, Inc., supra, 189 Ill.2d at 581–82, 585, 244 Ill.Dec. 941, 727 N.E.2d 240. Van Straaten retained new counsel in this litigation. Id. at 581, 244 Ill.Dec. 941, 727 N.E.2d 240. After Fischel sued van Straaten for unpaid legal fees, van Straaten filed a counterclaim, alleging, inter alia, that Fischel was negligent in advising van Straaten. Id. at 582, 244 Ill.Dec. 941, 727 N.E.2d 240. Fischel filed a request for production with new counsel for documents relating to new counsel's representation of van Straaten in the subsequent litigation. Id. at 582–83, 244 Ill.Dec. 941, 727 N.E.2d 240. In response to van Straaten's objection, Fischel argued that van Straaten had “waived its attorney-client privilege with [new counsel] when van Straaten sued Fischel ... for malpractice. Fischel ... argue[d] that because van Straaten [sought] damages for the defense and settlement of the [underlying] litigation, any facts surrounding that litigation [were] central to the question of whether [Fischel could] be held liable for malpractice. Fischel ... claim[ed] that without receiving all the documents surrounding the [underlying] litigation and its settlement, including documents that reveal[ed] otherwise privileged attorney-client communications, it would be impossible to determine whether and to what extent van Straaten's alleged loss resulted from [Fischel's] alleged malpractice.” Id. at 585, 244 Ill.Dec. 941, 727 N.E.2d 240. The Illinois Supreme Court disagreed. Id.
The court noted “that van Straaten, by [filing a counterclaim] against Fischel ... for legal malpractice, ha[d] placed [Fischel's] advice at issue and ha[d] waived the attorney-client privilege with respect to communications between it and Fischel.... However, [the court did] not believe that it follow[ed] that van Straaten, by that same action, ha[d] waived the attorney-client privilege with respect to communications between it and its [new] counsel....” Id. “That van Straaten's damages [were] subject to dispute by the parties [did] not mean that van Straaten ha[d] waived its attorney-client privilege regarding communications between it and [new counsel] that might touch on that question. If raising the issue of damages in a legal malpractice action automatically resulted in the waiver of the attorney-client privilege with respect to subsequently retained counsel, then the privilege would be unjustifiably curtailed.” Id. at 587, 244 Ill.Dec. 941, 727 N.E.2d 240.
Ultimately, the court “disagree[d] with [Fischel's] assertion that, without reviewing all the documents surrounding the [underlying] litigation and its settlement, it is impossible to determine whether and to what extent van Straaten's alleged loss resulted from [Fischel's] alleged malpractice, if any, or some other source.... [T]he privileged documents present[ed] one alternative means, though perhaps the most convenient, in which this information [could] be obtained. Mere convenience, however, should not justify waiver of the attorney-client privilege. To allow Fischel ... access to the privileged documents ... would ... unnecessarily undermine the purpose of the attorney-client privilege to encourage full and frank communication between attorneys and their clients.... Therefore ... van Straaten has not waived the attorney-client privilege ... with respect to [new counsel] by filing a malpractice action seeking [attorney's] fees and settlement costs of the [underlying] litigation.” (Citations omitted.) Id. at 590, 244 Ill.Dec. 941, 727 N.E.2d 240.
We agree with the Illinois Supreme Court's reasoning and find it applicable to the present case. The plaintiffs' malpractice claim concerns only the allegedly negligent representation by the defendants, which is separate from the plaintiffs' subsequent representation by Finn Dixon. Although the issue of damages will likely involve the reasonableness of the settlements entered into on Finn Dixon's advice, the fact finder should be able to assess damages adequately through other means without resorting to privileged communications between the plaintiffs and Finn Dixon. We decline to adopt the contrary rule urged by the defendants because it lacks precedential support and runs counter to our narrow construction of exceptions to the attorney-client privilege. See, e.g., Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., supra, 249 Conn. at 52–54, 730 A.2d 51. Therefore, we conclude that the plaintiffs did not waive the attorney-client privilege with respect to their communications with Finn Dixon, that the defendants' subpoena sought, inter alia, privileged communications in violation of the rules of practice, and that it was an abuse of the trial court's discretion to order compliance with such an overbroad subpoena.
The writ of error is granted and the case is remanded to the trial court with direction to vacate the order compelling production. In this opinion NORCOTT, McLACHLAN and ESPINOSA, Js., concurred.
EVELEIGH, J., with whom HARPER and VERTEFEUILLE, Js., join, dissenting.
In this dispute concerning a discovery request, the majority concludes that: (1) the trial court's order requiring the plaintiff in error, Finn, Dixon & Hearling, LLP (Finn Dixon) to comply with the subpoena issued by the defendants in error, Shipman & Goodwin, LLP, and Carolyn Cavolo (defendants), is an appealable final judgment; and (2) the discovery order must be vacated because it requires the disclosure of materials subject to the attorney-client privilege, and the plaintiffs in the underlying action plaintiffs) have not waived that privilege. I would conclude that the trial court's discovery ruling is not an appealable final judgment and, therefore, I would not reach the merits of Finn Dixon's claims. Accordingly, I respectfully dissent.
The plaintiffs are Woodbury Knoll, LLC, Woodbury Knoll II, LLC, Paredim Partners, LLC, formerly known as Hanrock Management, LLC, and David Parisier.
This court previously has recognized that, “[j]ust as an appeal, a writ of error requires a final judgment as a predicate. See Practice Book § 72–1; see also State v. Ross, 189 Conn. 42, 51, 454 A.2d 266 (1983) (‘the use of a writ of error would in no way overcome the objections ... to the appeal process based upon ... the absence of finality in the judgment’).” Green Rock Ridge, Inc. v. Kobernat, 250 Conn. 488, 498, 736 A.2d 851(1999). “ ‘An order issued upon a motion for discovery ... ordinarily ... does not constitute a final judgment, at least in civil actions.’ Chrysler Credit Corp. v. Fairfield Chrysler–Plymouth, Inc., 180 Conn. 223, 226, 429 A.2d 478 (1980); see also Presidential Capital Corp. v. Reale, 240 Conn. 623, 625, 692 A.2d 794 (1997) (‘[t]he general rule established by our case law is that an interlocutory order requiring a witness to submit to discovery is not a final judgment and, therefore, is not immediately appealable’). ‘[W]e require that those ordered to comply with discovery be found in contempt of court before we consider an appeal.....’ Barbato v. J. & M. Corp., 194 Conn. 245, 249, 478 A.2d 1020 (1984).” Green Rock Ridge, Inc. v. Kobernat, supra, at 498, 736 A.2d 851; see also Abreu v. Leone, 291 Conn. 332, 346, 968 A.2d 385 (2009) (“an order issued upon a motion for discovery ordinarily is not appealable because it does not constitute a final judgment, and ... a witness' only access to appellate review is to appeal a finding of contempt”); cf. Ruggiero v. Fuessenich, 237 Conn. 339, 345–46, 676 A.2d 1367 (1996) (“[a] party to a pending case does not institute a separate and distinct proceeding merely by filing a petition for discovery or other relief that will be helpful in the preparation and prosecution of that case”). This court has recognized certain limited exceptions to this general rule. In Abreu v. Leone, supra, 291 Conn. at 334, 968 A.2d 385, for example, the defendant, Karissa Leone, had filed a claim with the claims commissioner seeking permission to bring an action against the department of children and families (department) for personal injuries allegedly inflicted by the foster child of the plaintiff, Joseph Abreu. Leone issued a notice of deposition and subpoena duces tecum to Abreu, apparently seeking information about the child. Id. at 335, 968 A.2d 385. Abreu then filed a separate action asking the trial court to quash the subpoena on the ground that he was prohibited, under General Statutes § 17a–28, from disclosing that information. Id. The department intervened as a party plaintiff and filed a brief in support of Abreu's position. Id. The trial court issued a decision holding that Abreu was statutorily prohibited from testifying about his foster child, but allowing the deposition to go forward so that the defendant could seek other information. Id.
Thereafter, at Abreu's deposition, he declined to answer certain questions. Id. at 336, 968 A.2d 385. Counsel for Leone then read the questions into the record and Abreu and the department placed their objections on the record. Id. Subsequently, the trial court ordered Abreu to answer the questions. Id. at 337, 968 A.2d 385. The department appealed from that ruling to the Appellate Court, which dismissed the appeal for lack of a final judgment. Id. at 338, 968 A.2d 385. The department then filed a certified appeal in this court. Id.
On appeal, we concluded that the trial court's order compelling Abreu to answer the questions posed by Leone was an appealable final judgment. Id. at 341, 968 A.2d 385. In support of this conclusion, we reasoned that: (1) unlike the situations in Barbato v. J. & M. Corp., supra, 194 Conn. at 248, 478 A.2d 1020, and Presidential Capital Corp. v. Reale, supra, 240 Conn. at 633, 692 A.2d 794, the trial court had clearly indicated what specific information Abreu was required to provide, Abreu had clearly refused to provide that information and, therefore, Leone was “forcing [Abreu] to be held in contempt”; Abreu v. Leone, supra, 291 Conn. at 347, 968 A.2d 385; (2) requiring Abreu to be held in contempt “would discourage participation by otherwise willing foster parents and thus undermine the goals of that system,” while forcing him to answer the questions would subject the foster child to “embarrassment, stigmatization and emotional harm”; id. at 348, 968 A.2d 385; (3) the trial court's order had “terminated a separate and distinct proceeding concluding the department's rights” because the department could not force Abreu to defy the court order, thereby subjecting himself to contempt proceedings; (emphasis in original) id. at 348, 968 A.2d 385; and (4) the motion to quash was the sole judicial proceeding at issue in the case and probably the only legal proceeding from which Abreu and the department would have a right to seek appellate review. Id. at 348–49, 968 A.2d 385;id. at 349, 968 A.2d 385 (Abreu could not appeal from proceeding before claims commissioner because he was not party, and it was possible that neither Abreu nor department could seek appellate review because proceeding was not judicial proceeding.).
I would conclude that Abreu does not support the majority's conclusion herein that the trial court's order requiring Finn Dixon to comply with the defendants' subpoena duces tecum was an appealable final judgment. First, although, as in Abreu, the information that is being sought in the present case has been clearly identified, and Finn Dixon has clearly refused to produce it, a clear and definite discovery order and an unambiguous refusal to obey the order are merely necessary predicates to a determination that the ruling is an appealable final judgment; they are not sufficient predicates. See Melia v. Hartford Fire Ins. Co., 202 Conn. 252, 253–54, 520 A.2d 605 (1987) (order requiring defendant to produce entire claims file for inspection by plaintiff was not appealable final judgment); State v. Grotton, 180 Conn. 290, 291, 296, 429 A.2d 871 (1980) (order directing taking of specimens of defendant's blood, saliva and urine was not appealable final judgment); Chrysler Credit Corp. v. Fairfield Chrysler–Plymouth, Inc., supra, 180 Conn. at 227–28, 429 A.2d 478 (trial court's imposition of sanctions when defendant refused to produce specifically requested documents was not appealable final judgment). Although the final judgment rule is premised in part on our reluctance to address claims prematurely or to issue advisory opinions; see State v. Grotton, supra, at 292, 429 A.2d 871 (discovery orders are not immediately reviewable in part because “their import is fully apprehended only after trial is concluded”); the rule's primary policy rationaleis “to discourage piecemeal appeals and to facilitate the speedy and orderly disposition of cases at the trial court level.” (Internal quotation marks omitted.) Mazurek v. Great American Ins. Co., 284 Conn. 16, 33, 930 A.2d 682 (2007). Thus, the mere fact that a discovery order is clear and definite, standing alone, ordinarily does not mean that the order is immediately reviewable.
Similarly, the fact that a party will be forced immediately to choose between complying with a discovery order and being held in contempt—or some other sanction if this court declines to review the order—standing alone, does not ordinarily exempt the order from the rule that discovery rulings are not appealable final judgments. See Barbato v. J. & M. Corp., supra, 194 Conn. at 250, 478 A.2d 1020 (“The party seeking to withhold information may have strong needs to keep that information confidential. Due to the interest of the other parties and the judicial system, however, that person may be compelled to disclose the information or be held in contempt.” [Emphasis added].). The existence of this “Hobson's choice”; Abreu v. Leone, supra, 291 Conn. at 348, 968 A.2d 385; mandates immediate appellate review only when, as in Abreu, there are important public policy considerations that outweigh the policy considerations underlying the final judgment rule. Id. (discovery order was immediately reviewable because holding Abreu in contempt would discourage participation in foster parent system while requiring him to testify would undermine purpose of § 17a–28 [b] ).
See Abreu v. Leone, supra, 291 Conn. at 347, 968 A.2d 385 (“Because ... the specific questions have been propounded and the trial court has ruled unequivocally what must occur, we can only regard the posture of the present case as the functional equivalent of [Abreu's refusing to answer the questions again and being held in contempt].... In essence, the defendant is forcing [Abreu] to be held in contempt.” [Citation omitted; internal quotation marks omitted.] ).
Moreover, to the extent that Abreu suggests that the requirement that a party who has already refused to comply with a clear and specific discovery request must be held in contempt before seeking appellate review of a discovery order is a mere matter of form and is, therefore, dispensable; Abreu v. Leone, supra, 291 Conn. at 348, 968 A.2d 385 (requiring party who already has refused to answer specific questions to be held in contempt before reviewing discovery order “would be elevat[ing] form over substance” [internal quotation marks omitted] ); I believe that any such suggestion is unfounded. In reviewing a judgment of contempt for refusal to obey a discovery order, the reviewing court may be required to rule on the propriety of the underlying order, but that will not always be the case. See Papa v. New Haven Federation of Teachers, 186 Conn. 725, 733, 444 A.2d 196 (1982) (“only those claims of error which concern the court's authority to issue [the underlying order] and thereby its authority to find contempt for violations thereof may be reviewed” on appeal from judgment of contempt [emphasis added] ); cf. id. at 732, 444 A.2d 196 (“although the scope of review on an appeal from a judgment of civil contempt is limited to some extent, it is sufficiently broad to encompass many claims of error which may not appear on their face to be jurisdictional in nature”). Once the reviewing court has determined that the trial court had the authority to issue an interlocutory order, the court will not consider whether the order constituted an abuse of discretion. See id. at 733, 444 A.2d 196 (“certain claims by the [party in contempt] concerning the [violated interlocutoryorder] are not reviewable because they concern the court's discretion, not its authority”). Thus, this court clearly recognized in Papa that a contempt judgment is not a procedural vehicle for converting an interlocutory ruling into appealable final judgment. See id. (because issuance of temporary injunction is not appealable final judgment, only claims implicating court's authority to issue injunction may be reviewed on appeal from judgment of contempt). Rather, the “ judgment of contempt is a final, reviewable judgment.” (Emphasis added.) Barbato v. J. & M. Corp., supra, 194 Conn. at 250, 478 A.2d 1020. Accordingly, to the extent that we suggested in Abreu that, in the ordinary case, it would be a mere formality to require a party who has already refused to comply with a well defined interlocutory discovery order to be held in contempt and, therefore, the judgment of contempt is dispensable, I believe that this court put the cart before the horse. A judgment of contempt is not a technical prerequisite for immediate review of the merits of an interlocutory discovery order; rather, immediate review of the trial court's authority to issue an interlocutory discovery order may be required to review a judgment of contempt.
It is clear to me, therefore, that, under Abreu, a person may bring an immediate appeal from a discovery order only if: (1) the order threatens an important public policy that provides a “counter-balancing factor” to the policies underlying the final judgment rule; Abreu v. Leone, supra, 291 Conn. at 347, 968 A.2d 385; and (2) the party attempting to bring the appeal would not have a later opportunity to challenge the order. Id. at 348, 968 A.2d 385; see also Melia v. Hartford Fire Ins. Co., supra, 202 Conn. at 256, 520 A.2d 605 (citing with approval federal standard that “allows interlocutory appeals from only those decisions falling within that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated” [internal quotation marks omitted] ). In the present case, Finn Dixon claims that the first Abreu consideration is present because of the important public policy underlying the attorney-client privilege, and the second consideration is present because Finn Dixon is not a party to and has no interest in the underlying action, its rights will be irretrievably lost if it is required to disclose the requested materials, and it will have no other opportunity for review.
I first address Finn Dixon's claim that protection of the attorney-client privilege is an important counterbalancing factor justifying a departure from the ordinary rule that a discovery order is not immediately appealable. I disagree. This court previously has held that the fact that a discovery order may require the disclosure of materials subject to the attorney-client privilege is not “sufficiently important to transform an interlocutory order into a final judgment” under the applicable standard. Id. This court recognized in Melia that a determination on appeal that the discovery order was improper “cannot wholly undo the consequences of [the violation of the privilege], though the rights of the client in respect to use of privileged material during further proceedings can be adequately safeguarded.” Id. at 257, 520 A.2d 605. We also recognized, however, that the fact that “[v]indication at the appellate level can seldom regain all that has been lost by an erroneous determination of a cause in the trial court”; (internal quotation marks omitted) id.; does not mean that such determinations are immediately reviewable. See also id. at 258, 520 A.2d 605 (“the final judgment rule ... has induced [this court] to dismiss appeals where statutorily created rights of privacy, no less significant than the right of confidentiality for attorney-client communications have been at stake”); see also Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., 249 Conn. 36, 47, 730 A.2d 51 (1999) (same). In the present case, Finn Dixon has provided, and I can perceive, no reason to reconsider these principles. Indeed, the majority does not contend otherwise.
This court in Metropolitan Life Ins. Co. ultimately concluded that immediate review of the plaintiff's appeal from a discovery order was warranted under General Statutes § 52–265a. Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., supra, 249 Conn. at 50–51, 730 A.2d 51. Although that conclusion was based in part on the importance of the attorney-client privilege; see id. at 48, 730 A.2d 51; we expressly relied on Melia for the proposition that that consideration, standing alone, does not justify immediate review of a discovery order. Id. at 46–47, 730 A.2d 51.
The majority concludes, however, that Finn Dixon's independent interest in maintaining the confidentiality of its privileged materials provides a counter-balancing factor to the policies underlying the final judgment rule. The majority also concludes that attorneys, unlike their clients, have a professional ethical obligation to protect the confidentiality of privileged information; see Rules of Professional Conduct 1.6(a); and that attorneys should not be placed in the untenable position of either breaching that obligation or violating a court order and being held in contempt.
.Rule 1.6(a) of the Rules of Professional Conduct provides: “A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the discourse is permitted by subsection (b), (c), or (d).”
I am not persuaded. Although the interests of an attorney in preserving the confidentiality of materials subject to the attorney-client privilege may not be identical to those of a client, their respective interests are closely intertwined. Indeed, in the present case, the plaintiffs, in their objections to the defendants' subpoena duces tecum, motion to quash and motion for protective order, “join[ed] in and adopt[ed]” the substance of Finn Dixon's objections, motion to quash and motion for protective order. In addition, in its opposition to the defendants' motion to dismiss this writ of error, Finn Dixon stated that it had asserted its objections to the subpoena duces tecum pursuant to its ethical obligations to the plaintiffs under Rule 1.6 of the Rules of Professional Conduct, and not on the basis of its own confidentiality interests. Furthermore, although the defendants in the underlying action directed their subpoena duces tecum at Finn Dixon, they could just as easily have directed it at the plaintiffs, who would have been entitled to obtain the requested documents from Finn Dixon for purposes of discovery. Under Melia, the plaintiffs would not have been able to appeal immediately from a decision overruling their objections to the subpoena. Thus, it is clear to me that allowing a nonparty attorney to appeal immediately from a discovery order constitutes an end run around Melia. Moreover, to the extent that Finn Dixon has an interest in its privileged materials that is entirely distinct from its clients' interest, I do not believe that that interest is significantly more important than the clients' interest. Finally, as the majority recognizes, an attorney's compliance with a court order compelling disclosure of privileged materials does not violate the Rules of Professional Conduct if the attorney asserts all nonfrivolous claims against disclosure. See Rules of Professional Conduct 1.6(c) (“[a] lawyer may reveal [privileged or confidential] information to the extent the lawyer reasonably believes necessary to ... [4] [c]omply with ... a court order”), and commentary.
The commentary to Rule 1.6 of the Rules of Professional Conduct provides in relevant part: “A lawyer may be ordered to reveal information relating to the representation of a client by a court or by another tribunal or governmental entity claiming authority pursuant to other law to compel the disclosure. Absent informed consent of the client to do otherwise, the lawyer should assert on behalf of the client all nonfrivolous claims that the order is not authorized by other law or that the information sought is protected against disclosure by the attorney-client privilege or other applicable law. In the event of an adverse ruling, the lawyer must consult with the client about the possibility of appeal to the extent required by Rule 1.4. Unless review is sought, however, subsection (c)(4) permits the lawyer to comply with the court order.”
At oral argument before this court, Finn Dixon argued that, when a discovery order requiring disclosure of privileged materials is “clearly erroneous,” an attorney who discloses privileged information is not entitled to raise the “Nuremburg” defense that the attorney was merely complying with a court order. Finn Dixon cited no authority in support of this claim. Even if it were correct, however, Finn Dixon has cited no authority for the proposition that the attorney cannot be required to disobey a clearly erroneous interlocutory order and be held in contempt before seeking review of the order.
In my view, by allowing immediate appeals to nonparties from discovery orders that implicate the attorney-client privilege, the majority raises the privilege to an unduly exalted status. Although the privilege is undoubtedly important, this court repeatedly has recognized that a threat to it does not outweigh the policies that underlie the final judgment rule. Because it is well established in this state that a client's interests in preserving confidentiality are not sufficiently important as to require immediate appellate review of a discovery order, I would conclude, consistent with that precedent, that an attorney's interests also are not sufficiently important. As I have indicated, I believe that, under Abreu, a person seeking to appeal from a discovery order must establish both that the order concluded the person's rights so that no further proceeding will affect them and that there is a counter-balancing public policy interest. Accordingly, I would conclude on this basis alone that the discovery order in the present case is not immediately appealable.
Although I acknowledge that the final judgment rule creates a dilemma for a nonparty attorney in this context, for the reasons that I have explained, I do not believe that this dilemma is significantly more burdensome on a nonparty attorney than it is on any other party or nonparty who must disobey a court order in order to obtain immediate appellate review. Moreover, if a nonparty attorney is held in contempt, the attorney obtains appellate review of the order and the challenge is upheld, I find it highly unlikely that any court would find the ethical violation sanctionable, especially in light of the fact that the attorney was faced with conflicting ethical obligations to the client and to the court. Sanctions are also unlikely if a good faith challenge is denied on appeal and the attorney promptly complies with the order.
Indeed, when asked at oral argument before this court whether one of the reasons for this court's decision in Abreu was that the discovery ruling at issue in that case involved an important public policy factor, counsel for Finn Dixon responded, “It certainly was.” Counsel did not argue that Finn Dixon could appeal immediately from the trial court's overruling of the objections to the defendants' subpoena duces tecum solely because Finn Dixon was a nonparty and would have no other opportunity to challenge the ruling.
Nevertheless, because the majority concludes that, even in the absence of a counter-balancing factor, the discovery order is immediately appealable on the independent ground that it “terminated a separate and distinct proceeding”; Abreu v. Leone, supra, 291 Conn. at 348, 968 A.2d 385; I address that issue. I recognize that this court expressly stated in Abreu that “the first [prong of the test set forth in State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983) was] satisfied” by the discovery order at issue in that case. Id. at 341, 463 A.2d 566. It is well established, however, that discovery orders do not satisfy the first prong of Curcio because they are not “severable from the central cause of action so that the main action can proceed independent of the ancillary proceeding.” (Internal quotation marks omitted.) Id. at 339, 463 A.2d 566; see also Ruggiero v. Fuessenich, supra, 237 Conn. at 345–46, 676 A.2d 1367 (“[a] party to a pending case does not institute a separate and distinct proceeding merely by filing a petition for discovery or other relief that will be helpful in the preparation and prosecution of that case”). Because our statement to the contrary in Abreu is simply unsupportable under our jurisprudence governing the appealability of interlocutory orders, I am compelled to conclude that it was incorrect. Indeed, this court appears to have conflated the first and second prongs of Curcio in Abreu when it stated that “it is clear that the trial court order in the present case also terminated a separate and distinct proceeding concluding the department's rights by forcing the disclosure or privileged information ... that further proceedings could not remedy.” (Emphasis added.) Abreu v. Leone, supra, at 348, 968 A.2d 385. A ruling that so concludes a person's rights that further proceedings cannot affect them implicates the second prong of Curcio, not the first prong. Id. at 339, 676 A.2d 1367.
In State v. Curcio, supra, 191 Conn. at 31, 463 A.2d 566, this court determined that “[a]n otherwise interlocutory order is appealable in two circumstances: 1) where the order or action terminates a separate and distinct proceeding, or 2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.”
I recognize that this court previously has held that certain discovery orders satisfy the first prong of Curcio. See Lougee v. Grinnell, 216 Conn. 483, 487, 582 A.2d 456 (1990); see also Presidential Capital Corp. v. Reale, supra, 240 Conn. at 631, 692 A.2d 794. In Lougee, the petitioner, Virginius B. Lougee, brought an action to quash a subpoena that had been issued at the instigation of the respondent, Jeannie B. Grinnell, in connection with an action that Grinnell had brought in Texas. Lougee v. Grinnell, supra, at 484–85, 582 A.2d 456. We stated in that case that “the sole judicial proceeding instituted in Connecticut concerned the propriety of Grinnell's deposition subpoena, a proceeding that will not result in a later judgment from which [Lougee] can then appeal. Thus, this appeal falls within the first prong of the test of finality of judgment stated in State v. Curcio, [supra, 191 Conn. at 31, 463 A.2d 566]: (1) where the order or action terminates a separate and distinct proceeding. Commissioner of Health Services v. Kadish, 17 Conn.App. 577, 578 n. 1, 554 A.2d 1097 (1989).” (Internal quotation marks omitted.) Lougee v. Grinnell, supra, at 487, 582 A.2d 456. In Presidential Capital Corp. v. Reale, supra, at 240 Conn. at 631, 692 A.2d 794, we stated in dictum that “[a] trial court order that quashes an investigative subpoena indubitably ‘terminates' the discovery proceeding that is at issue. See Commissioner of Health Services v. Kadish, [supra, at 578 n. 1, 554 A.2d 1097.] We have, accordingly, regularly undertaken appellate review of such an order. See, e.g., Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 461 A.2d 938 (1983); In re Application of Ajello v. Moffie, 179 Conn. 324, 426 A.2d 295 (1979).”
As I have explained, however, it is well established that discovery orders do not satisfy the first prong of Curcio because they are not “severable from the central cause of action so that the main action can proceed independent of the ancillary proceeding.” (Internal quotation marks omitted) Abreu v. Leone, supra, 291 Conn. at 339, 968 A.2d 385; see also Ruggiero v. Fuessenich, supra, 237 Conn. at 345–46, 676 A.2d 1367. Moreover, in two of the three cases that this court cited in Presidential Capital Corp. in support of its conclusion to the contrary, the Curcio issue was not addressed. See Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, supra, 190 Conn. at 510, 461 A.2d 938;In re Application of Ajello v. Moffie, supra, 179 Conn. at 324, 426 A.2d 295. In the third case, Commissioner of Health Services v. Kadish, supra, 17 Conn.App. at 578 n. 1, 554 A.2d 1097, which this court also cited in Lougee, the issue was raised by the Appellate Court sua sponte and was disposed of with little analysis in a footnote. Finally, it is impossible to reconcile this court's conclusion in Presidential Capital Corp. that an order quashing a subpoena is immediately appealable with its conclusion that an order that authorizes discovery to go forward is not. Presidential Capital Corp. v. Reale, supra, at 631, 692 A.2d 794 (“[t]he finality that attaches to the quashing of a subpoena is not ... transferable to an order that authorizes discovery to go forward”). The order is equally determinative of the rights of the parties in both situations and, also in both situations, the main cause of action would have to be stayed pending resolution of an appeal from the order. Indeed, an order compelling discovery is, if anything, more “final” than an order denying discovery because such an order changes the status quo and, “once disclosed through discovery, information cannot be retrieved.” Id. at 629, 692 A.2d 794. Accordingly, it is clear to me that, contrary to this court's conclusion in Lougee and the dictum in Presidential Capital Corp., discovery orders that “will not result in a later judgment from which [the subject of the order] can [later] appeal”; (internal quotation marks omitted) Lougee v. Grinnell, supra, 216 Conn. at 487, 582 A.2d 456; should be analyzed under the second prong of Curcio, governing orders that “so [conclude] the rights of the parties that further proceedings cannot affect them”; State v. Curcio, supra, 191 Conn. at 31, 463 A.2d 566; not under the first prong.
We analogized discovery proceedings to proceedings on a motion for summary judgment in Presidential Capital Corp. and noted that this court had never held that, “because the granting of a motion for summary judgment is immediately appealable, the denial of such a motion is equally appealable.” (Emphasis in original.) Presidential Capital Corp. v. Reale, supra, 240 Conn. at 631, 692 A.2d 794. The granting of a motion for summary judgment that disposes of all claims against a particular party or parties is immediately appealable, however, because, unlike the denial of a motion for summary judgment, it is a final judgment. See Connecticut National Bank v. Rytman, 241 Conn. 24, 34–35, 694 A.2d 1246 (1997); Practice Book § 61–3.
In my view, this court's holding in Lougee that orders issued in discovery proceedings within this state that arise from a cause of action pending in another state are immediately appealable is justified under the second prong of Curcio because, like all discovery orders, they may so conclude the rights of the parties that further proceedings cannot effect them but, unlike discovery orders arising from a cause of action pending in this state, allowing an immediate appeal will not undermine “the efficient operation of [our] judicial system....” Melia v. Hartford Fire Ins. Co., supra, 202 Conn. at 258, 520 A.2d 605;id. (“[o]ur concern for the efficient operation of the judicial system ... is the practical consideration behind the policy against piecemeal litigation inherent in the final judgment rule”); id. (where harm caused by delays likely to result from allowing interlocutory appeals outweighs interests that would be protected by allowing such appeals, appeal is not allowed under Curcio ).
This court previously has concluded that, under the second prong of Curcio, we must balance our concern for the rights of the person seeking an immediate appeal with our concern for “the efficient operation of the judicial system....” Melia v. Hartford Fire Ins. Co., supra, 202 Conn. at 258, 520 A.2d 605;id. (“[o]ur concern for the efficient operation of the judicial system ... is the practical consideration behind the policy against piecemeal litigation inherent in the final judgment rule”). Balancing these concerns, we have concluded that discovery orders generally are not immediately appealable, even though an erroneous discovery order may result in the deprivation of rights that cannot be restored in the absence of an immediate appeal. See id. at 257, 520 A.2d 605 (“It is true that a remand for a new trial resulting from an erroneous order to disclose information protected by the privilege cannot wholly undo the consequences of its violation.... Vindication at the appellate level can seldom regain all that has been lost by an erroneous determination of a cause in the trial court.” [Internal quotation marks omitted] ); id. at 259, 520 A.2d 605 (“[w]e conclude that the occasional violation of the attorney-client privilege that cannot be fully rectified upon review of the final judgment is a lesser evil than that posed by the delay in the progress of cases in the trial court likely to result from interlocutory appeals of disclosure orders”). Rather, discovery orders are immediately appealable only when our concern for judicial efficiency is outweighed by the need to protect a right that is “too important to be denied [immediate] review....” (Internal quotation marks omitted.) Id. at 256, 520 A.2d 605; see also Abreu v. Leone, supra, 291 Conn. at 347, 968 A.2d 385 (“like other cases in which we have determined that a contempt finding should not be a predicate to appellate review, there is a counterbalancing factor in this situation”).
In my view, as a practical and logical matter, these principles apply equally to discovery orders directed at nonparties. Cf. Presidential Capital Corp. v. Reale, supra, 240 Conn. at 629, 692 A.2d 794 (nonparty witnesses not entitled under Curcio to appeal immediately from denial of protective order). I recognize that, unlike a party, a nonparty's exclusive interests in a case in which it has been subjected to a discovery request are avoiding the burden of complying with the request and preserving any applicable privileges. I further recognize that, for all practical intents and purposes, an order compelling discovery finally concludes those interests. A discovery order directed at a party, however, also affects the party's interests in a manner that may not be remediable in a later appeal. See id. (“[i]t is a given that, once disclosed through discovery, information cannot be retrieved”); Melia v. Hartford Fire Ins. Co., supra, 202 Conn. at 257, 520 A.2d 605 (“[i]t is true that a remand for a new trial resulting from an erroneous order to disclose information protected by the privilege cannot wholly undo the consequences of its violation”). Moreover, there is no guarantee that the party will be able to bring an appeal or, if it can, that it will be able to appeal from the discovery order. Neither the potential unavailability of an adequate remedy on appeal nor the potential unavailability of an appeal, however, is sufficient justification for immediate review of a discovery order on the ground that “the order or action so concludes the rights of the parties that further proceedings cannot affect them.” (Emphasis added.) State v. Curcio, supra, 191 Conn. at 31, 463 A.2d 566; see also Melia v. Hartford Fire Ins. Co., supra, at 257, 520 A.2d 605. Otherwise, virtually all discovery orders would be immediately reviewable. Cf. Presidential Capital Corp. v. Reale, supra, at 629–30, 692 A.2d 794 (if fact that disclosed information cannot be retrieved were sufficient reason to allow immediate appeal from order to testify, “every reluctant witness could delay trial court proceedings by taking an interlocutory appeal”). Moreover, an immediate appeal from a discovery order by a nonparty will delay and disrupt the underlying proceedings no less than an appeal by a party.
If the party prevails on the merits of its case, it may not be aggrieved for purposes of appeal and, even if it can bring an appeal, the party will not be able to challenge the discovery order unless it can claim that the order resulted in prejudice to the party on the merits.
Accordingly, I see no reason why, if a party cannot obtain immediate review under Curcio of a discovery order without first being held in contempt, such relief should be available to a nonparty. Although the potential for unwarranted disclosure and irremediable harm exists in both situations, I continue to believe that “the occasional [improper discovery ruling] that cannot be fully rectified upon review of the final judgment is a lesser evil than that posed by the delay in the progress of cases in the trial court likely to result from interlocutory appeals of disclosure orders.” Melia v. Hartford Fire Ins. Co., supra, 202 Conn. at 259, 520 A.2d 605. Because I do not believe that Finn Dixon's interest in maintaining the confidentiality of its privileged materials and work product is sufficiently important to override our concern for the efficient operation of the judicial system, I do not believe that the trial court's order in the present case is appealable under the second prong of Curcio.
The majority does not dispute the substance of this analysis or explain how the discovery order at issue in the present case satisfies the requirement under the first prong of Curcio that, to be immediately appealable, an order must be “severable from the central cause of action so that the main action can proceed independent of the ancillary proceeding.” (Internal quotation marks omitted.) Abreu v. Leone, supra, 291 Conn. at 339, 968 A.2d 385. Rather, it simply ignores this requirement and the holding of Ruggiero that discovery matters are not separate and distinct proceedings, and begs the question by stating conclusorily that, because “Finn Dixon is not involved in any way with the lawsuit between the plaintiffs and defendants,” the discovery order “terminated a separate and distinct proceeding and thus satisfied the first prong of Curcio.” Despite this conclusion, the majority for some reason finds it necessary to expend a great deal of energy explaining why, in its view, there are also compelling policy reasons to review the discovery order immediately. The majority ultimately acknowledges that, under Melia, these policy reasons, “standing alone, [are] insufficient to transform an ordinary discovery dispute between parties into an appealable final judgment,” but concludes that Melia “is inapposite with respect to the issue of whether a nonparty's objection to a discovery order satisfies the first prong of Curcio.” If the majority believes that any discovery order to a nonparty order satisfiesthe first prong of Curcio, however, then there is no need for it to discuss the order's public policy implications. If the majority believes that, to the contrary, policy considerations must provide a counter-balancing factor to justify an immediate appeal from a discovery order, it is impossible to reconcile its ultimate conclusion that such a counter-balancing factor exists in the present case with its concession that “Finn Dixon's claim under the second prong [of Curcio] is likely meritless under Melia,” because the right at issue would not be sufficiently important to warrant an immediate appeal by a party.
I agree that the question of whether a discovery order satisfies the first prong of Curcio is governed by Ruggiero, not Melia.Melia does control the question, however, of whether an invasion of the attorney-client privilege that cannot be completely remedied is a sufficient threat to public policy to justify an immediate appeal even if the first prong of Curcio is not satisfied. Abreu provides no guidance on that question.
Finally, I greatly fear that the majority's decision permitting immediate review of discovery orders directed at attorneys for nonparties will open a floodgate of immediate appeals from all discovery orders. See Melia v. Hartford Fire Ins. Co. supra, 202 Conn. at 258, 520 A.2d 605 (“[t]he opportunities for delay that would become available if every disclosure order that might arguably implicate the attorney-client privilege could be appealed before trial are overwhelming to contemplate”); cf. Brown & Brown, Inc. v. Blumenthal, 288 Conn. 646, 655–56 n. 6, 954 A.2d 816 (2008) (declining to treat trial court's denial of motion for summary judgment as appealable final judgment in action seeking declaration that documents produced by plaintiff in separate proceeding were confidential because doing so would open floodgate of interlocutory appeals). If a discovery order directed at an attorney for a nonparty is a “separate and distinct proceeding” permitting immediate appellate review under Curcio, then discovery orders directed at any nonparty, including attorneys for parties, must also be separate and distinct proceedings under Curcio. Discovery orders directed at nonparties are an extremely frequent occurrence in civil cases. Moreover, as I have explained, there is no principled reason to treat parties and nonparties differently in this context because both classes are exposed to the same threat of irremediable harm from a nonappealable discovery order, and an immediate appeal by either a party or nonparty would cause the same delay and disruption in the underlying proceeding. Accordingly, it appears to me that the principled application of the newly adopted rule allowing nonparties to appeal immediately from discovery orders will lead inexorably to a rule allowingimmediate appeals by parties. I see no reason to venture down that path.
The majority states that “[a]llowing these appeals will not open the floodgates to numerous discovery order appeals, as they are far less common than typical discovery requests between parties....” Even assuming that the majority is correct that discovery requests directed at nonparties are less frequent than requests directed at parties, requests directed at nonparties such as witnesses, employers, health care providers, police officers, experts, etc., are still an extremely common occurrence in civil cases.
The majority states that “a principled distinction [between parties and nonparties in this context is] that a discovery order affecting a nonparty likely will satisfy the first prong of Curcio ... whereas one affecting a party in a case will not.” (Citation omitted.) As I have explained, however, a discovery order directed at a nonparty is not “severable from the central cause of action so that the main action can proceed independent of the ancillary proceeding,” as required under the first prong of Curcio. (Internal quotation marks omitted.) Abreu v. Leone, supra, 291 Conn. at 339, 968 A.2d 385. Moreover, a party, like a nonparty, will not be able to appeal from a discovery order after judgment merely because the order was burdensome or invaded a particular privilege. An appeal will be available only if the order resulted in prejudice to the party's case on the merits. Accordingly, if the main litigation must be stayed pending resolution of an immediate appeal from a discovery order by a nonparty, I see no reason why a party should be denied that privilege.
The majority suggests that I would “overrule” Abreu. This is an incorrect interpretation of my argument. I believe that my analysis makes it sufficiently clear that Abreu stands for the proposition that, when a discovery order implicates an important public policy and the procedural posture of the case is such that the person at whom the order is directed will not be able to vindicate the rights protected by the public policy in a later proceeding, the order is immediately appealable. My analysis is in no way inconsistent with this reading of Abreu and, therefore, would not require overruling it.
Because I would conclude that the trial court's orders denying Finn Dixon's motion to quash the subpoena and overruling its objections thereto did not constitute an appealable final judgment under either prong of Curcio, I would dismiss the writ of error for lack of appellate jurisdiction.