Woodbury Knoll, LLC v. Shipman & Goodwin, LLP

• Decision Date: 31 July 2012
• Docket Number: No. 18584.,18584.
• Citation: 305 Conn. 750,48 A.3d 16
• Court: Connecticut Supreme Court
• Parties: WOODBURY KNOLL, LLC, et al. v. SHIPMAN AND GOODWIN, LLP, et al.

305 Conn. 750

48 A.3d 16

WOODBURY KNOLL, LLC, et al.

v.SHIPMAN AND GOODWIN, LLP, et al.

No. 18584.

Supreme Court of Connecticut.

Argued Jan. 11, 2012.

Decided July 31, 2012.

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.

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 §§ 13–5¹ and 13–28(e),² 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).³

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 § 64–1,⁴ 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.”

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). ⁵ We denied the motion but, thereafter, ordered the parties to be prepared to address the issue at oral argument before this 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.⁶ 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.

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 ...