316 Conn. 504
Conn.2015Background
- John E. McConnell created a living trust in 2000 naming three children (McConnell, Hewitt, Sheridan) as beneficiaries. Hewitt filed a Probate Court application in 2010 alleging improper distributions by Sheridan; Andrews & Young, P.C. represented Hewitt.
- The Probate Court approved a January 25, 2011 stipulation allocating trust funds ($600,000 to Hewitt, $166,000 to Sheridan, $35,000 to McConnell). McConnell was not listed as an interested party and received no notice; he learned of the proceedings in October 2011.
- McConnell appealed the Probate Court orders to the Superior Court arguing lack of notice and seeking vacatur. The Superior Court issued an order to show cause suggesting counsel and parties in the Probate Court may have failed to notify McConnell and may have violated Rule 3.3 (candor to tribunal).
- The Superior Court ordered Andrews & Young and other nonparty attorneys to appear and bring files. Andrews & Young moved to vacate and sought a protective order; the court denied relief, threatened capias, and the attorneys appeared and testified over two days. Hewitt and Sheridan invoked the Fifth Amendment and declined to testify.
- Andrews & Young filed a writ of error challenging the trial court’s authority to compel nonparty attorneys to appear. The Connecticut Supreme Court addressed whether the order was a final judgment appealable by writ of error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Superior Court order compelling nonparty attorneys to appear and produce files is a final judgment appealable by writ of error | The order terminated a separate and distinct proceeding as to nonparty attorneys and thus is final under Curcio; immediate review is necessary, especially where privilege is implicated | The order is a discovery/interlocutory order intertwined with the underlying appeal and not a final judgment; writ of error requires a final judgment | The order was interlocutory and not a final judgment; writ of error dismissed |
| Whether a discovery order directed to a nonparty automatically constitutes a separate and distinct proceeding (Curcio first prong) | Reliance on Woodbury Knoll: discovery orders to nonparties are final because they terminate separate proceedings for the nonparty | Discovery orders to nonparties are only final when the order is not intertwined with the underlying litigation and does not seek materials needed to resolve the underlying action | Court: Woodbury Knoll does not establish a per se rule; here the order was intertwined with the underlying appeal and thus not final |
| Whether attorney-client privilege concerns make the order immediately appealable | Immediate review needed because privilege claims justify an exception to interlocutory rules (policy favoring nonparty attorneys) | Privilege disputes alone do not render every disclosure order final; allowing appeals would encourage delay and many rulings are not clearly dispositive | Court: Privilege issues do not automatically convert the order into a final judgment; past precedent limited Woodbury Knoll’s reach and refused to extend an automatic exception |
| Whether disclosed privileged material would make review moot or justify interlocutory appeal | Plaintiffs argue immediate review can vindicate privilege rights | Defendant: if privileged material already disclosed, appellate relief may be ineffective; frivolous appeals would multiply | Court: Even if some privileged materials were disclosed, absence of a clear, final disclosure order and policy against piecemeal appeals counsel dismissal |
Key Cases Cited
- State v. Curcio, 191 Conn. 27 (1983) (two-prong test for appealability of otherwise interlocutory orders)
- Green Rock Ridge, Inc. v. Kobernat, 250 Conn. 488 (1999) (discovery orders ordinarily not appealable as final judgments)
- State v. Fielding, 296 Conn. 26 (2010) (absence of a final judgment is a jurisdictional defect requiring dismissal)
- Woodbury Knoll, LLC v. Shipman & Goodwin, LLP, 305 Conn. 750 (2012) (discovery order to a nonparty can be appealable where not intertwined with underlying litigation)
- Niro v. Niro, 314 Conn. 62 (2014) (clarifies Woodbury Knoll: nonparty discovery orders are appealable only when not intertwined with the underlying action)
- Melia v. Hartford Fire Ins. Co., 202 Conn. 252 (1987) (policy reasons counseled against allowing appeals from every disclosure order that might implicate privilege)