VINCENT G. BENVENUTO v. KEVIN BROOKMAN
SC 20699
Supreme Court of Connecticut
March 5, 2024
Robinson, C. J., and McDonald, D‘Auria, Mullins, Ecker, Alexander and Dannehy, Js.
Argued October 19, 2023—officially released March 5, 2024
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Syllabus
The plaintiff, a lieutenant with the Hartford Police Department, filed a bill of discovery against the defendant, who publishes an Internet blog on issues relating to Hartford municipal governance, seeking the production of certain materials that would enable the plaintiff to ascertain the identities of persons who had posted anonymous blog comments containing allegedly defamatory statements about him. Specifically, the plaintiff sought to compel the defendant to release the Internet protocol addresses and any other information identifying the anonymous commenters and to submit for forensic analysis the hard drive of the laptop and the cell phone the defendant used in connection with the blog. The trial court granted the plaintiff‘s bill of discovery, concluding that the plaintiff had demonstrated probable cause with respect to his defamation claim against the authors of certain anonymous comments. To safeguard the defendant‘s privacy interests, the court ordered that the parties initially attempt to come to an agreement on the terms of a protective order and search protocols that would govern the scope and procedures to be used in the forensic analysis of his electronic devices. The court further ordered that, if the parties could not agree on those matters, then they must submit to the court proposed orders so the court could resolve any dispute. The court explicitly retained jurisdiction until such time as the parties filed their agreements or the court resolved any related disputes. Before the parties attempted to negotiate the terms, however, the defendant appealed, challenging the trial court‘s granting of the plaintiff‘s bill of discovery on various constitutional, statutory, and evidentiary grounds.
Held that the trial court‘s decision granting the plaintiff‘s bill of discovery was not an appealable final judgment, and, accordingly, this court dismissed the defendant‘s appeal for lack of jurisdiction:
The final judgment rule applies to a pure bill of discovery, the trial court‘s decision in the present case would not become a final judgment until the scope of discovery was clearly defined by agreement of the parties or, in the absence of an agreement, by court order, and, because the parties had not yet complied with the aspect of the trial court‘s order requiring them, prior to any discovery, to either file an agreement regarding the terms of the protective order and search protocols or to return to the trial court for resolution of those issues, the trial court‘s decision was not a final judgment in the usual sense.
Moreover, contrary to the defendant‘s claim, the trial court‘s interlocutory decision did not constitute an appealable final judgment under the second prong of State v. Curcio (191 Conn. 27), insofar as it did not so conclude the rights of the parties that further proceedings could not affect them.
Specifically, the trial court‘s order that the parties “attempt” to agree meant only that counsel was required to engage in good faith efforts to reach an agreement regarding the terms of the protective order and search protocols and in no way required, contrary to the defendant‘s argument, the defendant‘s counsel to reveal information that would put at risk the statutory and constitutional rights to anonymity that the defendant sought to protect, as counsel could decline to reveal any such information if he acted in good faith and could ask the court to decide the open issues if the negotiations were to fail, and the very purpose of the further proceedings contemplated by the court‘s order was to safeguard those rights to the extent possible.
Furthermore, the defendant‘s argument that, regardless of the terms of the protective order and search protocols, his asserted rights to privacy would be violated once the forensic analysis of his devices was undertaken also failed to satisfy the second prong of Curcio because, although proceedings in the trial court relating to the protective order and search protocols might not have extinguished the defendant‘s aggrievement or eliminated his grounds for appeal, the terms of the order and protocols might have affected the nature or scope of the issues requiring resolution in a future appeal.
In addition, the exception to the final judgment rule recognized in Curcio is applicable only when this court finds that a cognizable legal right to which the appellant was plausibly entitled would be lost if appellate review were delayed, there could be no search of the defendant‘s devices until after the terms of the protective order and search protocols were finalized by agreement or by the court, until then, there was no threat of disclosure of the information that the defendant claimed he was legally entitled to withhold, and, accordingly, it was clear that the defendant would suffer no risk of irreparable harm to the rights he sought to preserve if he had been required to defer his appeal until the parties complied with the court‘s order.
Strict adherence to the requirements of the final judgment rule was appropriate under the present circumstances insofar as that rule implicates the court‘s jurisdiction and is intended to promote efficient judicial administration by discouraging piecemeal appeals, and, although an appeal by the defendant may be inevitable, he could not jump the gun by obtaining appellate review before
Procedural History
Petition for a bill of discovery seeking certain information and materials that would aid in the discovery of the identities of anonymous commenters to the defendant‘s blog, brought to the Superior Court in the judicial district of Hartford, where the court, Noble, J., granted the plaintiff‘s motion to strike the defendant‘s special defenses; thereafter, the case was tried to the court, Noble, J.; judgment granting the plaintiff‘s petition, and the defendant appealed. Appeal dismissed.
Mario Cerame, with whom were Robert Killian and Ikechukwu Ubaike, law student intern, for the appellant (defendant).
Gregory A. Jones, with whom was Patrick Tomasiewicz, for the appellee (plaintiff).
Jay M. Wolman filed a brief for Public Citizen as amicus curiae.
Opinion
ECKER, J. This is an appeal from an order granting a bill of discovery and requiring the defendant, Kevin Brookman, who publishes an Internet blog known as “We The People-Hartford,” to submit his laptop and cell phone for a forensic analysis that will enable the plaintiff, Vincent G. Benvenuto, to ascertain the identities of persons who posted blog comments containing allegedly defamatory statements about him. “[T]o safeguard the defendant‘s privacy interest,” the trial court‘s discovery order mandates that the parties attempt to reach an agreement on the terms of a protective order and search protocols that together will govern the scope and procedures to be used in the forensic analysis, or, in the absence of an agreement, submit proposed orders so that the trial court can resolve any disputes regarding the terms of the protective order and search protocols. The court expressly retained jurisdiction until such time as the parties have filed an agreement or the court has resolved any impasse. Following oral argument, we ordered the parties to file supplemental briefs addressing whether the trial court‘s order is a final judgment for purposes of appellate review. We conclude that the order is not final and dismiss the appeal.
The following facts and procedural history are relevant to our disposition. The defendant‘s blog “concentrates on police, fire, public works, the board of education, and city hall as they relate to Hartford residents.” The blog contains two sections, the first of which includes the defendant‘s investigative reports regarding matters of municipal governance. The second section consists of comments posted by readers, who can elect to reveal their identity or to remain anonymous. The present case arises from comments posted anonymously in the second section of the blog between August 5 and October 21, 2019, containing allegedly defamatory comments about the plaintiff, a lieutenant with the Hartford Police Department. There is no claim that the defendant was the author of these comments, conspired with the commenters, or has actual knowledge of the identities of the commenters.
The plaintiff filed the present action,
After a bench trial on the bill of discovery, the court found that four anonymous comments were defamatory per se because they referred to the plaintiff in his professional capacity as a police officer and were false.3 The court concluded that the plaintiff had demonstrated probable cause to bring an action for defamation against the authors of those four comments.4
On appeal, the defendant claims that the trial court improperly granted the bill of discovery because (1) the blog is protected from disclosure as “news media,” as defined by
Following the submission of appellate briefs and oral argument before this court, we ordered the parties to file supplemental briefs addressing whether the trial court‘s decision constitutes an appealable final judgment in light of the fact that the parties have not yet complied with the aspect of the court‘s order requiring them, prior to any discovery, either to file an agreed on protective order and search protocols or, in the event of an impasse, to return to the trial court for resolution of those threshold issues. In their supplemental briefs, both parties agree that the circumstances render the judgment nonfinal for purposes of appeal unless it comes within the exception set forth in State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). The plaintiff contends that the judgment is not immediately appealable because it satisfies neither prong of the Curcio exception. The defendant argues that the judgment is immediately appealable under the second prong of Curcio, which treats an otherwise interlocutory order as an appealable final judgment when it “so concludes the rights of the parties that further proceedings
Except as otherwise provided in the state constitution, the jurisdiction of our appellate courts is determined purely by statute. See, e.g., Redding Life Care, LLC v. Redding, 331 Conn. 711, 718, 207 A.3d 493 (2019).
“Adherence to the final judgment rule is not dictated by legislative fiat alone.” State v. Curcio, supra, 191 Conn. 30. The rule also serves important functional purposes relating to efficient judicial administration in both the appellate and trial courts, namely, “to discourage piecemeal appeals and to facilitate the speedy and orderly disposition of cases at the trial court level.” (Internal quotation marks omitted.) Wolfork v. Yale Medical Group, 335 Conn. 448, 459, 239 A.3d 272 (2020); accord Mazurek v. Great American Ins. Co., 284 Conn. 16, 33, 930 A.2d 682 (2007); see also Burger & Burger, Inc. v. Murren, 202 Conn. 660, 663, 669, 522 A.2d 812 (1987). Our “decisions recognize that the allowance of interlocutory appeals must be very narrowly prescribed” because ” ‘[i]mmediate review of every trial court ruling, while permitting more prompt correction of erroneous decisions, would impose unreasonable disruption, delay, and expense. It would also undermine the ability of [trial court] judges to supervise litigation.’ ” Burger & Burger, Inc. v. Murren, supra, 669, quoting Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 430, 105 S. Ct. 2757, 86 L. Ed. 2d 340 (1985). Our usual policy of strict enforcement of the final judgment rule at times may come at the cost of providing immediate appellate relief to an aggrieved party, but “this court has expressed the preference that some erroneous trial court decisions go uncorrected until appeal after judgment rather than have litigation disrupted by piecemeal appeals.” Burger & Burger, Inc. v. Murren, supra, 669.
The plaintiff in this case seeks a pure bill of discovery. The bill of discovery is an equitable action “designed to obtain evidence for use in an action other than the one in which discovery is sought.” Berger v. Cuomo, 230 Conn. 1, 5–6, 644 A.2d 333 (1994). In a pure bill of discovery, the plaintiff “seeks no remedy other than [the] disclosure of certain information or documentation . . . .” Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 699, 804 A.2d 823 (2002) (Borden, J., dissenting); see footnote 1 of this opinion. “Because the bill of discovery [is] an independent action, its merits [can] . . . be reviewed [only] in an independent appeal.” State v. Ebenstein, 219 Conn. 384, 389, 593 A.2d 961 (1991).6 That said, the
The parties agree that the judgment in the present case is not yet final unless Curcio applies. Although the trial court ordered the defendant to submit two of his devices for forensic analysis, the parties have yet to comply with that part of the judgment requiring them, at the outset, to take certain designated steps to establish “the terms of a protective order that adequately preserves the defendant‘s [privacy] interests” and “a search protocol covering procedures, search terms, and dates” in connection with the forensic analysis. The trial court ordered that counsel first “attempt to reach an agreement” as to the terms of the protective order, and “attempt to agree” on the search protocols. Recognizing that such an agreement may not occur, the court‘s order requires the parties to return to court in the event of an impasse so that the court can resolve any remaining disputes concerning the protective order and search terms.7 The court explicitly retained jurisdiction over the case “until such time as the parties have filed agreements as to the [terms of the protective order and the search protocols] or the court resolves any related disputes.” The trial court‘s judgment is not final until the scope of discovery has been clearly defined by agreement or, in the absence of agreement, by court order. As of now, no such agreement has been filed, and no such court order has been sought or obtained. The judgment is therefore not final in the usual sense.
Nor can we conclude under these circumstances that the judgment is final under Curcio. An otherwise nonfinal judgment may be deemed final and appealable under Curcio ” (1) [when] the order or action terminates a separate and distinct proceeding, or (2) [when] the order or action so concludes the rights of the parties that further proceedings cannot affect them. ” Barbato v. J. & M. Corp., 194 Conn. 245, 248, 478 A.2d 1020 (1984), quoting State v. Curcio, supra, 191 Conn. 31. Although he raises no claim under the first prong of Curcio,8 the defendant argues that the judgment is immediately appealable under Curcio‘s second prong for two primary reasons.
First, the defendant argues that “interlocutory review is necessary to preserve the substantive rights to anonymity at stake, statutory and constitutional.” More specifically, he contends that “[t]he order ‘to attempt to agree’ [requires him] to engage in a back and forth conversation concerning search terms and dates” and that “this compelled conversation puts [substantive rights to anonymity] at risk.” He asserts that “[n]egotiations refusing one term and allowing another can reveal information about anonymous identities.” We reject this claim.
The trial court ordered the parties to attempt to reach an agreement, nothing more. This means that the defendant‘s counsel must engage in good faith efforts to reach an agreement, in whole or in part, regarding the terms of the protective order and search protocols. The order in no way requires counsel to reveal information during these negotiations that will put at risk the “substantive rights to anonymity” that he claims a right to preserve and protect. So long as counsel acts in good faith, he may decline to reveal any such information in connection with the negotiation process, and he may request the trial court to decide the open issues if the negotiations fail.9 We do not accept the argument that, by requiring the parties to make efforts to reach agreement on the terms of a protective order, the judgment concludes the rights of the defendant such that further proceedings relating to the terms of the protective order and search protocols cannot affect those rights. Indeed, the very purpose of the further proceedings contemplated by the trial court‘s order is to safeguard the defendant‘s rights to the extent possible.
The defendant‘s second argument is that he will be “compelled to give his laptop and cell phone for forensic review” and that there can be “nothing in subsequent orders that [will] change the . . . granting [of] the bill of discovery [or that] will alter [this] order to relinquish the property . . . putting critical rights at risk.”10 In other
First of all, although proceedings in the trial court relating to the protective order and search protocols may not extinguish the defendant‘s aggrievement or eliminate his grounds for appeal, the terms of the order and protocols might very well affect the nature or scope of the precise issues requiring resolution in a future appeal. The trial court, for its part, plainly contemplated that a protective order could function to help “safeguard” at least some of the defendant‘s interests, and we have no reason to doubt that such an order, properly drafted, may have such an effect. For example, on the merits of the present appeal, one of the defendant‘s arguments is that the trial court‘s discovery order is “overbroad and entirely far too invasive . . . .” This is the type of concern that can readily be eliminated by a properly drafted protective order.
Second, and more fundamental, even if the defendant were correct that further proceedings in the trial court will do nothing to affect the claims of error arising from the portion of the case that already has been adjudicated, that fact would not change our conclusion that the second prong of Curcio is not satisfied under the present circumstances. Although the shorthand version of the second prong of Curcio asks whether “the order on appeal so concludes the rights of the parties that further proceedings cannot affect them,” our cases make it abundantly clear that this truncated formulation does not capture the full scope of the analysis. State v. Curcio, supra, 191 Conn. 33. As the court in Curcio itself explained, the inquiry “focuses not on the proceeding involved, but on the potential harm to the appellant‘s rights” if appellate
Strict adherence to the requirements of the final judgment rule under the present circumstances serves two important purposes. First, the rule is jurisdictional, and we are not at liberty to expand our jurisdiction merely because it seems expedient to do so. See, e.g., Sena v. American Medical Response of Connecticut, Inc., 333 Conn. 30, 40, 213 A.3d 1110 (2019) (“Neither the parties nor the trial court . . . can confer jurisdiction [on an appellate] court. . . . [E]xcept insofar as the legislature has specifically provided for an interlocutory appeal or other form of interlocutory appellate review . . . appellate jurisdiction is limited to final judgments of the trial court.” (Internal quotation marks omitted.)). An appeal by the defendant may be inevitable, as he predicts. That circumstance does not allow the defendant to jump the gun by obtaining appellate review before the judgment is final. Second, even apart from jurisdictional considerations, we noted previously in this opinion that one of the principal purposes served by the final judgment rule is to prevent piecemeal appeals. Permitting a party to appeal a nonfinal judgment creates the risk of fragmented trial and appellate proceedings. In the present case, for example, either the plaintiff or the defendant may be disappointed by the terms of the protective order and search protocols yet to issue if no agreement can be reached, and an appeal may follow. We consider it far preferable to entertain a single appeal raising all appellate claims emanating from a single case, unless the circumstances require interlocutory review under an established exception to the final judgment rule.
We have considered the defendant‘s other arguments and consider them to be without merit.
For the foregoing reasons, we conclude that the defendant has appealed from a
The appeal is dismissed.
In this opinion the other justices concurred.