Lead Opinion
Opinion
The issue before us in this certified appeal is whether a party seeking a new
The Appellate Court set forth the following relevant facts and procedural history. “This case arises out of an employment dispute between the plaintiff, a lieutenant with the department of correction, and the defendant, [the department of correction]. On May 28, 2002, the plaintiff filed an amended complaint against the defendant. In count one, she alleged that the defendant discriminated against her on the basis of her gender and sexual orientation. In count two, the plaintiff alleged that the defendant retaliated against her after she filed a complaint of discrimination with the commission on human rights and opportunities (commission).
“The plaintiff alleged the following facts in support of her claims. On October 7, 1999, the plaintiffs supervisor, Duane Kelley, wrote an incident report in which he alleged that the plaintiff was dating another female correction officer, Cynthia Bruner, who was in the same chain of command as the plaintiff.
“On April 24, 2000, the plaintiff filed her first complaint of discrimination with the commission and the federal Equal Employment Opportunity Commission. After she filed the complaint, the discrimination and harassment by Kelley and Khalsa became even more severe, as evidenced by the following events: (1) the plaintiff was suspended for five days under the pretext of not complying with the hair regulations and for supposed disrespectful behavior to Kelley; (2) the plaintiff received her first unsatisfactory evaluation and her pay raise was taken away; (3) the plaintiff was accused falsely of failing to follow procedures regarding sick days, scheduling training and storing facility keys; (4) the plaintiff was denied vacation time; (5) the plaintiff was demoted from her position of lieutenant; and (6) the plaintiff was transferred by another supervisor, Wayne Valade, to a different correctional facility, which resulted in a decrease in pay, authority and prestige. The plaintiff also alleged that both Valade and Kelley had a practice of harassing female officers.” Duart v. Dept. of Correction,
A jury trial commenced on July 14, 2004. On July 27, 2004, the jury issued a verdict denying the plaintiffs claims of discrimination on the basis of gender, race and sexual orientation. On August 6, 2004, the plaintiff filed a motion in arrest of judgment for extrinsic causes, to set aside the verdict and for a new trial. In support of her motion, the plaintiff relied on the defendant’s failure to disclose an anonymous note accusing the plaintiff of being in a relationship with Bruner, developments in the defendant’s investigation of a complaint by Lieutenant Catherine Osten that Kelley and Valade had retaliated against her, and a 2002 discrimination complaint filed by Lieutenant Lisa Jackson against Osten and Kelley.
The plaintiff appealed from the judgment of the trial court to the Appellate Court, claiming that the defendant’s discovery misconduct had “so perverted the process” that it had deprived her of the opportunity to fully and fairly discover evidence, and that consequently she was entitled to a new trial. She argued that the trial court improperly applied the “result altering” standard set forth in Teamsters,
The Appellate Court upheld the trial court’s decision by applying the “result altering” standard as articulated in Varley for a motion for a new trial grounded upon evidence of fraud, rather than by applying First Circuit case law. The Appellate Court held that, although the trial court’s memorandum of decision did not expressly set out the standard established in Varley, it had “effectively applied the correct standard” in determining that, even if the defendant had disclosed the evidence at issue, the evidence was unlikely to produce a different result. Duart v. Dept. of Correction, supra,
The plaintiff argues that the Varley rule is inapposite because discovery misconduct is distinct from misconduct at trial, and she should not be required to prove that the result of a new trial will be different. Instead, she suggests that the court should adopt the standard articulated by the First Circuit in Anderson v. Cryovac, Inc., supra,
Practice Book § 16-35 authorizes motions for a new trial.
Over time and in a variety of contexts, this court consistently has required parties to demonstrate the likelihood of a different result to show that justice requires a new trial. For example, we have stated that the discovery of new evidence warrants a new trial if “upon all the evidence an injustice had been done,” but that a new trial will not be granted upon newly discovered evidence “unless ... a new trial would probably produce a different result.” Turner v. Scanlon,
This court has also granted motions for new trials “[w]here an unsuccessful party has been prevented, by fraud or deception, from exhibiting fully his case and shows that there never has been a real contest in the trial or hearing of the case . . . .” Varley v. Varley, supra,
Finally, the “different result” requirement also applies outside of the civil context. The United States Supreme Court has held that a prosecutor’s failure to disclose evidence material to guilt or punishment violates due process, thereby entitling the defendant to a new trial. Brady v. Maryland,
Requiring a movant to demonstrate that there is a reasonable probability that a new trial likely would yield a different result is consistent with the “equitable principle that once a judgment is rendered it is to be considered final . . . .”
Although this is the first time that this court has directly considered what showing is required for a new trial when there is claimed discovery misconduct, we believe that the “different result” criterion best comports with the “deep-rooted policy in favor of the repose of judgments”; Hazel-Atlas Glass Co. v. Hartford-Empire Co., supra,
Nor do we believe that requiring some showing of a different result would set too high of a hurdle for the movant such that parties who wrongfully withhold documents would evade penalty. If it is self-evident that the withheld document may reasonably lead to a different result, the content of the document alone is sufficient to meet the Varley test. If prejudice to the movant is not clear from the document itself, the burden of proof is best shouldered by the movant, as she is in the best position to know how the nonmoving party’s nondisclosure impaired her case, how the information might have altered her trial strategy, and what avenues might have been pursued.
And, finally, any suggestion that this standard invites noncompliance ignores the fact that discovery compliance is already regulated by the rules of practice. Practice Book §§ 13-7 and 13-10 make responses to interrogatories and requests for production mandatory, while Practice Book § 13-14 (a), in relevant part, permits the judicial authority, on motion, to “make such order as the ends of justice require” if a party fails to comply fullywith its discovery obligations. Under § 13-14, the trial court has broad discretion “to fashion and impose sanctions for failure to comply with the rules of discovery” to meet the individual circumstances of each case.
We therefore conclude that a motion for a new trial based on discovery misconduct, like fraud, will not be granted unless the movant satisfies the test set forth in Varley v. Varley, supra,
Upon consideration, we see no reason why the victim of fraud or discovery misconduct in a civil case should be treated more or less favorably than the victim of nondisclosure in a criminal case. Therefore, we disavow the phrasing employed in Varley and rephrase the fourth prong to require a movant to demonstrate a reasonable probability, rather than a substantial likelihood, that the result of a new trial will be different. Furthermore and consistent with Brady, we interpret “ ‘reasonable probability’ ” to mean “a probability sufficient to undermine confidence in the outcome”; id.; or, in other words, that “the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Kyles v. Whitley, supra,
Although the trial court analyzed the plaintiffs motion for a new trial according to the standard set forth in Teamsters, rather than the Varley test as rephrased in this opinion, our review of the court’s findings leads us to conclude that, even if the court had required a showing of a reasonable probability that the result of a new trial will be different, the plaintiffs motion for a new trial could not have prevailed.
In finding that the. undisclosed evidence was merely cumulative, the trial court concluded that the withholding of these three items made little, if any, difference to the outcome of the case. With respect to the note, the trial court concluded that the late disclosure “did not so taint the process as to in all equity warrant a new trial.” The court reasoned that the note was cumulative of other evidence because “[m]ost of what the actual note had to contribute to the outcome was already before the jury, just not its exact language.” Indeed, although the plaintiff argues that the “entire case would have gone differently, both in discovery and at trial,” if the note had
Similarly, with respect to the undisclosed results of the Osten investigation and the Jackson complaint, the trial court stated: “After reviewing the evidence at trial and the complaints in question, the court finds that these documents are cumulative of other evidence that was presented at trial.” The trial court’s finding that both items were cumulative is supported by the fact that Osten herself testified as to the contents of the complaint and the investigation at trial. The trial court pointed out that the discriminatory conduct Osten described to the jury was “the most salient part of the complaint and the most telling, had the jury concluded that it was a pattern of discriminatory conduct that . . . Kelley regularly engaged in.” The subsequent actions that the defendant took to address Osten’s allegations were, in contrast, merely “secondary . . . .” Lastly, the court found that neither the Osten investigation materials nor the Jackson complaint “discredit[ed] the testimony of [Kelley and Valade].” These findings compel the conclusion that the trial court believed that the withheld items could not reasonably be taken to put the plaintiff’s whole case in such a different light as to undermine confidence in the outcome of the trial.
In addition to our review of the trial court’s findings, we have examined the record as supplied to us, including the portions of the transcript filed. We note, however, that the plaintiff failed to file a complete copy of the trial transcript.
Notwithstanding the fact that in virtually all other contexts—including cases in which the state intentionally violates a criminal defendant’s constitutional right to exculpatory material—we have required a movant to meet the “different result” requirement, the plaintiff argues that a motion for a new trial on the basis of discovery misconduct implicates different policy concerns that outweigh the interest in finality, and, consequently, that she should not have to prove that the result of a new trial would be different. The plaintiff urges us instead to adopt the rule set forth in Anderson v. Cryovac, Inc., supra,
According to the United States Court of Appeals for the First Circuit, “in motions
We decline the plaintiffs invitation to adopt the Anderson test for three reasons. First and foremost, this court is guided by Connecticut common law in resolving issues of state law. In contrast, Anderson is founded on federal procedural law. In particular, the court in Anderson relied on the text of rule 60 (b) (3) of the Federal Rules of Civil Procedure and federal decisional authority interpreting the same. Because the procedure for granting a new trial in Connecticut state courts is governed by Connecticut’s rules of practice, relying on federal case law that construes an analogous, but not identical, federal rule would impinge on the carefully demarcated bounds of the relationship between state courts and federal courts that this country has preserved since the time of the founding. Accordingly, we have stated that “[i]t is axiomatic that courts in Connecticut adjudicating matters of state law are not bound by a test that a federal court must apply. In Connecticut, the rules of practice and procedure are defined in our Practice Book and controlling case law.” Rosado v. Bridgeport Roman Catholic Diocesan Corp.,
Second, we disagree with the plaintiffs attempt to distinguish Varley in her claim that misconduct by a party before trial is distinct from fraud at trial such that we must adopt a different test for misconduct claims. The plaintiffs claim draws two distinctions: the timing of the misconduct and the type of misconduct; i.e., fraud or discovery misconduct. The plaintiffs suggestion that fraud and discovery misconduct may neatly be distinguished by their timing is puzzling. We easily can envision
As for the plaintiffs suggestion that we should apply a different rule to discovery misconduct as distinguished from fraud, the plaintiff offers no explanation as to what differences between the two types of misconduct would justify the application of different rules to each. Indeed, the fraud at issue in Varley does not appear significantly distinguishable from the misconduct alleged by the plaintiff in the present action. In Varley, the alleged fraud, which pertained to a “subject on which both parties presented evidence”; Varley v. Varley, supra,
Furthermore, Anderson does not support the plaintiffs claim that we should apply different rules to fraud and discovery misconduct. As the court in Anderson explained, “fraud” and “misconduct” are related and overlapping types of wrong. See Anderson v. Cryovac, Inc., supra,
Third, we believe that the rephrased Varley standard together with the availability of discovery sanctions strikes the proper balance between the burdens on the parties in the context of discovery misconduct claims. In Anderson, the court distinguished between intentional withholding of discovery, destruction of documents sought in discovery, and unintentional failure to disclose. While we have in many contexts addressed the difficulty of proving the intent of an actor, in this context it is not necessary to do so because it is the result of the nondisclosure rather than the intent that is important.
Ultimately, a comparison of the Anderson and Varley tests leads to the conclusion that our standard in Varley, as restated with regard to the fourth prong, is the more appropriate. It is more likely that the ends of justice could be served consistently with our finality of judgments jurisprudence by granting the extraordinary relief of a new trial to a movant who can show a reasonable probability that the result of that new trial would be different, rather than to a movant who merely shows that the misconduct “substantially interfered with its ability fully and fairly to prepare for, and proceed at, trial.” Anderson v. Cryovac, Inc., supra,
The plaintiff also argues that if state law controls, the governing precedent is not Varley, but rather this court’s decision in Ramin v. Ramin, supra,
Additionally, our decision to shift the burden to the defendant to prove that his breach did not harm the plaintiff relied on the heightened duty to disclose in marital cases, set forth in Billington. Id., 349. In Billington, we recognized that “the settlement of a marital dissolution case is not like the settlement of an accident case”; Billington v. Billington, supra,
Finally, even in the marital dissolution context, Ramin does not establish a general rule. Over the course of the proceedings in Ramin, the plaintiff filed five motions for contempt in response to which the court issued orders to comply, sanctions and attorney’s fees against the defendant. Id., 330-31. The defendant’s persistent failure to produce specifically requested documents prompted this court to describe his conduct as “egregious litigation misconduct . . . .” Id., 351. We expressly recognized that the particular facts of Ramin, because of the defendant’s egregious misconduct, required a departure from the ordinary rule. Ramin, therefore, represents a narrow exception to the general rule that the party claiming error bears the burden to demonstrate harm.
The judgment of the Appellate Court is affirmed.
In this opinion ROGERS, C. J., and PALMER, ZARE-LLA and BEAR, Js., concurred.
Notes
The issue certified stated: “Whether the rule of Varley v. Varley,
Varley requires the movant to establish the following: “(1) There must have been no laches or unreasonable delay by the injured party after the fraud was discovered. (2) There must have been diligence in the original action, that is, diligence in trying to discover and expose the fraud. (3) There must be clear proof of the perjury or fraud. (4) There must be a substantial likelihood that the result of the new trial will be different.” Varley v. Varley, supra,
The plaintiff also had alleged that she was discriminated against because of her physical disability, namely, endometriosis, but withdrew that claim prior to trial.
Romantic relationships between two people in the same chain of command are forbidden pursuant to the defendant’s administrative directive 2.17.
In July of2001, the plaintiff filed a second complaint with the commission asserting retaliation. In April of 2002, she elected to proceed in a civil action.
The plaintiff’s initial ground for seeking a new trial included newly-discovered evidence. She filed a supplemental memorandum on June 5, 2007, adding discovery misconduct as an additional justification for a new trial. In this certified appeal, she advances only her claim of discovery misconduct.
Practice Book § 16-35 provides in relevant part: “[M]otions for new trials . . . must be filed with the clerk within ten days after the day the verdict is accepted; provided that for good cause the judicial authority may extend this time. The clerk shall notify the trial judge of such filing. Such motions shall state the specific grounds upon which counsel relies.”
Although a motion for a new trial is at issue in this case, the same showing is required for a petition for a new trial pursuant to General Statutes § 52-270 in both civil and criminal cases. See Kubeck v. Foremost Foods Co.,
For example, in Doe v. Saint Francis Hospital, Superior Court, judicial district of Waterbury, Docket No. CV-08-5008551-S (August 1, 2011), the court granted the plaintiffs motion for sanctions after the defendant failed to produce documents in response to the plaintiffs discovery requests. The trial court awarded the plaintiff attorney’s fees and costs related to the motion and ordered the defendant to review all prior discovery requests to determine whether it withheld any additional documents. The trial court also granted a joint motion for sanctions that had been filed by all of the plaintiffs with matters pending under the master case of Roe v. Saint Francis Hospital, Superior Court, judicial district of Waterbury, Docket No. CV-08-5008330-S (August 1, 2011), awarding the plaintiffs the opportunity to take additional depositions at the defendant’s cost.
This new formulation of the fourth prong of Varley brings the standard for new trials on grounds of fraud or misconduct into closer alignment with the standard for a petition for a new trial on grounds of newly discovered evidence in civil and criminal cases, although the two tests remain different. See Kubeck v. Foremost Foods Co.,
Although Justice Eveleigh in his dissent would employ a “burden shifting” framework in all cases of fraud and misconduct, we have repeatedly observed that “the only fact-finding efforts that actually turn on the allocation of [the] burden [of proof] are those in which the fact finder, after weighing the evidence, finds its mind in perfect equipoise. ... In such a rare case, the allocation of the burden of persuasion to the party asserting the truth of the proposition at issue means that that party cannot prevail.” (Citation omitted; emphasis in original.) State v. Webb,
Although the plaintiff in fact conceded that she could not establish that the results of a new trial would be different absent the discovery misconduct, we observe that she drew this conclusion on the basis of the unmodified Varley test and not as we have rephrased it in this opinion.
In analyzing the undisclosed evidence, the court “assume[d] that there was discovery misconduct, even though none has yet been demonstrated.”
The rules of practice place the burden on the appellant to file a transcript of the proceedings not already on file “which the appellant deems necessary for the proper presentation of the appeal. . . .” Practice Book § 63-8 (a).
Even if this court adopted the Anderson test, the trial court expressly stated that “the facts in this case do not support ... a conclusion [that the nondisclosure substantially interfered with the plaintiff’s ability to fully and fairly prepare for and proceed at trial].”
While it is trae that a state court may look to federal law for guidance in the absence of Connecticut law; see Bristol v. Tilcon Minerals, Inc.,
In fact, the plaintiffs motion appears to set forth the functional equivalent of a claim that the defendant engaged in fraudulent nondisclosure, a species of fraud. “Mere nondisclosure . . . does not ordinarily amount to fraud”; Egan v. Hudson Nut Products, Inc.,
In his dissent, Justice Eveleigh’s analogy of the present case to the interests at issue in spoliation cases conflates intentional destruction of evidence with mere nondisclosure, harms that differ vastly in nature and related policy concerns. Like subornation of perjury, not only is the nature of the harm different, but the nature of the act itself is more egregious.
For the same reasons, Justice Eveleigh’s attempt, in his dissent, to extract general jurisprudential principles from Ramin can result only in a misapplication of our law.
Dissenting Opinion
with whom VERTEFEUILLE, J., joins, dissenting.
I respectfully dissent. I agree with the majority that the test set forth in Varley v. Varley,
Contrary to the majority, I would instead conclude that, when a party moves for a new trial on the basis of discovery noncompliance, that party must first establish by a fair preponderance of the evidence that there has been substantial noncompliance with a discovery request or order (i.e., nonproduction of one photograph in automobile accident case when other, similar photographs were produced would not be substantial), and that the noncompliance was relevant to the trial court’s ultimate determination (i.e., defendant’s noncompliance regarding plaintiffs question on damages would not be relevant to defendant’s verdict on liability). Once this showing is satisfied, a rebuttable presumption should arise in favor of the movant that the unproduced or undisclosed information was material to the issues at trial, including the movant’s full and fair preparation therefor. I would define materiality to mean, in this context, that if produced there was a reasonable possibility that the result of the trial could have been different. The burden would then fall on the allegedly noncompliant party to rebut the presumption and to demonstrate that the unproduced or undisclosed information was not material to the case (i.e., that if produced there was no reasonable possibility that the result of the trial could have been different). If the court finds that the presumption is not rebutted, the motion for a new trial should be granted. Accordingly, I would reverse the judgment of the Appellate Court and remand the case to that court with direction to remand the case to the trial court for further proceedings in accordance with this framework.
The trial court, in its memorandum of decision denying the plaintiffs motion for a new trial, concluded that the defendant’s failure timely to disclose a copy of the actual anonymous note “did not so taint the process as to in all equity warrant a new trial” on the basis of the court’s determination that, even if the defendant had disclosed the anonymous note to the plaintiff, the plaintiff failed to demonstrate that the note would have brought “ ‘success in its wake,’ ” or, in other words, would have resulted in a favorable verdict.
Regarding the defendant’s failure to disclose the developments in the Osten complaint and the existence of the Jackson complaint, the trial court found that “[t]here is no question that these documents were germane to the case and requested in discovery. There is also no question that none of these documents were produced by the defendant, although they should have been. Certainly the details of the complaints could have been used to test the credibility of [Valade and Kelley] at trial.” The trial court later “conclude[d] from reviewing this after-discovered evidence that it, too, should have been produced during the discovery phase (except for the outcome of [Osten’s] complaint, which only became known later) and had been properly requested.” Thus, according to the trial court’s express findings, the first prong of the test that I propose would have been satisfied. The trial court also noted that “the plaintiff was not dilatory in her efforts to secure all information she needed for the trial.” As to the Osten complaint, the trial court concluded, however, that the undisclosed materials were cumulative because Osten had testified at trial and, therefore, the jury had before it the facts relating to her complaint against Valade and Kelley. The trial court noted, however, that the “gravamen of the after-discovered [Osten complaint] evidence . . . was not the complaint itself, but [rather] the action that the [defendant] took after [the Osten] investigation.” Specifically, the defendant’s investigation initially concluded that there was discriminatory conduct on the part of Kelley, although the trial court noted that this conclusion was eventually “overridden . . . .” The trial court reasoned, however, that because the final outcome of the Osten complaint was not known until after the trial in the present matter had concluded, this final outcome could not have been disclosed because it was not known. With regard to the undisclosed Jackson complaint, the trial court simply concluded that the “complaint filed by [Jackson] is also cumulative of other evidence at trial.”
Motions for a new trial pursuant to Practice Book § 16-35
Pursuant to Practice Book § 16-35, I would conclude that “substantial grounds” exist warranting the granting of a motion for a new trial due to noncompliance under the following circumstances. First, the movant must demonstrate that the nonmoving party failed to comply with its obligations under Practice Book § 13-14 when the allegedly noncompliant party failed to disclose or produce information requested in discovery. This showing would require the movant to demonstrate that the nonmoving party’s substantial noncompliance was not a result of the discovery requests being susceptible to more than one reasonable interpretation. Second, the alleged substantial noncompliance must be relevant to the trial court’s ultimate determination. Additionally, and consistent with the language of Practice Book § 13-14, I would conclude that whether the noncompliant party’s failure to produce information in response to a discovery request was intentional, negligent or accidental is immaterial to the analysis of whether that party was, in fact, substantially noncompliant with the mov-ant’s discovery requests.
In devising this standard, I would explicitly overrule Varley v. Varley, supra,
I find instructive other recent decisions of this court in which we have concluded that, as between an innocent party and a wrongdoer, the latter should bear the burden of establishing that their wrongful conduct did not prejudice the innocent party. Thus, for instance, in creating the tort of intentional spoliation of evidence, this court devised a burden shifting scheme under which the plaintiff first “must prove that the [defendant’s] intentional, bad faith destruction of evidence rendered the plaintiff unable to establish a prima facie case in the underlying litigation.” Rizzuto v. Davidson Ladders, Inc.,
Similarly, in Ramin v. Ramin,
I would conclude that these and other policy considerations support the principle that the allegedly non-compliant party should bear the burden of rebutting the presumption that its substantial noncompliance with the movant’s discovery requests was material to the issues at trial, including the movant’s full and fair preparation thereof. First, the nonmoving party, as the noncompliant party, should bear the risk of uncertainty, including the potential for a new trial, which follows in the wake of its noncompliant conduct. As between the noncompliant party, which operates under obligations imposed by our rules of practice to produce and disclose requested information; see Practice Book §§ 13-7, 13-10 and 13-15; and the movant adversely affected by incomplete discovery production, I would conclude, as this court did in Rizzuto, that “[t]he most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty which his own wrong has created.” (Internal quotation marks omitted.) Rizzuto v. Davidson Ladders, Inc., supra,
Second, placing the burden on the noncompliant party to demonstrate that its substantial noncompliance was not material to the issues at trial is, under the circumstances, more likely to assist the trial court in evaluating the impact that the unproduced information would have had, either on the trial, or on the movant’s preparation in support thereof. This is true because the noncompliant party, as the party continuously in possession of the unproduced information, would be in the best position to articulate and “establish that the [requested but unproduced or undisclosed] materials would not have helped the [movant] prove her case.” Ramin v. Ramin, supra,
Third, shifting the burden onto the noncompliant party to disprove the adverse presumption promotes the policy of full compliance with discovery requests set forth in our rules of practice. See Practice
Fourth, I believe that the aforementioned framework comports with the ethical obligations of counsel pertaining to discovery. Rule 3.4 (1) of the Rules of Professional Conduct provides that an attorney shall not “[u]nlawfully obstruct another party’s access to evidence,” and rule 3.4 (4) of the Rules of Professional Conduct provides that counsel shall not, “[i]n pretrial procedure . . . fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party . . . .’’As the commentary to the rule makes clear: “The procedure of the adversary system contemplates that the evidence in a case is to be marshaled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence .
“Documents and other items of evidence are often essential to establish a claim or defense. Subject to evidentiary privileges, the right of an opposing party ... to obtain evidence through discovery or subpoena is an important procedural right. The exercise of that right can be frustrated if relevant material is altered, concealed or destroyed,” or, in my view, simply not produced to the requesting party. Rules of Professional Conduct 3.4, commentary.
In its decision to modify the fourth prong of Varley, the majority offers several reasons why any rule other than the one it sets forth should not be adopted. First, the majority notes that its requirement that there exist for civil litigants a “reasonable probability . . . that the result of a new trial will be different,” is akin to the burden placed on a criminal defendant, alleging that the prosecution’s failure to disclose evidence material to guilt or punishment violated his due process rights, to show “a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” (Internal quotation marks omitted.) United States v. Bagley,
First, although in the criminal context it is the defendant who bears the burden of establishing that he is entitled to a new trial on the basis of a violation of his right under Brady v. Maryland, supra,
Although sparingly employed, this court certainly has the power to adopt rules, tests or orders that it deems appropriate to enhance the fair administration of justice in this state. See In re Joseph W.,
Second, as to finality, I initially note that, under our rules of practice, a motion for a new trial must be filed within ten
Third, I disagree that adopting a rule other than the one established in Varley, and modified today, will “invite endless litigation and deplete judicial resources,” an assertion essentially making a “floodgates” claim. If we balance, on the one hand, the right of any party to full disclosure and production, which is essential to ensuring a fair trial, versus, on the other hand, the claim that expresses fear that a new rule will lead to numerous motions for a new trial on the basis of discovery noncompliance, the right of a party to full disclosure and a fair trial must, in my opinion, prevail. Indeed, because a motion for a new trial must be filed within ten days in the absence of an extension for good cause; Practice Book § 16-35; the likelihood that the innocent party will discover the noncompliance on the part of the wrongdoer within that time period is remote. To the extent that the framework I propose may result in the filing and granting of additional motions for a new trial, this result should be welcomed as the
Fourth, I reject the claim that no standard other than that set forth by the majority is proper because, “ [g]iven the breadth of discovery in modem trial practice, it is inevitable that the movant could find some fault with the other party’s compliance with broadly phased discovery requests,” and because requiring the nonmoving party to prove that its noncompliance was not material “would impose an insupportable burden on [that] party to disprove amorphous assertions . . . .” Although I disagree that in modem discovery practice it is “inevitable” that fault can be found, even if such a fact were tme, that inevitability should not excuse either the non-compliant party’s conduct or its failure to abide by our rules of practice governing compliance with discovery requests. Indeed, a rule stating otherwise would reward such practices during discovery in the hope that, following an unfavorable verdict, the innocent party would be unable to demonstrate precisely that there was a “reasonable probability . . . that the result of a new trial will be different.” Such an outcome would seem to grant the noncompliant party two bites at the apple— once during trial and once during the movant’s motion for a new trial—as an incentive to reward the noncompliance.
Additionally, under the framework that I propose, the burden placed on the noncompliant party is far from “insupportable,” and that party would not be required to disprove “amorphous” assertions.
In light of the fact that I would substitute the aforementioned framework for the existing test set forth in Varley, I would remand the case to the Appellate Court with direction to remand the case to the trial court in order to permit the parties to present additional arguments before that court tailored to this new standard. See State v. Winot,
For all of the foregoing reasons, I would reverse the judgment of the Appellate Court and remand the case to that court with direction to remand the case to the trial court for further proceedings in accordance with the aforementioned framework.
I therefore respectfully dissent.
The plaintiffs discovery requests stated that “personnel file” was to be defined pursuant to General Statutes § 31-128a, which provides in relevant part: “(5) ‘Personnel file’ means papers, documents and reports, including electronic mail and facsimiles, pertaining to a particular employee that are used or have been used by an employer to determine such employee’s eligibility for employment, promotion, additional compensation, transfer, termination, disciplinary or other adverse personnel action including employee evaluations or reports relating to such employee’s character, credit and work habits. ‘Personnel file’ does not mean stock option or management bonus plan records, medical records, letters of reference or recommendations from third parties including former employers, materials that are used by the employer to plan for future operations, information contained in separately maintained security files, test information, the disclosure of which would invalidate the test, or documents which are being developed or prepared for use in civil, criminal or grievance procedures . . . .”
In determining whether to grant the plaintiffs motion, the trial court relied on the test set forth in Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local 59 v. Superline Transportation Co.,
Practice Book § 16-35 provides in relevant part: “[MJotions for new trials . . . must be filed with the clerk within ten days after the day the verdict is accepted; provided that for good cause the judicial authority may extend this time. The clerk shall notify the trial judge of such filing. Such motions shall state the specific grounds upon which counsel relies.”
Practice Book § 13-14 (b) provides in relevant part that such orders may include: “(1) The entry of a nonsuit or default against the party failing to comply;
“(2) The award to the discovering party of the costs of the motion, including a reasonable attorney’s fee;
“(3) The entry of an order that the matters regarding which the discovery was sought or other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
“(4) The entry of an order prohibiting the party who has failed to comply from introducing designated matters in evidence;
“(5) If the party failing to comply is the plaintiff, the entry of a judgment of dismissal.”
I note that Practice Book § 13-14 has a new subsection (d), effective January 1, 2012, which provides: “The failure to comply as described in this section shall be excused and the judicial authority may not impose sanctions on a party for failure to provide information, including electronically stored information, lost as the result of the routine, good-faith operation of a system or process in the absence of a showing of intentional actions designed to avoid known preservation obligations.” Obviously, the rule I propose does not apply to any failure to provide information excused under this new subsection.
Under Varley, relief, such as in the form of a new trial, “will only be granted if the unsuccessful party is not barred by any of the following restrictions: (1) There must have been no laches or unreasonable delay by the injured party after the fraud was discovered. (2) There must have been diligence in the original action, that is, diligence in trying to discover and expose the fraud. (3) There must be clear proof of the perjury or fraud. (4) There must be a substantial likelihood that the result of the new trial will be different.” Varley v. Varley, supra,
The test set forth in Varley also applies to newly discovered evidence. I would retain the test insofar as it applies to newly discovered evidence, since that issue is not before us at this time.
I agree with the majority that we should not adopt the rule set forth in Anderson. Although I agree with part of the test in Anderson, I disagree with its requirement that parties must show deliberate misconduct by clear and convincing evidence. In this regard, I believe that Anderson sets too high a burden for an innocent party.
I note that the Ramin case was specifically limited on its facts to family cases. Ramin v. Ramin, supra,
The rules of practice on disclosure apply equally to both civil and family matters. Practice Book § 25-31 provides: “The provisions of Sections 13-1 throughl3-ll inclusive, 13-13 through 13-16 inclusive, and 13-17 through 13-32 of the rules of practice inclusive, shall apply to family matters as defined in Section 25-1.” All of the aforementioned sections refer to the disclosure procedures in civil matters. I also note that Practice Book § 13-14, which deals with sanctions for nondisclosure, is also incorporated in Practice Book § 25-31 of the family discovery section.
I note that although the majority emphasizes the role in our Ramin decision of the “heightened duty to disclose in marital cases,” the issues of what makes a party a wrongdoer, and whether the wrongdoer or innocent party bears the burden of showing immateriality, are entirely distinct. The question that I pose to the majority is, if the rules of practice apply equally to both civil and family matters, why should our test regarding the burdens of discovery noncompliance be different? I note further that in Ramin the plaintiff filed a motion in limine seeking sanctions pursuant to Practice Book § 13-14, which is contained in the civil section. I fail to see, as the majority suggests, that the extraction of “general jurisprudential principles from Ramin can result only in a misapplication of our law.” See footnote 19 of the majority opinion. Although the majority does not explain this conclusion, I would maintain that the general jurisprudential principles in Ramin are sound. Although contained in our case law, the Practice Book does not promulgate a higher standard of disclosure in family as opposed to civil matters. I would suggest that all counsel, practicing in any area of the law, have a duty to comply with our rules of practice and provide the other side with full disclosure.
I also dispute the majority’s contention that it is relevant that, “[ujnlike civil litigants who stand at arm’s length from one another, marital litigants have a duty of full and frank disclosure analogous to the relationship of fiduciary to beneficiary . . . .” (Internal quotation marks omitted.) Our holding in Ramin that a special duty of “full and frank mutual disclosure” may arise out of the marital relationship may be correct; Ramin v. Ramin, supra,
Likewise, the role of independence of interests implied by the majority’s embrace of the “arm’s length” aspect of civil litigation in contrast to marital litigation, is a red herring. This aspect of our holding in Ramin is relevant to a marital litigant’s duty of frankness of disclosure—not fullness—in the discovery process, and therefore goes to determination of when discovery noncompliance occurs in the marital litigation context. The choice of which party bears the burden of noncompliance is unrelated, and is based on our reasoning that it would be “grossly unfair” to require the victim of discovery misconduct to have the burden of proving harm.
The majority suggests that my “analogy of the present case to the interests at issue in spoliation cases conflates intentional destruction of evidence with mere nondisclosure, harms that differ vastly in nature and related policy concerns. Like subornation of perjury, not only is the nature of the harm different, but the nature of the act itself is more egregious.” See footnote 18 of the majority opinion. This reasoning is similar to the majority’s opinion that Ramin presents a unique set of facts upon which to carve an exception. While I agree that intentional spoliation is more egregious than negligent nondisclosure, it may be the equivalent of intentional nondisclosure. I am of the opinion, however, that the failure to comply with our discovery rules, whether intentional, negligent or accidental, has a similar impact on the innocent party’s opportunity for a fair trial, and therefore warrants the burden shifting approach. The egregiousness of the act implicates the separate but related issue of attorney discipline. It is too difficult for the innocent party to prove fraud or intentional misconduct, and it is a bizarre standard to set when the impact on the innocent party’s opportunity for a fair trial has no necessary connection with the mens rea underlying the discovery noncompliance. The more appropriate standard, in my view, is substantial noncompliance of relevant material under the test which I propose.
The majority further suggests that our holding in Ramin is narrower than I suggest because it involved a trial court’s error in refusing to hear a motion duly filed. In my view, the problem with embracing general jurisprudential principles in the context of “exceptional circumstances” only is that they do not provide any real guidance to Superior Court judges regarding when the burden shifting will occur. For instance, we know that burden shifting occurs for the intentional spoliation of evidence. When, however, does nondisclosure occur in the family setting? Is it only when a court refuses to hear a motion duly filed? Does it only occur when a party is required to file five motions for contempt based upon discovery noncompliance? Does it occur when individual judges find that the acts are egregious? I propose a new rule because I believe that it both promotes compliance with our Practice Book and supports the principle of fairness that is inherent in our rules of practice. I believe that it also provides the necessary guidance to the trial court regarding both the time and the manner in which the rule should be followed.
Further, this court has suggested potential burden shifting, albeit in dicta, in other types of cases. Thus, in Burger & Burger, Inc. v. Murren,
Practice Book § 13-7 (a) provides that a party’s answers to interrogatories “shall be answered under oath,” and in the present case the defendant swore that its responses to the plaintiffs interrogatories and requests for production were, to the best of its knowledge and belief, “true, accurate and complete . . . .”
I note that the majority opinion does not contain a complete quotation of the test set forth in Bagley for when a defendant will receive a new trial on the basis of a violation of his Brady right. Although the test references whether the result of the trial would have been different, the focus of the test is whether the evidence that the prosecution failed to disclose was material. The full formulation of the test is as follows: “The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, supra,
I note that, similar to the framework that I propose, the test governing whether a defendant is entitled to a new trial on the basis of a prosecutor’s nondisclosure of material evidence applies regardless of whether the failure to disclose was intentional or merely negligent. See United States v. Bagley, supra,
Relevant differences between criminal and civil cases are myriad. At a minimum, the following three differences are relevant to our policy considerations: (1) the prosecutor in a criminal case must prove guilt beyond a reasonable doubt, while the plaintiff in a civil case must establish her claim by a preponderance of the evidence; (2) the defendant in a criminal case may have liberty at stake, while the defendant in a civil case risks only the loss of property, a lesser interest; and (3) a prevailing plaintiff in a civil case may be aggrieved by discovery noncompliance where the recovery is less than it might otherwise have been, while a prevailing criminal defendant, found not guilty, could not be so aggrieved.
The focus of the majority’s new test on the potential impact of remedying the discovery noncompliance at a new trial belies its concern for the burdened party’s difficulty in disproving “amorphous” assertions. Whatever the challenges of evaluating the impact of a discovery violation on a past proceeding, the prognostication of a different result at a new trial is unavoidably additionally complicated by the unpredictability of any new jury and any revised trial strategy of both parties, but particularly that of the party disappointed with its results in the first trial. In the context of any close case, who is to say that there does not exist a reasonable probability of a different result at any new trial?
This concern is further belied by the majority’s claim that the framework that I propose would only affect the result in the “rare case” where “the fact finder, after weighing the evidence, finds its mind in perfect equipoise.” (Internal quotation marks omitted.) See footnote 11 of the majority opinion. Either the burdened party faces difficulty disproving an “amorphous” assertion that there is a reasonable probability or possibility that discovery noncompliance did or did not, could or could not, or will or will not, affect the result at the past or future trial, or the evidence is easily presented and weighed by a fact finder capable of discerning “perfect equipoise.” The majority claims to have it both ways.
I note that attorneys have the right to object to discovery requests considered vague or confusing. See Practice Book §§ 13-8 and 13-10 (b). If the parties cannot agree as to the merits of the objection, the trial court can determine, in the first instance, the appropriateness of the request. Practice Book § 13-10 (c).
I note that the majority has cited certain provisions of the rules of practice as a suggestion that its standard does not invite noncompliance. I believe, however, that the standard that I have proposed is more likely to encourage a more consistent approach to the remedies for discovery noncompliance in line with the intent of the rules of practice.
Although the trial court concluded that the anonymous note would not have resulted in a different outcome and that the two undisclosed complaints were cumulative, the trial court made these conclusions and the predicate findings pursuant to Varley, under which the plaintiff bore the burden of demonstrating a substantial likelihood that the result of the new trial would be different. The framework that I propose, by reducing the threshold burden on the movant and creating a presumption of materiality once that threshold burden is met, thus creating a burden to rebut for the noncompliant party, changes the trial court’s considerations and, in a close case, these new considerations could weigh in favor of granting the motion for a new trial. The trial court itself found that “[t]here is no question that [the Osten and Jackson complaints] were germane to the case and requested in discovery. There is also no question that none of these documents were produced by the defendant, although they should have been. Certainly the details of the complaints could have been used to test the credibility of [Valade and Kelley] at trial.”
I also note that the trial court held that the items were “merely cumulative to other evidence introduced at trial and would not have produced a different result.” Although the court engaged in some discussion regarding the note and the Osten investigation, there was no discussion regarding the Jackson complaint, other than the conclusory statement that it was cumulative. We are left to speculate why it was cumulative. The fact that, after the note was produced, the plaintiff “was granted a recess to consider what actions to take,” contrary to the majority’s position, in my view, is of little consequence. In my opinion, the important point is that had these documents been produced in the normal course, as they should have been, the plaintiff could have performed more discovery, taken depositions, and potentially prepared her trial strategy in a different manner. This opportunity was lost by the defendant’s noncompliance. In my view, this court, through the use of the test it employs, should not countenance such neglect when it affects the ability of one party to receive a full and fair trial on the merits. Accordingly, I am disinclined to apply the majority’s framework to the existing record and the trial court’s memorandum of decision. I note, however, that the framework that I propose would be amenable to appellate application as a matter of law in future appeals wherein an appellate court was called upon to review a trial court’s decision under the framework.