202 Conn. 252 | Conn. | 1987
This action was brought upon a fire insurance policy issued by the defendant on January 16, 1981, to protect the plaintiff against loss by fire to his building at 430 Elm Street in Stamford, which was substantially damaged in a fire that occurred on March 23, 1981. The complaint claimed liability on the policy in the first count and in the second count sought damages because the defendant had allegedly refused to pay the fire loss without proper cause and thus had failed to act in good faith and to deal fairly with its insured. In answering the complaint, the defendant admitted its issuance of the policy but denied the remaining allegations. The defendant also pleaded wilful concealment and material misrepresentations by the plaintiff as a special defense, which the plaintiff denied.
On June 21, 1985, in accordance with the plaintiff’s request, the trial court ordered the defendant to produce its claims file for inspection by the plaintiff, overruling objections of the defendant based upon the attorney-client privilege and the “work product” doctrine. See Hickman v. Taylor, 329 U.S. 495, 504-14, 67 S. Ct. 385, 91 L. Ed. 451 (1947). After its motion to open that “judgment” had been denied on July 29, 1985, the defendant appealed.
The defendant recognizes that our jurisdiction is restricted ordinarily to appeals from judgments that are final. See General Statutes §§ 51-199, 52-263. It maintains, however, that our authority to construe the statutory term “final judgment” has been exercised on some occasions to allow appeals from orders of the trial court that are essentially interlocutory. This contention is undoubtedly sound, because, “[i]n both criminal and civil cases ... we have determined certain interlocutory orders and rulings of the Superior Court to be final judgments for purposes of appeal.” State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). We have set forth two circumstances under which an otherwise interlocutory order may be appealed: “(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.” Id.
The defendant does not claim that the first Curcio alternative, termination of a separate and distinct proceeding, is applicable to this appeal from a disclosure order. It relies wholly on the second, claiming that its rights under the attorney-client privilege and the related work product doctrine will be inalterably concluded if it must, without appellate review, comply with the order by making the requested documents available to the plaintiff.
The federal courts have held similarly that, because most discovery orders do not finally dispose of the proceeding, they are not appealable as final judgments. Cogen v. United States, 278 U.S. 221, 223-24, 49 S. Ct. 118, 73 L. Ed. 275 (1929); 4 J. Moore, Federal Practice (2d Ed. 1986) § 26.83[3]. A federal statute creates an exception to the final judgment rule, however, and authorizes the courts of appeals to exercise discretionary jurisdiction over appeals from interlocutory orders of the district court when that court certifies that the order “involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation . . . .” 28 U.S.C. § 1292 (b). Even under this enlarged jurisdiction, discovery orders are seldom appealable, because they do not ordinarily present novel controlling legal questions or accelerate the disposition of actions. 4 J. Moore, supra, § 26.83[9.—2].
Though in some instances the federal courts of appeals have entertained appeals pursuant to § 1292 (b) from discovery orders presenting issues of claimed vio
This court has no discretionary jurisdiction comparable to that given the federal courts by § 1292 (b) to entertain appeals from interlocutory orders, except as provided in General Statutes § 52-265a. This statute allows an aggrieved party to appeal from “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 . . . .”
In arguing that this appeal from a disclosure order falls within the second Curdo 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.” In re Juvenile Appeal (85-AB), 195 Conn. 303, 311, 488 A.2d 778 (1985). 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.
The defendant contends that the delay that interlocutory appeals from disclosure orders would create is of smaller concern in civil cases. Citizens of this state, nevertheless, have a right to “justice administered without . . . delay” in civil as well as criminal cases. Conn. Const., art. I, § 10; see Pellegrino v. O’Neill, 193 Conn. 670, 685, 480 A.2d 476, cert. denied, 469 U.S. 875, 105 S. Ct. 236, 83 L. Ed. 2d 176 (1984). Though the importance of prompt resolution of criminal cases may be greater, the expeditious disposition of disputes between private litigants also vitally affects the public interest. The 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. The appeal filed in this case from a single dis
The appeal is dismissed.
In this opinion the other justices concurred.
The court assigned this case on the motion calendar for a hearing on whether the appeal should be dismissed for lack of a final judgment. After argument it was decided to defer the final judgment issue until the entire appeal had been heard, including the final judgment issue, which the parties have fully briefed.