ZARELLA, J.
The primary issue is whether a non-party 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 custodian
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,
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).
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,
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.
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 ordinarily must have been found in contempt of the subpoena." (Emphasis added.) Office of the Governor v. Select Committee of Inquiry, 271 Conn. 540, 570, 858 A.2d 709 (2004). We have noted, however, that appeals from discovery disputes "are more fact specific than would appear at first blush"; Abreu v. Leone, supra, 291 Conn. at 346, 968 A.2d 385; and, accordingly, we have held on several occasions that one may bring an appeal challenging a discovery order without first being held in contempt for failing to comply with such an order. See id. at 348-50, 968 A.2d 385; Seymour v. Seymour, 262 Conn. 107, 108-109, 809 A.2d 1114 (2002); Lougee v. Grinnell, 216 Conn. 483, 486-87, 582 A.2d 456 (1990), overruled in part on other grounds by State v. Salmon, 250 Conn. 147, 735 A.2d 333 (1999).
Abreu is directly on point. In that case, the intervening plaintiff, the department of children and families (department), appealed from an order compelling the plaintiff, Joseph Abreu, to respond to deposition questions that arose in a separate proceeding. Abreu v. Leone, supra, 291 Conn. at 334, 968 A.2d 385. In that proceeding, the defendant minor child, Karissa Leone, through her parent and next friend, brought a claim against the department, alleging that she had been injured by Geovanny M., a minor child and ward of the state, while playing at school. Id. at 334-35
During the deposition, Abreu declined, on counsel's advice, to answer various questions on the ground that doing so would violate § 17a-28. Id. at 336, 968 A.2d 385. "Thereafter, the parties filed cross motions, seeking either to compel or to avoid the disclosures and for monetary sanctions. The trial court ... declined to impose monetary sanctions but ordered [Abreu] to answer the disputed questions. The department filed a motion to reargue, which the court denied. The department thereafter appealed from the trial court's order to the Appellate Court. [Abreu] did not file a separate appeal, relying instead on the department to protect his confidentiality interests underlying § 17a-28 (b). The Appellate Court sua sponte issued an order directing the parties to appear and give reasons, if any, why the appeal should not be dismissed for lack of a final judgment.... After a hearing, the Appellate Court dismissed the appeal. This court thereafter granted the department's petition for certification to appeal, limited to the following question: `Did the Appellate Court properly dismiss [the] appeal for lack of a final judgment?'" (Citations omitted.) Id. at 337-38, 968 A.2d 385.
To determine whether there was subject matter jurisdiction, this court reviewed its final judgment jurisprudence regarding appeals from discovery orders and identified three points salient to determining whether a discovery order could be considered an appealable final judgment. First, "the court's focus in determining whether there is a final judgment is on the order immediately appealed, not [on] the underlying action that prompted the discovery dispute."
With these points in mind, the court concluded that Abreu's challenge to the discovery order was an appealable final judgment. See id. at 349-50, 968 A.2d 385. Specifically, the court reasoned that (1) Abreu's challenge was a separate and distinct proceeding from the action that Leone had initiated against the department; id. at 348-49, 968 A.2d 385; and (2) policy considerations militated against requiring a foster parent to choose between violating § 17a-28 and facing criminal sanctions, or being held in contempt in order to challenge the discovery order. See id. at 347-48, 968 A.2d 385. Simply put, requiring a contempt finding as a predicate to appellate review, in this circumstance, would undermine the child welfare system. See id. at 348, 968 A.2d 385.
The present case is identical in all material respects to Abreu. In both cases, the appellant or plaintiff in error
Additionally, as in Abreu, there are compelling policy reasons not to require Finn Dixon to be subjected to a contempt ruling in order to obtain appellate review of the discovery order.
To be sure, the problem lies not with the fact that the discovery order in this case requires the disclosure of potentially privileged materials. The Rules of Professional Conduct provide that an attorney may divulge such materials in certain circumstances. See Rules of Professional Conduct 1.6(a) and (c)(4) ("[a] lawyer shall not reveal information relating to representation of a client" but "[a] lawyer may reveal such information to the extent the lawyer reasonably believes necessary to... [c]omply with ... a court order" [emphasis added]). In doing so, however, an attorney is nevertheless obliged to disclose only what is necessary and to challenge the court order when he or she believes that such disclosure is not necessary. See Rules of Professional Conduct 1.6, commentary. As the commentary to rule 1.6 provides, "[a] fundamental principle in the client-lawyer relationship is that, in the absence of the client's informed consent, the lawyer must not reveal information relating to the representation." Rules of Professional Conduct 1.6, commentary. Furthermore, "[a] lawyer may be ordered to reveal information relating to the representation of a client by a court.... Absent informed consent of the client to do otherwise, the lawyer should assert on behalf of the client all nonfrivolous claims that the order is not authorized by other law or that the information sought is protected against disclosure by the attorney-client privilege or other applicable law." (Emphasis added.) Rules of Professional Conduct 1.6, commentary. Moreover, "[s]ubsection (c) permits but does not require the disclosure of information relating to a client's representation to accomplish the purposes specified in subsections (c)(1) through (c)(4)." Rules of Professional Conduct 1.6, commentary. See generally General Statutes § 1-25.
Thus, a tension arises from requiring an attorney to take every step necessary to safeguard his or her client's interest by preventing disclosure of privileged and confidential material but limiting a nonparty attorney's means to challenge a discovery order solely by disobeying that order and appealing the subsequent contempt finding. In other words, by not allowing a direct appeal from the discovery order itself, a nonparty attorney, as an officer of the court, has no choice but to defy a court order if he or she believes that the order is contrary to law. Rule 3.4 of the Rules of Professional Conduct, however, provides in relevant part that "[a] lawyer shall not ... (3) [k]nowingly disobey an obligation under the rules of a tribunal...." Additionally, rule 8.4 of the Rules of Professional Conduct provides in
We decline to apply our final judgment jurisprudence in a manner that requires a nonparty attorney, in his or her role as an officer of the court, to disobey a court order as the sole means of raising a good faith challenge to a discovery order in order to satisfy his or her professional obligation to the client. No persuasive reason exists to prevent a nonparty attorney from raising such a challenge by direct appeal. Allowing these appeals will not open the floodgates to numerous discovery order appeals, as they are far less common than typical discovery requests between parties for privileged communications. Moreover, an attorney already can decline to comply with a discovery order and be held in contempt. A nonparty attorney likely would raise the objection regardless of whether the proper means was through contempt or a direct appeal because an attorney has a significant interest in objecting to the discovery order to maintain the privilege and confidentiality.
More fundamentally, we repeatedly have stated that the attorney-client privilege is foundational to our legal system. "Connecticut has a long-standing, strong public policy of protecting attorney-client communications.... This privilege was designed, in large part, to encourage full disclosure by a client to his or her attorney so as to facilitate effective legal representation.... Rule 1.6(a) of the Rules of Professional Conduct effectuates that goal by providing in relevant part that [a] lawyer shall not reveal information relating to representation of a client unless the client consents after consultation.... The attorney-client privilege seeks to protect a relationship that is a mainstay of our system of justice.... Indeed, this court has stated: It is obvious that professional assistance would be of little or no avail to the client, unless his legal adviser were put in possession of all the facts relating to the subject matter of inquiry or litigation, which, in the indulgence of the fullest confidence, the client could communicate. And it is equally obvious that there would be an end to all confidence between the client and attorney, if the latter was at liberty or compellable to disclose the facts of which he had thus obtained possession; and hence it has become a settled rule of evidence, that the confidential attorney, solicitor or counselor can never be called as a witness to disclose papers committed or communications made to him in that capacity, unless the client himself consents to such disclosure." (Citations omitted; internal quotation marks omitted.) Gould, Larson, Bennet, Wells & McDonnell, P.C. v. Panico, 273 Conn. 315, 321-22, 869 A.2d 653 (2005); see also Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., 249 Conn. 36, 47-51, 730 A.2d 51 (1999) (granting
In sum, there is no compelling reason to prevent a nonparty attorney from directly appealing from a discovery order on the basis of an asserted privilege, and there are significant considerations that militate against requiring a nonparty attorney to be held in contempt first. We conclude, therefore, in accordance with the first prong of Curcio and the principles espoused in Abreu, that the discovery order in the present case is an appealable final judgment.
Before proceeding to the merits of Finn Dixon's writ of error, we pause to address the dissent's analysis of our final judgment precedent in order to identify precisely the issue presented by this case. The dissent disagrees that a claim of attorney-client privilege justifies allowing a nonparty attorney to appeal from an interlocutory discovery order and instead concludes that the discovery order in this case does not satisfy either prong of Curcio. The dissent also restricts Abreu's reasoning to only the narrowest of circumstances. We find the dissent's analysis in this context unconvincing.
The dissent first rejects Finn Dixon's argument that its interest in preserving the attorney-client privilege satisfies the second prong of Curcio, relying principally on Melia v. Hartford Fire Ins. Co., 202 Conn. 252, 258, 520 A.2d 605 (1987) ("[o]ur concern for the efficient operation of the judicial system, which is the practical consideration behind the policy against piecemeal litigation inherent in the final judgment rule, has induced us to dismiss appeals [when] statutorily created rights of privacy, no less significant than the right of confidentiality for attorney-client communications, have been at stake"). This reliance is misplaced. The court in Melia held that an assertion of a privilege, standing alone, is insufficient to transform an ordinary discovery dispute between parties into an appealable final judgment under the second prong of Curcio.
The dissent's concern over creating separate rules is misplaced. A different rule for nonparties would not undermine the rules governing the discovery process between parties in any manner. Indeed, as Abreu demonstrates, this court has allowed a nonparty to appeal from a discovery order when the order satisfies Curcio without causing harm to the trial process. Moreover, a principled distinction exists, namely, that a discovery order affecting a nonparty likely will satisfy the first prong of Curcio; see Abreu v. Leone, supra, 291 Conn. at 348, 968 A.2d 385; whereas one affecting a party in a case will not. See, e.g., Ruggiero v. Fuessenich, 237 Conn. 339, 345-46, 676 A.2d 1367 (1996) ("[a] party to a pending case does not institute a separate and distinct proceeding merely by filing a petition for discovery or other relief that will be helpful in the preparation and prosecution of that case" [emphasis added]).
We also are unpersuaded by the dissent's varying explanations of why the discovery order in the present case, which was directed against a nonparty, does not constitute a separate proceeding but the discovery order that was challenged in
More importantly, the dissent's interpretation of Abreu ignores (1) the plain language and holding of that decision, a fact that the dissent concedes,
In the end, we are not convinced by the dissent's conclusion that Abreu's analysis of the first prong of Curcio is inapplicable to the present case or, alternatively, that Abreu should be overruled. As we previously stated, both cases present virtually identical procedural postures and both properly can be analyzed under the first prong of Curcio. The discovery order in the present case constitutes a final judgment because it terminated a separate and distinct proceeding and thus satisfied the first prong of Curcio. Additionally, it implicates important policy considerations that militate against requiring an officer of the court who also is not a party to the underlying action to be held in contempt of court in order to be able to seek appellate review.
Lastly, we disagree with the dissent's conclusion that an attorney's interest in preserving the attorney-client privilege and the confidentiality of work product is no more significant than the client's interest. This reflects a misunderstanding of the relevant policy considerations. The threshold question in determining the policy considerations implicated in the present case is not whether the attorney's interest is greater than the client's or whether the parties
We now address whether the trial court properly ordered Finn Dixon to comply with the defendants' subpoena, which directed Finn Dixon to disclose all materials relating to its representation of the plaintiffs. We begin with the applicable standard of review.
"Practice Book § 13-14(a) provides in relevant part that a trial court `may, on [a] motion [relating to discovery], make such order as the ends of justice require.' Consequently, although we review the trial court's factual findings to determine whether they are clearly erroneous, `the granting or denial of a discovery request rests in the sound discretion of the court.' ... Provided the trial court properly interpreted the pertinent statutes, a question over which this court has plenary review ... that decision will be reversed only if such an order constitutes an abuse of that discretion." (Citations omitted.) Babcock v. Bridgeport Hospital, 251 Conn. 790, 819-20, 742 A.2d 322 (1999). Under the abuse of discretion standard, "[w]e must make every reasonable presumption in favor of the trial court's action.... The trial court's exercise of its discretion will be reversed only [when] the abuse of discretion is manifest or [when] injustice appears to have been done." (Internal quotation marks omitted.) State v. Erickson, 297 Conn. 164, 176, 997 A.2d 480 (2010).
Finn Dixon raises five claims in support of its contention that the trial court's discovery order was clearly erroneous. The first claim concerns whether the trial court incorrectly concluded that Finn Dixon lacked standing to object to the order. The remaining four claims concern whether the trial court correctly concluded that the subpoenaed materials were discoverable and not privileged. We first address the trial court's decision with respect to Finn Dixon's standing.
In its articulation, the trial court stated, as a ground for denying Finn Dixon's objection to the subpoena, that Finn Dixon had no standing to assert the attorney-client privilege. This is incorrect. Although we have stated that the attorney-client privilege is held by the client, this refers to which party has the ability to unilaterally waive the privilege. See Gebbie v. Cadle Co., 49 Conn.App. 265, 274,
Finn Dixon's remaining claims all concern whether the trial court incorrectly concluded that the requested materials were not, or no longer, protected by the attorney-client privilege or the work product doctrine.
First, the request for any and all documents relating to Finn Dixon's representation of the plaintiffs clearly embodied a request for privileged materials. "[W]ith respect to privilege claims generally, we have held that [when] the confidential status of otherwise discoverable information is apparent, a claim of privilege may be disposed of without further inquiry." Babcock v. Bridgeport Hospital, supra, 251 Conn. at 847, 742 A.2d 322. Thus, the subpoena inappropriately sought privileged materials in violation of Practice Book §§ 13-2,
The defendants argue that Finn Dixon failed to properly invoke the attorney-client privilege, and thus waived it, because Babcock further held that, "to establish an exemption from disclosure [the claim] must not be couched in conclusory language or generalized allegations... but should be sufficiently detailed, without compromising the asserted right to confidentiality...." (Internal quotation marks omitted.) Id. at 828, 742 A.2d 322. The defendants misconstrue this statement in Babcock, which refers to whether a specific statutory exemption to disclosure applies. That statute, General Statutes § 19a-17b,
In that connection, we reject the defendants' suggestion that Finn Dixon had an
Notwithstanding the foregoing, the defendants, relying on the trial court's articulation, also claim that the plaintiffs waived any privilege when they brought the underlying action against the defendants because they placed their privileged communications "at issue." "[T]he `at issue,' or implied waiver, exception is invoked only when the contents of the legal advice [are] integral to the outcome of the legal claims of the action.... Such is the case when a party specifically pleads reliance on an attorney's advice as an element of a claim or defense, voluntarily testifies regarding portions of the attorney-client communication, or specifically places at issue, in some other manner, the attorney-client relationship. In those instances the party has waived the right to confidentiality by placing the content of the attorney's advice directly at issue because the issue cannot be determined without an examination of that advice. `If the information is actually required for a truthful resolution of the issue on which the party has raised ... the party must either waive the attorney-client privilege as to that information or it should be prevented from
"Merely because the communications are relevant does not place them at issue.... If admitting that one relied on legal advice in making a legal decision put the communications relating to the advice at issue, such advice would be at issue whenever the legal decision was litigated. If that were true, the at issue doctrine would severely erode the attorney-client privilege and undermine the public policy considerations [on] which it is based." (Citations omitted; emphasis added.) Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., supra, 249 Conn. at 52-54, 730 A.2d 51.
In the present case, the plaintiffs have not pleaded reliance on any information or advice from Finn Dixon that might be found in the requested privileged materials, and, thus, it is not apparent that the plaintiffs have waived the privilege. See, e.g., id. at 54-55, 730 A.2d 51. Nevertheless, the defendants reason as follows: The plaintiffs' complaint and request for damages placed Finn Dixon's representation of the plaintiffs at issue because a determination of damages turns on the reasonableness of settlements entered into by the plaintiffs. The reasonableness of these settlements, according to the defendants, further turns on the reasonableness of Finn Dixon's advice, and, therefore, the plaintiffs have placed these communications at issue and cannot invoke the attorney-client privilege to prevent their disclosure. We reject this line of reasoning.
Neither this court nor the Appellate Court has held that the reasonableness of a settlement is necessarily determined by the advice that the settling party receives from counsel. To the contrary, we have held that "[t]he reasonableness of [a] settlement ... should be examined under an objective standard." (Emphasis added.) Id. at 55, 730 A.2d 51. "It would be quite different if the [plaintiffs] sought to prove reasonableness based [on] the advice of counsel. In that instance, counsel's advice would be at issue ... but that is not the situation in the present case. Accordingly, although the reasonableness of the settlements is directly at issue, the exact communications between the [plaintiffs] and [Finn Dixon] regarding the decision to settle, which would aid only in a subjective determination, are not at issue." Id. at 56, 730 A.2d 51; see also Black v. Goodwin, Loomis & Britton, Inc., 239 Conn. 144, 161 and n. 17, 681 A.2d 293 (1996) (citing, with approval, trial court's instruction to jury that "[t]he test as to whether the settlement is reasonable is what a reasonably prudent person in the position of the [d]efendant would have settled for considering the liability and damage aspects of the [p]laintiff's claim, as well as the risk of going to trial" [internal quotation marks omitted]).
The defendants provide only one potentially persuasive authority for their argument to the contrary. In Rutgard v. Haynes, 185 F.R.D. 596 (S.D.Cal.1999), the defendant, Richard Haynes, represented the plaintiff, Jeffrey Jay Rutgard, in a civil antitrust suit. See id. at 597. That case was unsuccessful, and both Rutgard and Haynes were sued for malicious prosecution. See id. Rutgard was represented by new counsel in the malicious prosecution action; id. at 598; and settled the case on that counsel's advice. See id. at 599. Rutgard then brought a legal malpractice action against Haynes and sought attorney's fees and costs incurred in the malicious prosecution action as well as the settlement amount. See id. at 597-98.
The question before the court was whether Rutgard, by virtue of the malpractice action, waived the attorney-client privilege for communications between him
We are not persuaded by the reasoning in Rutgard for two reasons. First, the decision appears to be an outlier, as the vast majority of jurisdictions that have addressed the issue have concluded that the privilege is not waived simply because a plaintiff is seeking to recover the amount of a settlement that arose out of a claim resulting from the alleged malpractice of the plaintiff's former counsel. See, e.g., Miller v. Superior Court, 111 Cal.App.3d 390, 394-95, 168 Cal.Rptr. 589 (1980); Fischel & Kahn, Ltd. v. van Straaten Gallery, Inc., 189 Ill.2d 579, 590, 244 Ill.Dec. 941, 727 N.E.2d 240 (2000); Jakobleff v. Cerrato, Sweeney & Cohn, 97 App.Div.2d 834, 835-36, 468 N.Y.S.2d 895 (1983). Second, a closer examination of Rutgard reveals that its reasoning stands on questionable grounds. The court in Rutgard based much of its holding on Fischel & Kahn, Ltd. v. van Straaten Gallery, Inc., 301 Ill.App.3d 336, 234 Ill.Dec. 773, 703 N.E.2d 634 (1998). See Rutgard v. Haynes, supra, 185 F.R.D. at 598-99. The Illinois Appellate Court's decision in Fischel & Kahn, Ltd., however, was subsequently reversed by the Illinois Supreme Court in Fischel & Kahn, Ltd. v. van Straaten Gallery, Inc., supra, 189 Ill.2d at 581, 244 Ill.Dec. 941, 727 N.E.2d 240.
The facts and issues contained in Fischel & Kahn, Ltd. align with those in the present case. Fischel & Kahn, Ltd. (Fischel) had represented van Straaten Gallery, Inc. (van Straaten) in previous business deals that gave rise to litigation. See Fischel & Kahn, Ltd. v. van Straaten Gallery, Inc., supra, 189 Ill.2d at 581-82, 585, 244 Ill.Dec. 941, 727 N.E.2d 240. Van Straaten retained new counsel in this litigation. Id. at 581, 244 Ill.Dec. 941, 727 N.E.2d 240. After Fischel sued van Straaten for unpaid legal fees, van Straaten filed a counterclaim, alleging, inter alia, that Fischel was negligent in advising van Straaten. Id. at 582, 244 Ill.Dec. 941, 727 N.E.2d 240. Fischel filed a request for production with new counsel for documents relating to new counsel's representation of van Straaten in the subsequent litigation. Id. at 582-83, 244 Ill.Dec. 941, 727 N.E.2d 240. In response to van Straaten's objection, Fischel argued that van Straaten had "waived its attorney-client privilege with [new counsel] when van Straaten sued Fischel ... for malpractice. Fischel ... argue[d] that because van Straaten [sought] damages for the defense and settlement of the [underlying] litigation, any facts surrounding that litigation [were] central to the question of whether [Fischel could] be held liable for malpractice. Fischel ... claim[ed] that without receiving all the documents surrounding the [underlying] litigation and its settlement, including documents that reveal[ed] otherwise privileged attorney-client communications, it would be impossible to determine whether and to what extent van Straaten's alleged loss resulted from [Fischel's] alleged malpractice." Id. at 585, 244 Ill.Dec. 941, 727 N.E.2d 240. The Illinois Supreme Court disagreed. Id.
The court noted "that van Straaten, by [filing a counterclaim] against Fischel ...
Ultimately, the court "disagree[d] with [Fischel's] assertion that, without reviewing all the documents surrounding the [underlying] litigation and its settlement, it is impossible to determine whether and to what extent van Straaten's alleged loss resulted from [Fischel's] alleged malpractice, if any, or some other source.... [T]he privileged documents present[ed] one alternative means, though perhaps the most convenient, in which this information [could] be obtained. Mere convenience, however, should not justify waiver of the attorney-client privilege. To allow Fischel... access to the privileged documents ... would ... unnecessarily undermine the purpose of the attorney-client privilege to encourage full and frank communication between attorneys and their clients.... Therefore ... van Straaten has not waived the attorney-client privilege ... with respect to [new counsel] by filing a malpractice action seeking [attorney's] fees and settlement costs of the [underlying] litigation." (Citations omitted.) Id. at 590, 244 Ill.Dec. 941, 727 N.E.2d 240.
We agree with the Illinois Supreme Court's reasoning and find it applicable to the present case. The plaintiffs' malpractice claim concerns only the allegedly negligent representation by the defendants, which is separate from the plaintiffs' subsequent representation by Finn Dixon. Although the issue of damages will likely involve the reasonableness of the settlements entered into on Finn Dixon's advice, the fact finder should be able to assess damages adequately through other means without resorting to privileged communications between the plaintiffs and Finn Dixon. We decline to adopt the contrary rule urged by the defendants because it lacks precedential support and runs counter to our narrow construction of exceptions to the attorney-client privilege. See, e.g., Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., supra, 249 Conn. at 52-54, 730 A.2d 51. Therefore, we conclude that the plaintiffs did not waive the attorney-client privilege with respect to their communications with Finn Dixon, that the defendants' subpoena sought, inter alia, privileged communications in violation of the rules of practice, and that it was an abuse of the trial court's discretion to order compliance with such an overbroad subpoena.
The writ of error is granted and the case is remanded to the trial court with direction to vacate the order compelling production.
In this opinion NORCOTT, McLACHLAN and ESPINOSA, Js., concurred.
EVELEIGH, J., with whom HARPER and VERTEFEUILLE, Js., join, dissenting.
In this dispute concerning a discovery request, the majority concludes that: (1)
This court previously has recognized that, "[j]ust as an appeal, a writ of error requires a final judgment as a predicate. See Practice Book § 72-1; see also State v. Ross, 189 Conn. 42, 51, 454 A.2d 266 (1983) (`the use of a writ of error would in no way overcome the objections ... to the appeal process based upon ... the absence of finality in the judgment')." Green Rock Ridge, Inc. v. Kobernat, 250 Conn. 488, 498, 736 A.2d 851(1999). "`An order issued upon a motion for discovery ... ordinarily... does not constitute a final judgment, at least in civil actions.' Chrysler Credit Corp. v. Fairfield Chrysler-Plymouth, Inc., 180 Conn. 223, 226, 429 A.2d 478 (1980); see also Presidential Capital Corp. v. Reale, 240 Conn. 623, 625, 692 A.2d 794 (1997) (`[t]he general rule established by our case law is that an interlocutory order requiring a witness to submit to discovery is not a final judgment and, therefore, is not immediately appealable'). `[W]e require that those ordered to comply with discovery be found in contempt of court before we consider an appeal....' Barbato v. J. & M. Corp., 194 Conn. 245, 249, 478 A.2d 1020 (1984)." Green Rock Ridge, Inc. v. Kobernat, supra, at 498, 736 A.2d 851; see also Abreu v. Leone, 291 Conn. 332, 346, 968 A.2d 385 (2009) ("an order issued upon a motion for discovery ordinarily is not appealable because it does not constitute a final judgment, and ... a witness' only access to appellate review is to appeal a finding of contempt"); cf. Ruggiero v. Fuessenich, 237 Conn. 339, 345-46, 676 A.2d 1367 (1996) ("[a] party to a pending case does not institute a separate and distinct proceeding merely by filing a petition for discovery or other relief that will be helpful in the preparation and prosecution of that case"). This court has recognized certain limited exceptions to this general rule. In Abreu v. Leone, supra, 291 Conn. at 334, 968 A.2d 385, for example, the defendant, Karissa Leone, had filed a claim with the claims commissioner seeking permission to bring an action against the department of children and families (department) for personal injuries allegedly inflicted by the foster child of the plaintiff, Joseph Abreu. Leone issued a notice of deposition and subpoena duces tecum to Abreu, apparently seeking information about the child. Id. at 335, 968 A.2d 385. Abreu then filed a separate action asking the trial court to quash the subpoena on the ground that he was prohibited, under General Statutes § 17a-28, from disclosing that information. Id. The department intervened as a party plaintiff and filed a brief in support of Abreu's position. Id. The trial court issued a decision holding that Abreu was statutorily prohibited from testifying about his foster child, but allowing the deposition to go forward so that the defendant could seek other information. Id.
Thereafter, at Abreu's deposition, he declined to answer certain questions. Id. at
On appeal, we concluded that the trial court's order compelling Abreu to answer the questions posed by Leone was an appealable final judgment. Id. at 341, 968 A.2d 385. In support of this conclusion, we reasoned that: (1) unlike the situations in Barbato v. J. & M. Corp., supra, 194 Conn. at 248, 478 A.2d 1020, and Presidential Capital Corp. v. Reale, supra, 240 Conn. at 633, 692 A.2d 794, the trial court had clearly indicated what specific information Abreu was required to provide, Abreu had clearly refused to provide that information and, therefore, Leone was "forcing [Abreu] to be held in contempt"; Abreu v. Leone, supra, 291 Conn. at 347, 968 A.2d 385; (2) requiring Abreu to be held in contempt "would discourage participation by otherwise willing foster parents and thus undermine the goals of that system," while forcing him to answer the questions would subject the foster child to "embarrassment, stigmatization and emotional harm"; id. at 348, 968 A.2d 385; (3) the trial court's order had "terminated a separate and distinct proceeding concluding the department's rights" because the department could not force Abreu to defy the court order, thereby subjecting himself to contempt proceedings; (emphasis in original) id. at 348, 968 A.2d 385; and (4) the motion to quash was the sole judicial proceeding at issue in the case and probably the only legal proceeding from which Abreu and the department would have a right to seek appellate review. Id. at 348-49, 968 A.2d 385; id. at 349, 968 A.2d 385 (Abreu could not appeal from proceeding before claims commissioner because he was not party, and it was possible that neither Abreu nor department could seek appellate review because proceeding was not judicial proceeding.).
I would conclude that Abreu does not support the majority's conclusion herein that the trial court's order requiring Finn Dixon to comply with the defendants' subpoena duces tecum was an appealable final judgment. First, although, as in Abreu, the information that is being sought in the present case has been clearly identified, and Finn Dixon has clearly refused to produce it, a clear and definite discovery order and an unambiguous refusal to obey the order are merely necessary predicates to a determination that the ruling is an appealable final judgment; they are not sufficient predicates. See Melia v. Hartford Fire Ins. Co., 202 Conn. 252, 253-54, 520 A.2d 605 (1987) (order requiring defendant to produce entire claims file for inspection by plaintiff was not appealable final judgment); State v. Grotton, 180 Conn. 290, 291, 296, 429 A.2d 871 (1980) (order directing taking of specimens of defendant's blood, saliva and urine was not appealable final judgment); Chrysler Credit Corp. v. Fairfield Chrysler-Plymouth, Inc., supra, 180 Conn. at 227-28, 429 A.2d 478 (trial court's imposition of sanctions when defendant refused to produce specifically requested documents was not appealable final judgment). Although the final judgment rule is premised in part on our reluctance to address claims prematurely or to issue advisory opinions; see State v. Grotton, supra, at 292, 429 A.2d 871 (discovery orders are not immediately reviewable in part because "their import is fully apprehended only after trial is concluded"); the rule's primary policy rationale
Similarly, the fact that a party will be forced immediately to choose between complying with a discovery order and being held in contempt — or some other sanction if this court declines to review the order — standing alone, does not ordinarily exempt the order from the rule that discovery rulings are not appealable final judgments.
Moreover, to the extent that Abreu suggests that the requirement that a party who has already refused to comply with a clear and specific discovery request must be held in contempt before seeking appellate review of a discovery order is a mere matter of form and is, therefore, dispensable; Abreu v. Leone, supra, 291 Conn. at 348, 968 A.2d 385 (requiring party who already has refused to answer specific questions to be held in contempt before reviewing discovery order "would be elevat[ing] form over substance" [internal quotation marks omitted]); I believe that any such suggestion is unfounded. In reviewing a judgment of contempt for refusal to obey a discovery order, the reviewing court may be required to rule on the propriety of the underlying order, but that will not always be the case. See Papa v. New Haven Federation of Teachers, 186 Conn. 725, 733, 444 A.2d 196 (1982) ("only those claims of error which concern the court's authority to issue [the underlying order] and thereby its authority to find contempt for violations thereof may be reviewed" on appeal from judgment of contempt [emphasis added]); cf. id. at 732, 444 A.2d 196 ("although the scope of review on an appeal from a judgment of civil contempt is limited to some extent, it is sufficiently broad to encompass many claims of error which may not appear on their face to be jurisdictional in nature"). Once the reviewing court has determined that the trial court had the authority to issue an interlocutory order, the court will not consider whether the order constituted an abuse of discretion. See id. at 733, 444 A.2d 196 ("certain claims by the [party in contempt] concerning the [violated interlocutory
It is clear to me, therefore, that, under Abreu, a person may bring an immediate appeal from a discovery order only if: (1) the order threatens an important public policy that provides a "counter-balancing factor" to the policies underlying the final judgment rule; Abreu v. Leone, supra, 291 Conn. at 347, 968 A.2d 385; and (2) the party attempting to bring the appeal would not have a later opportunity to challenge the order. Id. at 348, 968 A.2d 385; see also Melia v. Hartford Fire Ins. Co., supra, 202 Conn. at 256, 520 A.2d 605 (citing with approval federal standard that "allows interlocutory appeals from only those decisions falling within that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated" [internal quotation marks omitted]). In the present case, Finn Dixon claims that the first Abreu consideration is present because of the important public policy underlying the attorney-client privilege, and the second consideration is present because Finn Dixon is not a party to and has no interest in the underlying action, its rights will be irretrievably lost if it is required to disclose the requested materials, and it will have no other opportunity for review.
I first address Finn Dixon's claim that protection of the attorney-client privilege is an important counterbalancing factor justifying a departure from the ordinary rule that a discovery order is not immediately appealable. I disagree. This court previously has held that the fact that a discovery order may require the disclosure of materials subject to the attorney-client privilege is not "sufficiently important to transform an interlocutory order into a final judgment" under the applicable standard. Id. This court recognized in Melia that a determination on appeal that the discovery order was improper "cannot wholly undo the consequences of [the violation of the privilege], though the rights of the client in respect to use of privileged material during further proceedings can be adequately safeguarded." Id. at 257, 520 A.2d 605. We also recognized, however, that the fact that "[v]indication at the appellate level can seldom regain all that has been lost by an erroneous determination of a cause in the trial court"; (internal quotation marks omitted) id.; does not mean that such determinations are immediately reviewable. See also id. at 258, 520 A.2d 605
The majority concludes, however, that Finn Dixon's independent interest in maintaining the confidentiality of its privileged materials provides a counter-balancing factor to the policies underlying the final judgment rule. The majority also concludes that attorneys, unlike their clients, have a professional ethical obligation to protect the confidentiality of privileged information; see Rules of Professional Conduct 1.6(a);
I am not persuaded. Although the interests of an attorney in preserving the confidentiality of materials subject to the attorney-client privilege may not be identical to those of a client, their respective interests are closely intertwined. Indeed, in the present case, the plaintiffs, in their objections to the defendants' subpoena duces tecum, motion to quash and motion for protective order, "join[ed] in and adopt[ed]" the substance of Finn Dixon's objections, motion to quash and motion for protective order. In addition, in its opposition to the defendants' motion to dismiss this writ of error, Finn Dixon stated that it had asserted its objections to the subpoena duces tecum pursuant to its ethical obligations to the plaintiffs under Rule 1.6 of the Rules of Professional Conduct, and not on the basis of its own confidentiality interests. Furthermore, although the defendants in the underlying action directed their subpoena duces tecum at Finn Dixon, they could just as easily have directed it at the plaintiffs, who would have been entitled to obtain the requested documents from Finn Dixon for purposes of discovery. Under Melia, the plaintiffs would not have been able to appeal immediately from a decision overruling their objections to the subpoena. Thus, it is clear to me that allowing a nonparty attorney to appeal immediately from a discovery order constitutes an end run around Melia. Moreover, to the extent that Finn Dixon has an interest in its privileged materials that is entirely distinct from its clients' interest, I do not believe that that interest is significantly more important than the clients' interest. Finally, as the majority recognizes, an attorney's compliance with a court order compelling disclosure of privileged materials does not violate the Rules of Professional Conduct if the attorney asserts all nonfrivolous claims against disclosure. See Rules of Professional Conduct
In my view, by allowing immediate appeals to nonparties from discovery orders that implicate the attorney-client privilege, the majority raises the privilege to an unduly exalted status. Although the privilege is undoubtedly important, this court repeatedly has recognized that a threat to it does not outweigh the policies that underlie the final judgment rule. Because it is well established in this state that a client's interests in preserving confidentiality are not sufficiently important as to require immediate appellate review of a discovery order, I would conclude, consistent with that precedent, that an attorney's interests also are not sufficiently important.
Nevertheless, because the majority concludes that, even in the absence of a counter-balancing factor, the discovery order is immediately appealable on the independent ground that it "terminated a separate and distinct proceeding"; Abreu v. Leone,
I recognize that this court previously has held that certain discovery orders satisfy the first prong of Curcio. See Lougee v. Grinnell, 216 Conn. 483, 487, 582 A.2d 456 (1990); see also Presidential Capital Corp. v. Reale, supra, 240 Conn. at 631, 692 A.2d 794. In Lougee, the petitioner, Virginius B. Lougee, brought an action to quash a subpoena that had been issued at the instigation of the respondent, Jeannie B. Grinnell, in connection with an action that Grinnell had brought in Texas. Lougee v. Grinnell, supra, at 484-85, 582 A.2d 456. We stated in that case that "the sole judicial proceeding instituted in Connecticut concerned the propriety of Grinnell's deposition subpoena, a proceeding that will not result in a later judgment from which [Lougee] can then appeal. Thus, this appeal falls within the first prong of the test of finality of judgment stated in State v. Curcio, [supra, 191 Conn. at 31, 463 A.2d 566]: (1) where the order or action terminates a separate and distinct proceeding. Commissioner of Health Services v. Kadish, 17 Conn.App. 577, 578 n. 1, 554 A.2d 1097 (1989)." (Internal quotation marks omitted.) Lougee v. Grinnell, supra, at 487, 582 A.2d 456. In Presidential Capital Corp. v. Reale, supra, at 240 Conn. at 631, 692 A.2d 794, we stated in dictum that "[a] trial court order that quashes an investigative subpoena indubitably `terminates' the discovery proceeding that is at issue. See Commissioner of Health Services v. Kadish, [supra, at 578 n. 1, 554 A.2d 1097.] We have, accordingly, regularly undertaken appellate review of such an order. See, e.g., Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 461 A.2d 938 (1983); In re Application of Ajello v. Moffie, 179 Conn. 324, 426 A.2d 295 (1979)."
In my view, as a practical and logical matter, these principles apply equally to discovery orders directed at nonparties. Cf. Presidential Capital Corp. v. Reale, supra, 240 Conn. at 629, 692 A.2d 794 (nonparty witnesses not entitled under Curcio to appeal immediately from denial of protective order). I recognize that, unlike a party, a nonparty's exclusive interests in a case in which it has been subjected to a discovery request are avoiding the burden of complying with the request and preserving any applicable privileges. I further recognize that, for all practical intents and purposes, an order compelling discovery finally concludes those interests. A discovery order directed at a party, however, also affects the party's interests in a manner that may not be remediable in a later appeal. See id. ("[i]t is a given that, once disclosed through discovery, information cannot be retrieved"); Melia v. Hartford Fire Ins. Co., supra, 202 Conn. at 257, 520 A.2d 605 ("[i]t 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"). Moreover, there is no guarantee that the party will be able to bring an appeal or, if it can, that it will be able to appeal from the discovery order.
Accordingly, I see no reason why, if a party cannot obtain immediate review under Curcio of a discovery order without first being held in contempt, such relief should be available to a nonparty. Although the potential for unwarranted disclosure and irremediable harm exists in both situations, I continue to believe that "the occasional [improper discovery ruling] that cannot be fully rectified upon review of the final judgment is a lesser evil than that posed by the delay in the progress of cases in the trial court likely to result from interlocutory appeals of disclosure orders." Melia v. Hartford Fire Ins. Co., supra, 202 Conn. at 259, 520 A.2d 605. Because I do not believe that Finn Dixon's interest in maintaining the confidentiality of its privileged materials and work product is sufficiently important to override our concern for the efficient operation of the judicial system, I do not believe that the trial court's order in the present case is appealable under the second prong of Curcio.
The majority does not dispute the substance of this analysis or explain how the discovery order at issue in the present case satisfies the requirement under the first prong of Curcio that, to be immediately appealable, an order must be "severable from the central cause of action so that the main action can proceed independent of the ancillary proceeding." (Internal quotation marks omitted.) Abreu v. Leone, supra, 291 Conn. at 339, 968 A.2d 385. Rather, it simply ignores this requirement and the holding of Ruggiero that discovery matters are not separate and distinct proceedings, and begs the question by stating conclusorily that, because "Finn Dixon is not involved in any way with the lawsuit between the plaintiffs and defendants," the discovery order "terminated a separate and distinct proceeding and thus satisfied the first prong of Curcio." Despite this conclusion, the majority for some reason finds it necessary to expend a great deal of energy explaining why, in its view, there are also compelling policy reasons to review the discovery order immediately. The majority ultimately acknowledges that, under Melia, these policy reasons, "standing alone, [are] insufficient to transform an ordinary discovery dispute between parties into an appealable final judgment," but concludes that Melia "is inapposite with respect to the issue of whether a nonparty's objection to a discovery order satisfies the first prong of Curcio."
Finally, I greatly fear that the majority's decision permitting immediate review of discovery orders directed at attorneys for nonparties will open a floodgate of immediate appeals from all discovery orders. See Melia v. Hartford Fire Ins. Co. supra, 202 Conn. at 258, 520 A.2d 605 ("[t]he 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"); cf. Brown & Brown, Inc. v. Blumenthal, 288 Conn. 646, 655-56 n. 6, 954 A.2d 816 (2008) (declining to treat trial court's denial of motion for summary judgment as appealable final judgment in action seeking declaration that documents produced by plaintiff in separate proceeding were confidential because doing so would open floodgate of interlocutory appeals). If a discovery order directed at an attorney for a nonparty is a "separate and distinct proceeding" permitting immediate appellate review under Curcio, then discovery orders directed at any nonparty, including attorneys for parties, must also be separate and distinct proceedings under Curcio. Discovery orders directed at nonparties are an extremely frequent occurrence in civil cases.
Because I would conclude that the trial court's orders denying Finn Dixon's motion to quash the subpoena and overruling its objections thereto did not constitute an appealable final judgment under either prong of Curcio, I would dismiss the writ of error for lack of appellate jurisdiction.
Accordingly, I respectfully dissent.
Hereinafter, all references to § 17a-28 are to the version appearing in the 2006 supplement to the 2005 revision of the General Statutes.
"[T]he present case [like Abreu] is distinguishable from Barbato and Presidential Capital Corp. for several reasons. First, in those cases, the party [had] `not yet appeared before the trial court to answer any questions'; Barbato v. J. & M. Corp., supra, 194 Conn. at 248-49, 478 A.2d 1020; and the trial court [had] yet to consider what requests for information, if any, it [would] direct the appellants to answer. Presidential Capital Corp. v. Reale, supra, 240 Conn. at 633, 692 A.2d 794. Unlike [in] Presidential Capital Corp., in the present case there are no further proceedings before the Superior Court involving [Finn Dixon] because the questions have been propounded and the trial court unequivocally has ruled what must occur — [a] certain identified [discovery request] must be [complied with].... Unlike [in] Barbato, in the present case, it is known whether [Finn Dixon] will refuse to [comply with] the [discovery request made] by the defendant[s], and it is known whether the trial court will uphold the privilege as to the [discovery request]. Unlike [in] Presidential Capital Corp., the trial court in the present case has considered what requests for information it will direct [Finn Dixon] to [comply with], and [Finn Dixon] has decided what information [it] is unwilling or unable to provide." (Internal quotation marks omitted.) Abreu v. Leone, supra, 291 Conn. at 345-46, 968 A.2d 385.
Nevertheless, this court never has held that policy considerations are wholly irrelevant to a Curcio analysis. Rather, policy can provide support for determining whether it is appropriate to "deem interlocutory orders or rulings to have the attributes of a final judgment...." BNY West. Trust v. Roman, 295 Conn. 194, 202, 990 A.2d 853 (2010). Indeed, this court previously has looked to policy to help inform its decision of whether it would be wise jurisprudence to deem an otherwise interlocutory order a final judgment. See, e.g., Abreu v. Leone, supra, 291 Conn. at 347-48, 968 A.2d 385; see also CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375, 402-403, 685 A.2d 1108 (1996) ("[A]lthough the appellate final judgment rule is based partly on the policy against piecemeal appeals and the conservation of judicial resources... there is a counterbalancing factor in this situation. Requiring the postponement of an appeal of a sanctions order until the final judgment in the underlying action could well result in an appeal from a judgment that has nothing to do with the issues on appeal.... Similarly, if the client lost in the trial court but there were no good faith grounds of appeal going to the merits of the trial [court's] judgment, the appeal of the sanctions order would be only artificially linked to the judgment on appeal. Neither scenario commends itself as wise jurisprudence." [Citation omitted; emphasis added.]), overruled on other grounds by State v. Salmon, supra, 250 Conn. at 147, 735 A.2d 333. Thus, to the extent that our Curcio analysis is guided by policy concerns over piecemeal litigation, there may be instances in which these concerns are outweighed by countervailing considerations.
For the same reason, we distinguish the facts of Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., supra, 249 Conn. at 36, 730 A.2d 51, from the facts of the present case. Metropolitan Life Ins. Co., like Melia, concerned whether an interlocutory appeal from a discovery order satisfied the second prong of Curcio. Relying on Melia, the court concluded that it did not. See id. at 42, 46, 730 A.2d 51. The court, however, allowed the appeal under § 52-265a. Id. at 50-51, 730 A.2d 51. The court found that a matter of substantial public interest was implicated, principally on the ground that the appeal concerned the attorney-client privilege, "the importance of which [this court] ... recently [had] reaffirmed." Id. at 48, 730 A.2d 51.
The subpoena in this case also violated the time restraints imposed by Practice Book § 13-28(c), which requires that "any subpoena issued to a person commanding the production of documents or other tangible things at a deposition shall not direct compliance within less than fifteen days from the date of service thereof." The defendants' subpoena is dated December 4, 2009, and directed Finn Dixon's custodian of records to appear, with the subpoenaed materials, on December 16, 2009, less than fifteen days later.
At oral argument before this court, Finn Dixon argued that, when a discovery order requiring disclosure of privileged materials is "clearly erroneous," an attorney who discloses privileged information is not entitled to raise the "Nuremburg" defense that the attorney was merely complying with a court order. Finn Dixon cited no authority in support of this claim. Even if it were correct, however, Finn Dixon has cited no authority for the proposition that the attorney cannot be required to disobey a clearly erroneous interlocutory order and be held in contempt before seeking review of the order.