Woodbury Knoll, LLC v. Shipman and Goodwin, LLC
A claim of attorney-client privilege justifies allowing a nonparty attorney to appeal from an interlocutory discovery order. The plaintiffs, including Woodbury Knoll, LLC, brought this action against Shipman & Goodwin, LLP and others alleging that the defendants negligently represented them in certain real estate transactions resulting in foreclosure actions and other proceedings. The plaintiffs claimed damages of $4,288,674.60 representing settlement payments of $2,917,000 and attorneys' fees paid to Finn, Dixon and Herling, LLP of $1,371,647.60. The defendants served a notice of deposition and subpoena duces tecum on Finn Dixon seeking "all documents" relating to its representation of the plaintiffs for a defined period. The trial court overruled Finn Dixon's objection to the subpoena and denied its motion to quash and granted the defendants' motion to compel discovery. Finn Dixon brought this writ of error claiming that the court improperly overruled its objection and denied its motion to quash claiming that the defendants sought materials protected by the attorney-client privilege and work product doctrine. The defendants argued that the writ was not brought from a final judgment as required by Practice Book §72-1(a). The majority of the Supreme Court concluded that the discovery order constituted an appealable final judgment under the Court's 1983 decision in State v. Curcio and granted the writ. Like the Court's 2009 controlling decision in Abreu v. Leone, the discovery order here satisfied the first prong of Curcio because it terminated a separate and distinct proceeding against a nonparty. Further, the majority found a counter-balancing factor existed to justify not subjecting Finn Dixon to the ordinary rule that one must be held in contempt to challenge a trial court's discovery order, namely, the concern of requiring an attorney, as an officer of the court, to violate a court order and otherwise to behave inconsistently with the Rules of Professional Conduct to bring an appeal. Reaching the merits, the majority concluded that the trial court abused its discretion in ordering compliance with an overbroad subpoena. Finn Dixon had standing to assert the privilege and was not obligated to submit a privilege log to make the claim. The subpoena inappropriately sought privileged materials. The plaintiffs did not waive the privilege by bringing the action. Justice Eveleigh with whom Justices Harper and Vertefeuille joined, dissented concluding that the discovery order was not an appealable final judgment.