Connecticut Appellate Court Dismisses Appeal of Discovery Order Finding that the Order Did Not Constitute a Final Judgment

 

In Radzick v. Connecticut Children’s Medical Center, No. 34952, 2013 Conn. App. LEXIS 454 (Conn. App. Ct. Sept. 17, 2013) the Connecticut Appellate Court dismissed defendant Connecticut Children’s Medical Center’s (“CCMC”) appeal of a trial court discovery order. Francisco A. Sylvester, an employee of CCMC, treated Jonathan Radzick, a minor, for Chron’s disease. Sylvester prescribed Remicade as part of his treatment of Jonathan and Jonathan died from T-cell lymphoma. Paul Radzick, plaintiff and administrator of Jonathan Radzick’s estate, brought suit, alleging that Sylvester knew that Remicade’s manufacturer had circulated warnings about fatal T-cell lymphoma and that Sylvester failed to obtain parental permission to prescribe Remicade for Jonathan.

In discovery, plaintiff sought to determine what Sylvester knew about Remicade and when. Specifically, plaintiff wanted to search three computers Sylvester had access to during the time he treated Jonathan. The discovery dispute centered around electronically stored information (“ESI”) on those three computers. On July 19, 2012, the trial court granted plaintiff’s motion to compel and ordered plaintiff be permitted to image the hard drives of the three personal computers Sylvester had used, and that their contents be forensically examined. The court addressed defendant’s concern that the computers contained confidential patient information and private information from use by Sylvester’s family members by requiring that anyone involved with imaging or investigating the computers sign a protective order. The court also required that the forensic investigation of the computers be conducted by an independent forensic consultant who would be hired and supervised by a discovery master. Sylvester appealed.

The appellate court looked to the two prong test in State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983) to determine if the July 19, 2012 discovery order was an appealable final judgment. Under Curcio, in order to be appealable, the order must satisfy at least one of these two prongs: (1) the ruling must terminate “a separate and distinct proceeding,” or (2) the ruling must so conclude “the rights of the parties that further proceedings cannot affect them.”

The Court of Appeals rejected Sylvester’s argument that the July 19, 2012 order was akin to other discovery orders that met the first prong in which discovery orders directed at nonparties authorized public disclosure of confidential information. However, the July 19, 2012 order was directed at Sylvester, a party, and protected confidential information of nonparties that may be on his computers by appointing a discovery master and including an in camera review before any information was to be disseminated.

The appellate court held that the July 19, 2012 order also did not meet the second prong, reasoning that the rights of the defendants are not “irretrievably lost” because of the order. In fact, the rights of the defendants may never even be compromised because of the safeguards in the order. The court dismissed the appeal.

This case serves as a reminder of the potential importance ESI can play in the outcome of a case and of the importance of maintaining proper ESI retention and production protocols.

About The Author

Thomas M. Jones joined Cozen O’Connor in 1986. He is vice chair of the firm’s Global Insurance Department and serves as co-chair of Cozen O’Connor’s Electronic Discovery Practice Group. Tom has a national practice representing insurers in complex litigation, and is frequently retained as national coordinating counsel in high-profile insurance coverage disputes.

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