Officially released July 31, 2018.
Short version: most discovery decisions are interlocutory and not appealable final judgments in and of themselves.
Parties to a custody action entered a post-judgment agreement to undergo a psychological evaluation “for custodial/parenting plan purposes.” The evaluation was filed with the court and released over Plaintiff’s objection. The release of the evaluation was affirmed on a prior appeal.
Plaintiff thereafter communicated repeatedly with the court seeking access to the evaluation for purposes of use in an unrelated Massachusetts action. After a status conference, the court issued an order that Plaintiff may review the evaluation at the clerk’s office, the information in the evaluation may not be used in any other action, and Plaintiff may not have copies of any of the information. Plaintiff appealed that order.
The issue on appeal is whether the Appellate Court had subject matter jurisdiction over an interlocutory discovery order. The Appellate Court cited Cunniffe v. Cunniffe, 150 Conn. App. 419, 433, 91 A.3d 497, cert. denied, 314 Conn. 935, 102 A.3D 1112 (2014) for the principle that “interlocutory rulings on motions related to discovery are not immediately appealable. The exception from this rule, established in State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983) requires meeting one of the following two prongs: “(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.”
Regarding the first Curcio prong, the Appellate Court concluded that the denial of Plaintiff’s request for a copy of a document prepared in this action, no longer pending, was not a “separate and distinct proceeding.” The order did not arise out of any pending motion, but out communications from Plaintiff to the Court and its staff, years after the end of the proceeding.
Regarding the second prong, the Appellate Court concluded that no presently existing right of the Plaintiff had been concluded by the order prohibiting the release of the 2012 psychological evaluation. Absent the risk to a statutory or constitutional right that the appeal would vindicate, Plaintiff could not meet the requirement of the second Curcio prong.
The Appellate Court concluded that the appealed order was interlocutory, no exception had been met, and the appeal must be dismissed for lack of subject matter jurisdiction.
