Kolashuk v. Hatch

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JOSEPH KOLASHUK v. KYLE HATCH
(AC 41571)
Lavine, Alvord and Lavery, Js.

Syllabus

The plaintiff in error, A, who was the attorney for the defendant, H, filed a
writ of error, challenging the imposition of sanctions and the award of
attorney’s fees against him by the trial court. In the underlying personal
injury action, the defendant in error, K, by and through his mother and
next friend, sought to recover damages from H for, inter alia, negligence
in connection with personal injuries sustained by K when K, who was
riding his bicycle, and a motor vehicle operated by H collided. The
complaint alleged, inter alia, that H was operating his vehicle while
typing, sending, and/or reading text messages from his cell phone. During
the discovery phase, H testified at his deposition that, minutes before
the collision, he had sent a text message on a cell phone. H stated that
the cell phone was a company work phone and that the account was
in the name of his employer, H Co. Subsequently, the law firm represent-
ing K filed a motion to compel production of the relevant cell phone
records from the date of the collision, which the trial court granted. A
did not provide the requested cell phone records, and K’s attorney, R,
filed motions for sanctions for A’s alleged violation of the court’s order.
In response to R’s motions, A claimed that he had fully complied with
the court’s order to the best of his abilities because A’s client, H, did
not own the cell phone records requested by R, and that it would have
been illegal and unethical for him to provide R with records that H did
not own. Prior to the hearing on R’s second motion for sanctions, R
obtained the relevant cell phone records from an attorney representing H
Co., but the court, nevertheless, granted R’s second motion for sanctions
against A. Thereafter, R filed a request for attorney’s fees, which the
trial court granted in part. Subsequently, A filed a writ of error in our
Supreme Court, which transferred the matter to this court. Held:
1. K could not prevail on his claim that this court lacked subject matter
jurisdiction, which was based on his claim that A’s writ of error should
be dismissed because it was not taken from a final judgment in that the
sanctions and the attorney’s fees against A did not terminate a distinct
and separate proceeding because the relevant orders were issued during
the discovery phase of his personal injury case, the requested cell phone
records were necessary to resolve K’s case, and those records were
inextricably intertwined with K’s case: although the requested records
may have been integral to K’s personal injury action against H, those
records were the property of H Co., and, thus, neither A nor his client,
H, owned or had possession of the cell phone records, and K’s reliance
on the general rule that an interlocutory order requiring a witness to
submit to discovery is not a final judgment and, therefore, is not immedi-
ately appealable was unavailing, as A was neither a witness nor a party
to the underlying personal injury action but, rather, was an attorney
representing H, the defendant in the underlying action; moreover, K
could not prevail on his claim that the imposition of sanctions and
attorney’s fees against A did not terminate a distinct and separate pro-
ceeding because the trial court did not find A to be in contempt, as our
Supreme Court previously has concluded that a law firm that was not
a party need not wait to be found in contempt for its good faith failure to
comply with a discovery order to seek appellate review of that discovery
order, and, in the present case, A did not comply with the trial court’s
discovery order on the basis of his good faith belief that to do so would
violate a statute because H did not own the cell phone records, and,
thus, A did not have to be found in contempt to seek judicial review of
the sanctions and the attorney’s fees awarded against him; accordingly,
the imposition of sanctions and the award of attorney’s fees against A,
a nonparty to the underlying personal injury case, terminated a separate
and distinct proceeding, and, thus, the writ of error was filed pursuant
to a final judgment.
2. The trial court erred as a matter of law by ordering A to produce cell
phone records that neither he nor H owned or possessed, issuing sanc-
tions against A and awarding attorney’s fees to counsel for K, as the
court’s orders regarding the imposition of sanctions and the award of
attorney’s fees against A constituted an abuse of discretion; this court
has previously determined that a party may not be ordered to produce
documents owned by or in the possession of third parties, and, in the
present case, the trial court’s order that A, a nonparty, turn over the
relevant cell phone records that belonged to H Co., a separate, nonparty
entity, constituted an abuse of discretion, and although R claimed that
H’s parents owned H Co. and that H, therefore, easily could have obtained
the relevant cell phone records had A instructed him to do so, H and
H Co. were separate legal entities, and A was sanctioned for failing to
do something that he, in good faith, believed would violate a statute
because H did not own or possess the cell phone records.
Argued October 15, 2019—officially released January 7, 2020

Procedural History

Writ of error from the orders of the Superior Court
in the judicial district of New London, Bates, J., granting
the motion for sanctions filed by the defendant in error
against the plaintiff in error, and Calmar, J., awarding
attorney’s fees to the attorney of the defendant in error,
brought to the Supreme Court, which transferred the
matter to this court. Writ of error granted; remanded
with direction.
Maury M. Garrett, Jr., with whom was Lawrence H.
Adler, self-represented, for the plaintiff in error (Law-
rence H. Adler).
Kelly E. Reardon, with whom, on the brief, was Laura
A. Raymond, for the defendant in error (Joseph
Kolashuk).
Opinion

LAVINE, J. The plaintiff in error, Lawrence H. Adler,
the attorney for the defendant, Kyle Hatch, filed a writ
of error with our Supreme Court,1 challenging the sanc-
tions issued against him by the trial court, Bates, J.,
and the imposition of attorney’s fees ordered by the
trial court, Calmar, J. The case of Bank of New York
v. Bell, 142 Conn. App. 125, 63 A.3d 1026, cert. denied,
310 Conn. 901, 75 A.3d 30 (2013), and cert. denied, 310
Conn. 901, 75 A.3d 31 (2013), which stands for the
proposition that a party may not be ordered to produce
documents owned by or in the possession of third par-
ties, is dispositive of Adler’s claims. We, therefore, grant
the writ of error.
The following facts, as found in the record, underlie
Adler’s claims. On March 5, 2016, the minor plaintiff/
defendant in error, Joseph Kolashuk, was riding his
bicycle on Raymond Hill Road in Oakdale when he and
a motor vehicle operated by Hatch, collided. Kolashuk
suffered injuries and, by and through his mother and
next friend, Danielle Kolashuk, commenced a personal
injury action against Hatch. The complaint sounded in
negligence and statutory and common-law reckless-
ness. It alleged, in relevant part, that Hatch was
operating his motor vehicle while typing, sending, and/
or reading text messages ‘‘from’’ his cell phone (phone)
and operating his motor vehicle at a high rate of speed
while using a phone in his hand.2 The Reardon Law
Firm, P.C. (firm), represented Kolashuk. Adler entered
an appearance on behalf of Hatch.
On March 6, 2017, the firm noticed Hatch’s deposition
duces tecum, requesting that he produce at the deposi-
tion (1) any and all phone records of March 5, 2016,
including bills, invoices, text messages and e-mails; and
(2) the actual phone he used on March 5, 2016. On
March 15, 2017, Hatch objected to both production
requests and moved for a protective order, stating in
part that the records were not within his knowledge
or possession.3
On March 7, 2017, Attorney Robert I. Reardon, Jr.,
noticed the depositions of and issued subpoenas to the
keepers of records for Verizon Wireless (Verizon) and
AT&T, Inc., commanding that they produce ‘‘[a]ny and
all . . . phone . . . records from March 5, 2016
between [10] and [11 a.m.] for phone number [for Hatch]
including call details, text details, phone calls made
and/or received, text messages sent and/or received,
and [e-mails] sent and/or received.’’ Hatch filed motions
to quash the subpoenas duces tecum issued to the ser-
vice providers and motions for a protective order, stat-
ing in relevant part that the request for production was
not valid in that it violated General Statutes § 16-
247u (b).4
During his deposition on March 17, 2017, Hatch testi-
fied, in part, that minutes before the collision, he had
sent a text message on a phone with service provided
by Verizon. On the record, Reardon articulated his
efforts to obtain the phone records from the service
providers and that he had been unsuccessful in doing
so. He produced a facsimile received from Verizon,
indicating that it had no records for the number in
Hatch’s name. Adler reviewed the facsimile and stated:
‘‘I will help you because I think you and I can probably
agree, because it’s ultimately going to be a nonissue,
but I think the reason is because it’s not in the account
name of . . . Hatch. That is his number, but it’s not in
his name.’’ Reardon asked Hatch whose name was on
the account. Hatch stated that the phone was a company
work phone and that the account is in the name of R &
W Heating Energy Solutions, LLC (R & W Heating), his
employer.5 Following a discussion between counsel,
Adler stated to Reardon: ‘‘You and I can probably, early
next week, work out a parameter of a production. I can
probably get you what you need.’’
At a point later in the deposition, Reardon asked
Hatch if he had brought the phone with him. He had
not; the phone’s screen had broken, and although he
had it repaired, he did not know whether the phone
still contained data. Reardon asked Hatch to give the
phone to Adler to preserve. Adler agreed to hold the
phone in escrow. Hatch’s counsel filed a motion for a
protective order regarding the phone on the ground
that, pursuant to Connecticut statute, one may not
request phone records from one to whom such records
do not belong and that it is impermissible for a party
to provide phone records belonging to third parties.
Hatch’s counsel invited Reardon to subpoena the phone
records from R & W Heating or to subpoena the records
from R & W Heating’s service provider.
On March 23 and April 26, 2017, Reardon sent a letter
to Adler requesting Hatch’s phone records.6 By motion
dated April 13, 2017, the firm sought to compel produc-
tion, asking the court to order Hatch to produce the
phone records as requested in the notice of Hatch’s
deposition, among other things. On May 9, 2017, Judge
Bates issued an order stating that ‘‘[t]he . . . phone
records shall be produced for the time requested, which
appears to the court to be reasonably limited in time.’’
Hatch did not produce the records, and by motion
dated May 2, 2017, the firm filed a motion for a protec-
tive order for certain individuals whose depositions
Adler had noticed and for sanctions against Hatch for
his continued refusal to provide the phone records,
‘‘which is the subject of a pending motion to compel
filed’’ on April 13, 2017. The firm also sought a sanction
of $380.96 for the expenses the firm had incurred in its
effort to obtain the phone records of a third party whom
Hatch allegedly called on the morning of the collision.7
There was a further exchange of correspondence
between counsel for the parties in which Joseph M.
Barnes, an attorney at the firm, stated that during a
status conference, Adler had confirmed ‘‘that [he] had
the records we were requesting and could get them to
my office by Monday, [May 22, 2017].’’ Adler replied by
letter stating, ‘‘my client does not have possession or
control of any records for the phone at issue. I also did
not represent that I had them in my possession, but
simply indicated what I believed they showed. I have
asked repeatedly and will ask again, that you confirm
that if I can obtain the records that you seem to be
seeking and provide them to you, you withdraw any
further requests for possession of my client’s or his
[parents’] business . . . phone or any broader requests
for phone records beyond the time limit specified by
Judge Bates. Once I receive this confirmation, I will
make the arrangements for what I understand you are
looking for with the appropriate parties.’’
On June 12, 2017, Reardon filed a motion for default
and sanctions for violation of Judge Bates’ order. In
addition to a default against Hatch, Reardon sought
attorney’s fees, costs and a sanction of $5000 against
Hatch for the time the firm spent attempting to obtain
his phone records. Reardon also moved for an order
of contempt against Adler for his wilful refusal to com-
ply with the court’s order.
On June 14, 2017, Reardon and Attorney Andrew B.
Goodwin,8 representing Hatch, appeared before Judge
Bates. At that time, Goodwin stated in part: ‘‘I have
stated to you repeatedly that my client does not have
cell records, and you have heard from both me and
from Verizon that the cell records are not in my client’s
name. It is only recently that you have been willing to
limit the time period, as the court mandated, which was
a significant portion of my objection. I also have a
dispute about your entitlement effort to have access
to the actual cell phone that has extensive unrelated
material and, likely, attorney-client privileged material.
‘‘Here, once again, is my suggestion. I will discuss
with my client’s employer turning over the cell
records—my client’s employer turning over the cell
records with the limitations placed by the judge in terms
of date and time period, in accordance with the order,
of course. I will do that voluntarily if, and only if, they
do not satisfy you with the parameters that you defined,
which is, according to your May 31, 2017 letter, that
the records produced are sufficient to determine when
your—that’s Mr. Hatch—client was on the phone from
10 a.m. to 11 a.m. on March 5, 2016.
‘‘If you cannot make that determination after
reviewing the records, I will agree to a judicial review
of the phone to the extent this information is still on
there, only for the date and time periods referenced.
For reasons stated above, I will not simply turn over
the phone if I can obtain it from my client’s employer.’’9
During the June 14, 2017 hearing, Judge Bates asked
whether the order should be restructured because the
owner of the phone is not a party to the action. There-
after, the court stated: ‘‘I’m going to issue a clarification
that when I referred to his cell phone records, I was
referring, if unartfully, to the records of the cell phone
he was using. I understand that . . . the record of the
calls is in the hands of the attorney representing
[Hatch], and I order the attorney to turn those records
over. Again, it’s for the two hour interval. And I’m not
going to make a limit. You know, I’m not going to pre-
vent counsel, if there is reason to get more cell phone
records down the line, to request those. It’s not going
to be a condition of this order, but the order is only
affecting that . . . two hour period of time. So, that
will be a clarification. As to whether or not the differ-
ence which I referred to as being . . . a difference
without a [distinction], I think that’s going to be part
of the sanctions argument that we’ll have to have.’’
(Emphasis added.) The court also ordered that the
records be produced within five business days.10
By motion dated July 12, 2017, Reardon filed a second
motion for sanctions due to what he termed Adler’s
‘‘deliberate defiance’’ of the court’s orders. The motion
sought a sanction of $5000 against Adler, a finding of
contempt against Adler, and a default against Hatch for
wilful violation of a court order. On July 27, 2017, Judge
Bates held an evidentiary hearing on Reardon’s motion
for sanctions. At the hearing, Hatch testified that his
phone number is connected to whatever phone he is
using, the phone he was using on the date of the collision
belongs to R & W Heating, and he could not remember
whether he had seen the phone records. In addition,
his parents are the owners of R & W Heating. He pre-
sumed that the phone records are in his mother’s pos-
session. He also testified that he had turned the phone
at issue over to his parents, as he and his parents
decided that ‘‘it was better for them to keep it safe.’’
He further testified that he and his parents had no
objection to turning over the phone records to Reardon.
The court opined that Hatch had constructive posses-
sion of the phone and that the defense was ‘‘hiding
behind a sort of legal technicality’’ as to who owned
the phone. (Emphasis added.) Adler argued that the
phone is not what is at issue, the phone records are at
issue. He also argued that Hatch never had possession
of the phone records, which are in the possession of
the owners of R & W Heating. The following colloquy
transpired:
‘‘[Adler]: Your Honor, the only thing I’ve been talking
about in the entire [proceeding] is Your Honor’s order,
which is about the records. The phone is not the subject
of anything pending.
‘‘[Judge Bates]: The phone—when I refer to the
phone, I’m talking about the phone records. . . .
‘‘[Adler]: We never had them. We didn’t turn them
over to the parents. We’ve never had the phone records.
The parents get the bills, they pay the bills, they have
them at their business.’’ The hearing was continued.
On July 28, 2017, Ronald Goldstein, an attorney repre-
senting R & W Heating, gave Reardon the phone records.
Judge Bates continued the hearing on the motion for
sanctions on August 2, 2017, and ordered Reardon to
file time sheets and billing rates for an award of attor-
ney’s fees. On September 1, 2017, Judge Bates issued
a memorandum of decision on Reardon’s motion for
sanctions, from which we quote in part. The court stated
that Reardon had filed a motion for sanctions against
Adler ‘‘on the basis that he failed to turn over or even
seek to turn over [Hatch’s] . . . phone records from
the cell phone that [Hatch] used on the date of the
subject collision. This court ordered [Hatch] on May 9,
2017 . . . to make those cell phone records available.
‘‘[Adler] did not comply with the order of the court
until July 28, 2017, when arrangements were made with
attorneys for the owners of the company, R & W Heat-
ing, independently to turn over the requested cell phone
logs. As a result of the delay over the requested docu-
ments, [Reardon] is seeking attorney’s fees and costs
in obtaining these documents and a sanction of $5000
against Attorney Adler for his alleged failure to comply
with the court order.
‘‘In response to [Reardon’s] motions, [Adler] argues
that [Hatch] has fully complied with the court’s order
to the best of his abilities because Adler’s client . . .
Hatch, did not own the cell phone records requested
by [Reardon] and ordered produced by the court, and,
therefore, had no obligation to comply.
‘‘The court notes that in a deposition of . . . Hatch
on March 17, 2017 . . . Adler, when asked if he could
produce the cell phone records, assured . . . Reardon,
‘I’m sure we can work something out. I don’t have any
objection to you getting any records, so we will try to
work something out.’ Adler, on that date, also said to
Reardon, ‘You and I could probably, early next week,
work out a parameter of production. I can probably get
you what you need.’ It is undisputed that Adler failed to
follow through on his commitment until outside counsel
provided the necessary documentation several
months later.’’11
The court continued: ‘‘[Kolashuk] submits that
[Adler] needlessly and intentionally prolonged the dis-
covery process by refusing to provide the requested
cell phone records. However, [Adler] argues that it
would have been illegal and unethical for him to provide
[Reardon] with records that [Hatch] did not own. Specif-
ically, [Hatch] relies solely on . . . § 16-247u (b), which
provides in relevant part: ‘No person shall: (1) Know-
with another to procure a telephone record of any resi-
dent of this state without the authorization of the cus-
tomer to whom the record pertains . . . or (3) receive
a telephone record of any resident of this state with
the knowledge such record has been obtained without
the authorization of the customer to whom the record
pertains . . . .’
‘‘However, § 16-247u (c) provides in relevant part:
‘The provisions of this section shall not apply to any
person acting pursuant to a valid court order . . . .’12
This court’s order . . . made clear that the cell phone
records were to be produced for the time requested by
[Reardon], which was from 10 . . . to 11 a.m. on March
5, 2016, the date and time of the accident. Despite
[Adler’s] assurance in the deposition that he would
arrange to have the cell phone records produced, he
reneged on this assurance, stating [that] the cell phone
records were owned by R & W Heating—a company
owned by [Hatch’s] parents, not by [Hatch] himself.
Therefore, according to [Adler, Hatch] could not deliver
on his promise to work things out and produce the
records. However, [Adler] offered no evidence that he
asked [Hatch] or the owners of R & W Heating to allow
counsel to fulfill his assurance and provide access to
cell phone records. Instead, [Adler] tried to use the
production of the cell phone records as a lever to limit
discovery, for example, seeking a quid pro quo that
there would be no further request to examine the cell
phone. . . .
‘‘In the discovery context . . . the factors in impos-
ing sanctions to be considered include: ‘(1) whether
noncompliance was caused by inability, rather than wil-
fulness, bad faith or other fault; (2) whether and to
what extent noncompliance caused prejudice to the
other party, including the importance of the information
sought to that party’s case; and (3) which sanction
would, under the circumstances of the case, be an
appropriate judicial response to the noncomplying par-
ty’s conduct.’ Millbrook Owners Assn., Inc. v. Hamilton
Standard, [257 Conn. 1, 15, 776 A.2d 1115 (2001)].
‘‘Here, [Adler’s] failure to respond to [Reardon’s] dis-
covery request and the violation of the court’s order
. . . were not caused by inability to comply. Rather,
the correspondence between [counsel for the parties]
demonstrates the contrary. . . . [Adler’s May 18, 2017]
letter demonstrates that, at the very least, [he] could
have inquired with R & W [Heating] regarding its willing-
ness to provide the records or sign a release, allowing
[him] to obtain the records in compliance with this
court’s order. There is no evidence that he did so.
‘‘Furthermore, the information that was sought by
[Reardon] is central to the . . . claims. Specifically,
[Kolashuk] has alleged that [Hatch] was using a cell
phone at the time of the collision on March 5, 2016.
[Adler’s] failure to comply with the court’s order preju-
diced [Reardon’s] ability to fully investigate [Kolas-
huk’s] claims against [Hatch]. . . .
‘‘Having found that [Adler] is in violation of Practice
Book § 13-14 (a), [Adler] will pay [Kolashuk] $2500 in
sanctions within thirty days of this order. [Reardon] is
also invited to present the court with an accounting of
time spent by [the firm] seeking the cell phone records
and a request for payment of legal fees based on coun-
sel’s customary hourly rate plus costs.’’ (Citations omit-
ted; footnote added.)
Reardon, thereafter, filed a request for attorney’s fees
in the amount of $41,277.26; the request was later
reduced to $40,800. Adler objected, arguing that the
request was not allowed pursuant to the rules of prac-
tice, was duplicative, and was unreasonable. On Novem-
ber 22, 2017, Judge Calmar held a hearing to determine
the amount of attorney’s fees Adler was to pay. Judge
Calmar issued a memorandum of decision on January
30, 2018, in which he determined that attorney’s fees
in the amount of $5000 was reasonable and ordered
Adler to pay Reardon that amount in addition to the
sanction imposed by Judge Bates.
In February, 2018, Adler filed the present writ of
error, in which he alleged, among other things, that the
court improperly sanctioned him for failing to abide by
an order that the court never gave Hatch,13 and ordered
him to commit an illegal act in violation of a statute.
He further alleged that it was inappropriate for the court
to sanction him for failure to engage in an act that
he believed, in good faith, would violate the statute.
Moreover, he claimed that the court abused its discre-
tion in finding that there was bad faith or misconduct
on his part, erred in finding that he had a duty to engage
in efforts to procure discovery from third parties, erred
in placing the burden on him to secure discovery from
third parties, rather than on Kolashuk, and abused its
discretion in granting attorney’s fees for his failure to
provide documents and things belonging to third
parties.
During oral argument before us, Adler’s counsel,
Maury M. Garrett, Jr., argued that Bank of New York
v. Bell, supra, 142 Conn. App. 125, was controlling of
the issues in the writ of error. Thereafter, we sua sponte
ordered counsel to file supplemental memoranda
addressing what effect, if any, the case of Bank of New
York has on our analysis of the writ of error.
I
Before addressing the merits of the writ of error, we
address Kolashuk’s claim that this court lacks jurisdic-
tion. We disagree.
Kolashuk claims that Adler’s writ of error should
be dismissed because it was not taken from a final
judgment. ‘‘The statutory right to [a writ of error] is
limited to appeals by aggrieved parties from final judg-
ments. General Statutes §§ 52-263, 51-197a; see Practice
Book § [72-1].14 Because our jurisdiction over appeals,
both criminal and civil, is prescribed by statute, we must
always determine the threshold question of whether
the [writ of error] is taken from a final judgment before
considering the merits of the claim.’’ (Footnote added;
internal quotation marks omitted.) Tappin v. Home-
comings Financial Network, Inc., 265 Conn. 741, 750–
51, 830 A.2d 711 (2003). ‘‘The lack of a final judgment
implicates the authority of this court to hear [a] writ
of error because it is a jurisdictional defect.’’ Id., 750.
‘‘A challenge to the jurisdiction of the court presents a
question of law.’’ (Internal quotation marks omitted.)
Jimenez v. DeRosa, 109 Conn. App. 332, 337, 951 A.2d
632 (2008). Our review of questions of law is plenary.
State v. Parrott, 262 Conn. 276, 286, 811 A.2d 705 (2003).
Final judgment questions are decided pursuant to
State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983). Our
Supreme Court has ‘‘determined certain interlocutory
orders and rulings of the Superior Court to be final
judgments for purposes of appeal. An otherwise inter-
locutory order is appealable in two circumstances: (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 pro-
ceedings cannot affect them.’’ Id., 31. In the present
case, we conclude that the imposition of sanctions and
the award of attorney’s fees against Adler, a nonparty
to the underlying personal injury case, terminated a
separate and distinct proceeding, and, thus, the writ of
error was filed pursuant to a final judgment.
Kolashuk, however, contends that Adler fails to meet
the first prong of the Curcio test because the sanctions
and the attorney’s fees against Adler do not terminate
a distinct and separate proceeding, as the orders were
issued during the discovery phase of his personal injury
case. Moreover, he continues, the phone records were
necessary to resolve his case; see Niro v. Niro, 314
Conn. 62, 71 n.4, 100 A.3d 801 (2014); and are inextrica-
bly intertwined with it. See McConnell v. McConnell,
316 Conn. 504, 513, 113 A.3d 64 (2015). We disagree.
The facts and the discovery at issue in the present case
are distinguishable from those in Niro and McConnell.
In Niro, a dissolution action, the plaintiff wife sought
the financial records of businesses and trusts in which
the defendant husband and his brother, a plaintiff in
error, were partners. Niro v. Niro, supra, 314 Conn.
64–65. She sought the records to determine her share
of the marital assets in the face of allegations that the
assets of the businesses and trusts had been misappro-
priated. Id., 65. The brother objected to the disclosure of
certain records and filed a motion to quash a subpoena
duces tecum and a motion for a protective order. Id.
Following a hearing, the trial court ordered the brother
to produce certain records. Id., 66. The brother filed
a writ of error, which our Supreme Court dismissed,
concluding that the trial court’s order to produce was
an interlocutory order that did not arise out of a sepa-
rate and distinct proceeding because the trial court
needed the information in the records to distribute equi-
tably the marital assets in the dissolution action. Id.,
69–70, 73. The husband’s brother was in possession of
records that were integral to a central issue in the
divorce action, i.e., the value of the marital assets. Id.,
70. The records, therefore, were integral to the resolu-
tion of the dissolution matter in Niro. In the present
case, the phone records may be integral to Kolashuk’s
case, but Adler did not own them and was not in posses-
sion of them. Hatch, Adler’s client, also did not own
the phone or its records, and was not in possession of
them. The phone records at issue are the property of
R & W Heating.
McConnell was a probate appeal. McConnell v.
McConnell, supra, 316 Conn. 507. The issue before our
Supreme Court was whether a trial court’s order direct-
ing ‘‘attorneys who [were] not parties and who [were]
not representing parties to underlying litigation to
appear in court and subject themselves to examination,
was a final judgment that may be challenged by way
of a writ of error.’’ Id. The plaintiff claimed that he did
not receive notice of a Probate Court hearing regarding
family trust funds pursuant to an application for an
accounting of a family trust filed by one of his sisters,
which resulted in a distribution of significant trust funds
primarily to the plaintiff’s two sisters. Id., 508. The trial
court ordered the lawyers who represented the sister
in the Probate Court to appear at a hearing to show
cause. Id., 507, 509. The lawyers, the plaintiffs in error,
were ordered ‘‘to appear in court so that they could be
examined about certain events that took place during
the Probate Court proceedings on [the sister’s] applica-
tion. Because [the sisters] had invoked their fifth
amendment right not to testify at the hearing on the
order to show cause, the [lawyers] for the parties to
the Probate Court proceedings were a critical source
of information regarding the failure to give notice of
those proceedings to [the plaintiff brother]. Thus, the
discovery order was directed at materials that were
required by the trial court in order to resolve the issues
raised in [the probate] appeal, and, therefore, the order
was inextricably intertwined with the underlying pro-
ceeding.’’ Id., 512–13. Our Supreme Court determined
that the writ of error was not taken from a final judg-
ment. Id., 513. The discovery order was directed at
materials that were required by the trial court to resolve
the issues raised in the plaintiff’s probate appeal, and,
‘‘therefore, the order was inextricably intertwined with
the underlying proceeding.’’ Id. The discovery order
‘‘did not constitute a final judgment under the first prong
of Curcio merely because the [lawyers] were not parties
to [the brother’s] appeal.’’ Id. In the present case, Adler
was not present at the time of the collision, nor was
he the owner of the phone or the phone records.
Although the phone records in the present case may
be integral to Kolashuk’s personal injury action against
Hatch, Adler did not represent the owner of the phone
and its records, a fact that Judge Bates acknowledged.
Moreover, unlike the plaintiffs in error in the Niro and
McConnell cases, Adler was found in violation of the
court’s order.
Kolashuk also argues that ‘‘[t]he general rule estab-
lished by our [Supreme Court] case law is that an inter-
locutory order requiring a witness to submit to discov-
ery is not a final judgment and, therefore, is not
immediately appealable.’’ (Emphasis added.) Presiden-
tial Capital Corp. v. Reale, 240 Conn. 623, 625, 692 A.2d
794 (1997). That argument fails because Adler is neither
a witness, nor a party, to the underlying action. See
part II of this opinion. He is a lawyer representing Hatch,
a defendant in the underlying action.
Kolashuk asserts, citing Green Rock Ridge, Inc. v.
Kobernat, 250 Conn. 488, 498, 736 A.2d 851 (1999), that
the imposition of sanctions and attorney’s fees against
Adler did not terminate a distinct and separate proceed-
ing because the trial court did not find Adler to be
in contempt. In Woodbury Knoll, LLC v. Shipman &
Goodwin, LLP, 305 Conn. 750, 48 A.3d 16 (2012), our
Supreme Court concluded that a law firm that was not
a party need not wait to be found in contempt for its
good faith failure to comply with a discovery order to
seek appellate review of the discovery order. Id., 757,
762–69. In the present case, Adler did not comply with
Judge Bates’ discovery order on the basis of his good
faith belief that to do so would violate a statute because
Hatch did not own the phone records. Pursuant to
Woodbury Knoll, LLC, he did not have to be found in
contempt to seek judicial review of the sanctions and
attorney’s fees awarded against him.
In Woodbury Knoll, LLC, our Supreme Court ana-
lyzed the final judgment question pursuant to Abreu v.
Leone, 291 Conn. 332, 968 A.2d 385 (2009). In Abreu,
to determine ‘‘[w]hether there was subject matter juris-
diction, [our Supreme Court] reviewed its final judg-
ment 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. . . . Sec-
ond, determining whether an otherwise nonappealable
discovery order may be appealed is a fact specific
inquiry, and the court should treat each appeal accord-
ingly. . . . Third, although the appellate final judgment
rule is based partly on the policy against piecemeal
appeals and the conservation of judicial resources . . .
there [may be] a counterbalancing factor that militates
against requiring a party to be held in contempt in order
to bring an appeal from a discovery order.’’ (Citations
omitted; emphasis in original; footnote omitted; internal
quotation marks omitted.) Woodbury Knoll, LLC v.
Shipman & Goodwin, LLP, supra, 305 Conn. 760–61.
Applying the three Abreu points to the facts of the
present case, we conclude that Adler’s writ of error
emanates from a final judgment. Adler challenges the
sanctions and attorney’s fees imposed on him, a non-
party, which are entirely unrelated to Kolashuk’s per-
sonal injury action. Moreover, Reardon and Kolashuk
received the phone records they were seeking before
the sanctions and attorney’s fees were imposed on
Adler. The sanctions are unrelated to the prosecution
of the personal injury action, which we assume is pro-
ceeding apace now that the firm has the records. The
imposition of the sanctions, therefore, terminated a dis-
tinct and separate proceeding from the personal
injury case.
As our Supreme Court held in Woodbury Knoll, LLC,
there are policy considerations that militate against
Adler’s having to wait until there is a judgment in Kolas-
huk’s case before he challenged the sanctions and attor-
ney’s fees. Our Supreme Court concluded ‘‘that a coun-
terbalancing factor exists to justify not subjecting [an
attorney] to the ordinary rule that one must be held in
contempt in order 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 in order to bring an appeal.’’ Id.,
757. Adler was representing Hatch, the defendant, and
believed that he was prohibited by statute from turning
over the phone records, which, more significantly, nei-
ther he nor his client owned or possessed. Adler further
argues that it would be profoundly prejudicial to a
defendant client if the attorney were forced to continue
to refuse to comply with discovery until the court found
the attorney to be in contempt. It would create a conflict
of interest whereby an attorney must be subjected to
professional scorn and reputational harm to protect a
client’s right to appeal a discovery order. We find this
argument persuasive.
For the foregoing reasons, we conclude that Adler’s
writ of error was taken from a final judgment and that
this court has subject matter jurisdiction.
II
As noted, the principal issues presented by the writ
of error are whether the trial court erred as a matter
of law by (1) ordering Adler to produce records that
neither he nor his client owned or possessed and (2)
issuing sanctions against Adler and awarding attorney’s
fees to Kolashuk’s counsel.15 We grant the writ of error.
As previously stated, the present case is controlled
by Bank of New York v. Bell, supra, 142 Conn. App.
125, which held that it was improper for the trial court
to order the plaintiff in that case to turn over documents
that belonged to a separate, nonparty entity. Id., 133–34.
Bank of New York involved the following facts. The
trial court found the plaintiff, Bank of New York, as
trustee for BS ALT A 2005-9, to be in contempt for
failing for more than one year to respond fully to the
defendant Jonathan S. Bell’s interrogatories and
requests for production. Id., 127. The court found that
the failure constituted a wilful violation of its prior
orders, which met the requirements of Millbrook Own-
ers Assn., Inc. v. Hamilton Standard, supra, 257 Conn.
17–18.16 Bell sought to obtain documents regarding all
of the mortgage foreclosure cases relating to assets
transferred by JPMorgan Chase Bank, N.A., to Bank of
New York. Bank of New York v. Bell, supra, 128. The
plaintiff appealed, claiming in part that the court ‘‘had
no authority to order it to turn over documents that
belonged to Bank of New York or that belonged to Bank
of New York as trustee for any trust other than BS ALT
A 2005-9. The plaintiff argue[d] that it is a separate entity
from Bank of New York and that the court, therefore,
improperly ordered it to turn over documents belonging
to that separate entity, which ultimately led to the
court’s improper finding of contempt.’’ Id., 131. This
court agreed for the following reasons.
‘‘Bank of New York was never a party to this action.
Practice Book §§ 13-617 and 13-918 permit parties to an
action to serve interrogatories and requests for produc-
tion only on other parties to that action. Despite Bank
of New York’s nonparty status, the court broadened
the scope of the interrogatories and requests for produc-
tion to include the entire transaction between JPMorgan
Chase [Bank, N.A.] and Bank of New York, a nonparty.
Thus, pursuant to Practice Book §§ 13-6 and 13-9, the
court had no authority to order the plaintiff to turn
over documents that belonged to Bank of New York, a
separate nonparty entity, nor did it have any authority
in the circumstances of this case to order the plaintiff
as trustee for BS ALT A 2005-9 to turn over documents
from other trusts. The court had the authority to order
the plaintiff to respond to discovery requests relating
to BS ALT A 2005-9.’’ (Footnotes added and omitted.)
Id., 134.
In his supplemental brief in the present case, Adler
argues that Judge Bates’ order that he turn over the
phone records that belonged to R & W Heating, a sepa-
rate, nonparty entity, constituted an abuse of discretion,
as the court was without authority to do so. It goes
without saying that Adler is not a party to the personal
injury litigation. See Practice Book § 13-9. Although
Bank of New York concerned a finding of contempt,
the orders of the judges in the present case flow from
the same underlying abuse of discretion by issuing a
discovery order against a nonparty—Adler—and pun-
ishing the nonparty for failing to comply with a court
discovery order that violated our rules of practice.
Moreover, Adler’s client, Hatch, did not own or possess
the phone records. Reardon argued in the trial court
that Hatch’s parents owned R & W Heating, and that
Hatch easily could have obtained the phone records
had Adler instructed him to do so. The relationship
between Hatch and his parents is beside the point. The
fact remains that Hatch and R & W Heating are separate
legal entities and that Adler was sanctioned for failing
to do something he believed would violate a statute.
We conclude that the orders regarding the imposition
of sanctions and the award of attorney’s fees against
Adler constitute an abuse of discretion. We, therefore,
grant the writ of error and remand the case to the
trial court.
The writ of error is granted and the case is remanded
with direction to vacate the sanctions and the award
of attorney’s fees against Adler.
In this opinion the other judges concurred.
1
Our Supreme Court transferred the writ of error to this court pursuant
to Practice Book § 65-1.
2
Hatch denied the material allegations of the complaint and alleged several
special defenses, in part, that Kolashuk’s injuries were due to his own
carelessness and negligence in that he suddenly rode his bicycle into the
street directly into the path of oncoming traffic.
3
Hatch’s objection to the records request stated in pertinent part: ‘‘The
information is not directed to the proper entity nor within [Hatch’s] knowl-
edge or possession.
‘‘[Kolashuk’s] notice of deposition is simply being used as a way to circum-
vent the rules of discovery. This case is a standard motor vehicle accident
case and, therefore, ‘unless upon motion, the judicial authority determines
that such interrogatories are inappropriate in the particular action,’ only
the standard form interrogatories are allowed. Practice Book § [13-6] (b).
Here, [Kolashuk] has attached a production request which goes far beyond
the standard discovery requests to the deposition notice, and seeks documen-
tation that is not allowed for in the standard discovery requests, and is
inappropriate for discovery in this matter.’’ (Emphasis added.)
4
General Statutes § 16-247u (b) provides in relevant part: ‘‘No person
shall: (1) Knowingly procure, attempt to procure, solicit or conspire with
another to procure a telephone record of any resident of this state without
the authorization of the customer to whom the record pertains . . . (3)
receive a telephone record of any resident of this state with the knowledge
such record has been obtained without the authorization of the customer
to whom the record pertains or by fraudulent, deceptive or false means.’’
5
Hatch’s parents are the owners of R & W Heating.
6
In the March 23, 2017 letter, Reardon stated in relevant part: ‘‘Finally,
we are still waiting for the documentation we requested from . . . Hatch
regarding his cell phone usage and text message usage on the day of the
incident. Please provide it at once, as you indicated you would during . . .
Hatch’s deposition.’’
In the April 26, 2017 letter, Reardon stated in relevant part: ‘‘In addition,
pursuant to our telephone conversations and correspondence to you, you
still have not . . . provided [Hatch’s] cell phone records and the inspection
of the cell phone that was in use at the time of the accident.’’
7
The motion to compel sought ‘‘an order that . . . Hatch produce the
requested information himself or consent to the production of the informa-
tion by Verizon. Specifically . . . any and all cellular phone records from
March 5, 2016 including bills, invoices, text messages and e-mail; and the
actual cellular phone [Hatch] used on March 5, 2016; or an order that [Hatch]
consent to Verizon producing any and all cellular phone records from March
5, 2016 between [10] and [11 a.m.] for phone number [860-***-****] including
call details, text details, phone calls made and/or received, text messages
sent and/or received, and e-mails sent and/or received.’’
The firm represented that Adler promised to produce the records at issue
and attached a portion of Hatch’s deposition transcript. The transcript of
Hatch’s deposition, however, indicates that Adler stated to Reardon: ‘‘I’m
sure [that] we can work something out. I don’t have an objection to you
getting any records. It was just as phrased. So, we’ll try to work something
out. . . . You and I can probably, early next week, work out a parameter
of a production. I can probably get you what you need.’’
8
Goodwin is associated with the Adler Law Group, LLC.
9
In Kolashuk’s brief to this court, he represented that Hatch’s counsel
disclosed for the first time at the June 14, 2017 hearing that the phone
and corresponding records were owned by Hatch’s employer. As noted
previously, during the March 17, 2017 deposition, Adler stated that the
account was not in Hatch’s name, and Hatch testified that the phone belonged
to his employer, R & W Heating, a business owned by his parents.
10
During the June 14, 2017 hearing, Reardon represented to the court that
Adler had the records, i.e., ‘‘if you take a look at the letter from Mr. Adler,
it says he has possession,’’ referring to an exhibit attached to the motion.
We, however, have reviewed Adler’s letters that are attached to the motion
in the court files. The letters reveal no representation that Adler was in
possession of the records. A letter signed by Adler, dated June 5, 2017,
states in part: ‘‘You are well aware that I represented to you that our position
is in response to the Judge’s order, that have nothing to comply with. The
Judge ordered that my client . . . turn over his cell records for the time
period identified. I have stated to you repeatedly that my client does not
have cell records, and you have heard both from me and from Verizon that
the cell records are not in my client’s name.’’ (Emphasis in original.) In a
letter dated May 18, 2017, to Barnes of the firm, Adler stated in part: ‘‘As I
advised you, my client does not have possession or control of any records
for the phone at issue. I also did not represent that I had them in my
possession, but simply indicated what I believed they showed.’’
11
On the basis of our review of the deposition transcript quoted by the
court, we conclude that Adler did not state that he had possession of the
records or that he himself would turn them over.
12
In light of our discussion in part II of this opinion, we need not address
§ 16-247u (b) and (c) to resolve the present writ of error.
13
Adler alleged that ‘‘the order directed that [Kolashuk’s] time period was
reasonable, while ignoring that the time period the court was referring
to was contained in a subpoena of Verizon, not any subpoena directed
at [Hatch].’’
14
Practice Book § 72-1 (a) provides in relevant part: ‘‘Writs of error for
errors in matters of law only may be brought from a final judgment of the
Superior Court to the Supreme Court in the following cases: (1) a decision
binding on an aggrieved nonparty . . . .’’ See footnote 1 of this opinion.
15
In his brief on appeal, Adler claimed that the trial court (1) abused its
discretion by sanctioning him for failing to comply with a court order, (2)
improperly sanctioned him for purportedly not following a vague, ambigu-
ous, and fatally flawed order, (3) abused its discretion by finding that there
was bad faith or misconduct on his part, (4) erred by finding that he had
a duty to engage in efforts to procure discovery from third parties he did
not represent, (5) erred in awarding attorney’s fees against him, and (6)
erred in awarding attorney’s fees for activities beyond the drafting of the
motion for sanctions itself. Following the submission of the parties’ supple-
mental briefs, Adler refined the issues.
16
‘‘[T]he requirements set by our Supreme Court in Millbrook Owners
Assn., Inc. v. Hamilton Standard, [supra, 257 Conn. 17–18], of reasonable
clarity, a trial court finding based on the record of actual violation and that
the sanction imposed was proportional to the violation . . . .’’ Bank of New
York v. Bell, supra, 142 Conn. App. 127.
17
Practice Book § 13-6 is titled ‘‘Interrogatories; In General.’’
18
Practice Book § 13-9 (a) provides in relevant part: ‘‘In any civil action
. . . any party may serve . . . upon any other party a request to afford
the party submitting the request the opportunity to inspect, copy, photograph
. . . designated documents or to inspect . . . any tangible things in the
possession, custody or control of the party upon whom the request is served
. . . .’’ (Emphasis added.)