Is an eDiscovery Order Immediately Appealable as a Final Judgment?
In the state court case of Radzick, et al. v. Connecticut Children’s Medical Center, et al., No. AC 34952(Conn. App. Ct. September 17, 2013), the plaintiff was the estate of a young boy who died allegedly due to medical malpractice by the defendants. Plaintiff discovery requests sought email and electronic data in native file format with metadata. Defendants refused, their main objection cited the privacy of other medical patients whose personal information would be contained within the data.
To address defendants’ privacy concerns, the trial court ordered a computer forensic examination and mirror imaging of the hard drives from three of defendants’ computers, to be reviewed by a special discovery master. The master was to then present his or her findings to the court for an in camera review. The defendants objected to the entry of this order and appealed it before the Appellate Court of Connecticut.
The question on appeal was whether the discovery order constituted a final judgment. The court reviewed the facts under the two-pronged test under State v. Curcio, 463 A.2d 566(1983), holding that interlocutory orders are immediately appealable only if the order:
(1) Terminates a separate and distinct hearing; or
(2) So concludes the rights of the parties that further proceedings cannot affect them.
The defendants argued that regarding the first prong, the discovery order was separate and distinct as the mirror imaging would capture privileged information of non-party patients. For the second prong, the defendants argued that the forensic examination amounted to an unreasonable search and seizure of the non-party patients and therefore, further proceedings cannot affect them.
The court concluded that neither of the elements of the Curcio test had been met, and that the discovery interlocutory order could not be immediately appealed. In this case, the discovery dispute was not separate or distinct from the underlying lawsuit (although it may be true if the discovery was sought from a third-party). Further, as the eDiscovery order did not provide for dissemination or publication of the data, the rights of the defendants were not irretrievably lost. With the independent forensic examination, the special master, and the in camera review by the court, there were sufficient protections of the sensitive information ordered to be produced.