§ 46a-58

Citation: § 46a-58
Parent Document: Connecticut Judicial Branch v. Gilbert, 343 Conn. 90 (2022)
Jurisdiction: Connecticut (state)
Effective Date: 2022-04-26
Original Source: https://www.courtlistener.com/opinion/6462677/connecticut-judicial-branch-v-gilbert/ ↗

Full Text

3,002 chars

recover damages to a degree proportional to the discov-
ery noncompliance. Cf. Practice Book 13-14 (b) (4)
(authorizing trial court, in response to discovery non-
compliance, to enter ‘‘an order prohibiting the party
who has failed to comply from introducing designated
matters in evidence’’). Viewing the referee’s orders as
a sanction for a discovery violation, however, we are
of the opinion that the trial court failed to afford appro-
priate deference to the referee’s oversight of the discov-
ery process. The governing regulations afford the
referee broad discretion over the sanctions to be
imposed for violations of her discovery orders. See
Regs., Conn. State Agencies § 46a-54-89a (b) (2) (‘‘[i]f
a party fails to comply with an order of the presiding
officer regarding a request for disclosure or production,
the presiding officer may issue . . . [a]n order prohib-
iting the party who has failed to comply from introduc-
ing designated matters into evidence’’ (emphasis
added)). Neither the trial court nor the branch has iden-
tified a single case in which an agency or lower court
has been reversed because the sanction that it imposed
for a discovery violation was too lenient. The cases
almost universally go in the other direction—the sanc-
tions imposed are either upheld or rejected as too draco-
nian—and the rare exception serves only to prove
the rule.34
34
International Union, United Automobile, Aerospace & Agricultural
Implement Workers of America (UAW) v. National Labor Relations Board,
459 F.2d 1329 (D.C. Cir. 1972), is one of those rare cases and provides an
illustrative example. The two judge majority in that case held that the
National Labor Relations Board erred in not applying an adverse inference
when the defendant employer repeatedly and wilfully suppressed relevant
hiring records. See id., 1342–43. The majority emphasized that special statu-
tory requirements unique to the board warranted a departure from the
ordinary deference due to the fact finder in such cases, and also that it was
arbitrary and capricious for the board not to apply an adverse inference
when it had done so in numerous previous and virtually indistinguishable
matters. See id., 1340–41. Even then, the majority afforded the defendant
one last chance to produce the requested documents. Id., 1348. In his concur-
rence and dissent, Judge Tamm noted that the majority had failed to identify
a single decision that supported reversing an administrative agency on such
Page 78 CONNECTICUT LAW JOURNAL April 26, 2022

Other Sections in This Document (128)

Full Text