Brown & Brown, Inc. v. Richard Blumenthal, Attorney General

(Connecticut Supreme Court)

• Preventing Disclosure of Trade Secrets and Other Confidential Business Information to Competitors

This case arises under Conn. Gen. Stat. § 35–42, which authorizes the Connecticut Attorney General to subpoena documents from “any person” (including, as in this case, non-party witnesses) when he has “reason to believe” that an antitrust violation has occurred, but which also provides that the subpoenaed documents “shall not be available to the public.”  The Connecticut Attorney General asserts that, despite this language, the statute does not limit his discretion to disclose a business’s confidential information and documents obtained by subpoena as part of an antitrust investigation to third parties (including competitors) in the course of conducting investigative depositions and witness interviews.  The case is before the Connecticut Supreme Court and NELF filed an amicus brief in the appeal, as it did in the trial court, arguing that the statute bars disclosure of subpoenaed documents to anyone outside the Attorney General’s office.   Since statutory language that clearly limits custody of subpoenaed documents to the Attorney General’s office immediately precedes the provision addressing access to the documents, NELF argued that the statute equates custody with access and that both are restricted to the Attorney General’s office.  NELF further argued that the statute strikes a reasonable balance between the needs of law enforcement and business by allowing the Attorney General broad access to confidential information even before a suit has been commenced, but precluding the Attorney General from sharing that information with others.  Since the Attorney General needs to make at this stage only a preliminary determination whether to commence suit, after which typical rules regarding discovery (including protective orders) would apply, NELF argued that upholding this statutory balance should not hinder the Attorney General’s investigation or filing of claims.