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 the AG 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.” Attorney General Blumenthal 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.
Brown & Brown, an insurance intermediary that provides insurance and reinsurance products and services, filed this action seeking injunctive, declaratory and equitable relief restricting disclosure to third parties of documents and information sought by the Attorney General in connection with an ongoing antitrust investigation of the insurance industry. The trial court denied Brown & Brown’s motion for summary judgment, and Brown & Brown appealed.
NELF filed an amicus brief in the appeal, as it had in the trial court, arguing in support of Brown & Brown that the statute bars disclosure of subpoenaed documents to anyone outside the Attorney General’s office. NELF argued that, since there is statutory language immediately preceding the disputed provision that clearly limits custody of subpoenaed documents to the Attorney General’s office, the statute equates custody with access and both are restricted to the Attorney General’s office. NELF further argued that the statute strikes a reasonable balance 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.
Unfortunately, the Connecticut Supreme Court, in a September 2008 decision, concluded (contrary to the positions taken by both parties when the Court raised the issue for the first time sua sponte at oral argument) that the trial court’s denial of Brown & Brown’s motion for summary judgment was not an appealable final judgment and dismissed the appeal without addressing the merits. The trial court subsequently received cross-motions for summary judgment from the parties repeating the arguments previously made and issued a decision reiterating its prior position. The parties again appealed and NELF re-filed its amicus brief.