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                NIRO v. NIRO—CONCURRENCE

   McDONALD, J., concurring. I agree with the majority
that the trial court’s discovery order in this case is not
an appealable final judgment under either prong of the
test set forth in State v. Curcio, 191 Conn. 27, 31, 463
A.2d 566 (1993), and, therefore, that this court lacks
subject matter jurisdiction over the writ of error. I write
separately, however, because I disagree with the majori-
ty’s analysis under the first prong of Curcio. Specifi-
cally, I disagree with the majority’s effort to distinguish
the present case from Woodbury Knoll, LLC v. Ship-
man & Goodwin, LLP, 305 Conn. 750, 48 A.3d 16 (2012)
(Woodbury Knoll), on the ground that the discovery
order in that case, unlike here, was not intertwined
with the underlying action. An examination of the facts
in the two cases makes it abundantly clear that the
discovery order in Woodbury Knoll was as intertwined
with the underlying action as the order in the present
case. Therefore, this court has two choices: either treat
the discovery order in the present case consistently
with the order in Woodbury Knoll as an appealable
final judgment, or, reconsider Woodbury Knoll. I would
choose the second course of action, as it is my view
that Woodbury Knoll improperly expanded the narrow
exception to the general prohibition against interlocu-
tory appeals from discovery orders that our prior cases
had recognized. Accordingly, I would overrule Wood-
bury Knoll.
   This court has consistently held that ‘‘[a]n order
issued upon a motion for discovery is ordinarily not
appealable because it does not constitute a final judg-
ment, at least in civil actions.’’ (Internal quotation marks
omitted.) Green Rock Ridge, Inc. v. Kobernat, 250 Conn.
488, 498, 736 A.2d 851 (1999); see also Presidential
Capital Corp. v. Reale, 240 Conn. 623, 625, 692 A.2d
794 (1997); Chrysler Credit Corp. v. Fairfield Chrysler-
Plymouth, Inc., 180 Conn. 223, 226, 429 A.2d 478 (1980).
Such orders do not satisfy the first prong of Curcio
because they are not ‘‘severable from the central cause
of action so that the main action can proceed indepen-
dent of the ancillary proceeding’’; (internal quotation
marks omitted) Abreu v. Leone, 291 Conn. 332, 339, 968
A.2d 385 (2009); and they do not satisfy the second
prong of Curcio because the trial court’s determination
‘‘does not so conclude the rights of the appealing party
that further proceedings cannot affect those rights.’’
(Internal quotation marks omitted.) Barbato v. J. & M.
Corp., 194 Conn. 245, 249, 478 A.2d 1020 (1984). As
such, ‘‘[w]e require that those ordered to comply with
discovery be found in contempt of court before we
consider an appeal . . . .’’ (Internal quotation marks
omitted.) Green Rock Ridge, Inc. v. Kobernat, supra,
498; Barbato v. J. & M. Corp., supra, 249; see also Abreu
v. Leone, supra, 346 (‘‘an order issued upon a motion
for discovery ordinarily is not appealable because it
does not constitute a final judgment, and . . . a wit-
ness’ only access to appellate review is to appeal a
finding of contempt’’). ‘‘Significantly, the rule disal-
lowing an immediate appeal applies even if the witness
invokes his or her constitutional right not to testify.
. . . The scope of appellate review of . . . a contempt
finding would be sufficiently broad to encompass many
claims of error which may not appear on their face to
be jurisdictional in nature.’’ (Citations omitted; internal
quotation marks omitted.) Presidential Capital Corp.
v. Reale, supra, 630.
   This court, however, has recognized that appeals
from discovery disputes ‘‘are more fact specific than
would appear at first blush’’; Abreu v. Leone, supra,
291 Conn. 346; and thus has articulated certain limited
exceptions to this general rule precluding interlocutory
appeals from discovery orders. Id., 346–47; Lougee v.
Grinnell, 216 Conn. 483, 486–87, 582 A.2d 456 (1990),
overruled in part on other grounds by State v. Salmon,
250 Conn. 147, 154–55, 735 A.2d 333 (1999) (en banc).
   For example, in Lougee v. Grinnell, supra, 216 Conn.
487, this court concluded that the trial court’s denial
of a nonparty witness’ motion to quash a subpoena to
appear at a deposition in Connecticut regarding a Texas
civil action was an appealable final judgment under the
first prong of Curcio. In Lougee, the underlying action
had been filed in Texas against the American Tobacco
Company (American) by the respondent, Jeannie B.
Grinnell. Id., 484–85. After the commencement of the
action, Grinnell sought to depose the petitioner, Vir-
ginius B. Lougee, a former chief executive officer of
American. Id. After the Texas trial court determined that
American could not be compelled to produce Lougee,
Grinnell obtained an order from the Texas court com-
missioning a Connecticut notary public to depose
Lougee as a material witness in Connecticut. Id., 485–86.
The trial court in Connecticut thereafter authorized the
issuance of a subpoena compelling Lougee’s appear-
ance. Lougee unsuccessfully moved to quash the sub-
poena in the trial court, and subsequently appealed from
that court’s order. Id., 486.
   On appeal, this court concluded that the appeal fell
within the first prong of Curcio because the separate
and distinct judicial proceeding concerning Grinnell’s
deposition subpoena had terminated when the trial
court issued the order that was appealed. Id., 487. In
support of its conclusion, this court focused on the
Connecticut trial court proceeding on Lougee’s motion,
rather than the Texas litigation, and recognized that
‘‘the sole judicial proceeding instituted in Connecticut
concerned the propriety of Grinnell’s deposition sub-
poena, a proceeding that will not result in a later judg-
ment from which [Lougee] can then appeal. . . .
Because the separate and distinct judicial proceeding
concerning Grinnell’s deposition subpoena terminated
when the trial court issued the orders appealed, Lougee
has appealed from a final judgment . . . .’’ (Citations
omitted; internal quotation marks omitted.) Id.
   This court established another exception in Abreu v.
Leone, supra, 291 Conn. 334. The genesis of the appeal
in Abreu began when the defendant sought permission
from the Claims Commissioner to bring an action
against the Department of Children and Families
(department) for personal injuries allegedly inflicted by
the plaintiff’s foster child. Pursuant to that action, the
defendant issued the plaintiff a notice of deposition and
a subpoena duces tecum, apparently seeking informa-
tion about the foster child. Id., 334–35. The plaintiff
then filed an action seeking to quash the subpoena
issued in the proceeding before the Claims Commis-
sioner on the ground that he was prohibited, under
General Statutes (Rev. to 2005) § 17a-28, from disclos-
ing information about the foster child. Id., 335. The
department intervened as a party plaintiff and filed a
brief in support of the plaintiff’s position. Id. The trial
court held that the plaintiff was statutorily prohibited
from testifying about his foster child, but allowed the
deposition to proceed so the defendant could seek other
information. Id. At the plaintiff’s deposition, he declined
to answer certain questions. Id., 336. Counsel for the
defendant then read the questions into the record and
the plaintiff and the department placed their objections
on the record. Id. Subsequently, the trial court ordered
the plaintiff to answer the questions. Id., 337. The
department appealed from that ruling to the Appellate
Court, which dismissed the appeal for lack of a final
judgment. Id., 338.
    On appeal to this court, we reversed the judgment
of the Appellate Court, and concluded that the trial
court’s order compelling the plaintiff to answer the
defendant’s questions was an appealable final judgment
under the first prong of Curcio. Id., 341. There were
three primary reasons supporting our decision. First,
unlike the situations in Barbato v. J. & M. Corp., supra,
194 Conn. 248, and Presidential Capital Corp. v. Reale,
supra, 240 Conn. 633, there were no further proceedings
before the trial court because the court had ordered
the plaintiff to provide specific information and the
plaintiff had clearly refused to provide that informa-
tion.1 Abreu v. Leone, supra, 291 Conn. 346. Therefore,
‘‘[i]n essence, the defendant [was] forcing the plaintiff
to be held in contempt.’’ Id., 347. Second, the particular
facts and circumstances of the case presented a ‘‘coun-
terbalancing factor’’ that weighed against the policies
underlying the final judgment rule, namely, the preven-
tion of piecemeal appeals and the conservation of judi-
cial resources. Id., 347. Specifically, the court noted
that to hold the plaintiff in contempt ‘‘would discourage
participation by otherwise willing foster parents and
thus undermine the goals of that system,’’ while forcing
him to answer the questions would subject his foster
child to ‘‘embarrassment, stigmatization and emotional
harm.’’ Id., 348. Third, the motion to quash was the sole
judicial proceeding at issue in the case and the only legal
proceeding from which the plaintiff and the department
would have a right to seek appellate review as the
underlying action was not a judicial proceeding and
indeed might not even result in one, thus leaving the
plaintiff without the ability to file a writ of error and
the department without a right to appeal.2 Id., 349.
   In addition to these cases, to put the issue before us
in its proper context, we also briefly address this court’s
decision in Briggs v. McWeeny, 260 Conn. 296, 796 A.2d
516 (2002). In Briggs, this court concluded that a trial
court’s order disqualifying counsel for the plaintiff
school board from representing the plaintiff in pending
litigation due to certain misconduct in that litigation
constituted a final judgment under the first prong of
Curcio. Id., 314. Although the fact that the litigation
continued unimpeded following the sanction indicated
that the order terminated a separate and distinct pro-
ceeding, the court considered Judge McWeeny’s con-
tention that the misconduct ‘‘was so intertwined with
the central issue in the [pending] litigation . . . that the
disqualification order could not be considered separate
and distinct from the main proceeding.’’ Id. The court
rejected that contention, reasoning that the focus of
the disqualification proceeding was on a different issue
than the one raised in the litigation and pointing to the
fact that the sanction took effect immediately. Id., 316.
   Finally, I turn to Woodbury Knoll, LLC v. Shipman &
Goodwin, LLP, supra, 305 Conn. 750, which presents
the crux of my disagreement with the majority’s reason-
ing in the present case. In Woodbury Knoll, the plaintiffs
in the underlying action hired the plaintiff in error, Finn,
Dixon & Herling, LLP (Finn Dixon), to bring a legal
malpractice action against the defendants in error, Ship-
man & Goodwin, LLP, and Carolyn Cavolo, for negligent
representation in failing to discover fraudulent conduct
in connection with certain real estate transactions. Id.,
752–53. In the malpractice action, the plaintiffs alleged
that, as a result of the defendants’ negligent representa-
tion, the plaintiffs were subject to numerous foreclo-
sure actions and related legal proceedings in which
Finn Dixon represented them. Id., 753. As a result, the
plaintiffs allegedly ‘‘incurred damages of $4,288,674.60,
which consisted of settlement payments in the amount
of $2,917,000 and attorney’s fees paid to Finn Dixon in
the amount of $1,371,647.60, for which they [sought]
reimbursement from the defendants.’’ Id.
   The defendants subsequently served a notice of depo-
sition and a subpoena duces tecum on the custodian
of Finn Dixon’s records, seeking information to sub-
stantiate the plaintiffs’ damages claim against the defen-
dants, specifically, all records and documents relating
to Finn Dixon’s representation of the plaintiffs through-
out the foreclosure actions and related legal proceed-
ings up to the date of the subpoena. Id. Finn Dixon and
the plaintiffs moved to quash the subpoena and for
protective orders, claiming, inter alia, that much of the
material requested was covered by the attorney-client
privilege and the work product doctrine. Id., 753–54.
The defendants objected and moved to compel produc-
tion of the documents. Id., 754. The trial court overruled
Finn Dixon’s objection to the subpoena, denied its
motion to quash, and granted the defendants’ motion
to compel. Id.
   Thereafter, Finn Dixon brought a writ of error to this
court, claiming that the trial court improperly denied
its motion to quash. Id. As a jurisdictional matter, this
court concluded that the trial court’s discovery order
was an appealable final judgment under the first prong
of Curcio because it arose out of a separate proceeding
brought by a nonparty to the underlying action. Id., 762.
In support of this conclusion, the court first noted that
the circumstances in that case were governed by Abreu
v. Leone, supra, 291 Conn. 332, and that the situation
was identical in all material respects to Abreu. Wood-
bury Knoll, LLC v. Shipman & Goodwin, LLP, supra,
305 Conn. 757, 761. The court then reasoned that, like
the appellant in Abreu, Finn Dixon ‘‘challenged a clear
and definite discovery order, which was based on the
trial court’s final and comprehensive ruling, and [Finn
Dixon] perfected the record for appeal. . . . Under
these circumstances, there are no further proceedings
before the Superior Court involving the [person or per-
sons subject to the discovery order] because the ques-
tions have been propounded and the trial court has
unequivocally ruled what must occur, that is, the discov-
ery order must be complied with, which, in turn, termi-
nates a separate and distinct proceeding.’’ (Citation
omitted; internal quotation marks omitted.) Id., 761.
The court further reasoned that ‘‘in both cases, the
appellant or plaintiff in error is a nonparty to the under-
lying action. In Abreu, the nonparty foster parent chal-
lenged, as a plaintiff in a separate proceeding, a
discovery order that arose in a case between two other
parties. . . . Similarly in the present case, Finn Dixon
is not involved in any way with the lawsuit between
the plaintiffs and the defendants. Finn Dixon is involved
only insofar as its records custodian has been ordered
to comply with the discovery order.’’ (Citation omitted.)
Id., 761–62. In light of these circumstances, the court
held that ‘‘[f]or these reasons alone, then, the discovery
order in the present case is a final judgment because
it satisfies the first prong of Curcio, just as the discovery
order in Abreu constituted a final judgment because it
arose out of a separate proceeding brought by a non-
party.’’ Id., 762.
  The court then went on to note that, as in Abreu,
there were compelling policy reasons why Finn Dixon
should not be required to be held in contempt in order
to appeal from the discovery order. Specifically, this
court noted that Finn Dixon had an ethical and profes-
sional obligation not to disclose privileged and confi-
dential materials relating to the representation of its
clients. Id., 763. The court reasoned that if the discovery
order was not immediately appealable, Finn Dixon, as
an officer of the court, would be left with a real dilemma:
comply with the court order and breach its clients’
privileges and confidences, or defy the court order and
be held in contempt, the latter action requiring Finn
Dixon to violate the Rules of Professional Conduct.
Id., 763–66.
   In sum, Woodbury Knoll held that a discovery order
is an appealable final judgment when it is clear and
definite, based on a final and comprehensive ruling,
and the appellant or plaintiff in error is a nonparty to
the underlying action. See id., 761. Furthermore, this
rule is not limited to nonparty attorneys because,
despite the court’s discussion of Finn Dixon’s profes-
sional and ethical obligations to its clients, these policy
considerations were extraneous to the court’s conclu-
sion that the discovery order was an appealable final
judgment. See id., 762 (‘‘[f]or these reasons alone, then,
the discovery order in the present case is a final judg-
ment because it satisfies the first prong of Curcio, just
as the discovery order in Abreu constituted a final judg-
ment because it arose out of a separate proceeding
brought by a nonparty’’ [emphasis added]).
   Turning to the present case, I would conclude that the
situation presented here satisfies the rule articulated in
Woodbury Knoll. First, the trial court’s order granting
the motion filed by the defendant in error, Sandy Niro
(defendant), for production of the personal records of
the plaintiffs in error, Anthony Niro and Nanette Niro
(plaintiffs), was a clear and definite order based upon a
final and comprehensive ruling because the information
sought had been clearly identified and the plaintiffs had
clearly refused to produce it. Second, the plaintiffs are
nonparties to the underlying dissolution action because
they are ‘‘not involved in any way with the lawsuit
between [Peter Niro, Jr., and the defendant].’’ Id.
   Faithfully applying the rule in Woodbury Knoll would
necessarily require us to conclude that the discovery
order in the present case is an appealable final judgment
under the first prong of Curcio. The majority, however,
avoids this conclusion by distinguishing Woodbury
Knoll on a ground not discussed in that case, namely,
that the discovery order in Woodbury Knoll was not
intertwined with the underlying action. The majority
holds that ‘‘[t]he discovery order in the present case,
unlike the orders in Woodbury Knoll . . . and Briggs, is
intertwined with the underlying dissolution proceeding
because the information subject to disclosure will con-
tribute to the trial court’s knowledge of Peter Niro’s
assets and its ability to perform its statutory duty of
distributing the marital estate pursuant to [General Stat-
utes] § 46b-81.’’ The majority further notes: ‘‘Although
the court did not discuss whether the information
sought in the discovery order [in Woodbury Knoll] was
‘intertwined’ with the underlying proceeding, we note
that, because [the plaintiff in Woodbury Knoll] was
seeking damages for expenses already incurred, the
court did not need the information subject to the order
to resolve the issues in the underlying legal malpractice
action. Accordingly, the discovery order in Woodbury
Knoll . . . was not intertwined with the underlying
proceeding.’’ See footnote 4 of the majority opinion.
   The record in Woodbury Knoll does not support that
proposition. Instead, it reveals that the discovery order
was organically and fundamentally intertwined with the
underlying action and that the trial court did require
the information to resolve the issues in that case. In its
articulation of the legal basis for its discovery order,
the trial court in Woodbury Knoll noted ‘‘that the infor-
mation sought [by the defendants] is essential and can-
not be otherwise obtained and that its disclosure can
lead to the discovery of information material to the
claims and defenses of the parties.’’ The trial court
further articulated that ‘‘the plaintiffs specifically place
at issue their decision to settle the referenced foreclo-
sure actions by seeking as damages the amounts volun-
tarily paid along with associated legal fees.’’ As such,
the information sought was necessary for the trial court
to answer the following questions: ‘‘Were such legal
fees reasonable? Were they generated in unrelated . . .
lawsuits? Were such settlements unreasonable and
unnecessary in light of a valid defense based on [the
fraudulent opposing party’s] lack of authority? Was the
plaintiffs’ own negligence a factor in settlement?’’
Lastly, while not using the term ‘‘intertwined,’’ the trial
court noted that ‘‘[t]hese are all issues integral to the
outcome of this case. The discovery sought from [Finn
Dixon] is relevant to these issues and likely to lead
to the discovery of admissible evidence.’’ (Emphasis
added.) On the basis of the trial court’s articulation, it
is clear that the discovery order in Woodbury Knoll was
intertwined with the underlying action. Accordingly,
I disagree with the majority that Woodbury Knoll is
distinguishable from the present case. We are left, then,
with two choices: apply Woodbury Knoll and conclude
that the discovery order in the present case is a final
judgment, or overrule Woodbury Knoll and conclude
that the discovery order in the present case is not a
final judgment.
  After careful consideration of Woodbury Knoll and
the rest of our final judgment jurisprudence, I am con-
vinced that the court in that case misinterpreted the
holding of Abreu and, in so doing, unnecessarily
expanded a limited exception to create a misleading
rule with vast implications. I recognize that ‘‘[t]his court
has repeatedly acknowledged the significance of stare
decisis to our system of jurisprudence because it gives
stability and continuity to our case law.’’ Conway v.
Wilton, 238 Conn. 653, 658, 680 A.2d 242 (1996). How-
ever, ‘‘[i]t is more important that the court should be
right upon later and more elaborate consideration of
the cases than consistent with previous declarations.
Barden v. Northern Pacific R. Co., 154 U.S. 288, 322,
14 S. Ct. 1030, 38 L. Ed. 992 (1894). [T]here is a well
recognized exception to stare decisis under which a
court will examine and overrule a prior decision that
is clearly wrong. White v. Burns, 213 Conn. 307, 335,
567 A.2d 1195 (1990). In short, consistency must not
be the only reason for deciding a case in a particular
way, if to do so would be unjust. Consistency obtains
its value best when it promotes a just decision. Conway
v. Wilton, supra, 662.’’ (Internal quotation marks omit-
ted.) State v. Miranda, 274 Conn. 727, 734, 878 A.2d
1118 (2005).
   Although this court in Woodbury Knoll relied upon
Abreu to articulate the rule that a discovery order is
an appealable final judgment under the first prong of
Curcio if the order is clear and definite, based on a
final and comprehensive ruling, and the appellant or
plaintiff in error are nonparties to the underlying action,
Abreu is distinguishable from the facts in Woodbury
Knoll in two ways. First, although the trial court’s order
in Abreu was clear and definite and based upon a final
and comprehensive ruling, we emphasized in our rea-
soning that (1) the plaintiff had instituted an action
separate from the underlying proceeding to file his
motion to quash, and (2) because the underlying pro-
ceeding before the Claims Commissioner was not a
judicial proceeding, the plaintiff would not likely have
the ability to file a writ of error and the department
may never have a right to appeal. See Abreu v. Leone,
supra, 291 Conn. 348–49. These concerns were simply
not present in Woodbury Knoll, as Finn Dixon chal-
lenged the defendants’ subpoena duces tecum within
the underlying proceeding and that proceeding was a
judicial proceeding from which Finn Dixon could have
later filed a writ of error once it was held in contempt
or there was a final judgment on the merits. See Practice
Book § 72-1 (a) (‘‘[w]rits 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’’).
Second, a plain reading of Abreu shows that the coun-
terbalancing factors to the policy underlying the final
judgment rule were integral to this court’s decision to
make an exception to the general prohibition against
interlocutory appeals from discovery orders. Indeed, I
agree with the dissent in Woodbury Knoll that ‘‘under
Abreu, a person may bring an immediate appeal from
a discovery order only if: (1) the order threatens an
important public policy that provides a ‘counter-balanc-
ing factor’ to the policies underlying the final judgment
rule; Abreu v. Leone, supra, 291 Conn. 347; and (2) [the
procedural posture of the case is such that] the party
attempting to bring the appeal would not have a later
opportunity to challenge the order. Id., 348 . . . .’’
(Citation omitted.) Woodbury Knoll, LLC v. Shipman &
Goodwin, LLP, supra, 305 Conn. 792–93 (Eveleigh, J.,
dissenting). The court in Abreu emphasized that, in light
of the particular circumstances in that case, requiring
a contempt finding as a predicate to appellate review
would undermine the child welfare system. Abreu v.
Leone, supra, 348. Thus, Abreu mandates immediate
appellate review only when there are such compelling
public policy considerations. Id.; Woodbury Knoll, LLC
v. Shipman & Goodwin, LLP, supra, 791 (Eveleigh, J.,
dissenting). Therefore, although the court in Woodbury
Knoll went to great lengths to explain that there are
compelling policy reasons why an attorney should not
be required to disobey a court order in order to trigger
appellate review of a discovery order, it then held that
these policy considerations were not necessary to sat-
isfy the first prong of Curcio. See Woodbury Knoll, LLC
v. Shipman & Goodwin, LLP, supra, 762. Accordingly,
on the basis of the rule articulated in Woodbury Knoll,
I am not persuaded that the discovery order in that
case was ‘‘severable from the central cause of action
so that the main action [could] proceed independent
of the ancillary proceeding’’; (internal quotation marks
omitted) Abreu v. Leone, supra, 339; and, as such, this
court was clearly wrong when it expanded the limited
exception articulated in Abreu.
   Furthermore, left untouched, the rule articulated in
Woodbury Knoll could be applied in a broad manner
to allow for immediate appeals of a significant portion
of the discovery orders entered by the trial courts in
this state. Because this court has indicated that a con-
sideration of the interests of an attorney in preserving
the confidential and privileged materials of his or her
clients is not necessary to satisfy the first prong of
Curcio, it necessarily follows then that any nonparty
to an underlying action, upon receiving a clear and
definite order in a final and comprehensive ruling, can
immediately appeal that order. This notion runs counter
to the well established rule that discovery orders do
not satisfy the first prong of Curcio because they are
not ‘‘severable from the central cause of action so that
the main action can proceed independent of the ancil-
lary proceeding.’’ (Internal quotation marks omitted.)
Abreu v. Leone, supra, 291 Conn. 339; see also Ruggiero
v. Fuessenich, 237 Conn. 339, 345–46, 676 A.2d 1367
(1996) (‘‘[a] party to a pending case does not institute
a separate and distinct proceeding merely by filing a
petition for discovery or other relief that will be helpful
in the preparation and prosecution of that case’’). As
the dissent in Woodbury Knoll noted, discovery orders
directed at nonparties are an extremely frequent occur-
rence in civil cases. As a result, this rule could yield a
plethora of discovery order appeals. See Woodbury
Knoll, LLC v. Shipman & Goodwin, LLP, supra, 305
Conn. 804 (Eveleigh, J., dissenting). I would conclude,
therefore, that we are compelled to overrule Wood-
bury Knoll.
   Having concluded that Woodbury Knoll must be over-
ruled, I consider whether under a proper application
of our precedent, the order in the present case satisfies
either prong of Curcio. I agree with the majority that
the trial court’s discovery order did not arise from a
separate and distinct proceeding. Specifically, I would
conclude that the personal records and documents to
which it was directed are intertwined with the underly-
ing action, as they are required by the trial court to
resolve the underlying action. See Briggs v. McWeeny,
supra, 260 Conn. 316; cf. Palmer v. Friendly Ice Cream
Corp., 285 Conn. 462, 472, 940 A.2d 742 (2008) (conclud-
ing that denial of class certification does not constitute
termination of separate and distinct proceeding
because it is too intertwined with plaintiffs’ cause of
action and is order capable of review after final judg-
ment in that action). For this reason alone, the discovery
order cannot be severed from the central cause of action
so that the main action can proceed independent of the
ancillary proceeding. Further, none of the very limited
exceptions that this court has developed are applicable
to the facts of the present case. The proceeding from
which the plaintiffs filed their writ of error is not the
sole judicial proceeding instituted in Connecticut that
stems from an action in another jurisdiction; see Lougee
v. Grinnell, supra, 216 Conn. 486–87; and there are no
counterbalancing policy factors present. See Abreu v.
Leone, supra, 291 Conn. 347–48. Moreover, ‘‘[i]t is a
given that, once disclosed through discovery, informa-
tion cannot be retrieved. If that fact alone were suffi-
cient to permit an immediate appeal of an order to
comply with a discovery request or an order denying
a protective order, every reluctant witness could delay
trial court proceedings by taking an interlocutory
appeal. That is not our law.’’ Presidential Capital Corp.
v. Reale, supra, 240 Conn. 629–30. As such, although the
potential for unwarranted disclosure and irremediable
harm exists in situations like in the present case, where
a plaintiff in error has invoked a privilege against com-
plying with a discovery order, unless there is a counter-
balancing policy factor present, ‘‘the occasional
[improper discovery ruling] that cannot be fully recti-
fied upon review of the final judgment is a lesser evil
than that posed by the delay in the progress of cases
in the trial court likely to result from interlocutory
appeals of disclosure orders.’’ Melia v. Hartford Fire
Ins. Co., 202 Conn. 252, 259, 520 A.2d 605 (1987).
      I therefore respectfully concur in the judgment.
  1
    The court noted that in both Barbato and Presidential Capital Corp.,
‘‘the party ‘[had] not yet appeared before the trial court to answer any
questions’; Barbato v. J. & M. Corp., supra, 194 Conn. 248–49; and ‘the trial
court [had] yet to consider what requests for information, if any, it will
direct the appellants to answer.’ Presidential Capital Corp. v. Reale, supra,
240 Conn. 633.’’ Abreu v. Leone, supra, 291 Conn. 345.
  2
    The court also noted that the trial court’s order had ‘‘terminated a sepa-
rate and distinct proceeding concluding the department’s rights . . . that
further proceedings could not remedy . . . because the department . . .
[could not] force the plaintiff to . . . defy the court order, and thus be held
in contempt, so that the department’s concerns finally can be addressed
through the appellate process.’’ (Emphasis in original.) Abreu v. Leone,
supra, 291 Conn. 348. I recognize that this reasoning appears to conflate
the first and second prongs of Curcio. It is well established that a ruling
that so concludes a person’s rights that further proceedings cannot affect
them implicates the second prong of Curcio, not the first prong. Id., 339.
This language, however, when viewed in the context of the court’s holding,
appears to be mere dictum because the court expressly concluded that the
discovery order satisfied the first prong of Curcio. See id., 341 (‘‘[W]e con-
clude that the first Curcio prong is satisfied. . . . In light of this conclusion,
we need not address the parties’ arguments regarding the second prong
of Curcio.’’).
