SANDY NIRO v. PETER NIRO, JR., SC 19045

Judicial District of New Britain

 Discovery; Appellate Jurisdiction; Whether Order Requiring Nonparties to Disclose Personal Financial Records a Final Judgment; Whether Discovery Order Violated Nonparties’ Fifth Amendment Privilege Against Self-Incrimination.  Sandy Niro (Sandy) and Peter Niro (Peter) are parties to a divorce action.  During the marriage, Peter and his brother, Anthony Niro (Anthony), were involved in several business ventures, and Anthony’s wife, Nanette Niro (Nanette), was the bookkeeper for the businesses.  In an effort to properly value the marital estate, Sandy sought to obtain business and personal financial records from Anthony and Nanette.  Anthony and Nanette objected to the disclosure of their personal records, claiming that, because Sandy and Peter had alleged that they had misappropriated funds from the businesses, any compulsory disclosure of their personal records would violate their fifth amendment privilege against self-incrimination.  The trial court disagreed, determining that the fifth amendment does not prohibit the compelled production of all incriminating evidence, but that it only applies when a person is compelled to provide a testimonial communication that is incriminating.  It acknowledged, however, that the mere disclosure of documents constitutes a communicative act because it is a tacit concession that the documents exist and that the disclosing party has possession or control over them.  It nevertheless concluded that implicitly admitting the existence of, and control over, the papers at issue here would not amount to the sort of testimony that is within the protection of the fifth amendment.  Anthony and Nanette subsequently filed this writ of error, arguing that the trial court’s decision was improper.  Sandy and Peter each moved to dismiss the writ of error, claiming that it was not taken from a final judgment.  The Supreme Court denied the motions to dismiss without prejudice and directed the parties to address the jurisdictional issue in their appellate briefs.  In this writ of error, the Supreme Court will determine whether the writ was taken from a final judgment and, if so, whether the trial court properly determined that the fifth amendment privilege was not applicable here.