In Duart v. Department of Correction
, the Connecticut Supreme Court held, in a 5-2 decision, that a party moving for a new trial based on discovery misconduct must demonstrate a “reasonable probability” that the result of a new trial would be different.
Plaintiff Bonnie Duart, a female lieutenant with the Connecticut Department of Correction, brought claims of discrimination based on gender and sexual orientation and retaliation, alleging that her supervisors had a practice of harassing female officers. During the trial, Duart learned that the Department of Correction failed to disclose in discovery (1) an anonymous note accusing her of being in a relationship another female officer, (2) developments in its investigation of a complaint by another female officer that Duart’s supervisors had retaliated against her, and (3) a discrimination complaint filed by yet another female officer against one of Duart’s supervisors. After an unfavorable jury verdict, Duart moved for new trial. The trial court denied the motion, and the Appellate Court affirmed.
The Supreme Court affirmed as well, adapting the four-pronged test for determining whether courts should grant a new trial because of fraud to the context of discovery misconduct. The moving party must show (1) the injured party did not unreasonably delay after s/he discovered the misconduct, (2) the injured party diligently tried to discover and expose the misconduct, (3) clear proof exists of the misconduct, and (4) a “reasonable probability” exists that the result of the new trial would be different. The Court defined “reasonable probability” to mean “a probability sufficient to undermine confidence in the outcome” or, in other words, “the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” The Court rejected the argument, supported by two dissenting justices, that the burden should shift to the party who engaged in the discovery misconduct.
While the Supreme Court lessened the burden for the moving party, it did not go so far as to shift the burden to the nonmoving party, as the dissent argued. Nonetheless, employers should strive to minimize exposure to such motions by ensuring appropriate and adequate compliance with discovery obligations.