In this action seeking damages for the alleged misappropriation of a trade secret, the plaintiffs, John W. Evans and Evans Cooling Systems, Inc. (ECS),
The following facts are relevant to our resolution of this appeal. Evans is an inventor of various automotive cooling system techniques and improvements in the field of internal combustion engines. Prior to 1984, he began work on technology to implement an aqueous reverse flow cooling system, which he regarded as a trade secret. Thereafter, beginning in April, 1984, and continuing through February, 1989, Evans was employed by General Motors as a consultant and performed various engineering projects for the company. During that time, none of his work for General Motors involved the technology that he had developed for the aqueous reverse flow cooling system. In February, 1989, however, Evans received a telephone call from Al Gunther, a General Motors engineer, who requested that Evans demonstrate the system to the company. Evans informed Gunther that he would be willing to do so, but, because he considered the technology used in the system to be proprietary in nature, it would have to be a "black box" demonstration "whereby the [technology] would not be disclosed or submitted to [General Motors] and [General Motors] would not compromise the secrecy of [the system]." According to Evans, Gunther agreed to these conditions.
On February 27, 1989, Evans prepared and delivered to Gunther a memorandum setting forth the conditions to which they had agreed. The only consideration that Evans would receive for the "black box" demonstration was access to the written results of the testing and an agreement of nonappropriation between the parties.
On March 16 and 17, 1989, Evans demonstrated the system to General Motors engineers and other employee technicians at a General Motors testing facility in Michigan. Evans claims that, at some time during the two days that he was in Michigan, General Motors violated the terms of the "black box" agreement by examining the test car that was equipped with the protected technology.
Evans later testified at trial that he did not discover the theft until the fall of 1991,
In 1994, Evans commenced this action against General Motors seeking to recover damages
In January, 2003, on the eve of trial, General Motors admitted in a hearing before the court that, in the course of the federal and state litigation, John Juriga, a General Motors employee, had forged certain evidence purporting to show that the company independently had developed the reverse flow cooling system used in its "Gen II" engine. General Motors further admitted that Juriga and another employee, Al Schaefer, had given perjured deposition testimony about the company's independent development of the system.
Following disclosure of the forged evidence and perjured testimony, General Motors filed a motion in limine on January 27, 2003, requesting a trial to the court on the trade secret claims. The plaintiffs opposed the motion, arguing in a thirteen page memorandum of law that they had a statutory and constitutional right to a jury trial on those claims. On February 5, 2003, the court issued a memorandum of decision in which it made a "preliminary determination" that the trade secret claims should be severed from the plaintiffs' other claims and tried to the court.
On February 10, 2003, the plaintiffs filed a motion requesting that the court impose sanctions on General Motors for fabricating evidence and giving false testimony. The plaintiffs specifically requested that the court render a default judgment as to liability against General Motors on all counts or preclude General Motors from advancing arguments or introducing evidence at trial regarding its prior, independent development of Evans' technology. On February 11, 2003, the court ordered that the trade secret and sanctions claims be tried simultaneously to the court and that the plaintiffs' other claims be severed for a subsequent jury trial, if necessary.
The trial commenced on March 7, 2003, and lasted more than four weeks. Substantial posttrial briefing followed. On August 29, 2003, the court issued a memorandum of decision in which it concluded that the plaintiffs' trade secret claims were barred by General Motors' special defenses of license and release. The court also awarded the plaintiffs $556,000 in attorney's fees and costs for General Motors' discovery abuse. Thereafter, the court entered a stipulated order on the sanctions award and rendered judgment for General Motors on the plaintiffs' amended complaint.
The plaintiffs first claim that the trial court improperly denied them a jury trial on their trade secret claims. They argue that they are entitled to a jury trial under the Connecticut constitution and that all other jurisdictions that have considered the issue recognize the right to a jury trial on trade secret claims seeking monetary relief. General Motors responds that the plaintiffs waived their right to appeal from the trial court's decision on the jury trial issue when they voluntarily agreed to a
We begin by considering whether the plaintiffs properly preserved their right to appeal the jury trial issue. General Motors argues that the plaintiffs' conduct constitutes a waiver of any jury trial claim that they otherwise might have had because they consented in writing to a trial to the court and did not assert their right to a jury trial at any other time during the proceedings. We disagree.
"[T]he right to a jury trial is a right which, like other rights, may be waived but . . . is a right the waiver of which is not to be inferred without reasonably clear evidence of the intent to waive." Krupa v. Farmington River Power Co., 147 Conn. 153, 156, 157 A.2d 914 (1959), appeal dismissed and cert. denied, 364 U.S. 506, 81 S.Ct. 281, 5 L.Ed.2d 258 (1960). In the present case, such evidence is lacking. The plaintiffs initially requested a jury trial in March, 1999. When General Motors filed a motion in limine on the eve of trial seeking a trial to the court, the plaintiffs strenuously objected in a thirteen page memorandum of law. Thereafter, they affirmatively asserted their right to a jury trial when they acceded to the court's proposal only "as long as concession to this proposal is not construed as a waiver of [the] [p]laintiffs' right to a jury trial on any claims for which [the] plaintiffs are entitled to such right." (Emphasis added.) On appeal, the plaintiffs also filed a motion for articulation in August, 2004, requesting an explanation as to why the trial court had not granted a jury trial on their trade secret claims. When the court denied that motion, the plaintiffs pressed unsuccessfully for reversal of the decision by filing a motion for review with the Appellate Court. Accordingly, we conclude that the plaintiffs did not waive their right to a jury trial, either expressly or by implication, but actively sought to preserve the right from the time they first requested a jury trial in March, 1999, until their filing of a motion for review more than five years later.
General Motors' reliance on Keating v. Glass Container Corp., 197 Conn. 428, 497 A.2d 763 (1985), for the proposition that the plaintiffs waived their right to a jury trial is misplaced. In that case, one of the defendants, Pepsi-Cola Bottling Company of New Haven, Inc. (Pepsi), appealed from an unfavorable judgment on its cross complaint against another defendant in a products liability action, claiming that the trial court improperly ruled that Pepsi had no right to a jury trial on the cross complaint. Id., at 430, 497 A.2d 763. Relying on the principle that a claim of error will not be considered unless the claim was distinctly raised at trial and was ruled on and decided adversely to the appellant, we found no error because Pepsi had not raised a timely objection to the trial court's decision, and the record was inadequate for review. See id., at 430-31, 497 A.2d 763; see also Practice Book § 60-5 ("[t]he court shall not be bound to consider a claim unless it was distinctly raised at the trial"). Although we noted that the trial court had sent a letter to all attorneys of record that the parties were not entitled to a jury trial on the cross complaint and that Pepsi's counsel had responded that his client did not wish to waive its jury trial right; Keating v. Glass Container Corp., supra, at 431-32, 497 A.2d 763; we disagreed
The present case is distinguishable from Keating because, after General Motors filed a motion in limine seeking a trial to the court, the plaintiffs formally declared their opposition to the motion in a detailed memorandum of law, and the court effectively ruled on that motion by granting it in a subsequent memorandum and order. See part I B of this opinion. Accordingly, General Motors distinctly raised the issue of a jury trial, and the trial court decided that issue adversely to the plaintiffs after they formally objected.
We next consider General Motors' claim that there is no final order on the jury trial issue from which the plaintiffs may appeal. General Motors argues that the trial court's memorandum of decision, in which the court invited the parties to comment on its "proposal," was not an appealable final ruling because the court characterized its decision as a "preliminary determination." This claim has no merit.
"[T]he statutory right to appeal is limited to appeals by aggrieved parties from final judgments. . . . Because our jurisdiction over appeals . . . is prescribed by statute, we must always determine the threshold question of whether the appeal is taken from a final judgment before considering the merits of the claim." (Citations omitted; internal quotation marks omitted.) Hartford Steam Boiler Inspection & Ins. Co. v. Underwriters at Lloyd's & Cos. Collective, 271 Conn. 474, 495, 857 A.2d 893 (2004), cert. denied, 544 U.S. 974, 125 S.Ct. 1826, 161 L.Ed.2d 723 (2005).
In the present case, we conclude that the trial court rendered a final judgment for purposes of appeal. We first note that the February 5, 2003 memorandum is not a model of clarity in that the initial sentence refers to the court's decision as a "preliminary determination" but also declares that "the plaintiffs' trade secret claims must be tried courtside." (Emphasis added.) Moreover, the memorandum concludes with an invitation to the parties for written comment on the "proposal" contained therein. This ambiguity is erased, however, by the court's subsequent order of February 11, 2003, which provides that "[t]he hearing on the plaintiffs' motion for sanctions and the court trial of the plaintiffs' trade secret claims . . . will commence on February 18, 2003 . . . and proceed through February 21, 2003. The plaintiffs' other claims are severed for a subsequent jury trial, if necessary." (Emphasis added.) To the extent that the holding of the trial itself was not sufficiently convincing that the court made a definitive ruling on the jury trial issue, we are persuaded by the combined effect of the court's memorandum of decision and subsequent
We now consider the plaintiffs' claim on its merits. The plaintiffs argue that they have a right under the Connecticut constitution to a jury trial on their trade secret claims because CUTSA, Connecticut's trade secrets statute, is rooted in the common law and the remedy they seek is legal rather than equitable in nature. General Motors responds that the plaintiffs have no constitutional right to a jury trial because claims for the misappropriation of trade secrets were not triable to a jury in 1818, when the Connecticut constitution was adopted. We agree with the plaintiffs.
We begin by examining whether the applicable statute may be construed so as to avoid the constitutional question. See State v. McCahill, 261 Conn. 492, 501, 811 A.2d 667 (2002) ("We . . . do not engage in addressing constitutional questions unless their resolution is unavoidable. `Ordinarily, [c]onstitutional issues are not considered unless absolutely necessary to the decision of a case. . . .'"); see also Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 345, 118 S.Ct. 1279, 140 L.Ed.2d 438 (1998) (court first must ascertain whether construction of applicable statute is fairly possible to avoid constitutional question). In the present case, the relevant CUTSA provision is General Statutes § 35-53,
Article first, § 19, of the Connecticut constitution provides that "[t]he right of trial by jury shall remain inviolate."
"Accordingly, in determining whether a party has a right to a trial by jury under the state constitution . . . the court must ascertain whether the action being tried is similar in nature to an action that could have been tried to a jury in 1818 when the state constitution was adopted. This test requires an inquiry as to whether the course of action has roots in the common law, and if so, whether the remedy involved was one in law or equity. If the action existed at common law and involved a legal remedy, the right to a jury trial exists and the legislature may not curtail that right either directly or indirectly. . . .
"The historical test we apply is flexible and may require a jury in a new cause of action, not in existence in , if it involves rights and remedies of the sort traditionally enforced in an action at law or if its nearest historical analogue is an action at common law." (Citations omitted; internal quotation marks omitted.) Skinner v. Angliker, 211 Conn. 370, 373-77, 559 A.2d 701 (1989). In determining whether an action existed at common law and involved a legal remedy, we look for guidance to Connecticut case law, to the common law of England and to federal and state jurisdictions that have considered the question. Cf. Cumberland Farms, Inc. v. Groton, 262 Conn. 45, 72, 808 A.2d 1107 (2002).
In the present case, all of the available evidence suggests that claims alleging the improper disclosure of a trade secret were recognized at common law and tried before juries in English courts when the Connecticut constitution was adopted in 1818.
This conclusion is consistent with case law recognizing that substantially similar claims of copyright and patent infringement, the closest historical analogue to trade secret claims, were tried before juries in eighteenth century courts of law. See, e.g., Feltner v. Columbia Pictures Television, Inc., supra, 523 U.S. at 348-49, 118 S.Ct. 1279 ("[b]efore the adoption of the [s]eventh [a]mendment [in 1791] . . . copyright suits for monetary damages were tried in courts of law, and thus before juries"); Markman v. Westview Instruments, Inc., 517 U.S. 370, 377, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996) (recognizing "descent of today's patent infringement action from the infringement actions tried at law in the [eighteenth] century," and declaring that "there is no dispute that [patent] infringement cases today must be tried to a jury, as their predecessors were more than two centuries ago"). Moreover, there is "overwhelming evidence that the consistent practice at common law was for juries to award damages." Feltner v. Columbia Pictures Television, Inc., supra, at 353, 118 S.Ct. 1279. Consequently, the fact that two closely related causes of action seeking protection of intellectual property rights existed at common law and were tried before juries prior to the adoption of the Connecticut constitution reinforces our determination in the present case that the plaintiffs have a right to a jury trial on their trade secret claims.
We also note that the Connecticut statutory scheme in effect when the state constitution was adopted distinguished between equitable and legal claims, and provided for a jury trial when plaintiffs sought an award of damages. See Act for the Directing and Regulating of Civil Actions, Connecticut Acts and Laws (1805) Æ 8, pp. 26-27. The governing law provided in relevant part: "[A]ll Actions that shall be tried before the Superior or County Courts, when Issue is joined on any Matter of Fact, shall be tried by a Jury of twelve Men of the Neighbourhood, qualified, impannelled, and sworn according to Law, who shall find the Matter in Issue, with the Debt or Damages, and Cost according to Law and their Evidence; and the Judges shall make up and declare the Sentence thereon: And every Case wherein the Parties shall join in Demurer in Law, shall be heard and determined by the Judges; and if there be any Matter of apparent Equity, as upon the Forfeiture of a Bond or Obligation, or Breach of Covenant without Damage, or the like, the Judges shall determine such Matter of Equity. . . .
"Provided nevertheless, That in all Actions which may be brought or come before the said Superior or County Courts in the due Course of Law, wherein the Parties shall join Issue on any Matter of Fact, and agree and do put themselves on the Court for Trial of such Issue; the Judges of said respective Courts, having Jurisdiction of such Action or Actions, may and shall proceed to hear and try the same without a Jury, and to award Damages and Costs, and grant Execution thereon; any Thing before to the contrary notwithstanding." (Emphasis added.) Id.
As a result, even in the absence of specific case law or legislative guidance in Connecticut concerning trade secret claims in the early nineteenth century, it appears
The conclusion we reach today satisfies the rule of construction that CUTSA "shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this [act] among states enacting it." General Statutes § 35-58; cf. Hill v. Blake, 186 Conn. 404, 408, 441 A.2d 841 (1982) ("[when an] act is a uniform law, decisions from other states are valuable for the interpretation of its provisions"). Although the Uniform Trade Secrets Act is silent on the issue of jury trials, other jurisdictions that have enacted civil statutes based on the uniform act
General Motors nonetheless contends that Connecticut plaintiffs seeking damages for the misappropriation of trade secrets have no constitutional right to a jury trial because there is no published opinion from any jurisdiction in which a trade secret claim was actively tried to a jury prior to adoption of the Connecticut constitution. General Motors further contends that Newbery fails to establish that trade secret claims have common-law roots because Newbery was decided by England's Court of Chancery and makes no mention of a jury trial right. We reject this claim. The fact that the plaintiffs in Newbery sought injunctive relief in the Court of Chancery and that there was no specific reference to a jury trial in the published opinion is irrelevant. Newbery is significant precisely because the Court of Chancery determined that it was unable to resolve the parties' dispute. Moreover, it was well understood under common law that "try[ing] [the parties'] legal rights by an action"; Newbury v. James, supra, 35 Eng. Rep. at 1013; referred to a trial by a jury. See Skinner v. Angliker, supra, 211 Conn. at 374, 559 A.2d 701. Consequently, the court's declaration in Newbery v. James, supra, at 1013, that the parties should "try their legal rights by [means of] an action" supports the conclusion that trade secret claims for damages were triable to juries in courts of law prior to the adoption of the Connecticut constitution. Cf. Bickell v. Moraio, 117 Conn. 176, 187, 167 A. 722 (1933) (court of equity may decline to grant injunctive relief and "remit the plaintiffs to an action at law to recover damages").
General Motors insists that Newbery fails to provide a definitive answer to whether the common law of England recognized trade secret claims prior to 1818 because, shortly thereafter, the Court of Chancery declined to recognize a similar claim alleging the disclosure of a trade secret in Williams v. Williams, 36 Eng. Rep. 61 (Ch. 1817). In Williams, however, the court did not decline to recognize the plaintiff's trade secret claim but merely decided not to exercise its equitable powers to continue an injunction restraining the defendants and their agents from divulging the secret in question. See id., at 62. The court reasoned, as in Newbery, that, if the defendant already had disclosed the secret to others, an injunction would be useless. Id. If, on the other hand, the defendant had not disclosed the secret, the court would be required to examine it in order to adjudicate the claim. See id. The court thus determined that injunctive relief was inappropriate, although it did not go so far as to recommend that the plaintiff pursue a legal remedy. Accordingly, Williams in no way diminishes or undermines the conclusion that we draw from Newbery, namely, that trade secret claims were tried by juries in early nineteenth century English courts of law.
We are equally unpersuaded by General Motors' contention that we previously have viewed trade secret cases as classically equitable actions arising out of a breach of confidence or trust rather than as actions at law. In the cases cited by General Motors, the relief sought by the plaintiffs was primarily injunctive. See Plastic & Metal Fabricators, Inc. v. Roy, 163 Conn. 257, 259, 303 A.2d 725 (1972); Allen Mfg. Co. v. Loika, 145 Conn. 509, 513, 144 A.2d 306 (1958); Schavoir v. American Re-Bonded Leather Co., 104 Conn. 472, 477-78, 133 A. 582 (1926). To the extent that we described the claims in
The fact that CUTSA does not provide for a jury trial on trade secret claims is of no consequence. As we noted previously, even in the absence of an explicit statutory provision, the right to a jury trial may be preserved under the Connecticut constitution if the cause of action is rooted in the common law and the remedy sought is legal. In addition, the prefatory note to the Uniform Trade Secrets Act, upon which CUTSA is based, provides that the uniform act "codifies the basic principles of common law trade secret protection . . . ." Unif. Trade Secrets Act, prefatory note (amended 1985), 14 U.L.A. 531 (2005). An examination of CUTSA and the Uniform Trade Secrets Act therefore supports our conclusion that trade secret protection was available under the common law and, as a result, the plaintiffs have a right to a jury trial on their trade secret claims seeking damages.
We also reject the notion that our past interpretation of CUTPA, a similar statutory scheme, has any relevance in the present case. In Associated Investment Co. Ltd. Partnership v. Williams Associates IV, 230 Conn. 148, 150, 645 A.2d 505 (1994), we considered whether the state constitution guarantees the right to a jury trial for CUTPA claims before the statute was amended to provide for a jury trial. We stated that "statutory actions established since the adoption of the constitution of 1818 ordinarily fall outside the scope of the [constitutional jury trial] provision." (Internal quotation marks omitted.) Id., at 154, 645 A.2d 505. We then concluded that, "[b]ecause CUTPA creates an essentially equitable cause of action not substantially similar to common law claims triable to a jury prior to 1818 . . . a jury trial is not constitutionally required for actions brought under CUTPA." (Emphasis
General Motors finally argues that the only Connecticut court to address the issue has determined that there is no constitutional right to a jury trial under CUTSA. See Pepe & Hazard v. Jones, Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. CV960151601S, 2002 WL 31460309 (October 15, 2002) (33 Conn. L. Rptr. 254). This argument has no merit. A lower court decision is not binding precedent on this court. See, e.g., J.M. Lynne Co. v. Geraghty, 204 Conn. 361, 369, 528 A.2d 786 (1987). More significantly, because the court in Jones compared CUTSA to the preamendment version of CUTPA; see Pepe & Hazard v. Jones, supra, at 254-55; the comparison is inapposite for all of the reasons that we previously have described. Therefore, we conclude that the trial court improperly denied the plaintiffs their right to a jury trial on their trade secret claims and reverse that part of the judgment.
The plaintiffs next contend that the trial court failed to apply the proper legal standard in imposing sanctions on General Motors for its discovery abuse.
Thereafter, the plaintiffs filed a motion on February 7, 2003, seeking, inter alia, a judgment of default against General Motors for its employees' misconduct. The court considered the motion simultaneously with the plaintiffs' trade secret claims and concluded as follows in its August 29, 2003 memorandum of decision: "The court declined for several reasons to sanction General Motors by entering a default on liability, in keeping with a general policy against forfeiture. . . . [B]y an order filed February 5, 2003, the plaintiff[s] [were] afforded an opportunity to reopen discovery and explore the level of General [Motors'] involvement in the manufacture of fraudulent evidence. The plaintiff[s] [were] unable to demonstrate after such discovery that the sanctionable conduct went beyond [Juriga] and Schaefer's level of participation.
"In its determination whether to sanction [General Motors], the court considered that Juriga was a professional employee of General Motors with substantial responsibility in the development of the Gen II engines; however, he was not a [high ranking] officer or someone who could establish policy for the company. Schaefer was an hourly employee in the position of a skilled toolmaker. Juriga, in admitting his fraudulent behavior, indicated that only he and Schaefer were involved. There is not sufficient evidence to hold other General Motors employees responsible for the fraud.
"Also critical to the court's determination not to sanction General Motors by an entry of judgment against it is the fact that the fraud was disclosed by General [Motors'] counsel. . . . Although there were certainly grounds for suspecting that the Juriga and Schaefer evidence was not legitimate, the facts were not known to [General Motors'] counsel until a meeting in January of this year, and were immediately disclosed to the court. The interview with . . . Juriga occurred on January 14, 2003. At that meeting, Juriga made statements which led trial counsel to believe that the [`avoid verbal order'] of July 13, 1988, was of questionable authenticity. On that day, Juriga was advised to seek independent counsel and was suspended from his employment with General Motors. On January 15, 2003, the court was notified and a conference was requested concerning a `matter of grave importance with reference to [Rule] of Professional Conduct 3.3
* * *
"The court recognizes the expense incurred by the plaintiffs in responding to the fraudulent evidence of independent development. The court awards the plaintiffs their costs and [attorney's] fees incurred with respect to those efforts." (Citations omitted.)
It is well established that "a court may, either under its inherent power to impose sanctions in order to compel observance of its rules and orders, or under the provisions of [Practice Book] § 13-14,
"[T]he court's discretion should be exercised mindful of the policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court. . . . The design of the rules of practice is both to facilitate business and to advance justice . . . . Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure. . . . Therefore, although dismissal of an action is not an abuse of discretion whe[n] a party shows a deliberate, contumacious or unwarranted disregard for the court's authority . . . the court should be reluctant to employ the sanction of dismissal except as a last resort." (Citations omitted; internal quotation marks omitted.) Millbrook Owners Assn., Inc. v. Hamilton Standard, supra, 257 Conn. at 16-17, 776 A.2d 1115. The same principles are applicable to the entry of a default judgment.
The plaintiffs argue that the trial court's decision was based on a legal error, namely, its conclusion that General Motors bore no responsibility for its employees' misconduct because it was a large corporation whose higher level employees were not implicated. This argument is unpersuasive.
The trial court's determination that the fraudulent conduct of Juriga and Schaefer did not extend to upper level management was not a legal conclusion but a factual determination based on testimony at the January 23, 2003 hearing and evidence admitted at trial. Moreover, the court did not find that General Motors bore no responsibility for the misdeeds of its employees, as the plaintiffs contend, but ordered General Motors to pay the plaintiffs $556,000 in attorney's fees and costs specifically because it recognized "the expense incurred by the plaintiffs in responding to the fraudulent evidence of independent development" of the disputed technology. Indeed, General Motors itself accepted responsibility for the transgressions of its employees when it declined to challenge the trial court's order. Furthermore, insofar as the plaintiffs argue that the sanctions were insufficient to punish General Motors, they cite no authority to support their claim that the false deposition testimony of Juriga, as the designated agent of General Motors, required the entry of a default judgment against the company.
The plaintiffs' reliance on Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250 (1944), is misplaced because, in that case, the court ordered that a judgment for the defendant obtained by fraud be set aside only after determining that the defendant was involved in "a deliberately planned and carefully executed scheme to defraud" the court that was not discovered until several years later. Id., at 245, 64 S.Ct. 997. In the present case, only two General Motors employees, neither of whom were high ranking officers, were implicated in the fraud, General Motors informed the court of its employees' misconduct, and the court reopened discovery so that the plaintiffs could seek additional evidence on the matter prior to the commencement of trial. Consequently, unlike Hazel-Atlas Glass Co., this case is not one in which the defendant showed "a deliberate, contumacious or unwarranted disregard for the court's authority"; (internal quotation marks omitted) Millbrook Owners Assn., Inc. v. Hamilton Standard, supra, 257 Conn. at 16, 776 A.2d 1115; but one in which the offending party disclosed the misconduct and cooperated so as to ameliorate its effect on the proceedings.
Furthermore, compelling authority exists to support the conclusion that sanctions other than a default judgment are appropriate in cases involving fabricated evidence and false deposition testimony.
The judgment is reversed, except as to the award of sanctions, and the case is remanded for a new trial.
In this opinion the other justices concurred.
"The plaintiffs' essential claims appear to be related to trade secret misappropriation. The resolution of such issue would likely resolve the case.
"Proceeding with the trade secret claims by courtside trial also would provide the plaintiffs with a forum for their sanctions claims. The court and a jury could hear all of the plaintiffs' complaint simultaneously, but not the sanctions claims.
"If we proceed with a jury trial in March, we would not have the opportunity for a sanctions hearing, unless the trial were delayed.
"Proceeding with evidence on both the sanctions and trade secret claims before the court in March offers an opportunity to resolve the essential issues on the merits at the earliest date.
"The parties are invited to comment on this proposal in writing by February 10, 2003. . . ."
"(b) In any action brought pursuant to subsection (a) of this section, if the court finds wilful and malicious misappropriation, the court may award punitive damages in an amount not exceeding twice any award made under subsection (a) and may award reasonable attorney's fees to the prevailing party."
"(b) Such orders may include the following: