Defendants' Motion for Revised Pretrial Order with Certification and Attached Draft Order and Letter

    CV 89-03609775 

MILO SHEFF, et al., : SUPERIOR COURT | 

Plaintiffs, : JUDICIAL DISTRICT OF | 
ay HARTFORD/NEW BRITAIN 

Vv. : AT HARTFORD 

WILLIAM A. O'NEILL, et al., : | 
: 

Defendants. : AUGUST 28, 1992 

DEFENDANTS' MOTION FOR REVISED PRETRIAL ORDER 
  

The defendants respectfully move the court for revision of 

the court's April 10, 1992 Pretrial Order. The revision sought 

by the defendants would extend each of the defendants' deadlines 

set forth in that order by ninety (90) days. While the 

defendants are loathe to utilize the court's time and resources 

in what is essentially a discovery dispute, the plaintiffs’ 

dilatory obstructionistic tactics have brought about a total 

collapse of the existing Pretrial Order. This motion is 

necessary because of the blatant failure of the plaintiffs to 

comply with the current Pretrial Order and facilitate the timely, 

orderly and thorough completion of pretrial discovery. In       
 



      

support of this motion, the defendants call the court's attention 

to the following: 

1. The Plaintiffs' "Final" Discovery of Expert Witnesses 
  

in Not Final. 
  

The parties cannot conceivably meet the existing deadline of 

September 15 for concluding depositions because the plaintiffs 

have utterly failed to comply with the Pretrial Order and 

identify fully and finally the expert witnesses whom they intend 

to. call 'at trial. According to the second sentence of the 

plaintiffs' Final Identification of Expert Witnesses Pursuant to 

Practice Book $221(D) (August 17, 1992), the list they are 

providing does not include "any potential rebuttal [expert] 

witnesses." In other words, the plaintiffs attempt to avoid 

their obligation to respond to the defendants' discovery request 

regarding expert witnesses and the requirements of the current 

pretrial order regarding disclosure of expert witnesses by 

misleadingly labelling certain of their experts as "rebuttal 

witnesses." 

The Pretrial Order and the defendants' discovery request 

draw no distinction between expert witnesses who may be called as 

  

  

 



  

part of the plaintiffs' case in chief and experts who may be 

called in rebuttal. All experts must be disclosed - - there are   
no exceptions. The plaintiffs’ effort to subvert the purpose of | 

the Pretrial Order and the clear intention of the defendants’ | 

interrogatories relating to expert witnesses should not be 

condoned by the court. 

In the third sentence of the plaintiffs' disclosure, the 

plaintiffs note that they "have not listed any present or former 

State employees, appointees or any defendants' experts” whom they 

intend to call for the purposes of eliciting expert testimony. 

Again, the plaintiffs are attempting to avoid their 

responsibilities under the Pretrial Order by creating a 

nonexistent category of expert witnesses whom they are refusing 

to disclose. 

Yet the existing pretsial order requires separate 

identification of expert and non-expert witnesses. The purpose 

of the order is to ensure that all witnesses are disclosed prior 

to trial. The plaintiffs have not listed any present or former 

State employees, or the appointees as non-expert witnesses, and 

they now attempt to avoid disclosing these individuals as expert 

witnesses. It is apparent that the plaintiffs are attempting to       
 



      

carve out another group of "mystery witnesses" who will offer 

opinion testimony at trial with little or no opportunity for tne 

defendants to produce responsive information or evidence. It 1s 

utterly inconsistent with the agreed upon Pretrial Order for the 

plaintiffs to proceed as if they can offer "mystery witnesses" at 

trial. The court should not tolerate this obvious subversion of 

the purpose of the Pretrial Order. 

In footnote one (1) on page 6 of the plaintiffs’ disclosure, 

the plaintiffs equivocate about whether they will be presenting 

expert testimony from Ruth Price, Yale Rabin, Terry Tondro, and 

indeterminate number of "other witnesses." Their description of 

the testimony these expert witnesses may offer also fails to meet 

the requirements of Practice Book §220(D) and the defendants’ 

First Set of Interrogatories in terms of the specificity which 1s 

required. . This portion of the plaintiffs’ disclosure is in 

direct conflict of the requirement that the plaintiffs provide 

final identification of their expert witnesses by August 15, 

1992, 

The fundamental failure of the plaintiffs to meet the 

requirements of paragraph nine (9) of the Pretrial Order is made 

especially apparent by the following sentence which appears on 

  

 



      

page ten (10) of their disclosure: "plaintiffs may also seek to 

add an additional expert witness to this list in the near future 

who could not be contacted at the time this list was due.” It is | 

evident tron this sentence and other portions of their "Final" 

disclosure which are noted above, that the plaintiffs’ disclosure | 

is not the final disclosure required by the Pretrial Order. It 

is also evident that the plaintiffs are not prepared to provide 

final identification of expert witnesses. See Defendants' Motion 

for Finding of Non-Compliance with Pretrial Order and Appropriate 

Remedial Orders (August 24, 1892). 

2. The Plaintiffs' Non-Final "Final" Disclosure of Expert 
  

Witnesses Adds Thirteen (13) or More New Witnesses Who 
  

  

May Have To Be Deposed. 

By motion dated August 17, 1992, the plaintiffs provided the 

defendants with their deceptively titled "final" disclosure of 

expert witnesses. With the current deadline for completion of 

depositions looming on September 15, 1992, the plaintiffs added 

thirteen (13) or more new expert witnesses. Each of these 

witnesses may have to be deposed. What's more, by the 

plaintiffs' own admission, the list is still incomplete. See 

Section 1 supra. 

  

  

 



In an effort to meet the September 15, 1992 deadline, the 

parties have agreed to schedule thirteen (13) depositions on 

twelve (12) different days between August 25, 1992 and September 

15, 1992. Subsequent to that agreement, the plaintiffs 

unilaterally noticed nine (9) additional depositions for the same 

time period. According to the schedule of depositions 

unilaterally imposed by the plaintiffs' attorneys, the entire 

time period from August 24th through September 15, 1992 would be 

taken up by depositions, and still there would be more 

depositions to take. At this time, the plaintiffs have 

identified the thirty-three (33) or more expert witnesses whom 

they expect to call at trial. The defendants have identified 

fourteen (14) expert witnesses and expect to identify one to two 

more expert witnesses in the very near future. Currently, then, 

the parties are in the process of deposing in excess of 

forty-eight (48) experts. 

While it may be realistic for a team of lawyers from a 

number of different firms and legal services organizations, like 

the plaintiffs team, to accommodate such a schedule, it 1s 

completely unrealistic to expect that the Assistant Attorneys 

General assigned to represent the defendants in this case are 

able to do the same. In a reasonable effort to expedite the        



      

completion of depositions, the defendants have offered to devote 

two (2) full days per week solely to depositions. During a 

number of weeks, depositions have been scheduled on three (3) or 

four (4) days during the week. Given the number ot experss yet 

to be deposed, the other case load demands on the two (2) 

Assistant Attorneys General who are defending this case, coupled 

with the plaintiffs' stonewalling strategies, the depositions 1in 

this case can not possibly be completed until December at the 

earliest. Any less time in which to take depositions will 

patently prejudice the defendants' ability to obtain and analyze 

the highly complex analyses that the plaintiffs' experts have yet 

to complete. This will in turn seriously impair the ability of 

the defendants to present a thorough and responsive case upon 

which this court and/or the legislature may ultimately be called 

10 act. 

3. The Plaintiffs' Amended Responses to the Defendants’ 
  

First Set of Interrogatories Is Neither Final, Nor 
  

Responsive.   

On September 20, 1990, the defendants served thelr First Set 

of Interrogatories on the plaintiffs. Now, almost two full years 

and a judicial order of compliance later, the plaintiffs still 

  
  

  
 



      

have not filed full and up-to-date supplemental responses. while | 

the plaintiffs have filed a soapbox diatribe entitled 

"Plaintiffs' Second Amended Responses to Defendants’ First Set of | 

Saterrogatories”: (August 24, 1992), that pleading continues to 

fail meet the purposes of the requests set forth in the 

interrogatories. 

For example, interrogatory #19 requests the specific data 

compilations and/or analyses upon which the plaintiffs will rely 

at trial. The obvious purpose of this request 1s so that the 

defendants can verify the accuracy of the data. The plaintiffs 

have offered non-responsive information which merely identifies 

the type of data analysis the plaintiffs will present at trial. 

This wholy inadequate response prejudicially denies the 

defendants the opportunity to check the plaintiffs' analysis in 

advance of trial. Moreover, the plaintiffs note at page 2 of 

that pleading that they expressly "reserve the right to further 

supplement or amend these responses . . ." without any 

qualifications as to the final date on which they will completely 

respond to the interrogatories. When the plaintiffs' finally do 

provide full and final supplemental responses in accordance with 

the court's order compelling such responses, that information may 

raise issues that will warrant further discovery. The defendants 

  

  

 



      

should not, however, be penalized by the plaintiffs' continued 

failure to comply with court orders, which required full and 

up-to-date responses quite some time ago. 

4. The Plaintiffs Haven Engaged In Unfounded And 
  

Obstructionistic Tactics At Depogsitions. 
  

Throughout the course of discovery, the defendants have 

reminded the plaintiffs that in order to be meaningful, 

depositions must be conducted only once each expert has completed 

any analyses and/or studies he or she intends to do for the 

purposes of this litigation. Indeed, the defendants have 

requested the plaintiffs to notify them if any witnesses will not 

have completed his or her work or otherwise be unprepared at the 

scheduled time of deposition so that a new deposition date may be 

assigned at a time when all work has been completed. 

Consistent with this approach, the plaintiffs identified 

William Trent as an expert and represented to the defendants that 

"Dr. Trent is expected to complete his analysis by April 1,   

1991." Plaintiffs' Identification of Expert Witnesses Pursuant 

to Practice Book §220(D) (January 15, 1991). On Tuesday, August 

25, 1992, some one and one-half years after Dr. Trent was to have 

completed his analysis, he arrived at his deposition unprepared 

  

 



      

and without having completed even a small portion of his analysis 

to be used at trial. The plaintiffs gave no warning that Dr. 

Trent had not done the analysis he is expected to present at 

trial when the date for Dr. Trent's deposition was sarees fo 

Since Dr. Trent had not conducted his analysis as of the time of 

his deposition it is, of course, necessary to schedule another 

deposition date. Amazingly, when the defendants suggested that 

this was necessary, the plaintiffs’ attorney indicated that they 

would not make Dr. Trent available for another date without an 

order from the court. 

To add insult to prejudicial injury the defendants' case, 

the plaintiffs at this and other depositions have made totally 

unfounded objections to legitimate inquiries and instructed their 

witnesses not to answer. See Defendants’ Motion for Order of 

Compliance and Supporting Memorandum of Law (August 25, 1992). 

The plaintiffs' strategy is crystal clear - to frustrate all 

of the defendants' attempts to obtain rightful and necessary 

discovery sufficient to provide a reasonably responsive defense. 

Such outright obfuscation of the discovery process should not be 

tolerated in any case - much less one that has ramifications 

-10- 

  

  
 



      

which may significantly affect the future educational system for 

Connecticut's children. 

5% The Plaintiffs Have Refused to Go Forward With 
  

Previously Scheduled Depositions. 
  

Further delay in completing the discovery process has been 

occasioned by the plaintiffs' "shuffling" of scheduled dates for 

depositions. One of the depositions noticed by the defendants in 

April has not yet been scheduled because the plaintiffs cancelled 

the date previously set for the deposition. The plaintiffs have 

not yet advised the defendants when this witness will be 

available. The plaintiffs have similarly sought postponments of 

other depositions. See August 25, 1992 correspondence from 

Assistant Attorney General Martha M. Watts to Attorney Philip 

Tegeler. (copy attached). 

In summary, while the parties have ardently engaged in a 

good faith effort to schedule numerous depositions in a timely 

fashion, the plaintiffs bear responsibility for delaying the 

ultimate completion of this process. Despite that fact, the 

plaintiffs disingenuosly maintain that they are ready to head to 

a trial at the earliest possible date. The defendants' case 

-11- 

  

  

  
 



    

should not be irreparably prejudiced, however, for the dilatory 

tactics employed by the plaintiffs in this case. 

For the many foregoing reasons, and in order to ensure that 

the court has before it a thorough, accurate and balanced trial 

record on which to base a reasoned decision in this case, the 

defendants urge the court to grant this motion for Revision to 

the Pretrial Order. 

FOR THE DEFENDANTS 

RICHARD BLUMENTHAL 
ATTORNEY GENERAL 

z foi rh wy, 

BY: | WII 

  

  

Joh R. Whelan 
/Assistant Attorney General 
{Juris No. 085112 
110 Sherman Street 
Hartford, CT 06105 

Lae 

CF 
A. 74 

/AS 

Juris No. 406172 
110 Sherman Street 

Hartford, CP? 06105 

Tele: 566-7173    



      

CERTIFICATION 
  

This is to certify that a copy of the foregoing was mailed, 

postage prepaid on August 28, 1992 to the following counsel of 

record: 

John Brittain 
University of Connecticut 
School of Law 

65 Elizabeth Street 

Hartford, CT 06105 

Wilfred Rodriquez 
Hispanic Advocacy Project 
Neighborhood Legal Services 
1229 Albany Avenue 
Hartford, CT (06112 

Philip Tegeler, Esq. 
Martha Stone, Esq. 

Connecticut Civil Liberties Union 
32 Grand Street 

Hartford, CT 06106 

Wesley W. Horton 
Mollier, Horton & Fineberg, P.C. 
90 Gillett Street 
Hartford, CT 06105 

Ruben Franco, Esq. 
Jenny Rivera, Esq. 
Puerto Rican Legal Defense and 
Eduction Fund 

99 Hudson Street 
l4th Floor 
New York, NY 10013 

-13- 

  

 



      

Julius L. Chambers, Esq. 
Marianne Lado, Esq. 

Ronald Ellis, Esq. 
NAACP Legal Defense and 
Education Fund 

99 Hudson Street 
New York, NY 10013 

John A. Powell 

Helen Hershkoff 

American Civil Liberties Union 
132 West 43rd Street : 
New York, NY 10036 

  
-14- 

  

  

 



  

  

    

For good cause shown, the defendants' deadline dates set forth in | 

paragraphs 1, 4, 7, 10, and 11 of the April 10, 1992 Pretrial 

Order are hereby extended by ninety (90) days. 

  

Honorable Harry Hammer 
Superior Court 

Dated the day of rs 1892 
  

-15- 

  
| 

I 

  
 



WEY Gg, 

  

MacKenzie Fall 

110 Sherman Street 

Hardord. CT 06103 

RICTIARD BLUMENTHAL 
\TTORNEY GENERAL 

  

FAX (203) 323-5536 

Office of The Attorney General 

State of Connecticut Tel: 566-7173 

August 25, .1992 

Philip Tegeler, Esq. 
Connecticut Civil Liberties Union 
32 Grand Street 

Hartford, CT 06106 

RE: SHEFF v. O'NEILL 
  

Dear Phil: 

I write to confirm our telephone conversations of this past 
week regarding the scheduling of depositions in the above case. 
You informed me that you wish to cancel Charles Willie's 

deposition, which had been scheduled to take place on September 

29, 1992. As you know, the defendants have moved for an 

extension of time until November 15, 1992 in which to take 

depositions. Although the plaintiffs have opposed this motion, 

the defendants will, of course, cooperate fully in accommodating 

your desire to postpone Dr. Willie's deposition. 

With regard to Michael Levin's deposition, you had asked 

John Whelan to confirm that Mr. Levin would be available on 

September 17, 1992. When I informed you that his deposition 

could proceed at 2:00 p.m. on that date, you stated that you had 

since committed yourself to other matters at that time. As I 

indicated, Mr. Levin will not be available during the morning of 

the 17th. Consequently, as in the case of Dr. Willie's 

deposition, we will cooperate fully in accommodating your request 

to cancel the agreed upon deposition date for Mr. Levin. 
Moreover, in light of the fact that your requested schedule 

changes will not be in compliance with the court's current 

September 30 deadline for conclusion of plaintiffs' depositions, 

the defendants will not oppose a motion for extension of time in 
which plaintiffs may conclude their depositions. 

 



  

Philip Tegeler, Esq. 
August. 25, 1992 
Page 2 

If you have any questions, please don't hesitate to call me. 

Very truly yours, 

RICHARD BLUMENTHAL 

  

MMW: ac 

cc: Martha Stone, Esq. 
John Whelan, Asst. Atty. Gen.