Memorandum in Support of Defendants' Motion for Order of Compliance

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Cv 89-03609775   
MILO SHEFF, et al., : SUPERIOR COURT 

Plaintiffs, J.D. HARTFORD/NEW BRITAIN | 
AT HARTFORD | 

WILLIAM A. O'NEILL, et al., 

Defendants. : August 25, 1992 

MEMORANDUM IN SUPPORT OF DEFENDANTS' 

MOTION FOR ORDER OF COMPLIANCE 
  

  

As the parties to this case move closer to trial, pre-trial 

discovery on a huge scale has been undertaken. Responses to 

interrogatories and documents produced in response to requests 

for production have served, to some extent, to lay a preliminary 

factual foundation for the parties' positions at trial and to 

sharpen the issues. However, if the purposes of discovery are 

frustrated in this final stage of discovery by unfounded 

objections to legitimate deposition inquiries, which results in 

inadequate, unresponsive and incomplete answers, the likelihood 

of a decision wholly without guidance from crucial witnesses that 

proves harmful to the educational interests of the children of 

Connecticut becomes greater.       
 



  

  

    

I. FACTUAL BACKGROUND 
  

In an effort to thoroughly prepare their cases and to 

present an complete record before the court, the parties have 

disclosed to each other numerous experts whom they intend to call 

at trial, the subject matter upon which those witnesses are 

expected to testify and the substance of the facts and opinions 

to which they are expected to testify. See, e.g., Defendants’ 
  

First Set of Interrogatories, Interrogatory 18. 

This Motion for Order of Compliance arises out of the 

identification and subsequent deposition of one of the 

plaintiffs' many expert witnesses. On April 1, 1992, the 

plaintiffs identified John Allison of the Capitol Region 

Education Council as one of the experts whom the plaintiffs 

expect to call at trial. Plaintiffs assert that Mr. Allison will 

testify, inter alia, as to the State's past and presumably 

ongoing failure to act effectively to remedy the increasing 

racial and economic isolation of the Hartford schools, . . . [and 

as to] a proposed remedy in this case . . . " Plaintiffs' Third 

  

    
 



      

Identification of Expert Witness Pursuant to Practice Book 

$220(DY (april 1, 1992) at 2317, 

in response to the plaintiffs’ identification of Mr. Allison 

as an expert witness at trial, the defendants noticed his 

deposition. * On.July 23,:1992, Mr. Allison appeared with counsel 

to give his deposition. Counsel for the defendants made a number 

  

3/ The plaintiffs have similarly identified a number of other 

expert witnesses, who will testify regarding the State's 

alleged failure to remedy "the condition of racial and 

ethnic isolation" in Hartford. See, e.qg., Plaintiffs' Third 

Identification of Expert Witnesses Pursuant to Practice Book 

$220(D) (April 1, 1992) at 2 ("Hernan LaFontaine. . .  « may 

also participate in testimony regarding a proposed remedy in 

this case...); Plaintiffs' Second Indentification of Expert 
Witnesses Pursuant to Practice Book §220(D) (March 18, 1992) 
at 2-4 ("Charles v, Willie, Ph. D . . +. .1is expected to 
testify about the restructuring of educational attendance 

patterns and/or districts to eliminate racial isolation and 

to enhance the quality of education...[and] to propose 

educational plans to ensure educational and racial equity." 
"Dr. Catherine E. Walsh...is expected to generally 

testify regarding curriculum restructuring, school-based 

management, educational grouping of Puerto Rican students to 

promote integration...[and] remedy plans...." 
"Yale Rabin...is expected to testify regarding... 

opportunities open to the State to remedy the problem [of 

segregated housing patterns in the Hartford region]." 
"Ruth Price...is expected to testify regarding... 

opportunities open to the State to remedy the problem [of 

segregated housing patterns in the Hartford region]".); 

Plaintiffs' Final Identification of Expert Witnesses 

Pursuant to Practice Book §220(D) (August 17, 1992) ("Robert 

Slavin, . . . may be called to testify about . . . education 

programs that could be implemented in the Hartford-area 

public schools to facilitate student achievement."). 

  

  

  

  

  

  

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of inquiries regarding those areas identified by the plaintiffs 

as what will be the subject matter of Mr. Allison's testimony at 

trial; namely, the State's past and presumably ongoing failure to | 

act effectively "to remedy the increasing racial and economic 

isolation of the Hartford Schools . . . [and] a proposed remedy . 

« « « " Plaintiffs' Third ldentification of Expert Witnesses 

Pursuant to Practice Book $220(D) (April 1, 1992). As set forth 

in the Defendants' Motion for Order of Compliance dated August 

, 1992, counsel for the plaintiffs thwarted the purpose of the 

deposition by preventing Mr. Allison from responding to any 

inquiries directed at these issues. Because inquiry into these 

areas is appropriate and necessary to present a complete picture 

of the educational landscape before this court, the defendants 

have filed herewith a Motion for Order of Compliance which seeks 

to have the court compel plaintiffs to allow Mr. Allison and each 

of their expert witnesses to fully and completely respond to the 

defendants' inquiries on the topics identified by the plaintiffs 

themselves as being the subject matter upon wich these experts 

will testify at trial. 

  

  

 



  

  

    

II. ARGUMENT 
  

A. The Defendants' Inquiries Relate to the Issue of 

Liability 
  

  

At various times throughout the proceedings in this case, 

the plaintiffs have represented to the court that this case 1s a 

unique one by virtue of the plaintiffs' claim that the defendants 

have violated the constitution by failing to remedy the racial 

and economic isolation of the Hartford Public Schools. 

Consequently, the plaintiffs have identified a number of expert 

witnesses who will testify at trial regarding the State's alleged 

past failure to remedy this condition and future remedial plan 

proposals. The defendants' deposition inquiries of Mr. Allison 

are designed, quite simply, to find out what it is the plaintiffs 

claim the defendants were obliged by the constitution to do but 

aid not do. 

Each of the deposition inquiries made of Mr. Allison is 

designed to elicit what the defendants should have done "to 

address to the socioeconomic isolation in the Hartford area" and 

"the concentration of at-risk children in the Hartford public 

schools," alleged by the plaintiffs, as well as what types of 

interventions should have been or should be implemented to 

address these conditions. See, e.q., inquiries #2, #3, #4, #5, 
  

  

  

 



    

#6, #7, #8. Moreover, many of the inquiries are designed simply 

to elicit information about public statements that Mr. Allison 

has made with regard to this case. See, e.q., inquiries #19, 
  

#20,.%23. 

If the plaintiffs hope to establish liability in this case 

based upon the defendants' alleged omissions, the defendants are 

clearly entitled to discover what 1t was the defendants should 

have done but did not do. Unless it 1s clear that the defendants 

could have done something specific to address the conditions 

about which the plaintiffs complain, that what they could have 

done would have been effective in preventing or changing the 

conditions at issue, and that the defendants could have taken 

this action without adversely affecting other interests 1n a way 

which made this action unwise or illegal, the plaintiffs cannot 

ask the court to speculate on the existence of some unfulfilled 

affirmative obligation. The court must order the plaintiffs to 

respond in a direct and comprehensive fashion to the deposition 

inquiries set forth in the attached motion. The plaintiffs must 

identify the specific actions which they claim the defendants 

should have taken in order to give the defendants the necessary 

opportunity to study the wisdom of the plaintiffs' claim and 

properly prepare the record upon which the court will act.   

  

 



      

If it.1s true as the plaintiffs stated in "Plaintiffs 

Memorandum in Opposition to Defendants' Motion for Summary 

Judgment", at 10-11; (September 20, 1991) that "plaintiffs are not | 

complaining about what did or did not happen in the past," then 

liability in this case must turn on something other than wrongful 

acts or wrongful omissions. According to the "novel" legal 

theory on which the plaintiffs are pursuing this case, liability 

in this case must turn on the existence of a "condition" which, 

by itself and without regard to how it came about, violates the 

constitution. Assuming that a "condition" by itself can violate 

the constitution that "condition" must violate the constitution 

because it stands in contrast to a difference "condition" which 

is constitutionally required or acceptable. 

Inquiries #1, 2, 6, 11, 14 and 18 ask the expert to identify 

the conditions as they should be in order for there to be no 

violation of the constitution; i.e., the existence of that 

"condition" which the plaintiffs allege should have been achieved 

by the defendants. The necessity of having this information from 

the plaintiffs should be obvious. The court will have no basis 

upon which to find that the "conditions" which exist violate the 

constitution unless the court first decides what "conditions" the 

constitution requires. To prove their case the plaintiffs must 

  

  

 



  

  

    

show how the existing conditions differ from the constitutionally 

required conditions. They must, therefore, have some alternative 

condition in mind. |   It appears that the condition which is required by the 

constitution acording to the plaintiffs' thinking is one which 

involves a different racial, ethnic, and socioeconomic mix of 

students in the public schools in the Hartford area and some form 

of de-concentration of "at risk" children. The questions posed 

to Mr. Allison simply ask him, as an expert, to identify the mix 

that he believes must exist in order to meet the professional 

educational standard, which the plaintiffs are trying to read 

into the constitution. 

Whether the mixes which Mr. Allison or other experts called 

by the plaintiffs believe are necessary to meet professional 

standards are achievable and should be read into the constitution 

or whether they are achievable only at an intolerable cost to 

other important interests is an important issue going to the 

merits of this case. The defendants need to know what the 

plaintiffs' experts claim the conditions must be in order to meet 

the professional standards which the plaintiffs want to write 

into the constitution so the defendants can bring to the court's   
 



      

attention all of the facts which the court needs to be aware of 

before the court can begin to consider whether the conditions 

which exist should be deemed unconstitutional. 

The plaintiffs have objected to and prevented Mr. Allison 

from reponding to the questions posed by defendants. The 

substance of the plaintiffs' objection is that they are not 

required to answer these questions because the questions relate 

to remedy, not liability. The simple answer to the plaintiffs’ 

objection is that they are wrong. In raising their objection to 

this line of questioning, the plaintiffs' reliance on the court's 

order on the plaintiffs' responses to preliminary interrogatories 

dated June 18, 1992 is misplaced. 

Justly, the issue presented by this motion for order of 

compliance is very different for the issue addressed by the court 

on the defendants' earlier request for more specific responses to 

their first set of interrogatories. In their earlier motion, the 

defendants sought to compel the plaintiffs to describe what the 

plaintiffs claim the defendants should have done or should be   

doing under the constitution and what condition the plaintiffs 
  

  

claim the constitution requires. In the present motion for order 
  

of compliance, the defendants ask that the plaintiffs' expert 

  

  
 



  

  

  

    

witnesses be required to answer questions relating to the 
  

professional opinion as to educational standards upon which the 
  

court should base a finding of liability. 

The questions posed by the defendants and left unanswered 

because of the instruction given to the witness by the 

plaintiffs' attorney do not seek to elicit the plaintiffs’ 

"contentions" or even their remedial wishes. Instead, the ask 

for the professional opinions of the experts on whom the 

plaintiffs will rely to support their SrGent that the 

defendants have failed to take educationally necessary steps or 

failed to create educationally necessary conditions which are 

somehow required by the constitution. 

But even if the present motion could be considered another 

attempt by the defendants to uncover the plaintiffs’ 

"contentions" in this case, this motion should be granted because 

of the different context out of which the motion arises; 1.e., 

questions posed to plaintiffs' experts versus interrogatories 

submitted directly to the plaintiffs. In fact, the federal 

authorities cited by the plaintiffs in support of their position 

with respect to "contention interrogatories" in response to the 

defendants' earlier motion actually support the right of the 

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defendants in this case to obtain complete answers to the 

deposition inquiries at issue here. See Plaintiffs' Memorandum 

in Opposition to Defendants' Motion for Order of Compliance (June 

12, 1992) "at 5-6. 

In Roberts v. Heim, 130 F.R.D. 424, 427-428 (N.D. Cal. 1989) 
  

  

and Kendrick v., Sullivan, 125:F.R.D. 1, 2-4 (D.D.C. 1989), the 

courts expressly approved of the use of "contention 

interrogatories" at the appropriate stage in discovery, 1i.e., 

when a sufficient factual landscape has been developed on which 

to base inquiries which call for the application of law to fact. 

The appropriate stage for such inquiries has already been reached 

in this case and, consequently, the plaintiffs should be required 

to allow their experts to provide full and final responses to the 

inquiries at issue. See Roberts v. Heim, 130 F.R.D. at 428 
  

(responses to contention interrogatories not required where 

defendants "will have ample opportunity to obtain this factual 

information when they take their discovery of Plaintiffs’ 

experts."). 

On their face the defendants' questions relate to current or 

ongoing violations of the constitution, not remedy. Furthermore, 

the discussion in the preceding paragraphs should make it evident    



      

that the deposition questions set forth in the attached motion . 

bear a direct relationship to the issue of liability in this 

case. The plaintiffs cannot prove that current conditions 

violate the constitution without first establishing by 

professional opinion what the professionally required conditions 

are. The defendants are therefore entitled to discovery on these 

points as they are with any other matter that bears on the issue 

of ‘liability. 

Finally, two recently filed cases in Los Angeles and 

Chicago make it clear that the issue of remedy is inextricably 

tied to the issue of liability. ee CABE Journal (August 1992) 

at 1, 15 ("Lawsuits seek voucher remedy for Chicago, LA") 

(attached). Although the plaintiffs here have not been as candid 

as the plaintiffs in the Chicago and Los Angeles cases about what 

it is they want, it should be clear that the nature of the remedy 

sought in a suit of this type is as important to any decision 

about the outcome of the case as is the predicate upon which 

liability in the case might turn. Discovery of this nature is 

not only appropriate, but indispensable. 

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B. Failure to Compel Answers to Deposition Inquiries 

Will Result In Unnecessary Waste of Resources 

And Delay 

  

  

  

In this "novel" and "complex" case, each party will be 

presenting the testimony of numerous expert witnesses on various 

topics. In preparation for such testimony and in an effort to 

effectively prepare their respective cases, each party 1s 1n the 

process of deposing every expert witness. Arranging for and 

scheduling these depositions has been extraordinarily intricate, 

especially in light of the fact that a number of these witnesses 

are scattered throughout the country. It only makes sense 1n 

terms of judicial economy that those witnesses identified by the 

plaintiffs as presenting testimony regarding alleged past acts or 

omissions and proposed future remedies be required in one 

instance to fully respond to inquiries on that subject matter. 

Indeed, if plaintiffs were to prevail on their argument that no 

discovery could be had regarding these issues BepoTe trial, then 

the defendants, if a finding of unconstitutionality is made, will 

be required to expend more time, more human resources and more 

funds to recall each of the proposed experts to be deposed at a 

later date. Such a burdensome procedure is wasteful, prejudicial 

and simply makes no sense. 

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Cc. CONCLUSION       
For the foregoing reasons, the defendants respectfully | 

request the court to order the plaintiffs to comply with 

discovery requests, including providing full and final answers to 

the deposition inquiries listed in the attached Motion. The 

defendants also seek a prospective order compelling future 

deponents to respond fully to inquiries of a similar nature. 

FOR THE DEFENDANTS 

RICHARD BLUMENTHAL 

  

BY: 

ssistant Attérney General 
Juris No. 406172 
110 Sherman Street 
Hartford, CT 06105 
Telephone: 566-7173 

BY:        
John R. Whelan 

Assistant Attorne 
Juris No. 085112 

110 Sherman Street 

Hartford, CT 06105 
Telephone: 566-7173 

General 

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CERTIFICATION 
  

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

postage prepaid on August 25, 1992 to the following counsel of 

record: 

John Brittain 
University of Connecticut 
School of Law 

65 Elizabeth Street 
Hartford, CT 06105 

Wilfred Rodriguez 
Hispanic Advocacy Project 
Neighborhood Legal Services 
1229 Albany Avenue 
Hartford, CP? 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 
14th Floor 
New York, NY 10013 

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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 J Vi 
American Civil Liberties Union 7 % 

132 West 43rd Street / is 4 
New York, NY 10036 

          
ahd Wo War tL o/ Z. 

Zsigrant Mjtorpey Genera 

0036AC 

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