Plaintiffs' Memorandum in Opposition to Defendants' Motion for Order of Compliance

    Ccv89-0360977S 

  

MILO SHEFF, et al. SUPERIOR COURT 

Plaintiffs 

JUDICIAL DISTRICT OF 

HARTFORD/NEW BRITAIN 

AT HARTFORD 

Vv. 

WILLIAM A. O'NEILL, et al. 

Defendants JUNE 12, 1992 

  

PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO 

DEFENDANTS’ MOTION FOR ORDER OF COMPLIANCE 
  

  

While plaintiffs do not object to the general principle of 

further supplementation of responses to defendants’ First Set of 

Interrogatories, and have indicated below where they are willing to 

furnish additional information, many of defendants’ requests are 

subject to valid objections as to content and form. Indeed, 

defendants in several instances are using the Motion for Order of 

Compliance (May 14, 1992) to once again reargue the issues they lost 

on their Motion to Strike and their Motion for Summary Judgment, as 

well as to improperly seek evidence relating to remedy. 

Defendants’ First Set of Interrogatories can properly be 

characterized as "contention interrogatories.” Although such 

interrogatories are not per se improper, responses to such 

interrogatories are generally not held to be due until much or all of 

discovery has been completed. See In Re Convergent Technologies 
  

Securities Litigation, 108 F.R.D. 328, 333 (N.D. Cal. 1985); Nestle 
  

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  Foods Corp. v. Aetna, 135 F.R.D. 101, 110-11 (D.N.J. 1990); Kendrick 

v. Sullivan, 125 F.R.D. 1, 2 (D.D.C. 1989). Plaintiffs’ extensive 42- 
  

page answers to defendants’ interrogatories were fully responsive when 

filed in February 1991. However, now that a final scheduling order 

has been entered by the Court, plaintiffs agree that is appropriate 

to provide more detailed responses to certain interrogatories in 

advance of the date for completion of discovery. 

At the same time, as will be discussed below, plaintiffs maintain 

their objections to both the form and content of several of 

defendants’ questions, and seek to respond accordingly. 

Summary of Issues 
  

For the convenience of the Court, the issues raised by 

defendants’ Motion are set out below: 

  

Interrogatory Issue 

1-4 (Affirmative Acts) Plaintiffs have responded fully. 

Defendants insist on separate 

responses to each interrogatory; 

however, plaintiffs’ response 

applies to each interrogatory. 

5-7 (Failure to Act) Plaintiffs have responded fully. In 

addition, plaintiffs will provide 

further supplementation by August 

15, 1992. Plaintiffs object to the 

extent that this question seeks to 

obtain information on plaintiffs’ 

proposed remedy. 

8-10 (Remedy) Plaintiffs continue to object to 

defendants’ interrogatories directed 

to remedy. 

11-12 (Minimally Adequate Plaintiffs will provide further 

Education) supplementation by August 15, 1992. 

  
 



      

“3 

13-14 (Disparities in Educa- Plaintiffs will provide further 

tional "Inputs" and supplementation by August 15, 1992. 

"Outputs" ) 

15-16 (Evidence of Benefits Plaintiffs have responded fully, both 

of Integration) in their response to interrogatories 
15-16 and in their ongoing 

disclosure of expert witnesses. 

18 (Expert Witnesses) Plaintiffs have responded fully in 

accordance with this Court’s 
Pretrial Order. 

19 (Data Compilations) Plaintiffs will provide further 

supplementation by August 15, 19932. 

Plaintiffs will address each of these issues below. 

Affirmative Acts (Interrogatories 1-4) 
  

By including these interrogatories in their Motion to Compel, 

defendants are seeking to relitigate the Motion for Summary Judgment. 

But this Court has already rejected defendants’ theory of "state 

action." To the extent that defendants’ interrogatory seeks to 

ascertain plaintiffs’ case with regard to historical actions 

defendants have taken, or failed to take, plaintiffs stand by their 

answers to interrogatories 1-4 and 5-8. Plaintiffs will also 

supplement their responses prior to August 15 with any appropriate 

information that has come to light since February, 1991. 

Failure to Act (Interrogatories 5-8) 

Plaintiffs have provided an extensive list of warnings and 

recommendations received by the state from 1965 to the present that 

indicate defendants’ continuing failure to act to fulfill their duty     
 



      

to provide equal educational opportunity to low income and minority 

schoolchildren in Hartford. Plaintiffs stand by their response to 

this question, and will also further supplement their response by 

August 15, 1992 with additional documents that have come to light 

since February, 1991. To the extent that defendants are seeking 

disclosure of a proposed remedy, plaintiffs object (see discussion 

below). 

Proposed Remedy (Interrogatories 8-10) 
  

Defendants seek, in questions 8 through 10, to elicit answers 

from plaintiffs about the numbers of students who must be reassigned 

in order for the school system to pass constitutional muster. This 

interrogatory is a thinly veiled attempt to force plaintiffs, at this 

stage in the litigation process, to identify the remedial plan they 

would ultimately request if successful. As such, the questions are 

wholly overbroad, burdensome, and irrelevant. 

This is not a simple case for damages in which defendants, can, 

under some circumstances, discover the extent of monetary relief 

  requested by a plaintiff. See, e.g., Susman v. The Hamden Chronicle, 

17 .Conn. Sup. 40, 41 (1949) (disclosure allowed in matter concerned 

"solely" with damages) (emphasis added). To the contrary, this is a 

complex action where a court must rule on liability before it can even 

begin to fashion the kind of judicial remedy necessary to address the 

constitutional violation. Plaintiffs ask in their prayer for relief 

  
 



      

- Bl 

for both a declaratory judgment and injunctive relief. Should 

plaintiffs ultimately prevail on the merits, the contours of a 

remedial plan in this case must take into account the reduction of 

racial and socio-economic isolation of urban and suburban students as 

well as a plan for educational enhancement. The framework for such 

a remedy would necessarily include concepts relating to student 

assignment as well as educational and political governance. Any 

determination at the present time, however, as to plaintiffs’ specific 

jdeas as to what might be included in a remedial plan is wholly 

premature and improper. Moreover, any such details relating to a 

remedial plan would require extensive additional research by experts. 

Furthermore, the answers to the questions posed by defendants are not 

susceptible to the easy mathematical calculations which defendants 

appear to suggest. To the extent plaintiffs need to resort to experts 

to answer such questions, they need not answer them through 

interrogatories. Roberts v. Heim, 130 F.R.D. 424, 427-28 (N.D. Cal. 
  

1989). 

By requesting plaintiffs to prematurely propose a remedy, 

defendants are improperly seeking to divert the court's attention from 

their own unconstitutional conduct. Plaintiffs, in order to prevail, 

need only show that defendants’ actions violated the constitutional 

and statutory provisions they cite in their complaint. If this Court 

issues a finding that plaintiffs have prevailed in the liability 

  

  
 



      

Al lim 

phase, the inquiry will then shift to a consideration of appropriate 

remedies. This is consistent with the manner in which federal 

desegregation cases and other institutional litigation are handled. 

See, e.g., Brown v. Board of Education, 347 U.S. 483 (1954) (Brown I) 
  

and Brown v. Board of Education, 349 U.S. 294 (1955) (Brown II). See 
  

also Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. l 
  

(1971), Hills v. Gautreaux, 425 U.S. 284 (1971). 
  

Finally, defendants’ questions are objectionable because they 

fail to seek the discovery of existing facts. Instead, they pose 

hypotheticals to plaintiffs that would require plaintiffs to give a 

legal conclusion as to what would remedy defendants’ constitutional 

and statutory violations. This is an improper inquiry. See, e.g. 

Kendrick v. Sullivan, 125 F.R.D. 1, 3 (D.D.C. 1989). 
  

Remainder of Interrogatories 
  

There is no substantial dispute with respect to the remainder of 

defendants’ interrogatories. 

Plaintiffs are willing to provide further supplementation by 

August 15, 1992 to Interrogatories 11, 12, 13, 14, and 19, as 

discussed above. Plaintiffs will also supplement other interrogatory 

responses if new information is available. If defendants object to 

plaintiffs’ amended responses at that time, they may renew their 

motion to compel. An earlier supplemental response to these 

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interrogatories, beyond the answers given on February 1991, was not 

required. 

Plaintiffs have responded fully to Interrogatories 15 and 16, and 

plaintiffs believe that there is no outstanding question regarding 

Interrogatories 17, 18, and 20. 

Finally, defendants appear to object to plaintiffs’ use of 

qualifying language such as "[p]laintiffs reserve the right to amend 

or supplement their responses" (plaintiffs’ amended responses, p. 2). 

Such statements merely restate the law. See Practice Book §232 

(requiring supplementation). Since such repeated statements regarding 

plaintiffs’ right to supplement are unnecessary, plaintiffs will 

include only one such statement in their amended responses. 

Conclusion 
  

For all of the foregoing reasons, plaintiffs respectfully request 

that defendants’ motion be denied in accordance with the schedule of 

responses set out herein. 

Respectfully Submitted, 

RY Ste) Moa Ho Sho 
  

Philip D. Tegeler 
Martha Stone 
Connecticut Civil Liberties 

Union Foundation i 

32 Grand Street 
Hartford, CT 06106     
 



  

“5 - 

Wesley W. Horton Ronald L. Ellis 

Kimberly A. Knox Julius L. Chambers 

Moller, Horton, & Rice Marianne Engelman Lado 

90 Gillett Street NAACP Legal Defense & 

RBartford, CT 06105 Educational Fund, Inc. 

99 Hudson Street 
New York, NY 10013 

John Brittain Wilfred Rodriguez 

University of Connecticut Hispanic Advocacy Project 

School of Law Neighborhood Legal Services 

65 Elizabeth Street 1229 Albany Avenue 
Hartford, CT 06105 Hartford, C7 06112 : 

Helen Hershkoff Ruben Franco 

John A. Powell Jenny Rivera 

Adam S. Cohen Puerto Rican Legal Defense 

American Civil Liberties and Education Fund 

Union Foundation 99 Hudson Street 

132 West 43rd Street New York, NY 10013 

New York, NY 10036 

CERTIFICATE OF SERVICE 
  

This is to certify that one copy of the foregoing has been faxed 

and mailed postage prepaid to John R. Whelan, Assistant Attorney 

General, MacKenzie Hall, 110 Sherman Street, Hartford, CT 06105 this 

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Wy 2 Tez 
Philip D. Tegeler