Briscoe v. New Haven

Filing 160

RULING denying 153 Motion to Permit Use of Test Questions. See attached Ruling. Signed by Judge Charles S. Haight, Jr on April 9, 2012. (Caldwell, M.)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
MICHAEL BRISCOE,
Plaintiff,
v.

3:09-cv-1642 (CSH)

CITY OF NEW HAVEN,
Defendant.

RULING ON PLAINTIFF’S MOTION TO PERMIT USE
OF TEST QUESTIONS

HAIGHT, Senior District Judge:
Before the Court is Plaintiff’s Motion to Permit Use of Test Questions in Brief in Opposition
to Petition for Certiorari, to Permit Disclosure to Other Members of Plaintiff’s Legal Time, and for
Immediate Relief [Doc. 153], filed on March 29, 2012. In the Motion, Plaintiff seeks permission
(1) to refer to and quote portions of the subject 2003 Lieutenant examination in his brief in
opposition to the petition for certiorari filed by defendant City of New Haven (the “City”) with the
Supreme Court on February 15, 2012 (the “Petition”), and (2) to disclose the contents of that
examination to other members of Plaintiff’s legal team. The material at issue is protected from
disclosure by Plaintiff to anyone other than his counsel, David Rosen, by a Confidentiality
Agreement (the “Confidentiality Agreement”) which this Court approved on January 25, 2010 in a
protective order (the “Protective Order”) [Doc. 49]. The defendant City and the putative intervenors
oppose Plaintiff’s motion.
As the City observes in its Objection to this Motion [Doc. 155], the contents of the 2003
Lieutenant examination is proprietary information, the confidentiality of which has value to the City

and to the testmaker, I/O Solutions, Inc. Such information should be disclosed only if Plaintiff
presents a need for such disclosure that outweighs the considerations that underlie the Confidentiality
Agreement and the Protective Order. Plaintiff does not present such a need. Plaintiff describes the
value of quoting the exam in his brief in opposition to certiorari as follows: “Plaintiff believes that
doing so would be an effective way to make his points that the written/oral weighting was arbitrary
and that the City did not take any steps to show that it was.” Plaintiff’s Reply to Objections to
Motion for Permission to Disclose Contents of Exam [Doc. 158] at 1. However, those points are
entirely irrelevant to the City’s petition for certiorari, notwithstanding the ipse dixit assertion of
Plaintiff’s counsel to the contrary. The Petition asks the Supreme Court to grant certiorari to
consider only one issue: whether the Supreme Court’s decision in Ricci v. DeStefano, 129 S.Ct.
2658, 2681 (2009), foreclosed disparate-impact liability based on the City’s certification of the
results of the subject examinations. The City asks the Supreme Court to accept its interpretation of
Ricci, not to reconsider the holding in Ricci. The content of the examinations is not relevant to that
issue.
The Court has not been presented with a compelling reason to set aside the Confidentiality
Agreement in any respect. Accordingly, Plaintiff’s Motion to Permit [Doc. 153] is denied.
It is SO ORDERED.

Dated: New Haven, Connecticut
April 9, 2012
/s/ Charles S. Haight, Jr.
Charles S. Haight, Jr.
Senior United States District Judge

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