Briscoe v. New Haven

Filing 309

RULINGS (see attached) on Parties' Motions Regarding Protective Order and Sealed Documents. Plaintiff's 292 Motion to Amend/Correct the Court's 49 Order on Motion for Protective Order is DENIED AS WITHDRAWN. Plaintiff's [298 ] Motion to Withdraw Plaintiff's 292 Motion to Amend/Correct the Court's 49 Order is GRANTED. The Intervenors' 299 Motion for an Order to Remedy Unauthorized Filing of Sealed Material Order is DENIED. Plaintiff's 302 Motion to Seal the 105 written 2003 exam nunc pro tunc is GRANTED. Signed by Judge Charles S. Haight, Jr. on February 21, 2014. (Dorais, L.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
______________________________________
:
MICHAEL BRISCOE,
:
Plaintiff,
:
v.
:
:

3:09-cv-1642 (CSH)

FEBRUARY 21, 2014

CITY OF NEW HAVEN,
:
Defendant.
______________________________________:

RULINGS ON PARTIES' MOTIONS REGARDING PROTECTIVE ORDER AND
SEALED DOCUMENTS

HAIGHT, Senior District Judge:
This Title VII action, which arises out of the New Haven Fire Department's 2003
examination for promotion to the rank of lieutenant, continues to rage at the District Court level,
notwithstanding Plaintiff's filing of a notice of appeal [Doc. 297] from this Court's judgment
dismissing his Third Amended Complaint.
Familiarity is assumed with all prior opinions in the case, by this Court and by the Court of
Appeals. The present controversy swirls around the written component of the 2003 examination.
On April 29, 2010, counsel for Plaintiff procured the filing of that document under seal by the Clerk
of this Court [Doc. 105]. This is a 28-page questionnaire consisting of 100 multiple-choice
questions. Those taking the test are instructed to determine "which of the four possible choices is

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the best answer," and mark the document accordingly.
Controversy broke out about whether, as the Defendant City contended, the written
examination was proprietary and confidential. Eventually this Court entered an order [Doc. 49]
which Plaintiff's counsel accurately summarizes in one of his recent briefs [Doc. 292] at 2: "Upon
application by the City, the Court issued an order making the parties' temporary confidentiality
agreement indefinite and prohibiting Plaintiff from sharing the exam with anyone until further Order
of the Court." As the case progressed, counsel for Plaintiff made several motions to modify that
protective order, without success.
On September 9, 2013, this Court filed an opinion dismissing Plaintiff's Third Amended
Complaint [Doc. 281]. Thereafter it denied Plaintiff's motion to file a Fourth Amended Complaint
[Doc. 291]. Plaintiff responded by declaring his intention to file an appeal when judgment entered
in the District Court, and making a motion on November 19, 2013 [Doc. 292] "to modify protective
order to permit use of test questions in appellate brief." That modification, if granted, would have
allowed Plaintiff in his brief to the Second Circuit to quote verbatim selected questions contained
in the written exam, which as noted was subject to the protective order. Plaintiff expressed his
appellate intentions as follows: "Plaintiff may wish to quote a small number of questions in his brief
on appeal, in order to illustrate the nature of the tests's components and, in particular, to explain the
relationship between the components and the test's limitations." Doc. 292 at 1.
The City and the Intervenors objected to this motion. The Court had not yet ruled on it when,
on December 19, 2013, Plaintiff filed his notice of appeal [Doc. 297], together with a notice [Doc.
298] withdrawing his motion [Doc. 292] to modify the protective order. Plaintiff's counsel took note
of proprietary-value contentions made by the independent preparer of the exam, and explained his
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withdrawal from the protective-order field of battle by saying:
In deference to the concerns expressed by the testing company, which
it is impractical to probe at this point because this case is now on
appeal; and because the motion is limited to a matter of convenience
to the Court of Appeals rather than the substance of any arguments
Plaintiff may choose to make, Plaintiff withdraws the motion. He
reserves the right to seek permission in the future to disclose the
contents of the test, particularly if there are further proceedings in this
Court after the resolution of his appeal . . .
Doc. 298 at 1.
In the ordinary case, one would think that counsel for the City and the Intervenors, having
achieved the withdrawal of Plaintiff's resisted motion to modify the protective order, would give
three cheers or at least two and move on to other matters. But this is not an ordinary case. It is
almost as if a fire department, having extinguished one blaze, looks around for another one to light.
In any event, on the very next day – December 20, 2013 – counsel for the Intervenors filed a motion
[Doc. 299] which criticizes the manner in which counsel for Plaintiff, for assertedly inappropriate
purposes, procured the filing by the Clerk of the written exam under seal – in disregard and violation,
the argument runs, of Local Rules of Court governing the sealing of documents in litigation. The
Intervenors ask me "to remedy this violation with an appropriate order directing the Clerk, nunc pro
tunc, to rescind her acceptance of plaintiff's improper filing." Doc. 299 at 4.
Plaintiff filed a brief in opposition to that motion [Doc. 301] and made a separate motion
[Doc. 302] for an order which would remedy any imperfections attendant upon the original sealing
of the exam by authorizing the sealing nunc pro tunc. The City has filed a brief in opposition to that
motion to seal [Doc. 306], as have the Intervenors [Doc. 307]. Plaintiff has filed a reply brief to that
opposition [Doc. 308]. That reply brief, filed on January 30, 2014, is the last filing in the District

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Court, at least at the time of this writing.
A question necessarily arises as to this Court's authority to adjudicate these ongoing and
frenetic disputes. Under familiar principles, a notice of appeal such as that filed by Plaintiff
eliminates or reduces a district court's jurisdiction to decide issues in the case. In the case at bar, I
will assume without deciding that I have jurisdiction to deal with the several issues raised in the
filings described.
The submissions of counsel are energetic, articulate, and on occasion vitriolic, but the case
seems plain enough to me. Plaintiff withdrew his motion to modify the protective order. That
motion was intended, counsel asserted, to give Plaintiff more flexibility and greater liberty to say
things to the Second Circuit in his appellate brief that the protective order would otherwise have
prevented him from saying: specifically, quoting selected questions from the 2003 written exam.
The motion was withdrawn. The protective order remains, unmodified and unafraid. Whatever
inhibitions it placed on Plaintiff's counsel before the modification motion was filed, remain now that
the motion has been withdrawn. If Plaintiff's counsel includes in his appellate brief any material that
an unmodified and unappealed-from order of this Court forbids, counsel for the City can call that to
the Second Circuit's attention.
The City and the Intervenors move, in effect, for an order purging the sealed exam from the
trial court record entirely, on the ground that Plaintiff's counsel procured its sealing through improper
conduct. Plaintiff's counsel denies any impropriety, accuses opposing counsel of inequitably sharp
practice, and asks the Court to dispel any lingering doubts by authorizing the sealing of the exam
nunc pro tunc.
The question of whether evidentiary material is in fact part of the trial court record is a
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significant one. The Second Circuit stated the general principle in Kuruwa v. Meyers, 512 F. App'x
45 (2d Cir. 2013), at 48:
We have not considered Meyers's references to two articles
regarding the Indian economy because he did not present this
evidence in the district court and our review is limited to the record
on appeal. See Fed. R. App. P. 10(a)(1) (defining the record on
appeal as, in relevant part, "the original papers and exhibits filed in
the district court."); Loria v. Gorman, 306 F.3d 1271, 1280 n. 2 (2d
Cir. 2002) ("Ordinarily, material not included in the record on appeal
will not be considered.").
In the case at bar, respectable arguments can be and are made on whether the written 2003
exam should or should not be regarded as part of the record in this trial Court, and thus properly
included in the record on appeal. However, as counsel for Plaintiff points out in his last submission,
this is not the first time Plaintiff has appealed a judgment of this Court in this case. The Second
Circuit reversed an earlier judgment dismissing an earlier version of the complaint. 654 F.3d 200
(2d Cir. 2011). In preparation for that first appeal, counsel for Plaintiff undertook the traditional task
of counsel for appellant and prepared a proposed Joint Appendix and submitted it to counsel for the
City for approval or comment. Plaintiff's list included an explicit reference to "Lieutenant
Promotional Examination (Exhibit 1 to Memorandum in Support of Motion for Reconsideration
4/29/10) (under seal)." Doc. 308-1, at 2. A comparable reference was made to the "Lieutenant Oral
Interview Questions," Exhibit 2 to that motion, also "under seal." Id. Counsel for the City replied
that "your proposed Joint Appendix is fine," adding only that "please make sure (as you have
indicated) that the 2 exams are filed under seal." Doc. 308-2, at 1.
In consequence, the written exam became a part of the Joint Appendix in the first appeal, and
I am not inclined to bar or rip it from the Appendix in this appeal. Counsel for Intervenors may not

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approve of City counsel's prior dealing with the issue, but the call was for the City to make as to
what the record on the first appeal should include, and on this second appeal I am going to let that
chip lay where it fell. So the 2003 written exam will presumably be included in the Appendix on
this appeal.
Given the continued effect of the protective order, and the seeming strength of the City's and
Intervenors' argument that the 2003 written exam questions are entirely irrelevant to this Court's
reasoning in the judgment on appeal, what Plaintiff gains from the inclusion of the exam in the
Appendix is not readily apparent.
One may comfortably assume that Plaintiff's counsel will not quote questions from the exam
in his appellate brief, having withdrawn his motion to modify this Court's protective order for the
purpose of obtaining permission to do just that. Counsel for the City and the Intervenors make the
broader points that (1) the contents of the 2003 written exam were entirely irrelevant to this Court's
reasoning in dismissing the Third Amended Complaint, and (2) the exam consequently must be
irrelevant to an appeal from that opinion and judgment. The first of these arguments was made to
me, as a basis for denying Plaintiff's motion to modify the protective order. I was relieved of the
necessity of deciding the point when Plaintiff withdrew his modification motion. Presumably
counsel for the City and Intervenors will, if they consider it advisable, make the second argument
to the Court of Appeals. I would not presume to venture a suggestion about what the Court of
Appeals would do about the question, if it arises.
I agree that it is appropriate, in these somewhat murky circumstances, to authorize the sealing
in this Court of the 2003 written examination nunc pro tunc. That is the course Judge Kravitz
followed in the Ricci case, when (it is entertaining to learn) the plaintiffs in that case (the intervenors
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in this one) filed the same exam without first moving to seal it and Judge Kravitz remedied such
problem as there was by a nunc pro tunc authorization. See Ricci v. DeStefano, No. 3:04-CV-1109
(MRK), Doc. 75 ("Construed as a Motion to Seal, the Motion is GRANTED.").
For the foregoing reasons, and assuming this Court has jurisdiction to act, the Court rules as
follows:
1. Plaintiff's motion [Doc. 292] to modify this Court's protective order [Doc. 49] with respect
to the written 2003 exam [Doc. 105] is DENIED AS WITHDRAWN.
2. Plaintiff's motion [Doc. 298] to withdraw his motion [Doc. 292] to modify the Court's
protective order [Doc. 49] is GRANTED.
3. The Intervenors' motion [Doc. 299] for an order directing the Clerk to rescind the sealing
of the written 2003 exam [Doc. 105] is DENIED.
4. Plaintiff's motion [Doc. 302] for an order authorizing the sealing of the 2003 exam
[Doc.105] nunc pro tunc is GRANTED.
5. No reference is made in this Order to the oral exam [Doc. 106] because that was not
involved in any of the prior motions.
It is SO ORDERED.
Dated: New Haven, Connecticut
February 21, 2014

/s/Charles S. Haight, Jr.
CHARLES S. HAIGHT, JR.
Senior United States District Judge

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