Connecticut Cases January 15, 2020: Town of East Hartford v. In re Subpoena

Case Description

UNPUBLISHED OPINION

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Moukawsher, Thomas G., J.

MEMORANDUM OF DECISION GRANTING PROTECTIVE ORDER

Moukawsher, J.

The protective order is issued in the form accompanying this memorandum.

East Hartford and the appealing candidates have agreed that the town’s personnel appeal board’s activity is an administrative proceeding subject to the court’s power to impose restrictions on the discovery and disclosure of evidence as it would exercise in a court proceeding. In particular, the appealing candidates have asked this court to enforce a subpoena under General Statutes § 51-85, and East Hartford has asked for protection from it as an undue burden by virtue of its intrusiveness. Therefore, as in court hearings, the court has the power to order compliance with the subpoena with conditions designed to keep confidential documents confidential as permitted by the broad authority granted to the court to protect parties from such undue burdens under Practice Book § 13-5. The court’s other option has been, of course, to deny access to the documents entirely.

The court has already found on the record at a hearing in open court that the appealing candidates have a legitimate reason to seek the documents East Hartford used in the candidate selection process to press their claims that they were wrongly passed over. It also found that East Hartford has a compelling interest in keeping its personnel deliberations confidential. East Harford has convinced the court that without a presumption of confidentiality for personnel deliberations of this kind, some decision makers will likely feel a chill on their deliberations and others by their candor may damage the careers of those whom they discuss. These are both good reasons that the thing the parties here have agreed on- a protective order- is appropriate. That protective order contains a mechanism to overcome the presumption just described in case documents have been wrongly designated, but, in the first instance, it provides protection to serve the legitimate interests of employer and employees.

If, as the appealing candidates argue, they may in public and without restriction read or describe the content of the confidential documents then the documents will- whenever the appealing candidates choose- cease to be confidential and the protective order will become worthless.

The appealing candidates appear to claim they have a right to have their hearing in public. This order does not stop them from having a hearing in public. They are, however, subject to this order and may not directly or indirectly make public the contents of the confidential documents. They will have to choose between using the documents freely in private or not using them and having an entirely public proceeding.

The appealing candidates’ proposal for paragraph 13 suggests, as East Hartford has consistently pointed out, that the appealing candidates or others associated with them have reasons outside of this administrative proceeding for wanting the documents. Counsel for these candidates cited the court’s power under General Statutes § 51-85 to compel the production of these documents because they were needed for an administrative proceeding. The court has taken him at his word and has sought to assure his clients of a fair hearing by allowing them access to these documents. Any other use of them will have to have its own justification. Accordingly, the court will adopt East Hartford’s version of paragraph 13.