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LIPINSKI v. SKINNER

December 9, 1991

DAVID LIPINSKI, PLAINTIFF,
v.
JOHN M. SKINNER, FREDERICK J. CABBELL, JR., RICHARD J. KADIEN, JAMES F. CARTER, AND JOHN DOES 1-10, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES, DR. S. KEITH KENNEDY, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, POLICE SUPERINTENDENT THOMAS CONSTANTINE, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, THE NEW YORK STATE POLICE, JOHN CAMPBELL, GERALD BRUNDAGE, ROBERT MARTONE, AND JOHN DOES 11-20, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES, SHERIFF ANTHONY C. RUFFO, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, THE BROOME COUNTY JAIL, AND BROOME COUNTY, DEFENDANTS.



The opinion of the court was delivered by: Munson, Senior District Judge.

MEMORANDUM-DECISION AND ORDER

Before the court is a motion by the Binghamton Press Company Division of Gannett Satellite Information Network, Inc. ("Binghamton Press") to quash the depositions noticed by plaintiff on December 5, 1990, and to obtain a protective order to prevent any intrusion upon Binghamton Press or its present and former employees with regard to the issues in this lawsuit. Plaintiff's intent to depose derives from the allegedly critical information held by Binghamton Press and/or its present and former employees. The motion by Binghamton Press to quash the depositions and obtain a protective order hinges on Fed. R.Civ.P. 26(c), which permits the court to prohibit, limit, or prescribe discovery. For the reasons set forth below, the motion by Binghamton Press is granted in part and denied in part.

I. FACTS

This action involves alleged violations of plaintiff's civil and constitutional rights. On June 2, 1987, two New York State Police Investigators took plaintiff into custody for questioning regarding plaintiff's conduct at a "beer and pot" party. After placing plaintiff in a closed interrogation room, two officers accused plaintiff of so-domizing a teen-age boy and interrogated him for over two hours. Plaintiff denied any involvement. The officers then announced to plaintiff that he was under arrest. Plaintiff bolted from the room, but several officers and investigators outside the interrogation room stopped and subdued him. During the melee, Investigator Skinner punched plaintiff, opening a gash over plaintiff's left eye. The blow also broke the skin on Skinner's knuckles. Senior Investigator Kadien, concerned about potential health risks to Skinner, ordered that a Human Immunodeficiency Virus ("HIV") test be conducted on plaintiff.

Investigator Kadien asked plaintiff for permission to draw a blood sample to test for "communicable diseases" but plaintiff refused. Then Officer Carter, one of the police officers who had been inside the interrogation room, requested plaintiff to sign a consent form for a blood test, telling him that it was standard procedure to test inmates for "VD and syphilis." Again plaintiff refused, after which Officer Carter allegedly threatened: "If you don't give us permission for this blood test, a court order will be gotten and you will be held down and blood will be taken forcibly from you." Plaintiff's Amended Complaint, Document ("Doc.") 7, ¶ 57. Plaintiff then acquiesced and signed the consent form authorizing blood to be drawn to test for "communicable diseases." Plaintiff asserts that he was not informed by Kadien or Carter that they wished to test his blood for the HIV antibodies, nor did the form state that consent included permission to perform an HIV-antibody test.

After obtaining plaintiff's signed consent form, Investigators Kadien and Cabbell, Officer Carter, and additional unknown officers escorted plaintiff to Binghamton General Hospital for HIV testing. Upon arrival they met with Dr. Petell, who declined to extract a blood sample from plaintiff because Dr. Petell believed hospital procedure mandated that officers obtain a court order or specific HIV testing consent form before an HIV antibody test could be conducted. The defendant officers then summoned Dr. Kennedy who, with the assistance of several nurses and Officer Carter, forcibly extracted a sample of plaintiff's blood for HIV testing. None of the officers or hospital staff present at the time informed plaintiff that his blood would be tested for HIV antibodies. Two days later, on June 4, 1987, Officer Carter told plaintiff's mother, who passed the information on to plaintiff, that his blood had been extracted to perform an HIV-antibody test.

On June 22, 1987, Dr. Kennedy received the test results revealing that plaintiff tested positive for the HIV antibodies, and the doctor relayed this information directly to Investigator Skinner. Plaintiff's Amended Complaint alleges on information and belief that New York State Police then disclosed the test results to Broome County Jail authorities. Doc. 7, ¶ 74. After receiving the test results, jail authorities took plaintiff out of the general prison population and moved him to an isolation cell in the Broome County Jail. Plaintiff did not learn of the test results until later that day when a nurse at the jail informed plaintiff that he had been exposed to the HIV virus.

On June 25, 1987, Binghamton Press printed the first of several articles which stated plaintiff's name, the charges against him, and that he was a carrier of AIDS. The author of the first article, Bridgette A. Lacy, wrote that "Broome County Jail officials are dealing with the facility's first known case of an inmate testing positive for the AIDS virus, Broome County Sheriff Anthony C. Ruffo said last night. Results from tests on inmate David R. Lipinski, 27, showed that he is a carrier of the deadly disease, Ruffo said." Exhibit ("Exh.") B attached to Doc. 36, at 1. Various staff and editorial writers authored additional articles regarding plaintiff's status as a carrier of the AIDS virus several weeks and months later. Lou Ziegler (former managing editor) provided a news story about plaintiff on July 5, 1987. Jeff Davis (editorial writer) published news articles concerning plaintiff on August 4, 5, 9, and 11, 1987. Keith George (staff writer) authored an article about plaintiff on September 18, 1987. George Basler (staff writer) published his story on plaintiff on February 12, 1988. See Exh. B attached to Doc. 36.

Plaintiff alleges that Broome County Jail authorities were the source of Binghamton Press' initial information, and that the jail authorities breached New York State Department of Health Policy confidentiality requirements for HIV testing by informing Binghamton Press of plaintiff's HIV status. Doc. 7, ¶¶ 3, 79, 82-83. Among other actions of the defendants, by forcibly testing plaintiff for HIV antibodies without his consent and failing to protect the confidentiality of his test results, plaintiff claims each of the defendants negligently and recklessly disregarded his civil and constitutional rights. Plaintiff served a general deposition subpoena on Binghamton Press on December 5, 1990, seeking to depose several current and former employees of Binghamton Press who have knowledge of the facts and circumstances concerning the plaintiff, the plaintiff's arrest, and the plaintiff's HIV test and published results. Specifically, plaintiff seeks to depose present and former Binghamton Press employees Lou Ziegler, Jeff Davis, Keith George, George Basler, and any other person(s) with similar knowledge. In addition, plaintiff's deposition subpoena commands that these individuals bring with them to the deposition any information they have regarding plaintiff.

To date, none of the other Binghamton Press employees have been deposed. After several extensions of the temporary restraining order by consent of the parties while attempting to resolve the discovery dispute, the court heard oral argument on the motion to quash the outstanding deposition subpoenas and obtain a protective order on April 29, 1991. Binghamton Press indicated that it refuses to permit the taking of any further depositions by plaintiff. The newspaper requests this court to exercise its authority under the Fed.R.Civ.P. 26(c) to protect its current and former employees from depositions which might reveal confidential, irrelevant, or privileged material, and to shield them from being required to testify regarding the gathering of information, reporting, editing, and publishing of news stories.

Plaintiff opposes the motion on the ground that the desired information is essential to his claim and that First Amendment protections do not sweep so broadly as to shield Binghamton Press from complying with the requested deposition subpoenas.

II. DISCUSSION

The question Binghamton Press presents is whether its current or former employees, who are not parties to the pending lawsuit, must submit to plaintiff's deposition subpoenas requesting information regarding the disclosure of plaintiff's Human Immunodeficiency Virus test results. Binghamton Press urges the court to exercise its discretion under Rule 26(c) to quash ...


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