an intimate relationship with a Village Police Officer, Eric Heins.
According to Ruther, while she was picketing the defendant officer Robert Boyle ("Boyle") approached her, attempted to grab the sign she was carrying, and declared that she was under arrest. Boyle allegedly ordered Ruther to accompany him to the courthouse. Ruther further alleges that the defendant Sergeant Shott ("Shott") then appeared on the scene, grabbed her picket sign and ripped it apart.
According to Ruther, as Shott ripped her sign Boyle grabbed her, threw her on the hood of a nearby car and handcuffed her behind her back. Because of the force used by Boyle, the plaintiff alleges her feet were elevated off the ground and her chest and face struck the hood. Ruther alleges that she was detained for approximately 90 minutes in the courthouse, as the defendants unsuccessfully searched for an offense with which to charge her.
As a result of the police officer's actions, Ruther alleges that she sustained physical injuries to, among other places, her lower back, neck, and head. The plaintiff contends that she was arrested without probable cause, that Boyle and Shott used excessive force against her, and that the officer's actions were calculated to deprive her of her right to exercise free speech.
Ruther also alleges in her complaint that the officer's misconduct was part of an institutionalized practice of the Village police, which was tolerated and approved of by the Village. According to Ruther, despite knowing of the officers' misconduct the Village failed to take any effective action to prevent Boyle and Shott, and other officers, from engaging in such acts of misconduct. In support of this allegation, Ruther claims that the Village failed (1) to properly discipline and control Boyle and Shott and other officers known for dealing irresponsibly with citizens, (2) to take adequate precautions in hiring and training officers, (3) to forward evidence of criminal conduct by Village police officers to the District Attorney's office, and (4) to establish a bona fide system for dealing with complaints of police misconduct. Ruther also claims that the Village established a bogus investigation apparatus for investigating police misconduct, which was calculated to deceive the public and allow the police to continue their misconduct.
The plaintiff contends that the defendants' conduct violated her rights under the First, Fourth and Fourteenth Amendments to the United States Constitution, including her rights to equal protection, procedural and substantive due process. Ruther demands compensatory and punitive damages.
The plaintiff moves pursuant to Fed. R. Civ. P. 26 and Fed. R. Civ. P. 34 for an order compelling the District Attorney's office to produce to the Court, for in camera inspection, "all documents" in the possession of the District Attorney's office related to its investigation of the incidents surrounding the plaintiff's May 14, 1993 arrest and detention, as well as its investigation of the Greenport Police Department.
The plaintiff contends that the District Attorney's office has been investigating the Greenport Police Department with respect to the type of institutional misconduct alleged in the complaint. Indeed, the plaintiff contends that in October, 1994 a report resulting from a Grand Jury investigation of the Greenport Police Department was released in its entirety by the District Attorney's office. According to Ruther, the report refers to, among other officers, the defendant Shott and Officer Heins, the officer plaintiff's daughter had a relationship with. Ruther contends that the issue of the Village's condonation of the defendant officers' misconduct is of "central importance" to this case, and that the District Attorney's investigation files on the Greenport Police Department must be discovered and inspected because they contain material relevant to her Monell claim against the Village.
The plaintiff agrees that upon an in camera review of these documents by the Court, irrelevant or sensitive material may be redacted, and any material information disclosed to the plaintiff can be subject to an appropriate protective order.
The defendants oppose the motion, on the ground that it is overly broad. According to the defendants, the plaintiff's request for "all the documents" in the possession of the District Attorney related to the Greenport Police Department does not set any parameters regarding the documents she seeks. In the defendants' view, requiring the District Attorney's office to produce every document it has generated relating to the Greenport Police Department would be tantamount to an unbridled fishing expedition.
Although not a party to this case, the District Attorney has also submitted papers in opposition to the plaintiff's motion. Essentially, the District Attorney contends that he should not be compelled to disclose the proceedings of the grand jury investigation of the Greenport Police Department, because (1) as a matter of comity the plaintiff should first make her application for disclosure of the grand jury proceedings to the state court that supervised the grand jury investigating the Greenport Police Department, pursuant to New York Criminal Procedure Law ("CPL") § 190.25, and (2) the plaintiff has failed to established a "particularized need" for the proceedings.
At the outset, the Court notes that the plaintiff's discovery request entails different kinds of documents, some of which may not involve grand jury material. In the Court's view, the plaintiff's demand covers two categories documents regarding the Greenport Police Department: (1) documents and material gathered in the course of the grand jury's investigation of the Greenport Police Department, (2) documents in the possession of the District Attorney's office related to its investigation of the Greenport Police Department that were not created for or presented to the grand jury.
The parties fail to recognize the different categories of documents sought, and proceed as if only one category of documents is at issue. Thus, the plaintiff fails to account for grand jury material in her demand, and contends that the applicable legal standard for all the documents she seeks is the one governing discovery of privileged police records. The District Attorney, on the other hand, focus solely on the discovery of grand jury documents, and contends that the applicable legal standard for all the documents sought by the plaintiff is the one governing disclosure of grand jury material.
Different legal standards, however, govern disclosure of the two categories of privileged materials sought by the plaintiff. Thus, to the extent the documents sought are not grand jury material, the arguments of the District Attorney's office are inapplicable. Likewise, to the extent the documents are grand jury material, the plaintiff's arguments are inapplicable.
The Court also notes that federal law, and not state law, governs the scope of the privileges contested in this case. See Von Bulow v. Von Bulow, 811 F.2d 136, 141 (2d Cir. 1987) (citing Fed. R. Evid. 501); Lucas v. Turner, 725 F.2d 1095, 1099 (7th Cir. 1984); King v. Conde, 121 F.R.D. 180, 187 (E.D.N.Y. 1988) (collecting cases).
Because no federal rule expressly governs the privileges asserted here, courts have fashioned balancing tests whereby the interests favoring disclosure and the interests favoring confidentiality under the privilege asserted are weighed. Moreover, while state law does not govern the scope of the privilege it may, where appropriate, supply a rule of decision or illustrate an important state policy to be considered by the judge weighing the competing interests. See Conde, 121 F.R.D. at 187.
1. Disclosure of Grand Jury Material.
In discussing the history of the grand jury system, the Second Circuit has explained that secrecy in grand jury proceedings is indispensable to their proper functioning:
As this institution evolved over the centuries, its proceedings were cloaked with secrecy to guard against injury to reputations of the innocent to protect witnesses from retaliation or intimidation, and to promote the grand jury's effectiveness as an investigative device. This time honored policy of secrecy has been the most essential, indeed indispensable, characteristic of grand jury proceedings.
In re Grand Jury Investigation of Cuisinarts, Inc., 665 F.2d 24, 28 (2d Cir. 1981), cert. denied, 460 U.S. 1068 (1983). See also Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211, 218-19 & n.9, 99 S. Ct. 1667, 1672-23 & n.9, 60 L. Ed. 2d 156 (1979) ("The proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings."); Lucas, 725 F.2d at 1099; accord In re District Attorney of Suffolk County, 58 N.Y.2d 436, 442-43, 461 N.Y.S.2d 773, 776, 448 N.E.2d 440 (1983).
Because of the "time honored" policy and strong public interest in maintaining grand jury secrecy, the United States Supreme Court, as well as the New York State Court of Appeals, has consistently held that a strong showing of "particularized need" is required before any grand jury materials can be disclosed. See, e.g., United States v. Sells Engineering, Inc., 463 U.S. 418, 443, 103 S. Ct. 3133, 3148, 77 L. Ed. 2d 743 (1983); Douglas Oil, 441 U.S. at 222, 99 S. Ct. at 1674. See also District Attorney of Suffolk County, 58 N.Y.2d at 444, 461 N.Y.S.2d at 777 (one seeking disclosure of grand jury proceedings "first must demonstrate a compelling and particularized need for access.").
In Douglas Oil, the Supreme Court specified that the particularized need standard requires the party seeking grand jury material must show (1) that the material they seek is needed to avoid a possible injustice in another judicial proceeding, (2) that the need for disclosure is greater than the need for continued secrecy, and (3) that the request is structured to cover only material so needed. Id. at 222, 99 S. Ct. at 1674; Cullen v. Margiotta, 811 F.2d 698, 715 (2d Cir.), cert. denied, 483 U.S. 1021 (1987). The Douglas Oil court went on to emphasize the limited nature of such disclosure, and the balance of interests a court must consider:
Disclosure is appropriate only in those cases where the need for it outweighs the public interest in secrecy, and the burden of demonstrating this balance rests upon the private party seeking disclosure. . . . In sum . . . the court's duty in a case of this kind is to weigh carefully the competing interests in light of the relevant circumstances and the standards announced by this Court. And if disclosure is ordered, the court may include protective limitations on the use of the disclosed material [.]