the Drug Task Force. (Aff. Opp'n by Michael Daley sworn April 11, 1995.) Clearly nonexistent documents cannot be produced.
The subpoena also required production of grand jury transcripts relating to prosecutions of all five plaintiffs. New York state protects state grand jury proceedings as secret. N.Y. Crim. Pro. Law § 190.25 (McKinney 1993). A witness, however, may disclose his own grand jury testimony. Id. Further, disclosure of secret grand jury proceedings is criminal. N.Y. Penal Law § 215.70 (McKinney 1988). Federal grand jury proceedings are also secret. Fed. R. Crim. P. 6(e)(2). Violation of the secrecy rule is punishable by contempt of court. Id.
A federal civil litigant may access federal grand jury records only upon a showing of particularized need. United States v. Sells Engin., Inc., 463 U.S. 418, 443, 77 L. Ed. 2d 743, 103 S. Ct. 3133 (1983). The standard for determination is that the material is needed to avoid a possible injustice in another judicial proceeding, the need for disclosure is greater than the need for continued secrecy, and the request is structured to cover only material so needed. Id. (citing Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222, 60 L. Ed. 2d 156, 99 S. Ct. 1667 (1979)). The party seeking disclosure has the burden of showing that the need for the material outweighs the public interest in secrecy. Id.
Likewise, a federal civil litigant should have access to state grand jury testimony only upon a showing of particularized need. This becomes clear when considering that the secrecy requirement protects prospective witnesses, prevents flight of the accused, prevents the accused from attempting to influence the jurors, and protects the accused who are exonerated by the grand jury. Furthermore, secrecy in the state grand jury system serves the same purposes as in the federal system.
Thus, plaintiffs here have the burden of showing that the material is needed to avoid a possible injustice in this proceeding, the need for disclosure is greater than the need for continued secrecy, and the request is structured to cover only material so needed. See Sells Engin., Inc., 463 U.S. at 443. Plaintiffs argue that the grand jury testimony is required to rebut the presumption of probable cause which arose as a result of the grand jury indictments. See Colon v. City of New York, 60 N.Y.2d 78, 468 N.Y.S.2d 453, 455 N.E.2d 1248 (1983). However, plaintiffs fail to make any showing of particularized need. Further, plaintiffs have had the opportunity to depose Dillon, and they give no reason why the information they need Could not be obtained through that or some other source. Thus, disclosure of the grand jury minutes is unwarranted.
B. Federal Bureau of Investigation
Plaintiffs subpoenaed the FBI to produce "The whole investigatory file of Edward John Dillon regarding criminal charges from 1988-1991, Indictment #: 91-00290, including all documents, recordings, tapes, notes, memorandum, papers, photographs, video tapes, correspondence." The FBI objected on the basis that the requested material was confidential, and the Privacy Act, 5 U.S.C. § 552a, prohibited disclosure absent a court order or consent of the individual who was the subject of the investigation. The FBI's response to this motion indicated that the motion was limited to a "specific modification" set out in a March 29, 1995, letter by plaintiffs' attorney. That letter states, in part, "We are seeking tape recordings including NAGRA tape recordings of conversations and transcripts of those tape recordings. Apparently, these conversations were either with or in the presence of Defendant Edward John Dillon."
Plaintiffs' affidavits in support state that the "information is essential to the proper prosecution and presentment of my claims in this case and are material and necessary for the prosecution herein." However, plaintiffs provide no authority under which this Court may order disclosure of investigative records protected by the Privacy Act.
C. County of Herkimer
Plaintiffs ask the court to Compel defendant County to respond to discovery requests, and for sanctions and attorneys fees. The County opposes and also asks for sanctions and attorneys fees. The County indicates that these discovery requests pertain to records, documents, and information relating to the Task Force, and that such materials do not exist. Further, many of the requests were for materials held by the Village, and which were provided by the Village. Documents which are nonexistent or not in the possession of the County cannot be produced by the County.
Accordingly, it is
1. defendant County of Herkimer's motion for summary judgment (docket no. 45) is GRANTED, and the claims against it are DISMISSED;
2. the summary judgment motion of defendants Edward John Dillon, Gregg DeLuca, Village of Herkimer, and Village of Herkimer Police Department (docket no. 37) is GRANTED with respect to the malicious prosecution claims, and the malicious prosecution claims are hereby DISMISSED;
3. the summary judgment motion of defendant Village of Herkimer (docket no. 37) is GRANTED with respect to all state law claims brought against it by plaintiff Lester Brown and the state law claims of Lester Brown are hereby dismissed;
4. the summary judgment motion of defendants Edward John Dillon, Gregg DeLuca, Village of Herkimer, and Village of Herkimer Police Department is DENIED with respect to the remaining claims;
5. plaintiffs' motions to compel discovery against the Herkimer County District Attorney's Office (docket no. 63), the Federal Bureau of Investigation (docket no. 62), and the County of Herkimer (docket no. 42) are DENIED in their entirety;
6. the motions for sanctions and attorneys fees of all parties (docket nos. 42, 50) are DENIED;
7. the default judgment against defendant Edward John Dillon (docket no. 24) is vacated and he shall serve an answer to the complaint within 20 days of the filing of this order; and
8. this action is set for trial September 6, 1995, in Utica, New York.
IT IS SO ORDERED.
David N. Hurd
U.S. Magistrate Judge
Dated: June 20, 1995
Utica, New York.