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United States District Court, S.D. New York

May 3, 2004.

SUSAN FOUNTAIN, Plaintiff, -against- THE CITY OF NEW YORK, et al., Defendants; AMY HAUS, Plaintiff, -against- THE CITY OF NEW YORK, et al., Defendants; JACOB McKEAN, Plaintiff, -against- THE CITY OF NEW YORK, et al., Defendants; JESSICA SCHERER, Plaintiff, -against- THE CITY OF NEW YORK, et al., Defendants; DANIEL LANG, Plaintiff, -against- THE CITY OF NEW YORK, et al., Defendants; RALPH KLABER, Plaintiff, -against- THE CITY OF NEW YORK, et al., Defendants; CAREY LARSEN, Plaintiff, -against- THE CITY OF NEW YORK, et al., Defendants; SARAH KUNSTLER, Plaintiff, -against- THE CITY OF NEW YORK, et al., Defendants; NICHOLAS MERRILL, Plaintiff, -against- THE CITY OF NEW YORK, et al., Defendants; ALEXANDRA LINADARKIS, Plaintiff, -against- THE CITY OF NEW YORK, et al., Defendants

The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge


The plaintiff, Jacob McKean ("McKean"), has requested, by letter dated March 12, 2004, an order compelling the production of the disciplinary records of the individual defendant Walter Padilla ("Padilla"), who is a New York City Police Officer, and the names of the nonparty arrestees who were detained at the scene of the incident involving McKean. Similar applications have been made by the plaintiffs in each of the above-captioned motions. Defendant the City of New York, as well as the individual defendants, have opposed the motions, raising the same arguments against each of the motions.

McKean filed this suit following his arrest on March 20, 2003, at a demonstration protesting the United States' invasion of Iraq. Because a number of related suits are pending in this Court, the following is provided in order to set forth a procedure for dealing with the discovery of disciplinary records in this and related litigation before this Court.

  McKean requested of the defendants the production of the Civilian Complaint Review Board ("CCRB") and Internal Affairs Division ("IAD") records of Padilla and of the names of the other persons arrested at the time of the plaintiff's arrest. Effectively identical requests have been made by each of the moving plaintiffs. Defendants object to the production of the records on the grounds that: 1) the charges contained in the records have not resulted in discipline; 2) the allegations in the records are wholly unrelated and irrelevant to the allegations in plaintiffs' complaints; and 3) the CCRB and IAD histories of the individual defendants are privileged. Defendants object to the production of the names of the arrestees on the grounds that the records may have been sealed by the criminal court and because disclosure of the identities of non-party arrestees would violate their privacy interests.


  "In federal actions, discovery should be broad, and all relevant materials which are reasonably calculated to lead to the discovery of admissible evidence should be discoverable." National Congress for Puerto Rican Rights v. City of New York, 194 F.R.D. 88, 91 (S.D.N.Y. 2000) (quoting Morrissey v. City of New York, 171 F.R.D. 85, 88 (S.D.N.Y. 1997)).

 Complaints Which Have Not Resulted in Discipline Are Subject to Discovery

  The defendants object to discovery of the disciplinary records on the ground that the charges have not resulted in discipline. Defendants urge that the Court should adopt as a general rule the standards set out in Local Civil Rule 33.2, which pertains only to discovery in prisoner pro se actions. Under Local Rule 33.2, documents from disciplinary matters may only be produced if "the defendant formally was counseled, disciplined, punished, or criminally prosecuted or otherwise made the subject of remedial action" for a period of ten years prior to the filing of the complaint. See Local Rule 33.2, Instruction 4 & Document Requests 8-11. Even then, such materials are only produced by the defendants for in camera inspection for possible production prior to trial. Id., Instruction 4. Defendants argue that this standard is appropriate even when the plaintiff is not a prisoner and is represented by counsel.

  McKean argues that different policy considerations are at issue with respect to represented and non-incarcerated plaintiffs. McKean argues persuasively that "many prisoner litigations are ill-advised and are utilized by prisoner litigants for other purposes including use of information in the closed society of a prison" which may impact the ability of prison officials to maintain order and discipline. Local Rule 33.2 was deliberately confined to prisoner pro se cases, and is further narrowed to "use of force", "inmate against inmate assault", and "disciplinary due process" cases. See Local Rule 33.2(b). Such a rule is not appropriate for discovery in cases where the plaintiff or plaintiffs are represented by counsel and are no longer detained by police or prison authorities.

  Several courts in this district have also rejected the objection, made on occasion by the City of New York, to the production of unsubstantiated CCRB complaints on grounds of relevance. "Although a CCRB finding that a complaint was `Unfounded' or `Unsubstantiated' may be relevant to an accusation's admissibility at trial, plaintiffs should be afforded the opportunity to review the file." Reyes v. City of New York, 00 Civ. 2300, 2000 WL 1528239, at *2 (S.D.N.Y. Oct. 16, 2000); see also Castro v. City of New York, 94 Civ. 5114, 94 Civ. 6767, 1996 WL 355378 (S.D.N.Y. June 27, 1996) ("For discovery purposes, the complaints satisfy the requirements that their disclosure may lead to the discovery of admissible evidence."); Malsh v. New York City Police Dep't, 92 Civ. 2973, 1995 WL 217507, at *l-2, (S.D.N.Y. Apr. 11, 1995) (same); Morrissey, 171 F.R.D. at 88.

 The Relevance of the Disciplinary Matters to the Allegations in the Complaint Will Be Considered

  CCRB records may well be relevant, as "Rule 404(b) of the Federal Rules of Evidence provides that evidence of `other crimes, wrongs, or acts' may be admissible for at least some purposes, including `intent . . . absence of mistake or accident.'" Reyes, 2000 WL 1528239, at *1. However, "where CCRB records contain allegations wholly unrelated to those alleged in the complaint, their relevance has been found `too tenuous to allow discovery.'" Id. (quoting Katt v. New York City Police Dep't, 95 Civ. 8283, 1997 WL 394593, at *3-4 (S.D.N.Y. July 14, 1997). If the defendants have made a threshold showing of privilege, as described below, the disciplinary records will be examined in camera for their relevance to the instant action.

  The defendants argue that the amendment to Federal Rule of Civil Procedure 26(b)(1) in 2000 providing that "[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party," Fed.R.Civ.P. 26(b)(1), narrows the scope of discovery over the previous formulation, which provided for discovery on matters "relevant to the subject matter involved in the pending action." Fed.R.Civ.P. 26(b)(1) (repealed 2000). Defendants also note that each of the discovery opinions cited by the plaintiffs were issued prior to the amendment. District courts comparing the scope of the previous and current formulations of Rule 26(b)(1) have differed on the issue of the degree of impact of the amendment on the scope of discovery. See Sanyo Laser Products, Inc. v. Arista Records, Inc., 214 F.R.D. 496, 499 (S.D. Ind. 2003) (comparing cases). Considering the various holdings of district courts ruling on the issue, the Sanyo court concluded that "the scope of discovery has narrowed somewhat under the revised rule. The change, while meaningful, is not dramatic, and broad discovery remains the norm." Id. at 500. The holding of the Sanyo court is persuasive, and is hereby adopted.

  None of the holdings in cases cited by the plaintiffs are significantly affected by the 2000 amendment. However, the relevance of documents examined by the Court in camera will of course be judged under the revised standard. It is also worth noting that "discovery of any matter relevant to the subject matter involved in the action" may still be ordered by the Court if "good cause" is shown. Fed.R.Civ.P. 26(b)(1); Sanyo, 214 F.R.D. at 499.

 Defendants May Not Make a Blanket Claim of Privilege

  Defendants argue that CCRB and IAD records are covered by two privileges: the law enforcement privilege and the official information privilege. The objection is made in a letter to the Court from defendants' counsel, and was presumably also made in an earlier letter to plaintiff McKean's counsel. In light of the procedures detailed below, a letter from defendants' counsel is insufficient to raise a claim of privilege.

  In order to "discourage pro forma invocation of privilege as to documents that should be disclosed," Unger v. Cohen, 125 F.R.D. 67, 70 (S.D.N.Y. 1989), the procedure for evaluating the assertion of privilege set forth by the Honorable Jack B. Weinstein in King v. Conde, 121 F.R.D. 180 (E.D.N.Y. 1988) is adopted, with one exception. Judge Weinstein set forth a procedure and test designed to "govern all discovery disputes over police records in federal civil rights actions in [the Eastern District of New York], regardless of the label used to refer to the privilege." Id. at 188. The rationale behind the procedure is that: In order to assert a claim of privilege against disclosure of police materials to a plaintiff raising federal civil rights claims against a police defendant, the officers or the police department must do more than alert the court to the [relevant privilege] or the generalized policies which support it. The police must make a "substantial threshold showing," Kelly v. City of San Jose, 114 F.R.D. 653, 669 (N.D. Cal. 1987)], that there are specific harms likely to accrue from disclosure of specific materials . . .

 Id. at 189.

  The procedure, laid out in detail in King, 121 F.R.D. at 189-90, "requires that the police specify `which documents or class of documents are privileged and for what reasons' in the form of a "declaration or affidavit.'" Malsh, 1995 WL 217507, at *3 (quoting King, 121 F.R.D. at 189). While the procedure described in King requires that the affidavit be submitted "from a responsible official within the agency who has personal knowledge of the principal matters to be attested to in the affidavit or declaration," King, 121 F.R.D. at 189 (quoting Kelly, 114 F.R.D. at 669), under the circumstances of this action, an affidavit or declaration from defendant's counsel will suffice, provided that it is based

  on personal review of the documents by an official in the police agency (not the defendant's attorney) and must explain (not merely state conclusorily) how the materials at issue have been generated or collected; how they have been kept confidential; what specific interests (e.g., of the police officers, of law enforcement, or of public concern) would be injured by disclosure to the plaintiff, to plaintiff's attorney, and the public; and the projected severity of each such injury. Id. The stringent requirement of an affidavit on personal consideration derives from the procedures set forth in United States v. Reynolds, 345 U.S. 1, 7-8 (1953), to invoke the state secrets privilege. See National Lawyers Guild v. Attorney General, 96 F.R.D. 390, 394-97 (S.D.N.Y. 1982) (state secrets privilege "protects information not officially disclosed to the public concerning the national defense or international relations of the United States."). Because the state secrets privilege "is essentially absolute, courts have felt the need to make the procedures for invoking it extremely demanding." Kelly, 114 F.R.D. at 668. The official information privilege, in contrast, is not absolute, see id., and some relaxation of procedural stringency is therefore appropriate.

  Because this Court has not previously specified that such procedures must be followed, defendants are not deemed to have waived the privilege. See Cruz v. Kennedy, 97 Civ. 4001, 1998 WL 689946, at *2 n.4 (S.D.N.Y. Sept. 30, 1998). Nevertheless, defendants must submit an appropriate affidavit or declaration in order to have its claim of privilege considered.

 Law Enforcement Privilege

  Because both parties have discussed the two privileges asserted by the defendants, some discussion is in order in advance of the re-submission of defendants' objections on the basis of privilege.

  The law enforcement privilege "has been recognized in the absence of a statutory foundation." In re Dep't of Investigation of the City of New York, 856 F.2d 481, 483 (2d Cir. 1988). Its purpose


is to prevent disclosure of law enforcement techniques and procedures, to preserve the confidentiality of sources, to protect witness and law enforcement personnel, to safeguard the privacy of individuals involved in an investigation, and otherwise to prevent interference with an investigation.
Id. at 484. It should be clear, however,


that the focus of the law enforcement privilege is to protect information relating to investigations. It is the privacy of police officers involved in an investigation that must be protected, not the privacy of police officers generally. Thus, for example, personnel records of police officers not involved in a particular investigation would not necessarily be privileged unless either a threat to their safety or an interference with the investigation can be shown.
Morrissey, 171 F.R.D. at 90. Any invocation of the law enforcement privilege must accordingly be accompanied by a specification as to what investigations may be jeopardized by the production of requested documents. However, an investigation does not need "to be ongoing in order for the privilege to be applicable." Id. (citing Borchers v. Commercial Union Assur. Co., 874 F. Supp. 78, 80 (S.D.N.Y. 1995); Black v. Sheraton Corp. of America, 564 F.2d 531, 546 (D.C. Cir. 1977)). "[T]he ability of a law enforcement agency to conduct future investigations may be seriously impaired if certain information is revealed." Id. (citing Borchers, 874 F. Supp. at 80).

 Official Information Privilege

  The official information privilege was "first rooted in `the state's general concern in protecting personnel files and investigative reports from `fishing expeditions.'" National Congress, 194 F.R.D. at 95 (quoting Morrissey, 171 F.R.D. at 92). Federal common law "recognizes a qualified privilege for official information." Id. (quoting Soto v. City of Concord, 162 F.R.D. 603, 613 (N.D. Cal. 1995)). In order to assess the applicability of the privilege, the Court "must balance the `plaintiff's interests in disclosure against the state's legitimate concern of protecting the confidentiality of the officers' personnel files from unnecessary intrusion." Id. (quoting Mercado v. Division of New York State Police, 989 F. Supp. 521, 522 (S.D.N.Y. 1998)). Those factors, which are listed and discussed in King, 121 F.R.D. at 190-96, are summarized by the Morrissey court: The factors disfavoring disclosure are the threat to the safety of police officers, the invasion of the privacy of police officers, the weakening of law enforcement programs or procedures, the chilling of police investigative candor, the chilling of citizen complainant candor, and state privacy law. The factors favoring disclosure are the relevance of the material to the plaintiff's case, the importance of the material to the plaintiff's case, the strength of the plaintiff's case, and the importance to the public interest in releasing the information.

 Morrissey, 171 F.R.D. at 92.

  In considering these factors, it should also be kept in mind that "although the privacy rights of the officers are not inconsequential, they should be `limited in view of the role played by the police officer as public servant who must be accountable to public review.'" National Congress, 194 F.R.D. at 96 (quoting King, 121 F.R.D. at 191). Further, "these privacy interests must be balanced against the great weight afforded to federal law in civil rights cases against police departments." Id. (quoting Soto, 162 F.R.D. at 611). The existence of a protective order or stipulation may serve to address many privacy concerns. Also to be considered is the "plaintiffs' need for the information and its availability from alternative sources." Id. However, it is generally true that "in civil rights cases against police departments, it is unlikely that plaintiffs will be able to obtain information of comparable quality from any other source." Id. (citing Soto, 162 F.R.D. at 616). Discovery of Names of Nonparty Arrestees

  Plaintiffs seek to compel the defendants to disclose the names of other arrestees who were detained by the police at the scene of the incidents where plaintiffs were arrested. The defendants argue that the New York City Police Department is constrained by state law, and cannot voluntarily reveal information sealed by the criminal courts pursuant to Criminal Procedure Law § 160.50.*fn1

  As an initial matter, "it should be emphasized that New York State law does not govern discoverability and confidentiality in federal civil rights actions." Woodard v. City of New York, 99 CV 1123, 2000 WL 516890, at *3 (E.D.N.Y. Mar. 10, 2000) (quoting Cruz v. Kennedy, 97 Civ. 4001, 1997 WL 839483 at *1 (S.D.N.Y. Dec. 19, 1997)). "Privilege questions arising in federal civil rights actions are governed by federal law." Id. (citing King, 121 F.R.D. at 187).

  A number of cases have held that a federal district court has the authority "to issue an order compelling production of files in the custody of the district attorney and sealed pursuant to C.P.L. § 160.50." Id. (citing Kymissis v. Rozzi, 93 Civ. 8609, 1994 WL 376048, at *1-*2 (S.D.N.Y. July 18, 1994); Cruz, 1997 WL 839483, at *2.


The threshold issue is how the unsealing can be effected under the circumstances presented here. A number of cases have considered the appropriate procedure to be followed to effect an unsealing of criminal records pursuant to § 160.50 in the context of discovery in a federal civil suit, and the consensus seems to be that a plaintiff can either apply to the state court to unseal the records, or can subpoena the district attorney, or seek discovery if the district attorney is a party to the proceeding. If the district attorney moves to quash a subpoena, or objects to a discovery demand, the issue is appropriately before the federal court.
Lehman v. Kornblau, 206 F.R.D. 345, 347 (E.D.N.Y. 2001) (citing Woodard, 2000 WL 516890, at *3; Kymissis, 1994 WL 376048; Cruz, 1997 WL 839483, at *1; Townes v. City of New York, CV-94-2595, 1996 WL 164961, at *10 (E.D.N.Y. Mar. 28, 1996)). Such a procedure is mandated "in the interests of comity." Townes, 1996 WL 164961, at *10. None of the plaintiffs have shown that they have yet made an application to the state court or subpoenaed the District Attorney. Accordingly, the motions to compel the defendants to reveal the names of nonparty arrestees are denied with leave to renew upon completion of the required procedures.

  It should be noted, however, that the requests made by the plaintiffs extend further than the motions to compel ruled on by other district courts. In Woodard, the court did grant the request to produce the records of the plaintiff's co-arrestees. See Woodard, 2000 WL 516890, at *5. However, in granting the request, the court observed that "the names of [plaintiff's] coarrestees are known to all the parties, and the events at issue are largely a matter of public record." Id. Further, as the defendants note, "a strong policy of comity between state and federal sovereignty impels federal courts to recognize state privileges where this can be accomplished at no substantial cost to federal substantive and procedural policy." King, 121 F.R.D. at 187. Under the state law sealing criminal records, plaintiffs would not have standing to request an unsealing order. See Wilson v. City of New York, 240 A.D.2d 266, 267 (1st Dep't 1997) (citing C.P.L. 160.55(1)(d)).

  The defendants have noted that their ability to evaluate the plaintiffs' claims and to produce relevant documents has been frustrated by the fact that at least some of the plaintiffs have not provided the City with § 160.50 releases. The absence of a signed release, however, does not bar the City from accessing the plaintiffs' criminal records. The First Department has recently held that

where an individual affirmatively places the underlying conduct at issue by bringing a civil suit, the courts have consistently held that the statutory protection is waived. The privilege of CPL § 160.50 may not be used as a sword to gain an advantage in a civil action.
People v. Cruz, Ind. Nos. 1627/2000, 2533/2002, 2004 WL 190067, at *5 (N.Y.Sup.Ct. Jan. 5, 2004) (quoting Rodriguez v. Ford Motor Co., 301 A.D. 372, 753 N.Y.S.2d 63 (1st Dep't 2003)). The defendants, however, are also required to follow the procedures outlined above in order to unseal the plaintiffs' criminal records.


  Because the defendants have not formally asserted a privilege in accordance with the procedures above, the motions of the various plaintiffs to compel production is granted. However, because the privilege has not been waived by the defendants, a claim of privilege may be re-asserted in accordance with the procedures laid out above, and in consideration of the appropriate scope of the law enforcement privilege and the official information privilege, as discussed above. The request of the plaintiffs for the disclosure of the names of the nonparty arrestees is denied as procedurally defective, with leave to renew. It is so ordered.

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