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
Complaints Which Have Not Resulted in Discipline Are Subject to
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 defenddants 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."
Reves 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.'" Reves, 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 ...