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
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 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
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
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
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
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
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 *l-*2 (S.D.N.Y. July 18, 1994); Cruz, 1997 WL 839483,
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
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] co-arrestees 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)
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
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.