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FOUNTAIN v. CITY OF 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

OPINION

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.

 Discussion

  "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 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 ...


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