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United States District Court, S.D. New York

July 21, 2004.

CITY OF NEW YORK, et al., Defendants.

The opinion of the court was delivered by: GERARD E. LYNCH, District Judge


On July 16, 2004, the parties submitted a joint letter concerning plaintiff's anticipated deposition questions regarding the Social Security number, home address, spouse's name and occupation, and birth date of various defendants and non-party witnesses whose depositions are upcoming. At the deposition of defendant Debra Proscia on July 1, 2004, plaintiff asked Proscia for this information, as well as for her prior work history, and defendants' counsel directed Proscia not to answer. After hearing the positions of both parties, the Court ruled on July 1 that the instruction was improper and directed Proscia to supply the requested information to plaintiff, provided that, for Social Security number and home address, plaintiff execute a confidentiality stipulation. A stipulation acceptable to both parties was executed on July 1. Defendants now renew the argument, first advanced in the Proscia deposition, that "official information privilege" shields upcoming witnesses who are police officers, firefighters, emergency medical technicians, or social services agents from disclosing the requested information to plaintiff, and they seek a protective order. For the reasons that follow, the request will be denied.

"Official information privilege" is a doctrine that can protect certain information involving police officers and police procedures from disclosure upon a "substantial threshold showing" that specific harms will result. See, e.g., King v. Conde, 121 F.R.D. 180, 194 (E.D.N.Y. 1988) (specific harms can include threat to the safety of individual officers or the effectiveness of law enforcement, and should be balanced against the need of the requesting party for the information). Although, in at least one case, a court in this district has protected police information without requiring the specific showing of harm outlined in King, see Collens v. City of New York, 03 Civ. 4477 (JGK) (July 12, 2004), that decision is readily distinguishable from the situation presented here.

  Among other differences, Collens involved an underlying criminal arrest, a history of animosity between the plaintiff and the defendant police officer, and a refusal by plaintiff's counsel to keep the officer's home address confidential from his client; moreover, the sole reason proffered by the plaintiff for needing the information was a desire to investigate ability to pay punitive damages. In contrast, this case involves an elderly female plaintiff, no question of criminal conduct by plaintiff, and a confidentiality stipulation executed by plaintiff's counsel. In addition, plaintiff's counsel has offered a number of reasonable bases for seeking the challenged information, both at the Proscia deposition and in the July 16 submission, including the need to investigate the credibility of defense witnesses. Defendants' generalized reference to the possibility that certain police officers may not wish to have their neighbors know that they work in law enforcement falls far below the "substantial threshold showing" of harm that is required to support an invocation of "official information privilege."

  Furthermore, defendants seek to extend the principle involving discovery of police officers' personal information to include witnesses who are firefighters, emergency medical technicians, or social services agents. Whatever security concerns may apply to police officers, who are engaged in the often dangerous and contentious business of enforcing the law against sometimes violent or lawless individuals, there is no reason to assume that other public servants face generalized risks of public hostility or retaliation. Defendants have offered no case law in support of this apparently unprecedented extension of the official information privilege, nor have they offered any rationale for the extension other than that the information is "private." There is no generic "privacy" privilege under the broad civil discovery regime of the Federal Rules of Civil Procedure, other than the provisions under Rule 26(c) to protect persons from "annoyance, embarrassment, oppression, or undue burden or expense." Defendants have made no showing of embarrassment or oppression that is sufficient to deny the plaintiff discovery that is within the mainstream of civil deposition practice and is "reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1).

  Accordingly, defendants' request for a blanket protective order, relieving deponents in this case who are police officers, firefighters, emergency medical technicians, or social services agents from answering questions about birth date, Social Security number, home address, and spouse's name and occupation, is denied. However, in light of the legitimate privacy interests of deponents in this period of heightened public concern about identity theft, as well as the heightened safety concerns properly attributed to police officers, plaintiff's counsel is directed to execute a confidentiality stipulation with respect to the deponents' Social Security number, home address, and spousal information as a condition of disclosure.

  Finally, plaintiff's counsel has requested an award of attorney's fees in the amount of $750.00, arguing that, in light of the Court's July 1 ruling and the nature of this case, this dispute was "unnecessary and wasteful." The request will be denied. The Court has inherent power to sanction inappropriate behavior by counsel, through the award of attorneys' fees or otherwise, but where the request for sanctions relates to the conduct of the litigation and actions taken for the client's benefit, sanctions are appropriate only upon a finding of bad faith. United States v. Seltzer, 227 F.3d 36, 41-42 (2d Cir. 2000). The arguments advanced by defendants proved to be without merit — a result that could perhaps have been predicted in light of the Court's July 1 ruling. However, raising the dispute anew appears to have been undertaken in good faith and in a sincere desire to protect what the City of New York views as the legitimate interests of its employees when they must testify about conduct related to their public duties. Accordingly, the request for sanctions in the form of plaintiff's attorney's fees is denied.



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