United States District Court, S.D. New York
July 21, 2004.
PAULETTE GOODMAN, Plaintiff,
CITY OF NEW YORK, et al., Defendants.
The opinion of the court was delivered by: GERARD E. LYNCH, District Judge
OPINION AND ORDER
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
"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
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