The opinion of the court was delivered by: JOHN KOELTL, District Judge
The plaintiff, Stephen Mitchell, has filed objections to
Magistrate Judge Gorenstein's March 31, 2005 Order granting a
protective order providing that the defendants need not disclose
those portions of certain documents to be produced in discovery
that identify judges and attorneys who provided evaluations to
the First Department Departmental Screening Committee (the
"Committee"). See Mitchell v. Fishbein, 01 Civ. 2760, 2005 WL
729483 (S.D.N.Y. Mar. 31, 2005). Applying the balancing test
under Federal Rule of Civil Procedure 26(c), the Magistrate Judge
found that the harm caused by disclosing the identities of the
judges and attorneys outweighed the need for the identification
of those who provided the information. Id. at*4-*8. In
particular, the Magistrate Judge noted that the evaluations were
provided in confidence, the affidavits showed the importance of
confidentiality, at least two evaluators had refused to speak to the Committee even with a promise of confidentiality, two judges
asked that their names be kept even from other members of the
Committee, and another evaluator asked that his identity not be
provided to anyone outside the subcommittee reviewing Mr.
Mitchell's application. Id. At *5. The Magistrate Judge found
that the confidentiality of the identities of the evaluators was
essential to the functioning of the screening process and that
the screening process performed by the Committee advanced an
important public interest by ensuring effective representation of
indigent criminal defendants in satisfaction of its
constitutionally mandated responsibilities. Id. at *5-*6.
Weighed against these interests, the Magistrate Judge found that
the plaintiff's interests were insufficient to require disclosure
of the identities of the evaluators. Id. at *7. The Magistrate
Judge noted that, in this case, the substance of the comments
would be disclosed and that those comments, and the
contemporaneous documents and the testimony of the Committee
members would be the most compelling evidence as to whether the
plaintiff's certification was based on an impermissible motive.
The standard of review for a decision by the Magistrate Judge
on a discovery issue is whether the ruling is clearly erroneous
or contrary to law. See Fed.R.Civ.P. 72(a); see also
28 U.S.C. § 636(b) (1) (A); Collens v. City of New York, 222 F.R.D. 249, 251 (S.D.N.Y. 2004); In re Buspirone Patent Litig.,
210 F.R.D. 43, 52 (S.D.N.Y. 2002). An order is "clearly erroneous"
when "the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed."
Surles v. Air France, No. 00 Civ. 5004, 2001 WL 1142231, at *1
(S.D.N.Y. Sept. 27, 2001) (internal quotation omitted). An order
is "contrary to law" when it "fails to apply or misapplies
relevant statutes, case law or rules of procedure." Id.
(internal quotation omitted).
The plaintiff has failed to demonstrate that the Magistrate
Judge's decision was clearly erroneous or contrary to law. In
urging that the Magistrate Judge's decision be reversed, the
plaintiff does not address the balancing test under Rule 26(c),
or explain why the harm that would follow the disclosure of the
identities of evaluators who were promised confidentiality would
be outweighed by the potential value of the discovery. The
plaintiff does not even address the balancing test under Rule
26(c) or suggest that the wrong test was used. Rather, the
plaintiff raises a series of objections that do not undercut the
careful balancing test applied by the Magistrate Judge.
First, the plaintiff argues that he is entitled to the names of
all the evaluators so that he can sue them if appropriate: "The
plaintiff is entitled to sue these people if he believes they
violated his rights. . . ." (Objections to the Magistrate's Orders of March 31, 2005, filed Apr. 28, 2005
("Obj."), at 1.) The plaintiff then argues, citing Valentin v.
Dinkins, 121 F.3d 72, 75-76 (2d Cir. 1997) (per curiam), that he
is entitled to the names of these people because the Court has
the obligation to help him ascertain the identity of defendants
so that he can join them in the lawsuit. (Obj. at 2-3.)
The plaintiff's reliance on Valentin is misplaced. In
Valentin, the Court of Appeals for the Second Circuit found
that the trial court had an obligation to assist the pro se
plaintiff in identifying a specific, named defendant so that the
defendant could be served. Valentin, 121 F.3d at 75-76. Here,
while there are unnamed defendants, those defendants are sued in
their capacity as employees of the City of New York and are
identified as people who assisted the Committee. There is no
suggestion in the Amended Complaint that the plaintiff has sued
those who provided information to the Committee. Furthermore,
Valentin was not cited to the Magistrate Judge and the
plaintiff did not argue to the Magistrate Judge that the Court
had the obligation to locate new defendants for the plaintiff.
That is an argument that should be presented to the Magistrate
Judge in the first instance. See American Centennial Ins. Co.
v. Seguros La Republica, S.A., No. 91 Civ. 1235, 1992 WL 162770,
at *1 (S.D.N.Y. June 22, 1992) (declining to address argument not
raised before magistrate judge). Finally, the plaintiff's argument that he needs the names of evaluators who provided
comments that were critical of him underscores the rationale for
confidentiality: to encourage the provision of candid comments
without fear of reprisals.
The plaintiff also argues that the names of the evaluators
should be produced so that the plaintiff can obtain the names of
those who will provide favorable comments. (Obj. at 5-6.)
However, the documents provided to the plaintiff do not dispute
that there were comments favorable to the plaintiff. To the
extent that the plaintiff seeks to rely on favorable documents,
it is always open to him to apply to the Magistrate Judge to
depose people whom he believes will provide favorable testimony
for the plaintiff.
The plaintiff also argues that he will be hampered in proving
that the reasons provided by the Committee members were in fact
pretextual because he will not be able to interview those who
provided comments to the Committee and show that, based on their
testimony, the Committee did not accurately represent their
comments. (Obj. at 3-5.) This is a potential loss from the
protective order in this case. However, the Magistrate Judge
performed a balancing analysis that measured the costs of
discovery against the possible benefits from the discovery.
Mitchell, 2005 WL 729483 at *4-*8. At this point in the
litigation, even after reviewing the documents produced by the Committee, with only the names of the evaluators redacted, the
plaintiff has made only a speculative showing that the Committee
misrepresented the comments it received. The plaintiff is not
precluded from attempting to make this showing at a future point
in the litigation. However, at this point, there is no showing of
the importance of this information that outweighs the showing of
real costs to the disclosure supported by credible affidavits.
The plaintiff argues that disclosure should be required under
University of Pennsylvania v. EEOC, 493 U.S. 182 (1990).
However, University of Pennsylvania concerned the enforcement
of an EEOC subpoena where the standard was relevance. See
University of Pennsylvania, 493 U.S. at 191-94. The Court found
that an asserted peer review privilege was insufficient to
overcome the plain meaning of the statute which required the
production of relevant evidence. See id. The University of
Pennsylvania opinion did not address the balancing test of Rule
26(c). Moreover, in University of Pennsylvania, the University
attempted to withhold a broad class of documents involved in the
tenure decision. See id. at 186. Here, the defendants have
not sought to withhold such a category of documents, but only to
redact the identities of the evaluators. In University of
Pennsylvania, the Court specifically noted that it did not deal
with the issue of redaction. See id. at 201 n. 9.
The plaintiff also relies on a series of other cases where courts have ordered documents turned over in discrimination
cases. See, e.g., Tharp v. Sivyer Steel Corp.,
149 F.R.D. 177 (S.D. Iowa 1993); Hardy v. New York News, 114 F.R.D. 633
(S.D.N.Y. 1987); Grossman v. Schwarz, 123 F.R.D. 376 (S.D.N.Y.
1989). In none of those cases, however, did the Courts deal with
a screening committee to review appointments to represent
defendants eligible for representation and in none of those cases
did the courts deal with issue of redactions before the
The plaintiff also argues that the defendants should not be
able to rely on the contemporary documents that reflect the
Committee decision making. (Reply Memorandum in Support of
Plaintiff's Objections to the Magistrate's Orders of March 31,
2005, filed May 23, 2005, at 3.) The Magistrate Judge did not
deal with any argument as to the admissibility of documents, and
that issue is not before the Court.
The Objections to the Magistrate Judge's March 31, 2005 Order