The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court are (a) the motion of the County Defendants*fn1 for a protective Order, pursuant to Fed. R. Civ. P. 26(c), against disclosure of documents "relating to non-strip search related incidents including assaults and attempted suicides and unrelated non-strip search email/documents" (Docket No. 116, Notice of Motion*fn2 at 1; see also Docket No. 118, County Defs. Atty. Aff. (substituting ¶ 9 of the affidavit in Docket No. 116*fn3 ), and (b) plaintiffs' motion to compel to produce all documents designated by defendants as "felony" documents, and to allow plaintiffs to inspect the original documents responsive to their demands (Docket No. 120*fn4 ). In support of this motion are defense counsel's affidavit with exhibits (surrounding the belated County production of three e-mails) and memorandum of law (Docket No. 116).
Given the most recently amended Scheduling Order for this action (see Docket No. 103) and its declaration that it would not be extended further (id. at 13*fn5 ; see also Docket No. 52, Order of Sept. 26, 2005, at 35 (stating that case needed to get to its underlying merits); Docket No. 103, Order of Mar. 20, 2006, at 13 (same)), the simplicity of the discovery issues involved, and to keep this action moving to eventual consideration of its merits, the briefing schedule for these latest motions was truncated. Responses to these motions were due by June 21, 2006, and the motions were deemed submitted (without further reply or oral argument) on June 21 (Docket Nos. 117, 121, Orders of June 14 and 15, 2006).
This is yet another excursion into discovery motion practice in this civil rights action that alleges a potential class action. Familiarity with the factual and procedural history of this case, including the prior motions (see Docket Nos. 16, 22, 25, 40, 80, 86, 98, 107, 110) and Orders in this case (see Docket Nos. 52, 53, 71, 78, 103, 106, 113, 114), is presumed. Plaintiffs are three persons who were detained in the custody of Erie County for non-felony offenses and they allege that they (and others similarly situated, who were in defendants' custody some time between July 22, 2001, to the present) were strip searched without cause while in the custody of the Erie County Sheriff (Docket No. 1, Compl. ¶ 15).
County Defendants' Motion for Protective Order Following production of three e-mails by defendant McCarthy Gipson, the County Defendants reviewed their files to locate those e-mails. Eventually, they were found in a file of non-produced documents with several hundred non-strip search related documents (Docket No. 116, County Defs. Atty. Aff. ¶ 7). The County Defendants produced their copies of the three e-mails (id. ¶¶ 8-9, Ex. C, B; see Docket No. 118, County Defs. Atty. Aff. ¶ 9, Ex. C), but not the other documents that were in the files where the County Defendants found the e-mails (Docket No. 116, County Defs. Atty. Aff. ¶ 10). Plaintiffs, in reply, now contend that other responsive documents were produced from these "felony" files (Docket No. 126, Pls. Atty. Reply Affirm. ¶ 2).
According to the County Defendants' counsel, these non-strip search documents consist of approximately 550 pages, some dating back to 1999 (Docket No. 116, County Defs. Atty. Aff. ¶ 12). These documents deal with assaults between inmates, suicide attempts, HIPPA authorization forms, sexual harassment training, and other unrelated matters (id.). The County Defendants offered to produce these items to plaintiffs subject to a confidentiality agreement (cf. Docket No. 53, Order for confidentiality of disclosed booking records) but plaintiffs' counsel refused (Docket No. 116, County Defs. Atty. Aff. ¶ 13). The County Defendants also have offered to produce the documents for in camera inspection (id. ¶ 20). Defendant Gipson also suggests that the Court review these documents in camera to determine their relevance (Docket No. 123, Gipson Atty. Affirm. ¶ 7).
The County Defendants report that plaintiffs have orally and by e-mail*fn6 insisted upon production of these documents, contending that plaintiffs have not made a formal request for their production (Docket No. 116, County Defs. Atty. Aff. ¶¶ 10, 14). This disregards, however, plaintiffs' discovery demands which sought production of documents related to strip searches of felony detainees (Docket No. 120, Pls. Atty. Affirm. Ex. A, at 4, document request number 2). The County Defendants generally objected to producing felony documents as not relevant to this action (id. Ex. B, at 1), but the County Defendants agreed to produce responsive documents (id. at 4-5).
The County Defendants argue that these non-strip search documents are not relevant to this case and need not be produced. Some predate the July 2001 starting date for the proposed class (see Docket No. 116, County Defs. Atty. Aff. ¶ 12). They argue that the documents are not responsive to plaintiffs' demands and are not relevant to their strip search allegations (id. ¶¶ 11, 12, 15) but their disclosure in this case may impact other, wholly unrelated cases (id. ¶ 16; Docket No. 116, County Defs. Memo. of Law at 5).
Plaintiffs' Motion to Compel
Plaintiffs' document demand included seeking production of incident reports, logbook entries, and other writings regarding felony detainee strip searches (Docket No. 120, Pls. Atty. Affirm. Exs. A (pls. document demand) at 4, request number 2, B (County Defs. response) at 5); cf. id. Ex. A at 4, request number 1 (documents regarding non-felony detainees)). They contend that the County Defendants initially agreed to produce these felony documents, but then unilaterally proposed a protective order regarding them (Docket No. 120, Pls. Atty. Affirm. ¶ 9). Plaintiffs claim that the over 500 pages of documents the County Defendants refuse to produce are "felony" documents, represented to plaintiffs as related to felony strip search documents (Docket No. 120, Pls. Atty. Affirm. ¶¶ 5, 7). Since the three e-mails were "misfiled" among these "felony" documents, plaintiffs now seek to inspect the "felony" documents (see id. ¶ 8). Plaintiffs argue that defense counsel first stated that plaintiffs never sought felony materials and then claimed that the "felony" documents were included in a privilege log; plaintiffs now conclude that both of defense counsel's assertions were false (id. ¶ 7). On the County Defendants' offer to produce the documents under a confidentiality stipulation, plaintiffs refused and now argue that the defendants fail to meet their burden for sealing these records from the public (id. ¶ 9). Plaintiffs believe that the County Defendants waived any objection to production of these documents by not detailing their existence either in their production or in a privilege log (id. ¶ 10).
Plaintiffs also seek to inspect the originals of the County Defendants' records (now limited to documents in the possession of the Sheriff's Department's Office of Professional Standards and the County Attorney's office, Docket No. 126, Pls. Atty. Affirm. ¶ 10), because they believe that some documents have been retained by the Sheriff's Department's Office of Professional Standards but have not been produced by these defendants (Docket No. 120, Pls. Atty. Affirm. ¶ 11) and plaintiffs obtained some other documents from third parties that these defendants have yet to produce (id. ¶ 12, Ex. J, at 18, e-mail from Kristin Machelor to Tom Mitchell). Plaintiffs justify their request by the alleged "pattern of deception and discovery abuse in this litigation" by the County Defendants (id. ¶ 14), calling a privilege log considered in an earlier motion "clearly deceptive" and "continued to disrupt deposition testimony with the use of speaking objections despite a Court Order detailing appropriate deposition conduct" (id.; cf. Docket No. 52, Order at 20-21 (at defendants' request, Court reminded and admonished all counsel not to make speaking objections during depositions)*fn7 ).
Plaintiffs do not seek sanctions now for the above conduct but reserved the right to make a later motion on this conduct and other conduct that occurred during this action (Docket No. 120, Pls. Atty. Affirm. ¶ 15). They certify their good faith in trying to resolve this matter informally by noting their attempts to obtain these documents or to review defendants' original files short of motion practice (id. ¶ 16, Ex. K).
In opposition, defendant Gipson notes that plaintiffs in effect argue the merits of their case in a discovery motion, raising "irrelevant factual assertions" which have yet to be established on the record (Docket No. 123, Gipson Atty. Affirm. ¶¶ 3, 4). The County Defendants respond to plaintiffs' motion by reasserting the grounds the County Defendants raise in their motion for a protective order, that the materials plaintiffs seek from the "felony" files is irrelevant to this action and need not be produced (Docket No. 124, County Defs. Atty. Reply Affirm. ¶¶ 3, 6). The County Defendants call these documents "non-strip search" documents to reaffirm that they are not relevant to this strip search case (id. ¶ 7). They contend that plaintiffs' alternative request to inspect the original documents would be "unnecessary, impractical and would result in significant delay to the case" (id. ¶ 21) since the original documents, obtained from several locations and returned to them ...