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Barrett v. City of New York

July 12, 2006


The opinion of the court was delivered by: Matsumoto, United States Magistrate Judge


In these civil rights actions pursuant to, inter alia, 28 U.S.C. § 1983, plaintiff alleges false arrest, illegal strip search, malicious prosecution and fabricated evidence. Plaintiff has moved to compel discovery of all "unsubstantiated Civilian Complaint Review Board ("CCRB"), Internal Affairs Bureau ("IAB") and internal NYPD disciplinary records, regardless of the nature of the complaint," concerning defendant police officers John Melidones, William Martin, Paul Zito and Thomas Donahue. (See Doc. Nos. 22 & 27, Letters from Richard Cardinale, Esq., dated Mar. 22, 2006 and Apr. 12, 2006.) Defendants have opposed on grounds of relevance and privilege and have submitted to the Court, for in camera review, the records they seek to withhold from the plaintiff. (See Doc. No. 31, Letter from Sheryl A. Bruzzese, Esq., dated May 28, 2006.) The Court has completed its in camera review and, for the reasons set forth below, the Court grants in part and denies in part plaintiff's motion to compel.


A. Whether the Records Sought by Plaintiff are Relevant to the Claims and Defenses Asserted in the Action

Defendants argue that plaintiff is not entitled to the CCRB documents because the information contained in the reports is not relevant to the claims or defenses asserted in these actions, or to the officers' propensity to tell the truth. Defendants challenge the relevance of the documents on several grounds. According to defendants, allegations in those documents are not similar to those in the subject complaints and, in many cases, the Review Board determined that the allegations were unsubstantiated, exonerated or unfounded. Furthermore, defendants argue that complaints involving events that occurred after the events in the instant complaints, or more than ten years before the incidents in the present complaints, are also irrelevant.

1. Subject Matter of Requested CCRB Complaints

The scope of discovery is defined by Fed. R. Civ. P. 26(b)(1), which permits discovery "regarding any matter, not privileged, that is relevant to the claim or defense of any party . . . ." The information sought need not be admissible at trial to be discoverable - "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)). However, "where CCRB records contain allegations wholly unrelated to those alleged in the complaint, their relevance has been found 'too tenuous to allow discovery.'" Fountain v. City of New York, 2004 WL 941242, at *2 (S.D.N.Y. 2004)(quoting Katt v. New York City Police Dep't, No. 95 Civ. 8283, 1997 WL 941242, at *3-4 (S.D.N.Y. Jul. 14, 1997)). Therefore, the CCRB complaints that are wholly unrelated to the plaintiff's claims of false arrest, illegal strip search, malicious prosecution and fabricated evidence are not relevant and need not be disclosed to plaintiff. Specifically, those CCRB files which include only allegations of unnecessary force and/or discourtesy by officers are not discoverable here. Conversely, CCRB files that contain allegations of abuse of authority involving unlawful searches and unlawful stops with questioning, or which are relevant to an officer's propensity to tell the truth, will be permitted for discovery purposes.

2. Age of Requested CCRB Complaints

Contrary to the defendants' contention, the age of CCRB complaints does not render the records less likely to lead to relevant or admissible evidence. Frails v. City of New York, 2006 WL 895175, at *2 (E.D.N.Y. 2006)(citing Bradley, 2005 WL 2508253, at *2 (S.D.N.Y. 2005)(pattern of complaints over twenty year period is "highly relevant")); cf. Haya v. City of New York, 1995 WL 314724, *1 (S.D.N.Y. May 24, 1995) (records of dissimilar allegations for incidents more than eight years ago are not relevant). CCRB investigations older than ten years may still be relevant to the current action, for example, to establish a pattern or knowledge, and should not be barred from discovery based solely on their age.

Similarly, CCRB investigations that post-date the filing of the current action could be relevant to this case and should be disclosed. The Court agrees with the defendants' assertion that complaints which post-date the subject incident would not be relevant to demonstrate notice to the defendant city. However, post-incident investigations regarding a police officer defendant in a section 1983 case may be "relevant to issues of pattern, intent, and absence of mistake." Moore v. City of New York, 2006 WL 1134146, *1 (E.D.N.Y. 2006)(quoting Ismail v. Cohen, 899 F.2d 183, 189 (2d Cir. 1990). Therefore, complaints should not be barred from discovery simply because they concern events that occurred after the subject incident.

3. Disposition of Requested CCRB Complaints

Further, the fact that CCRB complaints were not substantiated does not preclude the documents from discovery. For purposes of discovery, an accusation against an individual need not be proven before the fact of that accusation can be disclosed pursuant to an otherwise valid discovery request. See Fountain, 2004 WL 941242, at *2. Disciplinary records involving complaints of a similar nature, whether substantiated or unsubstantiated, could lead to evidence that would be admissible at trial and, thus, are discoverable. See Pacheco v. City of New York, 2006 WL 648057, *1 (E.D.N.Y. May 13, 2006) (ordering production of both substantiated and unsubstantiated allegations); Bradley v. City of New York, 2005 WL 2508253, at *1 (S.D.N.Y. Oct. 3, 2005) ("We emphatically reject defendants' contention that 'unsubstantiated' complaints should . . . not be ordered produced."); Fountain, 2004 WL 941242, at *2 (unsubstantiated complaints are discoverable).

Although unsubstantiated allegations may not be admissible at trial, they may lead to witnesses who have evidence that would tend to prove defendants' intent. See Pacheco, 2006 WL 648057, at *1 ("plaintiff should be given an opportunity to seek out the witnesses to the other allegations of misconduct and produce them at trial . . . ."). Thus, here the court finds that ...

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