The opinion of the court was delivered by: William C. Conner, Sr. D.J.
Plaintiff, Frederick E. Landrigan, brings this action under 42 U.S.C. § 1983 against defendants Leo R. Kaytes, Jr. ("Kaytes"), Leo Kaytes Ford, Inc. ("Kaytes Ford"), P.O. Ron Donnatin ("Donnatin") and the Town of Warwick (the "Town") alleging that defendants, acting under color of state law, violated his rights under the Fourth and Fourteenth Amendments of the United States Constitution. The Orange County District Attorney's Office, a non-party to this action, brought this motion to quash the subpoena issued upon it by defendant Donnatin. For the reasons stated below, the motion is denied.
According to the Amended Complaint, plaintiff brought his car to Kaytes Ford for a replacement transmission. (Am. Complt. ¶ 9.) Shortly after the car was returned to plaintiff, he brought it back to Kaytes Ford because it was not running properly. (Id.) Katyes Ford informed him that the engine needed to be replaced, and a dispute arose between them as to whether this was caused by the improper removal and re-installation of the transmission and the failure of Kaytes Ford to heed recalls involving the timing chain. (Id. ¶ 10.) As a result of the dispute, plaintiff and Kaytes agreed to a discounted price to replace the engine. (Id. ¶ 11.) When plaintiff picked up the car, on February 26, 2007, he delivered a check to Kaytes Ford in payment for the services and believed that the repair was completed with new or factory re-manufactured parts. (Id.) The car stalled several times before plaintiff got home and he was barely able to make it back to Kaytes Ford. (Id. ¶ 12.) Upon inspection, it became apparent that Katyes Ford had used old parts from the replaced engine and other used parts and had failed to perform all the necessary pre-operation inspections on the car.
(Id.) Plaintiff again left his car with Katyes Ford for repair but informed them of his complaints and that he was stopping payment on the check. (Id. ¶¶ 13-14.) Plaintiff attempted to resolve the dispute with Kaytes Ford, but was informed by Kaytes that Kaytes would not negotiate with plaintiff because Kaytes "had 'friends in the police department'" and all he "had to do was 'call one of [his] police buddies' and plaintiff would be 'arrested for a bad check.'" (Id. ¶ 16 (alteration in original).)
Plaintiff alleges that Kaytes spoke to Police Officer Donnatin and that Kaytes and Donnatin conspired to have Donnatin threaten plaintiff with arrest, prosecution of criminal charges and public humiliation unless plaintiff abandoned the civil dispute with Katyes. (Id. ¶¶ 17-18.) In or about March or early April 2007, Donnatin contacted plaintiff and informed plaintiff that he would file charges against plaintiff if plaintiff did not pay Kaytes Ford in full. (Id. ¶ 19.) Plaintiff told Donnatin all of the above information about his dispute with Kaytes Ford and offered to provide Donnatin with confirming documents and additional information, but Donnatin did not accept plaintiff's offer, refused to conduct an investigation into the facts of the dispute and threatened plaintiff with arrest, prosecution and public humiliation. (Id. ¶ 20.) After one of the initial calls from Donnatin, plaintiff contacted the Orange County District Attorney's Office (the "DA's Office") in late March or early April 2007 to inform it of Donnatin's threat. (Id. ¶ 23.) Plaintiff alleges that the Assistant District Attorney ("ADA") he spoke to stated that he was unaware of any charges that were presented for review related to the incidents and that it sounded to him like a civil dispute. (Id. ¶ 24.)
Plaintiff alleges upon information and belief that Donnatin later communicated with ADA Jamie Ferrara ("Ferrara"), who informed Donnatin that there were insufficient grounds to charge plaintiff with a crime or to arrest and prosecute him. (Id. ¶ 25.) Plaintiff alleges that after this discussion, however, Donnatin contacted plaintiff on April 20, 2007 and told him to appear in the Warwick Town Police Department on Saturday April, 21, 2007. (Id. ¶ 26.) Plaintiff alleges that Donnatin requested plaintiff appear on a Saturday because Donnatin knew an ADA would not be available to evaluate and review the proposed charge against plaintiff. (Id.) Upon arrival at the Police Department on April 21, plaintiff was restrained, confined and charged with felony larceny in the third degree. (Id. ¶ 27.) Plaintiff again offered documentary and other evidence to assist Donnatin in evaluating the matter, but Donnatin told him the only way to avoid arrest, prosecution and public humiliation was to pay Kaytes Ford in full. (Id. ¶ 28.) Plaintiff alleges that Donnatin then forwarded the arrest information, stating that plaintiff had committed felony theft of services, to the media for general publication. (Id. ¶¶ 29-30.) Upon review of the charges, the DA's Office made a motion to dismiss all the charges against plaintiff as there was not sufficient information to believe a crime had been committed. (Id. ¶ 32.) On September 28, 2007, an order dismissing the charges against plaintiff was entered by Justice Peter D. Barlet, Town of Warwick. (Id. ¶ 33.)
On April 11, 2008, defendant Donnatin served a subpoena duces tecum issued by his attorney on ADA Ferrara, commanding that he appear for a deposition on May 14, 2008 and that he produce "[a]ny and all documents relating to the conversations [he] had with P.O. Ron Donnatin with respect to the above referenced matter." The DA's Office made a motion to quash the subpoena on April 30, 2008, on the grounds that the documents requested are filed under seal by operation of state law and that the request would violate the deliberative process privilege.
A party subject to a subpoena may bring a motion to quash the subpoena if it "requires disclosure of privileged or other protected matter, if no exception or waiver applies." FED. R. CIV. P. 45(c)(3)(A)(iii). "'[T]he party invoking a privilege bears the burden of establishing its applicability to the case at hand.'" In re Cardinal Health, Inc. Sec. Litig., 2007 WL 495150, at *3 (S.D.N.Y. Jan. 26, 2007) (quoting In re Grand Jury Subpoenas Dated Mar. 19, 2002 & Aug. 2, 2002, 318 F.3d 379, 384 (2d Cir. 2003); alteration in original). Motions to quash a subpoena are "entrusted to the sound discretion of the district court." In re Fitch, Inc., 330 F.3d 104, 108 (2d Cir. 2003) (internal quotation marks and citation omitted).
A. New York Sealing Statute
The DA's Office argues that the documents requested are sealed by operation of New York Criminal Procedure Law § 160.50, and there is no authority authorizing their release. (Letter from Andrew Kass, Senior ADA, Orange County District Attorney's Office, to Hon. William C. Conner, U.S.D.C., dated Apr. 30, 2008 ("Kass 4/30/08 Ltr.").) New York Criminal Procedure Law § 160.50 provides for the sealing of records relating to the arrest and prosecution of an accused upon the termination of a criminal proceeding in his favor. See N.Y. CRIM. PROC. LAW § 160.50(1). The state sealing statute does not govern here, since the plaintiff is asserting federal claims. See Haus v. City of New York, 2006 WL 3375395, at *2 (S.D.N.Y. Nov. 17, 2006) (citing inter alia United States v. Goldberger & Dubin, P.C., 935 F.2d 501, 505 (2d Cir. 1991)). However, in the spirit of comity, federal courts should take into consideration the policy ...