The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM-DECISION and ORDER
By letter filed and served on April 29, 2009, (Doc. No. 204), defendants moved, inter alia, for sanctions against plaintiff and/or his counsel for alleged violation of a Confidentiality Order executed by the parties on November 13, 2002, and so ordered by Magistrate Judge David E. Peebles on June 1, 2004, (Doc. No. 61). Plaintiff opposed by letter on May 1, 2009. (Doc. No. 206.)
On May 4, 2009, plaintiff Curtis Brown ("Brown"), attorney A. J. Bosman, and attorney Norman Deep were ordered to appear on May 11, 2009, at 10:00 a.m. in Utica, New York, to show cause why each and all of them should not be held in contempt for violation of the Confidentiality Order and be subject to sanctions up to and including dismissal of the case with prejudice. (Doc. No. 211.) A hearing was held on May 11, 2009. Defendants called Brown and Thomas Galvin as witnesses who were subject to cross examination. All submitted exhibits were admitted for the purposes of the hearing. Decision was reserved.
On November 13, 2002, Brown and defendants City of Syracuse and John Falge entered into an agreement protecting the content of any document or thing, interrogatory, answer thereto, request for admission, response thereto or deposition marked "Confidential" from any disclosure or use without further court order. The agreement was prepared by plaintiff's former attorney. The agreement also specified that the failure of any party to challenge a claim of confidentiality would not constitute acquiescence in the event compliance with the agreement was questioned. On April 7, 2004, plaintiff's current counsel sent a letter to the Court confirming her and co-counsel's agreement to conform to the terms of the November 13, 2002, confidentiality agreement. This letter specifically referred to the confidentiality of City of Syracuse Internal Affairs Department ("IAD") documents. As noted above, the November 13, 2002, agreement, along with the April 7, 2004, letter were not so ordered by Magistrate Judge Peebles until June 1, 2004.
Paragraph 4 of the Confidentiality Order stated:
Any document or paper produced by defendants herein shall be utilized by the plaintiff solely for purposes of this litigation and for no other purposes; provided, however, that this limitation shall not apply to any information or document or things which, at or prior to disclosure thereof, is or was publicly available, including documents or things which he possesses through a third party. (Confidentiality Order Doc. Nos. 61, 217.) Paragraph 5 provides:
Inspection of documents and things produced pursuant to this Protective Order by defendants shall be conducted only by counsel and his client assisting in the preparation of this litigation for trial. Such counsel shall treat any information in such documents or things as "Confidential" in accordance with the court's directives.
Id. Paragraph 7 precluded the parties from disclosing any items marked "Confidential" as follows:
Answers, depositions, documents, and things marked or designated "Confidential" in accordance with this stipulation and copies thereof shall not be disclosed by the receiving party to any other person, entity or third party without further order of the court.
A jury trial was scheduled to begin on Tuesday, May 5, 2009. One week prior to the scheduled trial date Brown sent to the news media via electronic mail a single-spaced, two-page letter making accusations of "heinous crimes . . . by some Syracuse Police Officers . . . includ[ing] but  not limited to, rape, and sodomy, sexual abuse to motorists, domestic violence, and pedophilia." (Doc. No. 208.) The letter stated that details supporting these allegations were contained in confidential IAD documents. The letter further stated that he obtained the IAD documents pursuant to an Order of this Court. His letter referenced the May 5 trial date, indicating that the trial was scheduled for an "entire week, due to the vast amount of evidence brought against" defendants. Id. Plaintiff concluded his letter stating: "The public needs to hear of these atrocities and weed out these sexual predators before more innocent women are victimized."
As noted above, the Order to Show Cause was issued on May 4, 2009. The trial scheduled for May 5, 2009, and all other open motions were adjourned without date ...