The opinion of the court was delivered by: Marian W. Payson United States Magistrate Judge
Plaintiffs Michael DeFranco and Michelle Engler have brought the above-captioned action against the Town of Irondequoit, the City of Rochester, the Town of Brighton and the Town of Greece, their respective police departments, and various individual police officers, alleging various claims arising from the execution of a search warrant on June 1, 2005 at plaintiffs' home by members of the Greater Rochester Area Narcotics Enforcement Team ("GRANET") -- a task force comprised of various law enforcement agencies within Monroe County. (Docket # 1). Plaintiffs allege that during the warrant's execution, defendants used a battering ram to enter the building, assaulted them and shot one of their dogs, which later died. ( Id .). Plaintiffs have asserted claims under 42 U.S.C. § 1983 alleging that defendants violated their Fourth, Fifth and Fourteenth Amendment rights, as well as various state law claims, including assault, battery, trespass to chattels, and intentional and negligent infliction of emotional distress. ( Id .).
Currently pending before this Court is a motion by plaintiffs to compel the production of information and documents from the Town of Irondequoit related to the search warrant. (Docket # 25). Specifically, plaintiffs seek disclosure of the identity of the confidential informant whose allegations were reported in the application for the warrant, and production of the unredacted application, the informant's deposition that was attached to the application and any records reflecting the informant's activities for two years prior to the warrant's execution. ( Id .). The Town of Irondequoit defendants, joined by the City of Rochester and Town of Greece defendants, have cross-moved for a protective order prohibiting the requested disclosure. (Docket ## 31-33). The Town of Brighton defendants oppose disclosure of the identity of the informant, but do not oppose production of the deposition and warrant application, provided that the informant's identity is suppressed. (Docket # 29).
On June 1, 2005, Irondequoit Town Court Justice Vincent DiNolfo issued a search warrant for 3999 Culver Road in Rochester, New York. (Docket # 25-3, Exhibit ("Ex.") E). The application for the warrant included an affidavit by Irondequoit Police Officer Anthony DiFante ("DiFante") reciting information that DiFante had received from an informant regarding drug sales at that location. (Docket # 25-3, Ex. C). The informant was an individual who had been arrested earlier that day on unrelated charges. ( Id. at A-132). DiFante affirmed that he had spoken to the informant in the afternoon following the arrest and that the informant had told him that he had purchased marijuana from an individual known as "Brian Angler" "hundreds of times" at 3999 Culver Road and had seen large quantities of marijuana there. ( Id . at A-132-33).
The informant stated that Angler lived at that location with his father, who was the source of the marijuana. ( Id .). The application also reported that the informant had advised that Angler "sells marijuana [at] all hours of the day and night" and that the informant had recently bought marijuana from Angler. ( Id . at A-133). Attached to the warrant application was a deposition of the informant, who appeared before Judge DiNolfo and signed the deposition under oath. ( Id .; Docket # 25-4, Ex. H at 2, 4). Members of GRANET executed the search warrant the same day that it issued, but did not find either Brian Angler*fn1 or substantial quantities of marijuana. They did find plaintiffs at the residence and arrested them on a misdemeanor charge of criminal possession of marijuana in the fifth degree, in violation of N.Y. Penal Law § 221.10. (Docket # 35-4, Ex. H at 2).
Represented in that criminal prosecution by the same counsel as in the current civil action, plaintiffs moved to suppress the seized marijuana, arguing that the application for the warrant did not satisfy either prong of the Aguilar-Spinelli test.*fn2 (Docket # 25-3, Ex. F at 4). Specifically, plaintiffs alleged that there had been no adequate showing of the informant's reliability. ( Id .). They contended that because DiFante had met the informant on the same day that the warrant was issued, little or no effort could have been undertaken to confirm the reliability of the informant's information. ( Id . at 2-6; Docket # 25-4, Ex. G at A-53-54).
Plaintiffs further argued that the informant's information must have been either false or stale because the search uncovered neither Brian Angler nor large quantities of marijuana. (Docket # 25-4, Ex. G at A-54-55).
Following an evidentiary hearing at which DiFante testified, Irondequoit Town Justice Joseph T. Grenier determined that the warrant was supported by probable cause. (Docket # 25-4, Ex. G at A-58). Plaintiffs thereafter pled guilty to unlawful possession of marijuana, a violation under N.Y. Penal Law § 221.05, and were each fined $100.00. (Docket # 33-2 at A-62-63). The determination of probable cause was affirmed on appeal by Monroe County Court Judge John R. Schwartz. (Docket # 25-4, Ex. H at 4). Specifically, Judge Schwartz held that the Aguilar-Spinelli test did not apply to the warrant at issue because the informant had "personally appeared before the issuing magistrate, and signed, under oath, a written supporting deposition." ( Id .). The Court of Appeals subsequently denied plaintiffs' application for leave to appeal. (Docket # 33-4).
Plaintiffs filed this civil action on August 30, 2006. (Docket # 1).
As a general matter, the government is privileged to withhold from disclosure the identity of individuals who provide information about criminal conduct. Roviaro v. United States , 353 U.S. 53, 59 (1957). "Substantial policy considerations override the need for full disclosure of informants' identities," such as "protect[ing] the anonymity of informants and [securing] the informants' continued cooperation in furnishing information regarding violations of law." United States v. Mullen , 243 F.R.D. 54, 70 (W.D.N.Y. 2006) (citing Roviaro v. United States , 353 U.S. at 61). Thus, in order "to overcome the privilege, the party seeking disclosure has the burden of establishing that the information sought is both relevant and essential to the presentation of his case on the merits . . . and that the need for disclosure outweighs the need for secrecy." Cullen v. Margiotta , 811 F.2d 698, 715-16 (2d. Cir. 1987) (internal citations omitted), cert. denied , 483 U.S. 1021 (1987), overruled on other grounds by Agency Holding Corp. v. Malley-Duff & Assoc., Inc. , 483 U.S. 143, 156 (1987). In criminal cases, for example, disclosure is warranted where a defendant will be deprived of a fair trial without it, United States v. Fields , 113 F.3d 313, 324 (2d Cir.), cert. denied , 522 U.S. 976 (1997), or where the informant was a "key witness or participant" in the alleged crime whose testimony would be material to the defense. United States v. Saa , 859 F.2d 1067, 1073 (2d Cir. 1988), cert. denied , 489 U.S. 1089 (1989).
In civil cases, the burden a litigant seeking disclosure must shoulder is even weightier. In re United States , 565 F.2d 19, 23 (2d Cir. 1977) ("there is ample authority for the proposition that the strength of the privilege is greater in civil litigation than in criminal") (collecting cases), cert. denied , 436 U.S. 962 (1978). See McCray v. Illinois , 386 U.S. 300, 311 (1967) (declining to adopt rule requiring disclosure in criminal preliminary hearings "where the issue is one of probable cause, and guilt or innocence is not at stake"). It is therefore unsurprising that civil litigants often fail in their efforts to compel disclosure of informants' identities in Section 1983 cases challenging the validity of a search warrant. See , e.g. , Kirkland v. City of New York , 2007 WL 1541367, *10 (E.D.N.Y. 2007); Ayala v. City of New York , 2004 WL 2914085, *3 (S.D.N.Y. 2004). But see Carbajal v. Village of Hempstead , 2003 WL 23138447, ...