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Elliot Zomber v. Village of Garden City

August 10, 2010

ELLIOT ZOMBER, PLAINTIFF,
v.
VILLAGE OF GARDEN CITY, ET AL., DEFENDANTS(S).



The opinion of the court was delivered by: E. Thomas Boyle United States Magistrate Judge

MEMORANDUM

OPINION AND ORDER

The parties have brought a joint Motion to Compel (the "Motion" or "Motion to Compel") (Docket No. 52) seeking an order requiring the Nassau County Supreme Court to unseal grand jury records in People v. Zomber, Nassau County Court Indictment 1318N-08, the criminal case that underlies plaintiff's claims under 42 U.S.C. § 1983 for malicious prosecution and violation of the right to a fair trial. The Court held oral argument on the Motion on August 9, 2011. Because the parties have not demonstrated a particularized need for the materials, the Motion is denied.

BACKGROUND

According to the Complaint, plaintiff was involved in a car accident with defendant police officer Kenneth Stolz. (Complaint at 3). After plaintiff informed Stolz and police officer Kevin Madden that he had taken an Ambien thirty minutes before the accident, he was arrested and charged with criminal possession of a controlled substance. (Id.). Plaintiff was eventually brought to trial on three criminal charges: driving under the influence; assault in the second degree--specifically, recklessly causing serious physical injury to another person by means of a deadly weapon or a dangerous instrument, N.Y. Penal Law § 120.05(4); and assault in the third degree--specifically, with criminal negligence, causing physical injury to another person by means of a deadly weapon or a dangerous instrument, N.Y. Penal Law § 120.00(3). (See Motion to Compel, exh. A at 4). Plaintiff was cleared of the two assault charges, but found guilty of driving under the influence. (Complaint at 8-9).

In the instant action, plaintiff sued the Village of Garden City, Stolz, Madden, and John Does 1-4, alleging that Stolz and Madden made false statements to the grand jury that resulted in plaintiff's indictment on the two assault charges. (Complaint at 8-9). He also alleges that the same two police officers provided false police reports to prosecutors in the Nassau County District Attorney's Office. (Id. at 10). He asserts causes of action under 42 U.S.C. § 1983 for malicious prosecution and violation of his right to a fair trial.*fn1

The parties sought an order from the Nassau County Court unsealing the grand jury records in the criminal case underlying this lawsuit. The state court denied the request on April 14, 2011, stating that the petitioners had not demonstrated a compelling and particularized need for access. (Motion to compel, exh. C at 2). The court noted that there was no allegation that any grand jury witness was unavailable or any showing that the grand jury minutes are essential to the civil rights case. (Id., exh. C at 2). The court also asserted that, other than the testimony of Stolz, Madden, and Officer Michael Hickey--to which the parties already have access--"the only remaining witnesses before the Grand Jury testified regarding the lab report and the effect of such drug on an individual.

As the report of NMS labs must already be in possession of all parties, petitioners have failed to demonstrate a compelling and particularized need for access to the Grand Jury material." (Id., exh. C at 3).

The parties now ask for an order compelling the state court to unseal the grand jury records in People v. Zomber, Nassau County Court Indictment 1318N-08. (Id. at 1). The parties admit that they have access to the grand jury testimony of Stolz, Hickey, and Madden but assert they lack any information about other testimony given, the charges presented to the grand jury, or the indictment actually issued.*fn2 (Id. at 4; see also id., exh. A, at 5). Therefore, they seek "the full minutes, the documents presented, and the indictment issued." (Id. at 3).

LEGAL STANDARDS

I. Disclosure of Grand Jury Materials "A strong policy of comity between state and federal sovereignties impels federal courts to recognize state privileges where this can be accomplished at no substantial cost to federal substantive and procedural policy." King v. Conde, 121 F.R.D. 180, 187 (E.D.N.Y. 1988). However, "'state courts [do not have] a veto over disclosure in [a] federal civil rights case.'" Palmer v. Estate of Walwyn Stuart, No. 02 Civ. 4076, 2004 WL 2429806, at *2 (S.D.N.Y. Nov. 1, 2004) (quoting Socialist Workers Party v. Grbisic, 619 F.2d 641, 644 (7th Cir. 1980)) (second alteration in original).

Instead, federal law governs claims of privilege in federal civil rights cases. See, e.g., King, 121 F.R.D. at 187.

Federal law "disfavors privileges barring disclosure of relevant evidence," recognizing "important federal interests in broad discovery and truth-seeking and the interest in vindicating important federal substantive policy such as that embodies in section 1983." King, 121 F.R.D. at 187 (citing United States v. Procter & Gamble Co., 356 U.S. 677, 682, 78 S. Ct. 983, 986, 2 L. Ed. 2d 1077 (1958); Hickman v. Taylor, 329 U.S. 495, 507, 67 S. Ct. 385, 391, 91 L. Ed. 451 (1947); Gary Plastic Packaging Corp. v. Merrill Lynch Pierce Fenner & Smith, Inc., 756 F.2d 230, 236 (2nd Cir. 1985)). Even so, under federal law a party seeking disclosure of grand jury material must make a "strong showing of a particularized need" for the material requested. United States v. Sells Eng'g, 463 U.S. 418, 443, 103 S. Ct. 3133, 3148, 77 L. Ed. 2d 743 (1983); see also Douglas Oil Co. of Cal. v. Petrol Stops Northwest, 441 U.S. 211, 221, 99 S. Ct. 1667, 60 L. Ed. 2d 156 (1979). A particularized need can be demonstrated by showing that the material sought "is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that the[] request is structured to cover only material so needed." Douglas Oil, 441 U.S. at 222; see also Myers v. Phillips, No. 04 CV 4365, 2007 WL 2276388, at *2 (E.D.N.Y. Aug. 7, 2007) (applying the same test with respect to state grand jury minutes). In weighing the need for disclosure against the need for secrecy, the court should keep in mind the traditional reasons for grand jury secrecy:

(1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before [the] grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect innocent accused who is ...


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