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Sharon Dorsett, Individually and As the Administratix of the Estate of v. County of Nassau

January 14, 2011

SHARON DORSETT, INDIVIDUALLY AND AS THE ADMINISTRATIX OF THE ESTATE OF JO'ANNA BIRD, PLAINTIFF,
v.
COUNTY OF NASSAU, NASSAU COUNTY POLICE DEPARTMENT, OFFICE OF THE NASSAU COUNTY DISTRICT ATTORNEY, DETECTIVE ROBERT ARIOLA, IN HIS OFFICIAL AND INDIVIDUAL CAPACITIES, POLICE OFFICERS AND/OR DETECTIVES JOHN AND JANE DOES 1-10, DISTRICT ATTORNEY JOHN AND JANE DOES 1-10, AND LEONARDO VALDEZ-CRUZ, DEFENDANTS.



The opinion of the court was delivered by: A. Kathleen Tomlinson, Magistrate Judge:

MEMORANDUM

DECISION AND ORDER

This civil rights action arises out of the March 2009 tragic death of Jo'Anna Bird, a young mother, at the hands of her former boyfriend and father of her child, Leonardo Valdez-Cruz, who is a defendant in this case. Jo'Anna Bird had obtained several orders of protection against Valdez-Cruz on her own behalf as well as on behalf of her children. Valdez-Cruz was tried and convicted for the murder of Jo'Anna Bird and is currently serving his sentence. In the current case, Plaintiff Sharon Dorsett, the mother of Jo'Anna Bird, both individually and as the Administratrix of her daughter's estate, has brought a series of claims asserting, among other things, Section 1983 violations against the individual Nassau County defendants, municipal liability against Nassau County pursuant to Monell v. Dep't. of Soc. Servs., 436 U.S. 658 (1978), a Section 1983 conspiracy claim against Leonardo Valdez-Cruz and the Nassau County defendants, as well as claims asserting negligence, abuse of process and wrongful death.

Before the Court at this time is a motion by the County of Nassau, the Nassau County Police Department ("NCPD"), the Office of the Nassau County District Attorney, Detective Robert Ariola, Police Officers and/or Detectives John and Jane Does 1-10, and District Attorney John and Jane Does 1-10 (collectively, the "Nassau County Defendants") for an injunction and/or protective order prohibiting the disclosure, dissemination, release or revelation of the contents of Internal Affairs Unit Report 14-2009 ("IAU Report") which documents the Nassau County Police Department's internal investigation into the death of Jo'Anna Bird. The motion was prompted by a press release issued by Plaintiffs' counsel on November 30, 2010 announcing a press conference to be held at 11 a.m. on December 1, 2010 at the offices of Plaintiffs' counsel, at which time, Plaintiffs' counsel intended to release the IAU Report to the press and public. Defendant Valdez-Cruz, although having been served with the summons and complaint on April 1, 2010 (see DE 8), has not appeared in this action.

I. PRELIM INARY STATEM ENT

Counsel for the County Defendants contacted the Court at approximately 2 p.m. on November 30, 2010 seeking an emergency hearing based on the information contained in the press release prepared by the Plaintiffs' law firm. At that time, Defendants' counsel was directed to contact Plaintiffs' counsel to arrange a conference call with the Court at 5 p.m. when the Court concluded its calendar of cases for the day. Defendants' counsel was also informed that both sides could submit in the interim any cases which they wished to have the Court consider and counsel was directed to convey that information to Plaintiffs' counsel as well.

Immediately prior to and during the 5 p.m. conference call, the Court received, via facsimile, various cases from Defendants' counsel. During that telephone call, the Court heard preliminary argument from both sides regarding the County Defendants' oral application for an injunction and temporary restraining order ("TRO"). The Court made clear to counsel that it was not going to make a final ruling on an issue of such significance based solely upon the oral representations of counsel, without the benefit of any briefing or discussion of cases in the Second Circuit applicable to the specific circumstances of this case. See Redacted Transcript of November 30, 2010 Telephone Conference ("11/30/10 TelCon Tr."), DE 59, at 29-31. However, given the intention of Plaintiffs' counsel to release the IAU Report the next morning, and balancing the equities involved, this Court granted Defendants' motion and temporarily restrained and preliminarily enjoined Plaintiffs' counsel and his law firm (and the Administratrix and family members to the extent that any of them had actually seen the IAU Report) from releasing or disclosing to any person, entity or organization in written or oral form or in any other manner the contents of the IAU Report (including any references to specific contents of the Report) pending a review and determination by the Court after the parties briefed the issues discussed. In addition, the Court noted to all counsel that a short delay pending the Court's review and decision on the briefs to be submitted would result in no prejudice to the Plaintiffs since the IAU Report, which had been in the possession of Plaintiffs' counsel for some time, could be disclosed within a short time if the Court ruled in Plaintiffs' favor. On the other hand, the Defendants could be irreparably harmed by the immediate disclosure of the IAU Report if it turned out that the Report was not subject to public disclosure, thereby rendering Defendants' rights meaningless. 11/30/10 TelCon Tr. at 30-31. A briefing schedule was then set with counsel for the parties. Id. at 35-36. A written Order summarizing the ruling was entered by the Court at 8:57 p.m. on November 30, 2010. See DE 25.

Following up on that telephone conference, Defendants have submitted their motion papers seeking the following relief: (1) an injunction pursuant to Rule 65; (2) a protective order pursuant to Rule 26(c); and/or (3) the issuance of an order of confidentiality, all pertaining to the proposed disclosure by Plaintiff of the contents of the IAU Report. See DE 50.*fn1

In addition, on December 6, 2010, Newsday LLC and News 12 Networks LLC (collectively, "Press Applicants") filed a motion seeking to intervene in this action for the limited purpose of: (1) opposing defendants' motion to enjoin plaintiffs, plaintiffs' counsel and plaintiffs' relatives from disclosing the contents of a redacted Internal Affairs Unit Report produced in this litigation and to seal all court records and proceedings relating to that motion; (2) vacate any on-going injunction barring disclosure of the redacted IAU Report or its contents; (3) unseal all motion papers and transcripts and open all subsequent hearings in this matter; (4) request reconsideration under Fed. R. Civ. P. 59(e); Local Civil Rule 6.3, of the Court's denial of modification of its December 1, 2010 order sealing the parties' motion papers. See DE 28. The Press Applicants' motion seeking to intervene was granted on December 7, 2010. See DE 31. This Memorandum and Order addresses only the Press Applicants' arguments relating to Defendants' motion. A separate order will follow on the relief sought by the Press Applicants.

II. PROCEDURAL BACKGROUND

On March 19, 2010, Plaintiffs filed a Complaint against the Defendants alleging violations of 42 U.S.C. § 1983 as well as various state law claims. See DE 1. The Initial Conference to establish a discovery plan for this case was held on August 5, 2010, during which time Plaintiffs' counsel placed on the record his previous attempts to obtain the IAU Report prepared by the NCPD Internal Affairs Unit regarding the response of police department personnel in the underlying circumstances involving the death of Jo'Anna Bird. See DE 37 (Initial Conf. Tr.), at 9-10. Specifically, Plaintiff's counsel stated [e]ven after this action was filed and served, we asked -- we wrote letters to the County Attorney asking for copies of the report and investigation so that we might be able to not actually act in a blind fashion going through this process, so we can name the actual officers who need to be named in the complaint, serve, so that we don't have to go backwards six months from now. We believe that that report is key. It is crucial to our ability to evaluate and name the individuals, and we would like to have that provided to us post haste.

Id. After the Court inquired whether Defendants were objecting to production of the IAU Report, Defendants' counsel stated that it was her belief that the Report was not complete but that she would look into it. Id. at 11. Based on the response of Defendants' counsel, the Court advised that . . . we need to get some indication, sooner rather than later, even when it is complete, if there -- if the position of the Defendants is that they're not going to turn that over, then you're going to have to make a Motion for a Protective Order, all right? And I want a date certain by which we're going to do that . . . I'll give you until September 3rd to file any protective -- Motion for a Protective Order Id. at 12-13.

Also during that same conference, the Court asked the parties whether there was any information to be exchanged which warranted a confidentiality agreement. See id. at 25. In response, Plaintiffs' counsel argued that "[w]e don't think so, and we don't see how there could even be a need for a Protective Order. . . . given the public nature of much of what has taken place" and "[a]t this point, that's been a big issue because the lack of disclosure we believe has created real public concern." Id. The Court responded: the only thing I see here as potentially raising an issue down the road is if there are personnel records that might in some way be encompassed in what's typically part of a Confidentiality Order, but you'll address that as you're going forward if it becomes an issue, all right?

Id. These discussions were memorialized in the Court's August 5, 2010 Civil Conference Minute Order. See DE 13, ¶ 3 ("Defendants may be seeking a protective order with regard to the report. If they intend to proceed in this direction, I have given defendants a deadline of September 3, 2010 to file a letter motion for a protective order, including the legal support for their position."); ¶ 7 ("Counsel for the parties will discuss whether a Stipulation and Order of Confidentiality is necessary in this case based upon the nature of some of the records to be produced.").

On August 6, 2010, Defendants' counsel wrote to the Court and advised that the IAU Report was complete, with the exception of the disciplinary review phase. See DE 15. Defendants' counsel further noted that they were in the process of reviewing the IAU Report and reserved their right "to move for a protective order, a stipulation of confidentiality or, alternatively, a request for in camera inspection, by September 3, the date designated by the Court." Id. On September 9, 2010, Plaintiffs' counsel wrote to the Court advising that the County had neither supplied the IAU Report nor filed a motion for a Protective Order on or before September 3, 2010 as directed by the Court. See DE 16. The Court then issued an Order on September 10, 2010 requesting that the County Defendants inform the Court by September 15, 2010 why the IAU Report was not produced by September 3 and to provide information concerning any underlying circumstances related to the delay. See Electronic Order of Sept. 10, 2010.

In response to the Court, counsel for the Nassau County Defendants filed a letter dated September 15, 2010 stating that "[t]he delay has been occasioned by the necessity to review and redact certain information from the voluminous report as well as the necessity to request the reproduction of the police officers' memo-book pages contained in the report." DE 18. The letter further advised that the Report would be furnished that week. Id. In light of that response, the Court deemed the issues raised in Plaintiffs' letter [DE 16] moot.

On October 12, 2010, Plaintiffs' counsel wrote to the Court seeking full disclosure of the IAU Report after advising that certain pages were withheld and made part of a privilege log and that substantial redactions had been made of various portions of the Report as produced. See DE 20. Plaintiffs' counsel argued that [f]rom all appearances, what has been deleted includes names and addresses of persons with direct knowledge of the wrongful acts of Police, including other members of the public that have been victimized as was Ms. Bird. The names and addresses of witnesses who have relevant information about the improper acts of these officers are relevant to our Monell claims, as well as our claims under Federal and State law dealing with the failure to train, supervise, monitor and follow the County's own rules and procedures. The citizens who were the victims of the police failures and intentional acts of these officers have a right to be informed and protected.

Id. That same day, counsel for the County Defendants filed a letter opposing production of an unredacted copy of the IAU Report. See DE 21. After reviewing the submissions of both sides, the Court directed Defendants' counsel on October 13, 2010 to submit the redacted and unredacted IAU Report for an in camera inspection. On October 29, 2010, the Court granted in part and denied in part Plaintiffs' application and specifically identified portions of the IAU Report which were to be produced without redactions. See DE 22. With regard to two pages which were part of the County Defendants' privilege log, the Court found that although these documents may be work product, they are similar to other documents produced in the litigation, may be relevant to Plaintiff's Monell claim, and are not obtainable by Plaintiff from any other source. However, I also find that these documents are entitled to be produced on an "Attorney's Eyes Only" basis and to the extent the parties have not entered into a Confidentiality Agreement regarding the same, I am instructing them to do so.

Id. at 5. The County Defendants were given a week to review the documents from which the Court ordered the redactions to be removed and to notify the Court by November 5, 2010 of any matter involving the safety or security of any third-party which Defendants' counsel had not previously identified to the Court. Otherwise, the newly unredacted documents were to be produced to the Plaintiffs by November 10, 2010. Id. at 4. The Court heard nothing further from the parties at that point.

Less than one month later, on November 30, 2010, counsel for the County Defendants contacted the Court to request an emergency hearing after learning indirectly that Plaintiffs' counsel had issued a press release earlier that day stating the following:

PRESS RELEASE -- PRESS RELEASE -- PRESS RELEASE -- PRESS RELEASE * EMBARGO-EMBARGO For Release December 1, 2010 at 11 a.m. EMBARGO-EMBARGO* ATTORNEYS AND FAMILY OF JO'ANNA BIRD RELEASE CONTENTS OF SECRET INTERNAL AFFAIRS REPORT FINDING MASSIVE VIOLATIONS AND FAILURES BY MULTIPLE MEMBERS OF THE NASSAU COUNTY POLICE - - ALL LEADING

TO THE DEATH OF JO'ANNA BIRD NASSAU COUNTY POLICE KNEW JO'ANNA WAS IN DANGER AND CARELESSLY REFUSED TO SAVE HER

On December 1, 2010 at 11:00 a.m. in The Law Offices of Frederick K. Brewington, Main Conference Room, 556 Peninsula Blvd. (corner of Tyler and Peninsula), Hempstead, New York, the Attorneys and the family of Jo'Anna Bird, the 24 year old Westbury mother of two that was brutally murdered, by Leonardo Valdez Cruz, will hold a press conference. The content of the Secret Internal Affairs Report will be shared with the public for the first time. This over 700 page report demonstrates the systemic failures and intentional actions by members of the Nassau County Police Department in refusing to follow New York State Law; follow their own rules and regulations and more importantly protect the life and Civil Rights of Jo'Anna Bird.

Details will be revealed which uncover the depth and scope of the Nassau police involvement in allowing Valdez Cruz to commit the murder of Ms. Bird on Mach 19, 2009, their utter disregard for Orders of Protection in her favor, disregard for her safety and their disregard for the safety of the community. Shocking details will be released that demonstrate that Nassau misled the public.

-END-

See Declaration of Deputy County Attorney Liora M. Ben-Sorek, Ex. C. Based upon an e-mail header and the letterhead of the Law Offices of Frederick K. Brewington which are found physically above the press release, it appears that the press release was being sent by an employee or representative of the Brewington Law Firm to approximately 14 media outlets as well as various individuals. Id.

Because of the imminence of the press conference the next morning, the Court agreed to hear from the parties by telephone at 5 p.m. on November 30 in light of the other commitments of counsel and the short notice of the telephone conference. Specifically, and as noted above, Defendants' counsel made an application during the phone conference to enjoin Plaintiffs' counsel from publicly disclosing the IAU Report. Plaintiffs' counsel opposed and advised the Court that he had filed a letter on ECF prior to the phone conference. The Court retrieved that letter [DE 24] and considered its contents as well.

After hearing from both sides during the telephone conference, this Court ruled that the County Defendants had met the requirements for a preliminary injunction/TRO and that Plaintiffs had not established any prejudice that would accrue by permitting the parties to brief an issue of such significance to both sides so that a reasoned determination could be made upon an appropriate review of more fully developed and supported legal arguments. See DE 25. Thus, the preliminary injunction, which temporarily restrained and preliminarily enjoined Plaintiffs from releasing or disclosing the contents of the Report temporarily stayed the disclosure of the IAU Report at least until the issue was briefed and a decision on the merits could be made. Id. The parties were provided with a briefing schedule and were directed to file their motion papers under seal. Id. at 3. With this procedural setting in mind, the Court now turns to the merits of the fully briefed motion.

III. THE COUNTY DEFENDANTS'MOTION FOR A PROTECTIVE ORDER

As an alternative to injunctive relief, the County Defendants assert that they are entitled to a protective order for the IAU Report on a showing of good cause pursuant to Fed. R. Civ. P. 26(c). Defs.' Mem. at 21-22. The County Defendants argue that on balancing the need for the information against the injury which might result from compelled disclosure, the Court should find that the scales tip in favor of the Defendants. Id. at 22 (citing In re Zyprexa Injunction, 474 F. Supp. 2d 385, 415 (E.D.N.Y. 2007)). On the other hand, Plaintiffs maintain that the County Defendants are not entitled to a protective order because: (1) the County's disclosure of the existence of an IAU Report has waived any privilege; (2) the County failed to file a timely motion for a protective order; (3) the IAU Report was not listed on Defendants' privilege log; and (4) Defendants voluntarily disclosed the IAU Report to the Plaintiffs, thereby waiving any privilege. Pls.' Mem. at 7-11.

It is well established that courts have an inherent equitable power to grant confidentiality orders. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 35-36 (1984). Under Rule 26(c), "a court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Fed. R. Civ. P. 26(c). This equitable power includes prohibiting the disclosure of certain materials. See Fed. R. Civ. P. 26(c)(A). "The unique character of the discovery process requires that the trial court have substantial latitude to fashion protective orders." Seattle Times Co. v. Rhinehart, 467 U.S. at 26; see also In re Zyprexa Injunction, 474 F. Supp. 2d at 415 ("Much of the material produced in discovery is neither incorporated in motions made to the court nor admissible at trial. In order to mitigate the substantial risk of litigants' privacy and other rights posed by the expansive scope of pretrial discovery, courts are given broad discretion in Rule 26(c) to craft sealing orders"). Since protective orders can implicate the public's First Amendment and common law right of access to the courts, however, Rule 26(c) requires the party seeking the order to demonstrate good cause. See In re Agent Orange Prod. Liab. Litig., 821 F.2d 139, 145 (2d Cir. 1987); In re Terrorist Attacks on Sept. 11, 2011, 454 F. Supp. 2d 220, 221 (S.D.N.Y. 2006).

In determining whether good cause has been shown, courts must weigh the private interests advanced against the public's interest in the information contained in the documents.

Cumberland Packing Corp. v. Monsanto Co., 184 F.R.D. 504, 505 (E.D.N.Y. 1999); see also In re Zyprexa Injunction, 474 F. Supp. 2d at 415 ("Balancing requires taking into account litigants' privacy rights as well as the general public's interest in the information."). Therefore, "Rule 26(c)'s 'good cause' analysis is informed by the common law presumption of public access." Standard Inv. Chartered, Inc. v. Nat'l Ass'n of Sec. Dealers, Inc., 621 F. Supp. 2d 55, 61 (S.D.N.Y. 2007).

Defendants argue that the public at large has no right to review documents exchanged during the discovery process. See Defs.' Mem.at 11-13. Plaintiffs contend however that absent a protective order, materials produced in discovery may be disclosed by the receiving party to the public. See Pls.' Mem. at 12. Plaintiffs rely upon Schiller v. City of New York, No. 04 Civ. 7922, 2007 WL 136149 (E.D.N.Y. Jan. 19, 2007). However, the circumstances surrounding Schiller are distinguishable from the present action. Schiller involved the arrest of various persons conducting a protest in connection with the 2004 Republican National Convention. Id. at *1. There, the parties had already entered into a negotiated protective order which enabled any party to designate discovery materials as "Confidential" and subject to the terms of the order. Id. Some time after the agreement in Schiller was "so ordered," the defendant City of New York notified plaintiffs' counsel that it was designating as "Confidential" all of the materials previously produced to the plaintiffs. After plaintiffs succeeded in getting the defendants to remove the designation from a small number of documents, the defendant moved for a protective order to cover the remaining documents. Id at *2. The court directed that the motion papers and supporting declarations be filed initially under seal. Id. Upon considering the arguments of both sides, the court found that "[i]n the absence of such a protective order, 'parties to a law suit may disseminate materials obtained during discovery as they see fit.'" Id. (quoting Jepson, Inc. v. Makita Elec. Works, Ltd., 30 F.3d 854, 858 (7th Cir. 1994)). However, the court in Schiller also went on to note that "[w]hile materials produced in discovery may be disclosed by the receiving party in the absence of a protective order, the public does not have a right of access to those materials." Schiller, 2007 WL 136149, at *2 n.2. The court ultimately held that because the City had voluntarily produced privileged documents, the City had waived the privilege.*fn2 Id. at *5. By contrast, in the instant motion, the County Defendants have placed before this Court the issue of whether good cause for the imposition of a protective order exists in the first instance.

In arguing further, Plaintiffs also maintain that Defendants fail to make particular and specific demonstrations of fact showing that disclosure would result in an injury sufficiently serious to warrant protection and instead rely on broad allegations of unsubstantiated harm. Pls.' Mem. at13. Plaintiffs emphasize that the burden to make such a showing was and remains with the Defendants as the movants here. In this regard, Plaintiffs claim that the cases cited by Defendants do not shift that burden to the Plaintiffs to demonstrate a legitimate interest to prevent a sealing order, but as affirmed in Byrnes v. Blue Cross Blue Shield, No. 98 Civ. 8520, 2000 WL 60221, at *1 (S.D.N.Y. Jan. 25, 2000), that burden remains with the producing party to establish "good cause" to prevent public access. Id. at 13-14. The Court now turns to analyzing the parties' legal positions.

A. Common Law Right of Public Access

The existence of a common law right of public access to judicial documents is clear. See Nixon v. Warner Comm'ns, Inc., 435 U.S. 589, 597-98 ("[T]he courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents."); Gambale v. Deutsche Bank, 377 F.3d 133, 140 (2d. Cir. 2004) (public has a common law presumptive right of access to judicial documents). However, that right of access is not absolute. The Second Circuit established a framework in Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006) for court to utilize in determining when the public has a right of access to particular documents. Lugosch involved the attempts of several news organizations to intervene to obtain access to documents filed under seal in conjunction with a motion for summary judgment. Id. at 112. The Court of Appeals held that "[b]efore any such common law right can attach, however, a court must first conclude that the documents at issue are indeed 'judicial documents.'" Lugosch, 435 F.3d at 119. "Once the court has determined that the documents are judicial documents and that therefore a common law presumption of access attaches, it must determine the weight of that presumption." Id. "Finally, after determining the weight of the presumption of access, the court must 'balance competing considerations against it.'" Id. at 120. Utilizing this framework, the Court now turns to its assessment of the IAU Report in this context. The first question raised, then, is what constitutes a judicial document?

1. Judicial Document

Judicial documents have been defined as "items filed with the court that are relevant to the performance of the judicial function and useful in the judicial process." See In re Terrorist Attacks on Sept. 11, 2011, 454 F. Supp. 2d 220, 222 (S.D.N.Y. 2006) (quoting SEC v. TheStreet.com, 273 F.3d 222, 231 (2d Cir. 2001) (internal quotation marks omitted). Significantly, however, the Second Circuit has also stated that "an abundance of statements and documents generated in federal litigation actually have little or no bearing on the exercise of Article III judicial power. . . ...


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