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

August 8, 2011

SHARON DORSETT, INDIVIDUALLY AND AS THE ADMINISTRATRIX 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: Spatt, District Judge.

MEMORANDUM OF DECISION AND ORDER

The present plaintiff, Sharon Dorsett, and two news organizations, Newsday LLC and News 12 Networks, LLC, object to the entry of a protective order in this case that prohibits the plaintiff from disseminating an internal report that the plaintiff obtained from the defendant Nassau County Police Department in discovery. For the reasons that follow, the Court affirms the entry of the protective order.

I. BACKGROUND

On March 19, 2009, Leonardo Valdez-Cruz murdered Jo'Anna Bird in her Nassau County home. According to the plaintiff, Bird had repeatedly appealed to the Nassau County Police for protection from Valdez-Cruz prior to her March 19, 2009 death, but the police department had ignored her pleas. On the one year anniversary of Bird's killing, her mother, Sharon Dorsett, commenced the present civil action against (1) Nassau County, (2) the Nassau County Police Department, (3) the Office of the Nassau County District Attorney, (4) Nassau County Police Detective Robert Ariola, and (5) certain unnamed Nassau County police officers and district attorneys (collectively, the "County Defendants"), asserting various federal and state causes of action based on the County Defendants' alleged wrongful failure to protect Bird from Valdez-Cruz. Dorsett also named as a defendant Valdez-Cruz, who is currently serving a prison sentence for Bird's murder and who has defaulted in this case.

After Bird was killed, the Nassau County Police Department Internal Affairs Unit began an investigation into the police department's involvement in the events surrounding Bird's death. The result was Internal Affairs Unit Report 14-2009 ("the IAU Report"), a 712-page document that the plaintiff then sought to obtain through discovery in this case. In their initial response to this request, the County Defendants produced only a highly redacted version of the report. In reply, the plaintiff moved to compel production of the full document. On October 29, 2010, after reviewing the IAU Report in camera, United States Magistrate Judge A. Kathleen Tomlinson directed the County Defendants to produce the report with only minor redactions, and with only two of the 712 pages marked "attorneys' eyes only". The County Defendants complied with this order sometime before November 10, 2011, and delivered the IAU Report to the plaintiff. At no time before or at production of the IAU Report did the County Defendants request a protective order limiting the dissemination of the report's contents.

Approximately twenty-five days after production of the IAU Report, on November 30, 2010, counsel for the plaintiff announced that he would hold a press conference on Wednesday, December 1, 2010, at which he would make public the contents of the IAU Report. The County Defendants learned of the impending event before it took place, and immediately contacted Judge Tomlinson to request a temporary restraining order barring any dissemination of the IAU Report by the plaintiff. Judge Tomlinson granted the motion, and requested briefing on the issue of whether the plaintiff should be barred from publishing the IAU Report on a more long-term basis. In response, Judge Tomlinson received papers from the plaintiff, the County Defendants, and several amici curiae. In addition, Judge Tomlinson heard and granted a petition by Newsday LLC and News 12 Networks, LLC (collectively, the "Press Intervenors") to intervene and oppose the County Defendants' request to keep the report secret.

On January 14, 2011 and January 19, 2011, Judge Tomlinson resolved the dispute over the IAU Report by issuing the two orders presently being appealed to this Court. First, in her January 14, 2011 Order, Judge Tomlinson found that, while no injunction should issue concerning the IAU Report, the County Defendants had shown "good cause" to entitle them to a Fed. R. Civ. P. 26(c) protective order that prohibited the plaintiff from publishing the IAU Report outside of this litigation. See Dorsett v. County of Nassau, 762 F. Supp. 2d 500 (E.D.N.Y. 2011) ("Dorsett I"). Second, in her January 19, 2011 Order (published on January 20, 2011), Judge Tomlinson outlined the limitations on the plaintiff's use of the IAU Report within the litigation.

On January 28 and 29, the Press Intervenors and the plaintiff, respectively, filed objections to both of Judge Tomlinson's Orders. The plaintiff and the Press Intervenors contended, among other things, that the County Defendants waived their right to request confidential treatment of the IAU Report when they produced it without requesting such protection. The County Defendants deny that they waived this right, and do not object to Judge Tomlinson's Orders.

On July 20, 2011, approximately seven months after the parties' objections were filed, but before this Court ruled on those objections, the County Defendants filed a letter with Judge Tomlinson indicating that they had signed a settlement agreement and release with the plaintiff, and requesting that all court deadlines be held in abeyance. Two days later, on July 22, 2011, the Press Intervenors wrote the Court to request that, notwithstanding the settlement, the Court rule on their objections to Judge Tomlinson's Orders, as the Press Intervenors retained an asserted First Amendment interest in the publication of the IAU Report, regardless of the status of this case. The County Defendants have filed an opposition to this request. For their part, the plaintiff has not expressly indicated whether she continues to object to Judge Tomlinson's Orders now that she has apparently settled her claims against the County Defendants. Without such an indication, the Court assumes that the plaintiff's objections remain pending, as Judge Tomlinson's order precluding dissemination will remain in effect after this case has concluded.

II. DISCUSSION

A. As to Judge Tomlinson's January 19, 2011 Order

As a preliminary matter, the Court finds that all parties' objections to Judge Tomlinson's January 19, 2011 Order are mooted by the settlement of the case. The portions of the January 19, 2011 Order to which the parties object relate solely to the plaintiff's use of the IAU Report in the context of this litigation, and do not affect the broader publication of that document. Those objections therefore have no relevance now that this litigation has provisionally ended. The objections are denied as moot, with leave to re-file if a final settlement is not consummated in this case.

B. As to Judge Tomlinson's January 14, 2011 Order

By contrast, Judge Tomlinson's January 14, 2011 Order will continue to affect both the plaintiff and the Press Intervenors even after a settlement has been consummated. The Court therefore finds that the parties' ...


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