The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is plaintiffs' motion to compel (Docket No. 28). This Order follows the in camera review of the personnel and disciplinary records of Buffalo Police Lt. Thomas Leatherbarrow and officer John Beyer, pursuant to an earlier Order of this Court (Docket No. 35, Order of Nov. 1, 2011), familiarity with which is presumed.
Defendants timely submitted the materials for in camera review on November 28, 2011.
This is a civil rights action alleging excessive force, unreasonable seizure, deprivation of liberty, race discrimination, cruel and unusual punishment, negligent hiring and training, battery, violation of Family Court Act, false arrest, and false imprisonment in the arrest of a fifteen-year-old youth, JDF, and the arrest of his mother, Yevette Paulding, in Buffalo, New York (Docket No. 1, Compl.; Docket No. 20, Am. Compl.). This case arises from a stop of plaintiff JDF by Buffalo Police Department Officer Beyer on May 31, 2009. Plaintiffs allege that Beyer assaulted and falsely arrested JDF, and later handcuffed and detained JDF's mother, plaintiff Yevette Paulding. Plaintiff Paulding was never charged.
Plaintiffs move to compel complete answers to their Interrogatories and document demands from Lt. Leatherbarrow and Officer Beyer. Specifically, plaintiffs want the disciplinary records of these two officers (Docket No. 30, Pls. Atty. Amended Decl. ¶¶ 3-6, Ex. A). They asked for the same in Interrogatories seeking information about incidents in the last ten years of litigation in which Beyer or Leatherbarrow were accused of applying excessive force (id. ¶¶ 8, 11, Ex. A). Defendants invoked New York State Civil Rights Law § 50-a as precluding disclosure (id. ¶¶ 5, 7, 9, 12, Exs. B, C, D, F).
This Court recognized that Civil Rights Law § 50-a did not create an evidentiary privilege recognized by federal courts to preclude discovery, Pierce v. Ottaway, No. 06CV644, 2009 U.S. Dist. LEXIS 21866, at *9-11 (W.D.N.Y. Mar. 18, 2009) (Curtin, J.); see also Martin v. Lamb, 122 F.R.D. 143, 147 (W.D.N.Y. 1988) (Fisher, Mag. J.) (Docket No. 35, Order of Nov. 1, 2011, at 4-6). The Court then ordered the in camera inspection of Beyer and Leatherbarrow's records to determine their relevance to plaintiffs' discovery demands and whether they should be disclosed to plaintiffs.
Before deciding the relevance and balancing the interest in keeping these records confidential, this Court must review the personnel records in question in camera, Pierce, supra, 2009 U.S. Dist. LEXIS 21866, at *2, 9-10; Martin, supra, 122 F.R.D. at 147, 148. In Pierce, Judge Curtin found after in camera inspection that there was nothing "remotely relevant" to plaintiff's claims in the officers' personnel records, Pierce, supra, 2009 U.S. Dist. LEXIS 21866, at *10-11.
If the personnel and disciplinary records indicate that the officer was exonerated from any disciplinary complaints charged, those records need not be produced, see Law v. Cullen, 613 F. Supp. 259, 262 (S.D.N.Y. 1985) (unsubstantiated civilian complaints merely charges, not actual findings of abuse); see also Hart v. Goord, No. 08CV681, 2010 U.S. Dist. LEXIS 39888, at *5 (W.D.N.Y. Apr. 22, 2010) (Scott, Mag. J.) (denying discovery of grievances against corrections officer found to be unsubstantiated, with its probative value being quite limited); Woodward v. Mullah, No. 08CV463, 2010 U.S. Dist. LEXIS 77065, at *8 (W.D.N.Y. July 29, 2010) (McCarthy, Mag. J.); Rasmussen v. City of New York, No. 10 Civ. 1088, 2011 U.S. Dist. LEXIS 10089, at *24-28 (E.D.N.Y. Feb. 2, 2011)(court there recognized that plaintiffs, in making argument that authorities in other cases erred in not finding substantial claims of abuse, took upon themselves the burden of showing that "every other unsubstantiated complaint on which they rely entailed a constitutional violation" and that the sample of cases cited were representative in order to resist a defense summary judgment motion).
I. Lt. Thomas Leatherbarrow's Records
This Court has reviewed the personnel and disciplinary records of Lt. Leatherbarrow produced by defendants. The personnel records consist of pay and financial records, attendance and other personnel records, and various commendations noted in Lt. Leatherbarrow's file. They do not indicate any litigation or claims commenced against this officer. These materials are not remotely relevant to plaintiffs' claims and therefore are not to be produced.
Lt. Leatherbarrow's disciplinary records includes a 2008 complaint for which he was exonerated, finding that insufficient evidence exists to clearly prove the ...