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Shannon v. County of Nassau

June 6, 2012


The opinion of the court was delivered by: Spatt, District Judge.


Presently before the Court is an application by Newsday LLC and News 12 Networks LLC (collectively, the "Press Applicants"), seeking the release of the transcript and exhibits arising out of a proceeding before this Court on May 31, 2012, held for the purpose of determining whether Nassau County Legislature Presiding Officer Peter Schmitt is in contempt of the Court's Confidentiality Order. For the reasons set forth below, this application is granted in part and denied in part.


The details of this case and the currently disputed issue of access have been thoroughly explored in a number of previous decisions. Once again, the present controversy essentially concerns the contents of a major piece of discovery: Internal Affairs Unit Report 14-2009 ( the "IAU Report"). This Report documents the Nassau County Police Department's internal investigation into the death of Jo'Anna Bird. In December 2010, a motion was made by the Nassau County Defendants for an injunction and/or protective order prohibiting the disclosure, dissemination, or release of the contents of the IAU Report. At that time, the Press Applicants filed a first motion to intervene in this action, seeking in part to oppose the Defendants' motion to enjoin Plaintiffs, Plaintiffs' counsel, and Plaintiffs' relatives, from disclosing the contents of a redacted IAU Report and to unseal all motion papers and transcripts in this matter.

As to the IAU Report, on January 14, 2011, United States Magistrate Judge A. Kathleen Tomlinson issued a Memorandum Decision and Order finding that on all the facts and law presented by both sides, as well as the amicus brief submitted by the AMISTAD Long Island Black Bar Association ("AMISTAD") and the Police Benevolent Association of the Police Department of Nassau County ("PBA"), the Defendants' arguments did not meet the applicable requirements for a preliminary injunction and further found that the IAU Report was not afforded the protection of NY CPLR § 50-a. ("Protective Order"). However, Judge Tomlinson did find that the Defendants established the limited baseline showing of "good cause" so as to warrant a protective order restricting access to the IAU Report to the parties in this litigation. (See Docket Entry No. 60.) This Order took into account the Press Applicants' arguments opposing the Defendants' motion for an injunction or protective order. (See Docket Entry 60 at 31--33.) Thereafter, the Press Applicants filed objections to Judge Tomlinson's Protective Order, which the Court rejected on August 11, 2011. (See Docket Entry No. 110) ("the Court finds that Judge Tomlinson adequately identified sufficient good cause for the order.").

As to other documents, at various points in the course of this litigation, Judge Tomlinson also addressed the Press Applicants' requests to unseal certain transcripts. For instance, on February 15, 2011, Judge Tomlinson specifically addressed the Press Applicants' request to unseal certain redacted portions of the transcript of an emergency hearing held on November 30, 2010. At that time, Judge Tomlinson found that with regard to the limited testimony which remained redacted, there were compelling reasons to maintain the non-disclosure of this information. In particular, Judge Tomlinson found that the law enforcement privilege, recognized as protectable, includes (1) prevention of disclosure of law enforcement techniques and procedures and (2) safeguarding the privacy of individuals involved in an investigation. Balancing the competing interests, she found that this protectable interest outweighed the Press Applicants' qualified constitutional and common law right of access to the information. Moreover, Judge Tomlinson found that the sealed information was narrowly tailored.

Now, almost eighteen months later, the Press Applicants again seek access to the transcript of a particular judicial proceeding in this matter. And once again, the underlying foundation of why access was restricted in the first place, concerns the IAU Report.

In order to facilitate the settlement process in this case and receive final approval or denial of the settlement by the Legislature, this Court entered a Confidentiality Order on December 15, 2011. The purpose of the Confidentiality Order was to permit members of the Legislature to have an opportunity to review the IAU Report - at that time restricted only to the parties to the litigation pursuant to Judge Tomlinson's Protective Order - so they could make an informed decision as to whether to approve the settlement. In particular, the Confidentiality Order stated:

Notwithstanding the parameters of the protective order . . . the Confidential Material [including the IAU Report] may be disclosed, summarized, described, characterized or otherwise communicated or made available in whole or in part only to members of the currently-sitting Nassau County Legislature and their in-house counsel for the sole purpose of deliberating the issue of approval of the Settlement Agreement and Release. . . .

Any conversation, discussion, deliberation, communication regarding, or mention of, the Confidential Material shall be done in Executive Session and, under no circumstances shall same be communicated, disseminated, released, or disclosed to members of the public, the media or anyone other than duly-elected members of the Nassau County Legislature and their in-house counsel. . . .

In the event of a breach or violation of any term or condition of this Order, the County Defendants shall have the right to seek enforcement of the terms hereof and the imposition of any other appropriate remedy including, but not limited to, sanctions and contempt. (Docket Entry No. 128).

However, notwithstanding these clear and express prohibitions in a court order, on February 7, 2012, in a videotaped Cablevision editorial, Nassau County Presiding Officer Peter Schmitt made several statements to an interviewer that allegedly revealed contents of the IAU Report that were protected in the Court's Confidentiality Order. On May 22, 2012, the Court granted the motion by the PBA to intervene for the limited purpose of enforcing the Court's December 15, 2011 Confidentiality Order as against Presiding Officer Schmitt. In addition, the Court ordered non-party Presiding Officer Schmitt to show cause on May 31, 2012 at 10:00 am, why this Court should not find him in contempt of the Court's December 15, 2011 Confidentiality Order.

On May 31, 2012, a hearing was held in order to provide Presiding Officer Schmitt with the due process rights of notice of the charges and an opportunity to be heard; which he was entitled to in these charges of contempt of court. Close-Up Intern, Inc. v. Berov, 411 Fed App'x 349, 353 (2d Cir. 2010) ("A party charged with contempt of court [except where the contempt is made in court and is summarily punished] is entitled to notice and an opportunity to be heard.") (internal citation omitted). As a necessary predicate for the Intervenor PBA to establish that Presiding Officer Schmitt was in contempt of the Court's Confidentiality Order, the PBA needed to meet the burden of demonstrating that his statements to the media did, in fact, reveal information contained in the IAU Report. Thus, the PBA called as a witness Assistant Chief Neil J. Delargy to testify as to his familiarity with the contents of the IAU Report. He was questioned as to specific details of the Report and consequently whether Presiding Officer Schmitt's videotaped statements were gleaned from information contained in the Report. This Court closed the courtroom to the public for this portion of the proceedings, as well as for Presiding Officer Schmitt's direct examination. The courtroom was then unsealed for Schmitt's cross-examination and for the duration of the hearing.

At the time of the courtroom closure, the Press Applicants objected to the closure of the courtroom to the press and the public, and requested an adjournment for the purpose of bringing counsel in to support their objection. Their request was denied by the Court. The Press Applicants then requested the immediate release of the transcript of the proceedings, as well as copies of exhibits. On June 4, 2012, this Court held a hearing in order to ...

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