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Shannon Dorsett, Individually and As the Administratix of the Estate of Jo'anna Bird v. County of Nassau

November 26, 2012


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


Presently before the Court are two motions, both of which stem from the continuous effort by the Plaintiff and the press to obtain and publicize the contents of a major piece of discovery in this now settled case: namely, the Internal Affairs Unit Report 14-2009 ( the "IAU Report"). There are currently two restraints in place with regard to the disclosure of the IAU Report. On January 14, 2011, a Protective Order was entered to restrict access to the IAU Report to the parties in this litigation. On December 15, 2011, a Confidentiality Order was then entered to expand access to the Nassau County legislators and their counsel, for the sole purpose of facilitating the settlement. The Plaintiff has now filed a motion, which seeks to lift all bands and restrictions pertaining to the Protective Order. In addition, the Proposed Intervenors Newsday LLC and News 12 Networks LLC (the "Press Intervenors") have filed a motion, seeking to intervene for the purpose of vacating the Confidentiality Order. For the reasons set forth below, the Plaintiff's motion is denied and the Press Intervenors' motion is granted in part and denied in part.


The factual underpinnings of this litigation have been discussed in several prior decisions. The Plaintiff Sharon Dorsett commenced this action after the March 2009 tragic death of her daughter Jo'Anna Bird, a young mother, at the hands of Leonardo Valdez-Cruz, her former boyfriend and the father of her child. Valdez-Cruz was tried and convicted for the murder of Jo'Anna Bird and is currently serving a life sentence. The Plaintiff brought a series of claims both individually and as the Administratrix of her daughter's estate, including Section 1983 violations against the individual Nassau County Defendants; municipal liability against Nassau County pursuant to Monell v. Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978); a Section 1983 conspiracy claim against Leonardo Valdez-Cruz and the Nassau County Defendants; as well as New York State claims asserting wrongful death, negligence, and abuse of process.

On August 5, 2010, at the Initial Conference before United States Magistrate Judge A. Kathleen Tomlinson to establish a discovery plan, the Plaintiff's counsel placed on the record his previous attempts to obtain the IAU Report. The Nassau County Police Department ("NCPD") Internal Affairs Unit prepared the IAU Report. It documents the NCPD's internal investigation into the death of Jo'Anna Bird. Specifically, the Plaintiff sought to obtain a copy of the Report for the purpose of naming the actual officers in the complaint, rather than using John and Jane Does. The Defendants did not object to the production of the Report at that time, but their counsel stated that the Report was incomplete. Judge Tomlinson ruled that if the Defendants' position was to refuse to turn the Report over to the Plaintiff, it would need to file a motion for a protective order by September 3, 2010.

On August 6, 2010, the Defendants' counsel wrote to the Court stating that the IAU Report was complete, with the exception of the disciplinary review phase. See DE 15. The 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, the Plaintiff's 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. Judge Tomlinson then issued an electronic 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. 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.

On October 12, 2010, the Plaintiff's 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 in various portions of the Report as produced. See DE 20. Thereafter, the unredacted IAU Report was submitted to Judge Tomlinson for an in camera inspection. On October 29, 2010, the Court granted in part and denied in part the Plaintiff's application and specifically identified portions of the IAU Report which were to be produced without redactions. See DE 22.

On November 30, 2010, counsel for the County Defendants contacted the Court to request an emergency hearing after learning indirectly that the Plaintiff's counsel had issued a press release earlier that day stating that the "attorneys and family of Jo'Anna [would] release [the] contents of [a] secret internal affairs report finding massive violations and failure by multiple members of the Nassau County Police----all leading to the death of Jo'Anna Bird." That same day, Judge Tomlinson heard from both sides during a telephone conference. At that time, she ruled that the County Defendants had met the requirements for a temporary restraining order/preliminary injunction and that the Plaintiff 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 the Plaintiff 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.

A.The Protective Order

On January 14, 2011, Judge Tomlinson issued an extensive memorandum decision and order addressing the motion by the Nassau County Defendants for an injunction and/or protective order prohibiting the disclosure, dissemination, release or revelation of the contents of the IAU Report (the "Protective Order").

With regard to the County Defendants' motion for a protective order, the County Defendants asserted that they were entitled to a protective order for the IAU Report on a showing of good cause pursuant to Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 26(c). The County Defendants argued that on balancing the need for the information against the injury which might result from compelled disclosure, the Court should find that the scales tipped in favor of the Defendants. On the other hand, the Plaintiff maintained that the County Defendants were not entitled to a protective order, in part because the Defendants failed to make particular and specific demonstrations of fact showing that disclosure would result in an injury sufficiently serious to warrant protection and that the Defendants instead relied on broad allegations of unsubstantiated harm.

Judge Tomlinson first explored the common law right of public access to judicial documents, citing the analysis established by the Second Circuit in Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006), for a court to utilize in determining when the public has a right of access to particular documents. Operating under this framework, the court found that:

(1) in light of the fact that the IAU Report was not filed with the Court and did not play any role in the performance of Article III functions in accordance with the applicable case law, the Report was not a judicial document; (2) no presumption of access was afforded to the Report because it was not a judicial document and was merely passed between the parties in discovery; and (3) the Defendants established the limited baseline showing of "good cause" to warrant a protective order restricting access to the IAU Report to the parties in this litigation. See generally DE 60.

With regard to the final prong, based upon Judge Tomlinson's previous examination of the IAU Report, as well as the information and arguments submitted by the Defendants and the applicable case law, she found that the law enforcement privilege applied to the IAU Report. In addition, Judge Tomlinson noted that the privacy interests of third parties carry great weight in the balancing of interests. In this vein, the Protective Order stated that "the IAU Report contains the names of numerous officers not yet parties to this litigation as well as witnesses and other third-parties not related to this action whose privacy interests would be seriously jeopardized with the publication of the IAU Report." DE 60 at 24. As for the Plaintiff, the court rejected the argument that there was a legitimate interest in the public disclosure of the IAU Report to inform the community and public of the factual findings of the internal investigation and to correct certain misleading information that had already been made part of the public conscience.

Next, Judge Tomlinson considered the First Amendment right of access. In particular, one of the Plaintiff's primary arguments against restricting access to the IAU Report was that such restriction was a prior restraint on speech, which would violate the First Amendment. However, as the court had found that the IAU Report was not a judicial document, consequently, it also found that no First Amendment right of access attached to the IAU Report.

With regard to the confidentiality of the IAU Report, the Defendants first argued that because internal affairs reports are used to evaluate the performance of officers, they are considered to be part of a personnel file pursuant to New York State Civil Rights Law § 50-a, and, as such, enjoy statutory protections against inspection and review. Accordingly, the Defendants asserted that § 50-a applies as a bar against the Plaintiff's revelation of the IAU Report. However, Judge Tomlinson disagreed with the Defendants' contentions in this regard and found that the Defendants had not satisfied the substantial threshold showing which would bring the IAU Report within the confidentiality provisions of § 50-a.

Finally, with regard to preliminary injunctive relief pursuant to Federal Rule of Civil Procedure 65, the Defendants urged that there was irreparable harm which would result if the Plaintiff disclosed the IAU Report to the media and public, namely: (1) tainting the jury pool; (2) incomplete, false and inaccurate accounts; (3) prejudicial impact on arbitrators at police officer disciplinary hearings; (4) undermining police investigatory techniques and procedures; and (5) reluctance of domestic violence victims to cooperate with district attorney offices. In all five categories, Judge Tomlinson found that the Defendants had failed to make the requisite showing of irreparable harm which would warrant the imposition of an injunction precluding disclosure.

In sum, Judge Tomlinson declined to issue a preliminary injunction enjoining the dissemination of the IAU Report and found that the Report is not afforded the protection of NY CRL § 50-a. Nevertheless, she found that the Defendants had established the limited baseline showing of "good cause" to warrant a protective order restricting access to the IAU Report to the parties in this litigation.

The Plaintiff and two news organizations, Newsday LLC and News 12 Networks, LLC (the "Press Intervenors"), objected to the entry of the Protective Order. Because it was a nondispositive matter, this Court would modify or set aside a portion of the Judge Tomlinson's order only if it was found to be clearly erroneous or contrary to law. See, e.g., Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990). On August 8, 2011, this Court addressed those objections in a Memorandum of Decision and Order. The Order stated that "to the extent that the Court could read into the parties' submissions an objection to the County Defendants' 'good cause' for a timely protective order, the Court finds that Judge Tomlinson adequately identified sufficient good cause for the order." DE 110 at 9 (citing Dorsett I, 762 F. Supp. 2d at 514--26 (finding that the County Defendants' interests in keeping certain law enforcement techniques and sources of information non-public established the requisite harm to establish good cause for a protective order)).

In addition, the Court rejected the Press Intervenors' characterization of the prospective order as a gag order, which would require an exacting showing of harm. In this regard, the Court recognized that the Protective Order did not have the breadth of a true gag order, because the Plaintiff was not generally precluded from discussing her case in public, and more importantly, she was also not precluded from discussing the contents of the IAU Report if she obtained that information from a source other than civil discovery in this case. See id. at 11 ("Unlike a gag order, which places general limits on speech regardless of the source of the information being shared, the present protective order only precludes the dissemination of the IAU Report as received through discovery."). Therefore, the Court affirmed the Protective Order.

B.The Confidentiality Report

On July 22, 2011, the parties indicated to the Court that they had reached a settlement agreement and that a stipulation of discontinuance would be filed following payment of the settlement funds. However, on October 31, 2011, the Plaintiff filed a motion to convert the settlement agreement into a judgment because the Defendants had not paid the monies due under the settlement agreement. The Defendants contended that the agreement was conditioned upon approval by the Nassau County Legislature ("Legislature"), and that the legislative process had yet to be completed.

At a hearing before this Court on December 15, 2011, the County represented to the Court that the delay was due to the desire of the members of the County Legislature to see the IAU Report, in order to understand the basis for the significant settlement amount. However, because of the Protective Order, access to the IAU Report was restricted to the parties in this litigation.

In order to facilitate the settlement process and receive either final approval or denial of the settlement by the Legislature, the Court signed a Confidentiality Order, drafted by the County Attorney, on December 15, 2011 (the "Confidentiality Order"). The purpose of the Confidentiality Order was to permit members of the Legislature to have an opportunity to review the IAU Report so they could make an informed decision as to whether to approve the settlement. In other words, it attempted to narrowly expand the Protective Order to permit review of the IAU Report to certain non-parties-namely the currently-sitting Nassau County Legislature and their counsel-in order to effectuate resolution of the proposed 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.

DE 128.

C.The Present Motions

The Legislature approved the settlement in or about January 2012, and thus the underlying case has been fully resolved and terminated. However, the resolution of the lawsuit has not precluded the efforts by the Plaintiff and the press to publicly disclose the contents of the IAU Report.

On June 29, 2012, non-party Peter Schmitt filed a motion to intervene for the purpose of seeking modification of the Confidentiality Order. On July 16, 2012, the Press Intervenors filed a motion to intervene and to vacate the December 15, 2011 Confidentiality Order. On July 27, 2012, the Plaintiff filed a cross-motion to lift all bands and restrictions pertaining to Judge Tomlinson's January 2011 Protective Order, in addition to concurring with non-party Peter Schmitt's motion for leave to intervene for the purpose of modifying the Confidentiality Order.

On July 31, 2012, Peter Schmitt filed a letter motion to withdraw his previous motion with prejudice, which the Court has granted. Therefore, only the motions by the Plaintiff and the Press Intervenors remain outstanding. Both motions are opposed by both the Defendants and the Intevenor the Police Benevolent Association of the Police Department of the County of Nassau (the "PBA").

The Press Intervenors raise several arguments as to why the Confidentiality Order should be modified or vacated. First, they claim that the Court lacks the authority to issue an Order restricting the use of material independent of the judicial process. Second, they argue that the Order may operate as a gag order by placing general limits on speech regardless of the source of the information being shared. Third, they contend that the Confidentiality Order improperly intrudes into the affairs of County government by purporting to dictate how and under what conditions County officials may use and disclose a County document. Finally, the Press Intervenors assert that the Order is an invalid prior restraint.

The Plaintiff's attention is focused on the initial Protective Order rather than the subsequent Confidentiality Order, but nevertheless raises overlapping arguments. First, she contends that the Protective Order should be vacated because it was improvidently granted. In this regard, the Plaintiff urges that the language of the Order is vague and overbroad. Second, she states that the Protective Order should be vacated because of an extraordinary circumstance or compelling need. Finally, similar to the Press Intevenors, she argues that the Protective Order is unconstitutional as a prior restraint, so that it offends the First Amendment.

Although chronologically the Press Intevenors' motion was filed first, the Court will address it subsequent to the Plaintiff's motion. This is because if the Court deems that the Protective Order should be vacated, it necessarily follows that the Confidentiality Order will be vacated as well. The Court will now turn to the instant motions.


A.As to the Plaintiff's Motion

1.Whether the Plaintiff's Motion Is Procedurally Proper

As an initial matter, the opponents to the Plaintiff's motion----namely the PBA and the County Defendants----point out several procedural hurdles that they believe the Plaintiff has not overcome in bringing a motion to vacate the Protective Order.

First, the Plaintiff's motion was technically filed as a cross-motion, in response to the motion filed by non-party Peter Schmitt. Since that time, and prior to Mr. Schmitt's unfortunate death, he filed a motion seeking to withdraw his own motion. Consequently, the PBA asserts that where the underlying motion is withdrawn, any cross-motions based on that motion will fall. However, the Plaintiff has requested that this Court convert her cross-motion into a regular motion in light of Mr. Schmitt's withdrawal from this matter. The Court now grants that request and will consider the Plaintiff's motion independently. However, the Court also agrees with the PBA that any reference to the Schmitt's position, alleged interests, and arguments made in this case will not be considered.

Next, the PBA contends that the cross-motion must be dismissed because the Court only allowed the Plaintiff to re-challenge the Protective Order if a final settlement was not reached. When the Court initially rejected the objections to the entry of the Protective Order, it specifically held that the Plaintiff's objections were dismissed "without prejudice to renew if a final settlement in this case is not consummated." DE 110 at 17. Nevertheless, despite this language, the Court finds that the Plaintiff's renewed attempt to once again vacate the restrictions of the Protective Order is not untimely or improper. "In certain limited circumstances, a court can vacate a previously entered protective order." McAllister v. City of New York, 97 Civ. 7420, 2002 WL 975609, at *2 (S.D.N.Y. May 10, 2002) (citing In re: "Agent Orange" Prod. Liab. Litig., 821 F.2d 139, 147 (2d Cir. 1987)). This is so even when a motion seeking modification of a protective order is filed after a case has already been settled and closed. See Fed. Deposit Ins. Corp. v. Ernst & Ernst, 677 F.2d 230 (2d Cir. 1982); see also Westchester Radiological v. Blue Cross/Blue Shield, 138 F.R.D. 33 (S.D.N.Y. 1991) (ruling that a motion to intervene was timely, even after the underlying antitrust action had been concluded).

2.Legal Standard for Vacating a Protective Order

The Second Circuit has expressly acknowledged that its protective order modification test has, as a general matter, a "strong presumption against the modification of a protective order." In re Teligent, Inc., 640 F.3d 53, 59 (2d Cir. 2011) (quoting SEC v., 273 F.3d at 229); see also Med. Diagnostic Imaging, PLLC v. Carecore Natl, LLC, Nos. 06 Civ. 7764 and 06 Civ. 13516, 2009 WL 2135294, at *1 (S.D.N.Y. July 16, 2009) (calling the modification of a protective order test "stringent"); 8A Richard L. Marcus, Federal Practice and Procedure § 2044.1 (3d ed. Westlaw 2012) (asserting that the Second Circuit has "embraced a very restrictive attitude toward modification of protective orders"). "[T]he Second Circuit has been hesitant to permit modifications that might 'unfairly disturb the legitimate expectations' of the parties or deponents." In re Ethylene Propylene Diene Monomer (EPDM) Antitrust Litig., 255 F.R.D. 308, 318 (D. Conn. 2009) (quoting SEC v., 273 F.3d at 230).

It is "presumptively unfair for courts to modify protective orders which assure confidentiality and upon which the parties have reasonably relied." S.E.C. v., 273 F.3d 222, 230 (2d Cir. 2001). Consequently, in a major decision in this field, Martindell v. International Telephone & Telegraph Corp., 594 F.2d 291 (2d Cir. 1979), the Second Circuit determined that "absent a showing of improvidence in the grant of a Rule 26(c) protective order or some extraordinary circumstance or compelling need . . . a witness should be entitled to rely upon the enforceability of a protective order against any third parties." Id. at 296. Accordingly, "[w]here there has been reasonable reliance by a party or deponent, a District Court should not modify a protective order granted under Rule 26(c) 'absent a showing of improvidence in the grant of [the] order or some extraordinary circumstance or compelling need.'" S.E.C. v., 273 F.3d 222, 229 (2d Cir. 2001) (quoting Martindell, 594 F.2d at 296); see In re Prudential Secs. Inc. Ltd. P'ships Litig., 158 F.R.D. 301, 305 (S.D.N.Y. 1994) ("Protective orders cannot be vacated absent a showing that the order was improvidently granted, that exceptional circumstances exist, or that the movant has a compelling need to vacate the order.").

In this regard, reliance is crucial. As recently noted by the District of Connecticut, "though the Martindell standard is admittedly a stringent one, it does not apply uniformly to all protective orders . . . Rather, the application of the strong presumption against modification is dependent upon a protective order's particular characteristics and whether it invites reasonable reliance on the permanence of the order." In re Ethylene Propylene Diene Monomer (EPDM) Antitrust Litig. ("In re Ethylene"), 255 F.R.D. 308, 318 (D. Conn. 2009). "Even the Second Circuit recognizes that there must be a plausible showing of reliance on the order to narrow the grounds for modification." 8 Wright & Miller § 2044.1.

"In determining whether a party has reasonably relied on . . . designation[s of confidentiality], courts consider the scope of the protective order, the language of the order, the extent of the court's inquiry before entry of the order and the 'nature of the reliance on the order.'" Ceglia v. Zuckerberg, No. 10 Civ. 569, 2011 WL 3608008, at *2 (W.D.N.Y. Aug. 12, 2011) (quoting In re September 11 Litig., 262 F.R.D. at 277); In re Ethylene, 255 F.R.D. at 318 ("An examination of Second Circuit case law reveals the following factors are relevant when determining whether a party has reasonably relied on the protective order: (1) the scope of the protective order; (2) the language of the order itself; (3) the level of inquiry the court undertook before granting the order; and (4) the nature of reliance on the order. ...

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