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Moroughan v. County of Suffolk
United States District Court, E.D. New York
March 31, 2014
THOMAS M. MOROUGHAN, Plaintiff,
THE COUNTY OF SUFFOLK, SUFFOLK COUNTY POLICE DEPARTMENT, SUFFOLK DETECTIVES RONALD TAVARES, CHARLES LESER, EUGENE GEISSINGER, NICHOLAS FAVATTA, and ALFRED CICCOTTO, DETECTIVE/SGT. WILLIAM J. LAMB, SGT. JACK SMITHERS, SUFFOLK POLICE OFFICERS WILLIAM MEANEY, ENID NIEVES, CHANNON ROCCHIO, and JESUS FAYA and SUFFOLK JOHN DOES 1-10, THE COUNTY OF NASSAU, NASSAU COUNTY POLICE DEPARTMENT, SGT. TIMOTHY MARINACI, DEPUTY CHIEF OF PATROL JOHN HUNTER, INSPECTOR EDMUND HORACE, COMMANDING OFFICER DANIEL FLANAGAN, DETECTIVE/SGT. JOHN DEMARTINIS, NASSAU POLICE OFFICERS ANTHONY D. DILEONARDO, EDWARD BIENZ and JOHN DOES 11-20, Defendants.
A. KATHLEEN TOMLINSON, Magistrate Judge.
Before the Court are (i) Plaintiff's letter-motion to compel Nassau County to comply with Plaintiff's outstanding discovery demands and to compel the production of certain Nassau County witnesses to complete their depositions [DE 76]; (ii) a letter-motion submitted by Suffolk County Assistant District Attorney Anne E. Oh to quash a subpoena served by Plaintiff's counsel commanding the disclosure of certain District Attorney ("D.A.") files [DE 87]; and (iii) Plaintiff's "supplemental" motion for a protective order requesting that the Court order the D.A.'s Office to take certain action with respect to the DA files related to this case [DE 105]. Each of the motions is decided in turn below.
I. PLAINTIFF'S MOTION TO COMPEL
Plaintiff requests an order directing the Nassau County Defendants to (i) comply with plaintiff's outstanding discovery demands; and (ii) produce witnesses to complete their depositions. Pl.'s Mot. [DE 76]. Specifically, Plaintiff seeks cell phone and e-mail records related to the Nassau County Deadly Force Response Team's ("DFCT") revisions/drafts of the DFCT report of the underlying incident. Id. Plaintiff claims he only received one preliminary draft of the report. Id. Plaintiff also states that he has been "frustrated" by Mr. Ferguson's cooperation on certain discovery issues, including (i) production of cell phone records requested at the deposition of Defendant Detective DeMartinis; and (ii) production of civilian complaints against Detective DeMartinis (also made during the DeMartinis deposition). Id. According to Plaintiff's counsel, Attorney Ferguson also unilaterally declared that Sgt. Timothy Marinace's deposition completed and refuses to further produce him to continue the deposition. Id. Mr. Ferguson also failed to produce administrative complaint records prior to the depositions of any witnesses, Plaintiff's counsel maintains, despite this Court's Order directing him to do so. Id. (citing DE 61, ¶ 2). Plaintiff also notes at least five outstanding discovery issues related to Plaintiff's third demand for the production of documents (although these issues are not outlined in Plaintiff's letter motion but included as attachment I). Id.
Attorney Ferguson responds that he already provided the DFCT report to Plaintiff's counsel, along with any e-mails and revisions of the DFCT report, and that there were no substantive revisions to that report. Nassau Co. Defs.' Opp. [DE 77]. Attorney Ferguson further represents that Plaintiff's counsel asked repetitive questions about cell phone records at the depositions, and the witnesses responded to those inquiries. Id. Further, Attorney Ferguson notes that Plaintiff's counsel arrived at noon for Sgt. Marinace's deposition, even though the deposition was scheduled for. Id. The witness had to leave at 5 p.m because he was scheduled to work at 6 p.m. No lunch break had been taken all day, Attorney Ferguson maintains, and Plaintiff's counsel asked the same questions over and over again, making a continued deposition unnecessary and burdensome. Id. Further, Attorney Ferguson argues that the civilian complaints Plaintiff's counsel seeks have already been requested from the police department. Id. Finally, Attorney Ferguson represents that all of the issues raised in Plaintiff's letter may be worked out without the need for court intervention. Plaintiff's motion to compel [DE 76] is GRANTED, in part, and DENIED, in part, to the extent set forth below.
Having considered the motion and opposition, the Court rules as follows:
(A) As to the electronic communications Plaintiff's counsel claims were generated by members of the Nassau County Deadly Force Response Team, to the extent that counsel for the Nassau County Defendants has not already done so, the Court is directing him to produce the email exchanges (including any attachments) and records of any telephone calls which took place between and among members of the DFRT on February 27, 2011. These materials are to be served on Plaintiff's counsel no later than April 24, 2014. To the extend the Nassau County Defendants maintain that there are no other records, then Defendants' counsel is directed to provide an affidavit from an individual with first-hand knowledge of the information requested attesting to the fact that there is no other documentation of the nature described here, and providing an explanation as to why that is the case. That alternative affidavit must be served on plaintiff's counsel by April 24, 2014, with a copy to the Court.
(B) Sergeant Timothy Marinace is to present himself for a continued deposition for a maximum of 90 minutes at a date and time mutually agreed-upon by his counsel as well as plaintiff's counsel. The deposition is not to be unreasonably delayed.
(C) To the extent that counsel for the Nassau County Defendants has not provided the disciplinary records, civil/departmental/civilian complaints were in prior litigation records for the named Nassau County defendants, for the period running from the date of the underlying incident and back five years - as previously ordered by this Court on February 5, 2013 - counsel is directed to provide these records by April 14, 2014. Any continuing noncompliance will be met with appropriate action by the Court.
(D) To the extent he has not already done so, plaintiff's counsel is directed to provide to defendants' counsel the deposition transcripts for Detective John T Martinis, Sgt. Timothy Marinace Deputy Chief Edward Horace within seven days of this Order.
II. DISTRICT ATTORNEY'S MOTION TO QUASH AND PLAINTIFF'S MOTION FOR PROTECTIVE ORDER
Assistant District Attorney Oh of the Suffolk County D.A.'s Office has moved to quash a subpoena served by Plaintiff's counsel and signed by this Court seeking the following documents:
[a]ll documents from District Attorney files related to the criminal arrest of Thomas M. Moroughan on February 27, 2011 not previously disclosed... including all documents, including notes, memorandum, records, etc., including a physical copy of all grand jury subpoenas themselves (excluding the documents returned thereto to which you assert a privilege). Any documents which exist and are not produced ...