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Towner v. County of Tioga

United States District Court, N.D. New York

February 26, 2018

RUSSELL D. TOWNER, Plaintiff,
v.
COUNTY OF TIOGA, et al., Defendants.

          FOR PLAINTIFF: BENJAMIN LAW OFFICE, RONALD R. BENJAMIN, ESQ.

          FOR DEFENDANTS: FRANK MILLER LAW OFFICE, FRANK W. MILLER, ESQ., CHARLES C. SPAGNOLI, ESQ.

          DECISION AND ORDER

          DAVID E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE.

         This is an action brought by plaintiff Russell D. Towner, who initially filed the action pro se but is now represented by counsel, against defendants Tioga County, Kirk O. Martin, Patrick Hogan, Wayne Moulton, and C. J. Alexander, asserting various state and federal claims, including false arrest and imprisonment, and malicious prosecution.

         Plaintiff has moved for an order compelling defendants to produce certain discovery withheld by defendants on the basis of claims of attorney work product and the attorney-client privilege. See generally Dkt. No. 139. By cross motion, defendants have moved for an order compelling plaintiff to respond to certain document requests dated September 29, 2016. See generally Dkt. No. 145. For the reasons that follow, I conclude that plaintiff's motion should be granted in part, and defendants' motion should also be granted.

         I. BACKGROUND

         According to the allegations contained in the operative complaint, from February 2014 through May 2014, plaintiff was incarcerated in the Tioga County Jail, located in Owego, New York. Dkt. No. 122 at 2. While confined in that facility, on March 26, 2014, plaintiff wrote to a Tioga County assistant district attorney to warn her that his fellow inmate, David Nugent, was plotting to murder her. Id. at 2-3.

         In April 2014, defendant Kirk O. Martin, the District Attorney for Tioga County, arranged for plaintiff to meet with defendants Patrick Hogan and Wayne Moulton, two investigators employed by the Tioga County Sheriff's Department to discuss the matter. Dkt. No. 122, at 3. Plaintiff was interviewed by defendants Hogan and Moulton on April 10, 2014, in the presence of Towner's criminal defense attorney. Id. at 3. Plaintiff alleges that after Investigator Hogan told him he would be “acting as an agent of the police and nothing you say or do can be used against you, ” Towner agreed to cooperate in securing evidence against Nugent. Id. at 4-5. On the same day, plaintiff “lure[d]” Nugent into the jail's law library to discuss the threats that he was making. Id. at 4.

         One week later, plaintiff wrote to Investigator Moulton and advised that “a lot has happened since we [last] spoke[.]” Dkt. No. 122 at 4. In that communication, plaintiff also stated that “I've never had any intention of being involved with any of Nugent's schemes at all; merely trying to get bailed out and get myself into a program to get my life together in hopes of a better future and that the court would take everything into consideration[.]” Id. According to plaintiff, defendants Martin, Hogan, and Moulton were “all aware” that plaintiff was merely acting as an “agent of the police[, ]” and that he was not conspiring to murder an assistant district attorney. Id.

         On May 8, 2014, Nugent's wife posted bail to secure plaintiff's release from custody. Dkt. No. 122 at 4. Following his release, plaintiff was subsequently arrested for the crime of conspiracy in the second degree, in violation of N.Y. Penal Law § 105.15, and was accused of conspiring to kill the assigned district attorney. Id. Those charges were ultimately dismissed. Id. at 5-6.

         As a result of the foregoing, plaintiff alleges that he was falsely arrested, and maliciously prosecuted, and that his due process rights were violated. Dkt. No. 122.

         II. PROCEDURAL HISTORY

         Plaintiff, commenced this matter in Tioga County Supreme Court. Dkt. No. 1. On August 5, 2015, defendants removed the action to this court pursuant to 28 U.S.C. §§ 1331, 1441(a). Dkt. No. 2. By text order dated February 12, 2016, the court subsequently granted plaintiff's motion to proceed in forma pauperis. Dkt. No. 44. Plaintiff's present counsel entered an appearance in the action on February 1, 2016. Dkt. No. 38.

         A. Plaintiff's Discovery Demands

         During the course of discovery, plaintiff served a demand for document production pursuant to Federal Rule of Civil Procedure 34. In it, he requested that defendants produce the following documents:

1. The entire investigative file in the case of People v. Russell D. Towner, Conspiracy 2nd Degree including any evidence taken into custody in the course of said investigation, all communications whether in email or other format, any videotapes or other films or audio recordings, made in the course of the investigation.
2. All correspondence, emails, and any other communication between defendant Kirk Martin and any other individual, corporation or entity which mention Russell D. Towner from March 2014 to present.
3. All correspondence, emails, and any other communication between defendant Patrick Hogan and any other individual, corporation or entity which mention Russell D. Towner from March 2014 to present.
4. All correspondence, emails, and any other communication between defendant Wayne Moulton and any other individual, corporation or entity which mention Russell D. Towner from March 2014 to present.
5. All correspondence, emails, and any other communication between defendant C.J. Alexander and any other individual, corporation or entity which mention Russell D. Towner from March 2014 to present.

Dkt. No. 139-3 at 4-5. In response to this demand, defendants' counsel provided a privilege log, dated November 3, 2016, in which defendants advised that the following documents had been withheld from disclosure as privileged attorney-client communications, protected work product, and/or materials prepared in anticipation of litigation:

Date

Document or Documents

Basis for Withholding

5/12/14

Hand written notes to the file by Kirk Martin

Attorney work product

2/23/2015

E-mail from Judith Quigley to Gary Howard, Kirk Martin, Eric Gartenman, C. J. Alexander, Wayne Moulton, Cheryl Mancini

Attorney - client privilege

6/1/2015

E-mail from Judith Quigley to Kirk Martin

Attorney - client privilege

11/12/2015

E-mail from Judith Quigley to Gary Howard, Kirk Martin, Chris Silvestri

Attorney - client privilege/attorney work

product

6/30/2016

E-mail from Cheryl Mancini to Kirk Martin, Rita Basile, Carola

Kovalovsky

Attorney - client privilege/attorney work

product/trial preparation

All relevant dates

All e-mails and correspondence by and between the Law Firm of Frank W. Miller (Frank Miller, Bryan Georgiady, Richard Graham) and Cheryl Mancini, Kirk Martin, Gary Howard, Wayne Moulton, C. J. Alexander, Patrick Hogan, and Eric Gartenman

Attorney - client

privilege/attorney work

product/trial preparation

Dkt. No. 139-2 at 2-3 (footnotes omitted).

         B. Defendants' ...


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