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Denis v. The County of Nassau

United States District Court, E.D. New York

December 31, 2019

EMMANUEL DENIS, Plaintiff,
v.
THE COUNTY OF NASSAU, PO KIERAN HEALEY, Shield No. 3755, Individually and in his Official Capacity, DETECTIVE RUSSELL R. BASTONE, Individually and in his Official Capacity, and PO LARRY A. BRUE, Individually and in his Official Capacity, Defendants.

          MEMORANDUM AND ORDER

          A. KATHLEEN TOMLINSON UNITED STATES MAGISTRATE JUDGE.

         I. Preliminary Statement

         Plaintiff commenced this civil rights action, pursuant to 42 U.S.C. § 1983, against the County of Nassau, Police Officer Kieran Healy (“Officer Healy” or “Healy”) and John Does 1-10, alleging, inter alia, false arrest and malicious prosecution. See Compl. [DE 1]. On February 13, 2018, Plaintiff filed an Amended Complaint - the operative pleading here - asserting the same causes of action against the County of Nassau and Officer Healy and naming - in place of John Does 1-10 - Police Officers Larry Brue (“Officer Brue” or “Brue”), Kevin S. Connor (“Officer Connor” or “Connor”) and Ryan K. Hayden (“Officer Hayden” or “Hayden”) as well as Detective Russel R. Bastone (“Detective Bastone” or “Bastone”) (together, the “Individual Defendants”). See Am. Compl. [DE 19]. Defendants have moved for contempt based on Plaintiff's purportedly improper and unauthorized disclosure of confidential documents produced by Defendants during the course of discovery, including the Individual Defendants' personnel and disciplinary records, in violation of a binding confidentiality order. See Defendants' March 22, 2019 Letter Motion for Contempt (“Defs.' Letter Mot.”) [DE 47]; Defendants' Memorandum in Support of Motion for Contempt (“Defs.' Mem.”) [DE 67].[1]Plaintiff's counsel opposes the motion, arguing primarily that sanctions are unwarranted here because the failure to comply was neither willful nor in bad faith. See Plaintiff's Memorandum in Opposition (Pl.'s Opp'n) [DE 64]. For the reasons which follow, Defendants' motion for contempt is DENIED; however, the Court grants alternative relief.

         II. Relevant Background And Evidence[2]

         On April 30, 2018, the parties submitted for the Court's review and approval their Proposed Stipulation and Order of Confidentiality (the “Confidentiality Order”) governing discovery and disclosure of information and/or records deemed confidential. See DE 32. Upon review, the Court “so ordered” the Confidentiality Order on May 1, 2019. See Stipulation and Order of Confidentiality [DE 33]. The Confidentiality Order was entered into evidence during the April 30, 2019 evidentiary hearing as Defendants' Exhibit 4. Significantly, the parties do not dispute the terms of the Confidentiality Order, its application to discovery in the instant lawsuit, or the manner in which it was executed. See Fernandez Decl. ¶ 6 (citing Hr'g Tr. 34:22-36:7, 44:14-45:3). Any citations to the “Confidentiality Order” will refer equally to Defendants' Exhibit 4 and the Stipulation and Order of Confidentiality at ¶ 33. As set forth in the Confidentiality Order:

(a) Each and every page or sheet of all transcripts of depositions, exhibits, answers to interrogatories and requests for admissions, copies thereof, other documents and all information obtained by an inspection of files, facilities or documents by counsel for any party pursuant to pretrial discovery in this action that have been designated by the other party as compromising or containing its confidential information shall be marked "CONFIDENTIAL" and shall be retained by the receiving party's counsel and shall not be disclosed or used by an non-designated person other than those listed below. Any material marked "CONFIDENTIAL" shall be used for prosecuting and/or defending the within action only, and for no other purpose. Any unauthorized disclosure in violation of the order shall be subject to discipline by the contempt powers of the Court.
(b) Confidential information shall not be disclosed to any person other than (i) a party to this action and counsel for the parties to this litigation and office personnel employed or engaged in the preparation for, or in aiding in the trial of this action; (ii) independent outside persons (i.e. persons not employees of a party), not to exceed three, requested by counsel to furnish technical services or expert opinions;[] (iii) non-party witnesses called to give testimony with respect to the subject matter at deposition or trial of this action (up to a total of ten witnesses, inclusive of parties) as set forth in Fed. R. Civ. Pro. 30(a)(2)(A)(i); and (iv) the Court including necessary secretarial and law clerk personnel assisting the Court.

Confidentiality Order ¶ 6.

         On May 18, 2018, Defendants served their responses to Plaintiff's Discovery Requests. See Fernandez Decl. ¶ 8. Included in Defendants' May 18, 2018 production were the Individual Defendants' concise histories and training records (collectively, the “Confidential Records”). See Defs.' Letter Mot., Ex. C (May 18, 2018 Production); see also Hr'g Tr. at 46:11-15. Significantly, each of the Individual Defendant's concise history contained civilian complaints lodged against him/her - to the extent any such complaints existed as of May 18, 2018 - along with any corresponding Internal Affairs Bureau findings substantiating, rejecting, or otherwise disposing of any such civilian complaints.[3] Notably, the Confidential Records were bates-stamped and designated “CONFIDENTIAL” pursuant to the terms of the Confidentiality Order. See Hr'g Tr. at 37:14-16, 45:20-25, 46:1-2; Horn Decl., Ex. D; Defs.' Letter Mot., Ex. C. A “CONFIDENTIAL” watermark was prominently located in the center of each page of the Confidential Records. See Horn Decl., Ex. D. According to Attorney John Meehan (“Attorney Meehan” or “Meehan”), one of Plaintiff's attorneys working on this matter, the watermark made reading the documents difficult. See Hr'g Tr. at 45:20-46:2. As such, during a telephone conference between counsel for both parties, Attorney Meehan asked that the watermark be moved to the bottom of each page of the Confidential Records. Id. Defendants' counsel obliged and a second production was sent electronically to Plaintiff's counsel on May 21, 2018.[4] Id. 46:1-2. Upon receipt, Meehan saved this version to his law firm's computer system as “Discovery Reponses Better Copy.” Id. at 46:3-10. According to Meehan, the May 18, 2018 production had been previously saved to his law firm's computer system as “Discovery Responses Confidential.” Id. at 46:6-8.

         In August 2018, Attorney Jeffrey Groder (“Attorney Groder” or “Groder”) reached out to Plaintiff's counsel to inquire about the instant lawsuit. See Hr'g Tr. at 7:14-8:10. At the time, Groder was defending Wayne Grant LaPierre in a criminal action in the County Court of Nassau County. Id. at 6:21-7:4. During the course of his representation of LaPierre, Attorney Groder learned that Officer Hayden, an Individual Defendant in the instant case, was one of the arresting officers in LaPierre's Nassau County criminal case. Id. at 7:8-9. Attorney Groder also learned that Officer Hayden was being sued in federal court. Id. at 7:22-8:10. According to Groder, upon learning that Officer Hayden was named in a pending federal lawsuit, Groder performed an online search, discovered the instant lawsuit, and obtained the pleadings as well as the contact information for Plaintiff's counsel. Id. at 8:4-10.

         Initially, when Attorney Groder reached out to the Norinsberg Firm, he spoke with Attorney Meehan. Id. at 47:4-7. Groder explained that Officer Hayden was the arresting officer in Wayne LaPierre's Nassau County criminal case and asked if he could have any documents from the instant lawsuit. See Id. Attorney Meehan remembers speaking with Groder about the charge in Plaintiff's underlying criminal matter as well as the dismissal memorandum. See Id. at 47:8-12; 55:16-21. The Court notes that the dismissal memorandum was first provided to Plaintiff's counsel on January 10, 2018 as part of Defendants' Amended Rule 26 Disclosures. See Horn Decl., Ex. B (Defendants' Amended Rule 26(a) Disclosures). According to Meehan, he agreed to facilitate delivery of these documents to Groder. Hr'g Tr. at 47:4-20. Meehan maintains that he did not discuss any officer training or disciplinary materials with Groder at any time. Id. at 55:22-25. Following their brief conversation, Meehan transferred Groder to Diego Barros (“Attorney Barros” or “Barros”), a junior attorney working under Meehan on the discovery in this case. Id. at 47:8-18. Attorney Meehan informed Barros of Groder's needs and directed Barros to produce the documents which Groder had requested. Id. at 40:1-4; 47:14-18.

         Barros testified that he obtained Groder's email address and advised that he would follow up via email after conferring further with Meehan. Id. at 40:5-10. When Barros asked Meehan whether he could send the “discovery packet” to Groder, Meehan confirmed that he could do so. Id. at 40:11-12. Although Barros intended to send Groder purportedly non-confidential documents - presumably Defendants' January 10, 2018 Amended Rule 26(a) Disclosures - Barros sent Groder the “wrong” PDF - namely, Defendants' May 18, 2018 document production, containing the Confidential Records, all of which were clearly labeled “CONFIDENTIAL.”[5] Pl.'s Opp'n at 4; see also Hr'g Tr. at 40:13-25. Notably, Attorney Meehan did not ask Barros to show him which documents he was planning to send to Attorney Groder. See id. at 47:21-48:5. Nor did Attorney Barros copy Meehan or anyone else at the law firm on his email to Groder which shared the documents from this case. See id.

         Immediately upon receiving Barros' email, Groder forwarded the documents to Wayne LaPierre, who was incarcerated at that time in the Nassau County Correctional Center. See Id. at 10:2011:7. According to Attorney Groder, although he recognized that at least some of the documents he received from Barros were stamped, “confidential, ” he “did not know that applied to [him].” Id. at 13:8-9. Although LaPierre appeared at the April 30, 2019 hearing, he testified that he did not recall having and/or being provided with any confidential documents or attending any conferences in connection with his Nassau County criminal matter concerning his possession of any such records. See Id. at 15:2-23:2. Despite Lapierre's testimony, as set forth in Defendants' Letter Motion, Defendants' counsel appeared before the Honorable Teresa K. Corrigan, Supervising Judge of the Nassau County Courts, at a conference concerning LaPierre's criminal matter on March 13, 2019. At that time, Deputy County Attorney Fernandez (1) informed Judge Corrigan of the Confidentiality Order in the instant case and the fact that Confidential Records were improperly disclosed to LaPierre in violation of this Court's Order and (2) sought to have the Confidential Records returned. See Defs.' Letter Mot. at 4. Apparently, Judge Corrigan conducted several hearings regarding Wayne LaPierre's possession of the Confidential Records, issued Orders directing LaPierre to return any and all copies of the records and even directed the Nassau County Sheriff's Department to enter LaPierre's Nassau County Correctional Center cell to collect and secure the records. See id.; see also H'rg Tr. at 15:20-19:11.[6] According to Defendants' counsel, at one point, LaPierre even admitted to turning the Confidential Records over to a “close friend” whom he refused to identify. See Defs.' Letter Mot. at 4. During the April 30, 2019 evidentiary hearing before the Court, when asked about sharing the Confidential Records with any other inmates at the Nassau County Correctional Center, LaPierre indicated that “[he] might have” but “didn't remember.” See Hr'g Tr. at 30”3-14. Ultimately, LaPierre refused to comply with Judge Corrigan's Orders to return the documents. See Fernandez Decl. ¶ 20.

         According to Defendants' counsel, he first learned about the unauthorized disclosure of the confidential documents on or about March 8, 2019. See Defs.' Letter Mot. at 2. That day, ADA Michelle Burke of the Nassau County District Attorney's Office contacted Defendants' counsel seeking to obtain copies of Officers Connor and Hayden's concise histories. See Defs.' Letter Mot. at 2. Defendants' counsel informed ADA Burke that these materials were the subject of the Confidentiality Order and could not be disclosed, whereupon ADA Burke informed Defendants' counsel that LaPierre, whom ADA Burke was prosecuting under Indictment #1967N-17, was in possession of these records. Id. ADA Burke said she knew this to be the case because Officer Hayden had been cross-examined regarding these records during a hearing in LaPierre's criminal matter. Id.

         Since learning of the disclosure, Defendants have sought to retrieve the documents through arguments brought before this Court and before Judge Corrigan in Nassau County. See Fernandez Decl. ¶ 21. According to Plaintiff's counsel, the Norinsberg Firm was not made aware of the disclosure until March 22, 2019, shortly before Defendants' Letter Motion was filed. See Hr'g Tr. at 41:25-42:3, 48:6-15.

         III. Motion For Contempt

         A. The Parties' Filings

         As noted, Defendants' application was initially filed by letter motion on March 22, 2019. See Defs.' Letter Mot. At the April 30, 2019 evidentiary hearing, following the presentation of evidence and closing arguments by counsel, the Court directed the parties to submit initial briefs within 21 days of receiving the transcript of the hearing. See April 30, 2019 Civil Conference Minute Order. Counsel were then to submit any response to opposing counsel's initial brief within two weeks thereafter. Id. The Court did not authorize either party to submit a reply. Id. Notice of filing of the official transcript was uploaded to ECF on June 5, 2019. See DE 59. On July 5, 2019, the parties filed their opening papers. See Plaintiff's Memorandum in Opposition to Defs.' Letter Mot. (“Pl.'s Mem.”) [DE 64]; Defs.' Mem. On July 19, 2019, Defendants filed what they characterized as a reply brief in support of Defendants' Memorandum in Support. See Defendants' Reply in Support of Defs.' Mem. (“Defs.' Reply”) [DE 68]. The Court finds confusing the parties' procedure in making their post-hearing submissions. The Court granted both parties the opportunity to file opening briefs setting forth their arguments as to why the requested relief should be granted or denied. The Court then granted each party the opportunity to oppose their adversary's opening brief. Surprisingly, Plaintiff did not file any opposition and Defendants filed a purported reply. Notwithstanding the manner of the parties' filings, the Court is construing Plaintiff's Memorandum in Opposition and Defendants' Memorandum in Support as the parties' opening briefs and Defendants' Reply as Defendants' opposition.

         A. Defendants' Position

         Defendants' counsel asserts that Plaintiff's attorneys overtly violated the clear and unambiguous requirements of the Confidentiality Order by disclosing the Confidential Records without authorization - acts which caused and continue to cause Defendants to unnecessarily expend time and resources. See Defs.' Letter Mot. at 4; Defs.' Mem. at 6. Defendants point out that: (1) the Confidentiality Order provides a mechanism by which the parties are to produce material that the producing party deems confidential; (2) the “confidential” designation is to be done at the time of production or within 30 days after production; and (3) with respect to the Confidential Records, the “confidential” designation was made at the time of Defendants' May 18, 2018 production and was not disputed by Plaintiff. Defs.' Letter Mot at 6; Defs.' Mem. at 4. Under the terms of the Confidentiality Order, Defendants contend that: (1) once records are deemed confidential, the records shall be “used for prosecuting and/or defending the [instant action] only, and for no other purpose, ” and (2) an “unauthorized disclosure in violation of the order shall be subject to discipline by the contempt powers of the Court.” Defs.' Letter Mot. at 7; Defs.' Mem. at 4. Defendants assert that the Confidential Records were clearly and unambiguously designated “Confidential” in bold uppercase letters per the terms of the Confidentiality ...


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