United States District Court, E.D. New York
MEMORANDUM AND ORDER
KATHLEEN TOMLINSON UNITED STATES MAGISTRATE JUDGE.
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].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.
Relevant Background And Evidence
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
(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.
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. 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. 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.
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.
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.
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.” 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.
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. 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.
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.
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.
Motion For Contempt
The Parties' Filings
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.
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 ...