Vandever v. Murphy et al
ORDER re: defendants' 105 Response. See attached order. Signed by Judge Donna F. Martinez on 6/18/13.(Constantine, A.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
PETER MURPHY, et al.,
Pending before the court is the defendants' "Clarification re:
Defendants' Position in June 6, 2013 Oral Argument."
The plaintiff, a Connecticut inmate proceeding pro se, brings
Connecticut Department of Correction employees.
the plaintiff propounded Request for Production #8 which sought
statements made by another inmate (whom he named in the request).
On November 19, 2012, the defendants objected to the request,
stating "Objection. Without acknowledging whether such a statement
exists, see Objection #5 above." Defendants' objection 5 states:
As described in the attached redacted incident report, a
statement made by a confidential informant was considered
hearing. Information provided by confidential informants
is an important tool in the safe and secure management of
Disclosure of the identity of
persons providing this type of information places the
safety of those individuals at immediate risk and
compromises the ability of the prison staff to safely run
the prisons, and to prevent serious and life-threatening
security issues, such as assaults on inmates and staff,
the bringing of contraband into the prisons, and escapes
Defendants filed an opposition in which they stated that they
"stand upon the objections articulated in their responses to
requests for production."
(Doc. #86 at 5.)
In a subsequent
filing, the defendants asserted the law enforcement privilege.
On June 8, 2013, the court heard oral argument.
As to Request
for Production #8, the defendants argued that the information
sought was protected by the law enforcement privilege and was not
The court asked defendants whether any responsive
documents existed. Defendants stated that responsive documents did
Based on defendants' representation, the court denied
the motion to compel as moot.
The defendants then filed the instant "clarification" in which
they appear to backpedal on their representation during oral
They state that their response to Request
Objection, made November 19, 2012: 'Without acknowledging whether
such a statement exists, see Objection 5, above.'
Objection 5 invokes the law enforcement privilege."
(Doc. #105 at
Contrary to defendants' statement on the record during oral
argument regarding Request for Production #8, they now say that in
light of the law enforcement privilege, they "cannot acknowledge
whether such a statement exists, and thus cannot represent to this
Court whether there are or are not responsive documents to this
(Doc. #105 at 2.)
Defendants also reiterate their
plaintiff's criminal history and suggest that disclosure would be
The defendants have needlessly complicated and muddied the
record of what should have been a straightforward and simple
"[T]he party asserting the law enforcement privilege bears the
documents at issue."
948 (2d Cir. 2010).
In re The City of New York, 607 F.3d 923,
"To show that the privilege applies, the party
asserting the privilege must demonstrate that the documents contain
information that the law enforcement privilege is intended to
Specifically, the party asserting the privilege
must show that the documents in question contain (1) information
sources, (3) information that would endanger witness and law
enforcement personnel, (4) information that would undermine the
(5) information that would seriously impair the ability of a law
enforcement agency to conduct future investigations.
the law enforcement privilege is a qualified privilege (i.e., not
absolute), the inquiry does not end with a successful showing that
the privilege applies. While a "strong presumption" exists against
lifting the privilege, the party seeking disclosure may rebut the
presumption by establishing that (1) the suit is non-frivolous and
brought in good faith, (2) the information sought is not available
through other discovery or from other sources, and (3) the party
has a compelling need for the privileged information.
Id. If the
district court must then weigh the public interest in nondisclosure
against the need of the litigant for access to the privileged
As it stands, the present record is inadequate to adjudicate
the defendants' assertion of privilege.
The defendants have
neither submitted a privilege log nor any affidavits in support of
their assertion of privilege.
See Abascal v. Fleckenstein, No.
06–CV–0349S(Sr), 2010 WL 3834839, at *7 (W.D.N.Y. Sept. 29, 2010)
(in response to an inmate's motion to compel, defendants submitted
averring that possession of an Operations manual by the plaintiff
would be a danger to the safety and security of Attica and all
other DOCS facilities and offered in the alternative to submit the
documents for in camera inspection).
In an effort to ready this very old case for trial, the court
will not require further briefing, as it likely would not be
helpful, and instead orders the defendant to submit documents
explanatory affidavits, to the undersigned within 10 days for in
See In re The City of New York, 607 F.3d 923, 948
(2d Cir. 2010) ("To assess both the applicability of the privilege
and the need for the documents, the district court must ordinarily
review the documents in question.")
SO ORDERED at Hartford, Connecticut this 18th day of June,
Donna F. Martinez
United States Magistrate Judge
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