Brewer v. Arnone et al

Filing 60

ORDER granting in part 56 Motion for Order Compelling Discovery; denying 51 Motion to Compel. Disclosure due by 2/26/2013. Any party may file a motion for summary judgment on or before 3/20/2013. Signed by Judge Donna F. Martinez on 2/5/13. (Nichols, J.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JOHN BREWER, III,

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Plaintiff,
v.
LEO ARNONE et al.,
Defendants.

CASE NO. 3:11CV19(DFM)

RULING ON MOTION TO COMPEL
Plaintiff John Brewer, III, a state prisoner, brings this
action pro se against officials of the Connecticut Department of
Correction ("DOC") seeking religious privileges as an adherent
of the Nation of Gods and Earths ("NGE") and removal of NGE's
designation as a Security Risk Group within the DOC.

(Doc. #1.)

Pending before the court are plaintiff's Motions to Compel.
(Docs. #51, #56.)
On January 31, 2013, the court heard oral argument on the
motions.

Defendants confirmed that they did not disclose

certain responsive documents that they characterized in their
opposition brief as "classified and confidential for reasons
related to safety and security."

(Defs.' Br., doc. #55 at 2.)

They described the documents as two loose-leaf binders
containing materials confiscated from inmates, including
contraband, and materials received from security coordinators in
other jurisdictions.

Defendants represented that some of these

documents contain numerical and alphabetical codes that would
pose a security risk if disseminated.

However, they conceded

that they might introduce at least some of the documents at
trial and agreed that plaintiff should have an opportunity to
examine them.

Defendants volunteered to make these documents

available to plaintiff at his place of incarceration.
Notwithstanding this concession, plaintiff correctly
maintains that he is entitled to discover all nonprivileged
information relevant to his claims, not just the evidence that
defendants deem useful to their defense at trial.

See Fed. R.

Civ. P. 26(b)(1) ("[u]nless otherwise limited by court order, .
. . [p]arties may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense").

In

response, defendants assert that the documents are subject to
the law enforcement privilege.
Federal common law recognizes "a qualified executive
privilege designed 'to prevent disclosure of law enforcement
techniques and procedures, to preserve the confidentiality of
sources, to protect witness and law enforcement personnel, to
safeguard the privacy of individuals involved in an
investigation, and otherwise to prevent interference with an
investigation.'"1

El Badrawi v. Department of Homeland Sec., 258

1

Connecticut common law also recognizes a qualified law
enforcement privilege for the purpose of "aid[ing] the state's
2

F.R.D. 198, 203 (D. Conn. 2009) (Hall, J.) (quoting In re Dep't
of Investigation, 856 F.2d 481, 484 (2d Cir. 1988).

To merit

consideration of the law enforcement privilege, a party invoking
it must meet certain threshold requirements: "(1) a formal claim
of privilege must be lodged by the head of the department which
has control over the requested information; (2) assertion of the
privilege must be based on actual personal consideration of the
matter by that official; and (3) the claim must specify, with
particularity, the information for which the privilege is
invoked, and must explain why it falls within the scope of the
privilege."

Id. (citing In re Sealed Case, 856 F.2d 268, 272

(D.C. Cir. 1988).

The threshold requirements are necessary for

the court "'to make a reasoned assessment of the weight of the
interests against and in favor of disclosure and to provide a
plaintiff a fair opportunity to challenge the bases for the
assertion of the privilege.'"

Id. (citation omitted).

Because

the law enforcement privilege is a qualified privilege, once the
threshold requirements are met, the court then balances the
attorney and the police in conducting investigations by
encouraging people to disclose information without fear of
embarrassment through subsequent, needless public disclosure."
Seebeck v. State, 246 Conn. 514, 545-46 (1998). Although
"questions of privilege in federal civil rights cases are
governed by federal law . . . 'a strong policy of comity between
state and federal sovereignties impels federal courts to
recognize state privileges where this can be accomplished at no
substantial cost to federal substantive and procedural policy.'"
King v. Conde, 121 F.R.D. 180, 187 (E.D.N.Y. 1988) (citation
omitted).
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interests to determine whether the conditional protection is
justified.

Id.

The factors disfavoring disclosure are the threat to
the safety of police officers, the invasion of the
privacy of police officers, the weakening of law
enforcement programs or procedures, the chilling of
police investigative candor, the chilling of citizen
complaint candor, and state privacy law. The factors
favoring disclosure are the relevance of the material
to the plaintiff's case, the importance of the
material to the plaintiff's case, the strength of the
plaintiff's case, and the importance to the public
interest in releasing the information.
National Congress for Puerto Rican Rights ex rel. Perez v. City
of New York, 194 F.R.D. 88, 95-96 (S.D.N.Y. 2000).
In this case, defendants have not met the threshold
requirements for invoking the privilege.

As a result, the court

cannot reach the balancing analysis, and defendants' privilege
objection is overruled without prejudice to making a proper
showing.
In light of the foregoing, plaintiff's December 2012 Motion
to Compel (doc. #56) is granted in part as follows:
1.

Plaintiff's Interrogatories 1 - 5 (disruptive nature of
NGE), 8 (same), 12 (NGE's chain of command), and 13
(NGE's teachings) and Request for Production 10 (basis
of disruptive group designation) are granted.

On or

before February 26, 2013, defendants may file a motion
for protective order pursuant to Rule 26(c) and Local
Rule 26(e) properly invoking the qualified law
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enforcement privilege as set forth supra.

To the extent

that defendants do not move to protect information
responsive to the above requests, they shall make that
information accessible to plaintiff for review at his
place of incarceration on or before February 26, 2013.2
2.

Plaintiff's Interrogatory 14 (defendants' religious
affiliations) is granted.

Plaintiff's October 2012 Motion to Compel (doc. #51) is denied
as moot.
denied.

Plaintiff's request for sanctions (doc. #51) is
Fed. R. Civ. P. 37(a)(5)(A)(ii).

Finally, as discussed at oral argument, any party may file
a motion for summary judgment on or before March 20, 2013.
SO ORDERED at Hartford, Connecticut this 5th day of
February, 2013.
____________/s/______________
Donna F. Martinez
United States Magistrate Judge

2

At oral argument, plaintiff conceded that he need not
possess the responsive documents in his cell so long as he has
access to them.
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