Williams v. Hartford Police Dept. et al
Filing
159
RULING DENYING, as moot, 103 Motion for Order Compelling Discovery; GRANTING, in part, and DENYING, in part, 107 Motion to Compel Defendant "Kimberly Taylor" for Order of Discovery Request; and GRANTING, in part, and DENYING, in part, 108 Motion to Order All Defendants to Compel Defendants Kimberly Taylor, Emery Hightower, Cheryl Gogins, and City of Hartford to Comply with Court Order. See attached Ruling for details. Signed by Judge Sarah A. L. Merriam on 5/2/2016. (Katz, S.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
:
CHARLES C. WILLIAMS
:
:
v.
:
:
THE CITY OF HARTFORD,
:
et al.
:
:
------------------------------x
Civil No. 3:15CV00933(AWT)
May 2, 2016
RULING ON MOTIONS TO COMPEL [DOC. ##103, 107, 108]
Pending before the Court are three motions filed by
plaintiff Charles C. Williams (“plaintiff”), seeking to compel
discovery from defendants, Emery Hightower (“Hightower”), Cheryl
Gogins (“Gogins”), Kimberly Taylor (“Taylor”), the City of
Hartford (“Hartford” or the “City”) and Terry Waller (“Waller”)
(Hightower, Gogins, Taylor, the City, and Waller are hereinafter
sometimes collectively referred to as the “defendants”). [Doc.
##103, 107, 108]. Defendants filed a joint objection to
plaintiff‟s first Motion for Order Compelling Discovery. [Doc.
#105]. Plaintiff has also filed several letters, notices, and a
brief in support of the pending motions to compel. [Doc. ##125,
121, 128, 129, 146]. For the reasons articulated below, the
Court: DENIES, as moot, plaintiff‟s Motion for Order Compelling
Discovery [Doc. #103]; GRANTS, in part, and DENIES, in part,
plaintiff‟s Motion to Compel Defendant “Kimberly Taylor” for
1
Order of Discovery Request [Doc. #107]; and GRANTS, in part, and
DENIES, in part, plaintiff‟s Motion to Order Defendants Taylor,
Hightower, Gogins, and the City to Comply with Court Order [Doc.
#108].
BACKGROUND
Plaintiff brings this action pursuant to 42 U.S.C. §1983
and Connecticut state law alleging police misconduct, malicious
prosecution, illegal arrest, false arrest, obstruction of
justice, defamation, libel, retaliation, and intentional
infliction of emotional distress. See Doc. #42, Amended
Complaint. He alleges violations of his rights under the First,
Eighth, Fourth, Fifth, Sixth and Fourteenth Amendments. Id.
The following allegations are derived from plaintiff‟s
Amended Complaint. See Doc. #42. Plaintiff alleges that his
former girlfriend, A.P., filed a false complaint against him for
aggravated sexual assault and risk of injury to a minor.
Plaintiff alleges that the defendants, Chief of the Hartford
Police Hightower, Hartford Fire Chief Waller, Hartford Detective
Gogins, and defendant Taylor, colluded with A.P. to file this
false complaint. Plaintiff was ultimately arrested on charges of
aggravated assault and risk of injury to minor. Plaintiff
alleges that he was acquitted of the sexual assault charge.
Plaintiff further alleges that the arrest warrant application
for these charges contained false statements by defendant Gogins
2
and A.P., and was presented to a judge along with fabricated
evidence. Plaintiff alleges that the arrest warrant was not
supported by probable cause. Plaintiff also alleges that the
Hartford Police Department has an unofficial policy of perjuring
statements in order to obtain arrest warrants.
DISCUSSION
Plaintiff has filed three motions seeking to compel
discovery responses from the defendants. [Doc. ##103, 107, 108].
On February 17, 2016, the Court held an in-person case
management and discovery status conference to address, among
other matters, the issues raised in the motions to compel. [Doc.
##131, 132]. Because plaintiff proceeds in this matter pro se,
the Court interprets his briefing “liberally” and reads his
filings “to raise the strongest arguments that they suggest.”
Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) (citing
Mikinberg v. Baltic S.S. Co., 988 F.2d 327, 330 (2d Cir. 1993)).
“Though a court need not act as an advocate for pro se
litigants, in pro se cases there is a greater burden and a
correlative greater responsibility upon the district court to
insure that constitutional deprivations are redressed and that
justice is done.” Davis v. Kelly, 160 F.3d 917, 922 (2d Cir.
1998) (internal quotation marks omitted) (quoting Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978)). Bearing this in
mind, and to the extent the Court can glean from his submissions
3
the discovery plaintiff seeks to obtain, the Court will address
each motion in turn.
I.
Legal Standard
Rule 26(b)(1) of the Federal Rules of Civil Procedure sets
forth the scope and limitations of permissible discovery:
Parties
may
obtain
discovery
regarding
any
nonprivileged matter that is relevant to any party‟s
claim or defense and proportional to the needs of the
case, considering the importance of the issues at
stake in the action, the amount in controversy, the
parties‟ relative access to relevant information, the
parties‟ resources, the importance of the discovery in
resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely
benefit. Information within this scope of discovery
need not be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1). “The party resisting discovery bears
the burden of showing why discovery should be denied.” Cole v.
Towers Perrin Forster & Crosby, 256 F.R.D. 79, 80 (D. Conn.
2009).
II.
Motion for Order Compelling Discovery [Doc. #103]
Plaintiff‟s first Motion for Order Compelling Discovery
[Doc. #103] seeks to compel responses to plaintiff‟s written
discovery requests directed to each of the defendants. [Doc.
#103]. Because the relief sought in this motion is identical to
that sought in plaintiff‟s more substantive “Motion to Order All
defendants to Compel Defendants „Kimberly Taylor, Emery
Hightower, Cheryl Gogins, City of Hartford, Hartford Police
Dept.‟ Comply with Court Order” [Doc. #108], the Court DENIES,
4
as moot, plaintiff‟s first Motion for Order Compelling
Discovery. [Doc. #103].
III. Motion to Compel Defendant “Kimberly Taylor” for an Order
of Discovery Request [Doc. #107]
Plaintiff seeks to compel responses to two sets of
discovery requests, dated October 24, 2015, and September 30,
2015, directed to defendant Taylor. [Doc. #107]. Plaintiff
contends that defendant Taylor “has not completely complied with
the discovery request.” Id. at 1. Attached to plaintiff‟s motion
are defendant Taylor‟s responses and objections to the discovery
requests at issue. Id. at 6-9, 17-19. In plaintiff‟s Brief in
Support of Motions to Compel Requested Discovery, plaintiff
reiterates the documents and other information he seeks from
defendant Taylor. [Doc. #121 at 1]. The Court will address each
contested request in turn.1
a. Documents Relating to Defendant Taylor’s Job Duties
(Request 1)
Plaintiff seeks the following documents in his September
30, 2015, and October 24, 2015, requests for production,
respectively:
1
The Court shall only address those requests to which defendant
Taylor has objected. There is no objection lodged to, nor does
plaintiff appear to take issue with, defendant Taylor‟s
responses to Requests 3, 4, and 5 of the September 30, 2015,
Requests, and Request 7 of the October 25, 2015, Requests. See
Doc. ##108, 121.
5
1. Any and all articles, rules, policy, regulation,
directives, or guidelines pertaining to “Ms. Taylor”
job description.
1. Any
and
all
rules,
policy,
guidelines
and
regulations of her job description code of conduct,
standards, of her employment for the “City of
Hartford.”
[Doc. #107 at 6, 17]. Defendant Taylor did not object to these
requests, and responded “See attached.” Id.
Plaintiff fails to
articulate how defendant Taylor‟s production is deficient with
respect to these Requests. Because the Court cannot speculate as
to what is missing, or how defendant Taylor‟s production is
otherwise deficient, the Court DENIES plaintiff‟s motion to
compel as to Request 1 directed to defendant Taylor.
b. Documents Relating to “Citizen Complaints” (Requests 2, 3,
4, 5, 6 and 8)
The next category of requests relates to “citizen
complaints” filed by plaintiff with the Hartford Police
Department. Plaintiff seeks the following documents:
2. Identify and attach copy of internal affairs
investigations reports pertaining to any and all
civilian complaints filed by the “plaintiff” that
went through Defendant “Taylor” office.
2. Copy of citizen complaints filed by the plaintiff
and reviews, evaluations and recommendations, and
responses,
or
findings
by
investigators
who
investigated the plaintiff citizen complaints in
2012, 2013, and 2015.
3. Copy of the defendant reviews of the plaintiff‟s
citizen complaints in 2012 and 2013.
6
4. Copies of incident reports, investigative reports
filed pertaining to the plaintiff citizen complaints
in 2012, 2013 and findings by the civilian police
review board.
5. Copy of any reports, or documents pertaining to the
plaintiff “Appeal” he filed in opposition to the
“chief of police” findings to the plaintiff citizen
complaint (#cc2015-019).
6. Copy of any reports, investigations pertaining to
citizen complaints filed by the plaintiff in 2012,
2013, 2015 and citizen complaint #cc2015-019.
8. Copy of all incident reports pertaining to citizen
complaint (# cc2015-019) case #2014-33708 and 201333708.
[Doc. #107 at 6-8, 17-18]. To all but one of these requests,2
defendant Taylor posed the same objection and response:
The defendant objects to this request for production
in that it is overbroad and unduly burdensome.
Additionally, the defendant objects to the request for
production in that it is vague, in relation to what
documents
specifically
the
plaintiff
seeks.
The
defendant objects to this request for production in so
far as it may be construed to seek documents or
information other than statistical data, such as
police reports or incident reports or evidence related
to other cases. Any such information is immaterial and
irrelevant to the allegations against this defendant.
... Additionally, such information may [be] protected
from disclosure by multiple Connecticut statutes.
2
In response to Request 5, defendant Taylor responded: “I have
not located anything in the corresponding file regarding
„Appeal‟” [Doc. #107 at 7]. Although plaintiff seeks to compel
the production of documents in response to this Request,
defendant Taylor‟s verified response reveals that there are no
responsive documents. Because plaintiff fails to allege that
defendant Taylor has not undertaken an adequate search, or other
facts to suggest that this response is deficient, plaintiff‟s
motion with respect to Request 5 directed to defendant Taylor is
DENIED.
7
Additionally, the defendant objects because such case
files
may
contain
significant
confidential
and
personal information[.] Any medical information in the
files would be protected from disclosure pursuant to
[HIPAA] and its corresponding federal regulations, as
well as Connecticut statutes.
Notwithstanding and without waiver of objection, I am
referring the plaintiff to the production of Cheryl
Gogins and Emory Hightower, incorporated herein by
reference.
[Doc. #107 at 6-8 (internal citations omitted)]. As an initial
matter, the Court notes that many of defendant Taylor‟s
objections, reflecting concerns about the disclosure of private
or confidential information, have largely been addressed by the
Court‟s order granting defendants‟ joint motion for protective
order (hereinafter the “Protective Order”). See Doc. #132 at 45. Additionally, plaintiff specifically states in his motion
that any confidential information such as phone numbers, victim
names, and medical information, may be redacted from the
documents produced. [Doc. #107 at 3]. Accordingly, defendant
Taylor‟s objections with respect to the disclosure of private or
confidential information are SUSTAINED by agreement or prior
ruling of this Court. See id.3
3
Items containing confidential information must be disclosed, if
responsive, but should be redacted to comply with the Court‟s
Protective Order, See Doc. #132 at 3-5, or by the plaintiff‟s
agreement. See, e.g., Doc. #107 at 3.
8
Turning to the substance of plaintiff‟s requests, many of
the requests are duplicative, vague and unduly burdensome as
currently phrased. Nevertheless, plaintiff clarifies precisely
what he seeks in his Brief in support of Motions to compel
Requested Discovery:
The plaintiff seeks Any and all grievance, complaints,
of his own citizen complaints he had filed with the
police review board which the defendants had received,
which concerned mistreatment of the plaintiff by the
defendants. The plaintiff seeks Any documents, created
in response to the plaintiffs citizen complaints such
as memorandum, investigative files from independent
private investigators Firm which had investigated the
plaintiff‟s complaints in 2012, 2013, 2014, and 2015.
[Doc. #121 at 4 (sic)]. In short, plaintiff seeks copies of the
citizen complaints he previously filed and the Hartford Police
Department‟s investigations and responses to those complaints.
These complaints are relevant because they form the basis of the
retaliation claim in Count 8 of the Amended Complaint.
In her responses, defendant Taylor refers plaintiff to the
production of defendants Gogins and Hightower, but does not
specifically identify the Bates numbers of the other production
which is responsive to the requests. Therefore, on or before May
16, 2016, defendant Taylor shall provide plaintiff with amended
responses that identify by Bates number the documents responsive
to plaintiff‟s requests. Additionally, defendant Taylor shall
produce to plaintiff, to the extent they have not already been
produced by another defendant, copies of any citizen complaints
9
filed by plaintiff with the Hartford Police Department for the
years 2012, 2013, 2014, and 2015. Defendant Taylor shall also
produce, on or before May 16, 2016, to the extent that such
documents have not already been produced by another defendant,
any non-privileged documents generated in the course of
investigating plaintiff‟s complaints, including, without
limitation, any command review worksheets, investigative
reports, investigative plans, and/or interdepartmental memoranda
relating to plaintiff‟s specific complaints. Defendant Taylor
may redact these documents in accordance with the Court‟s
Protective Order. See Doc. #132 at 4-5, Doc. #107 at 3.
Accordingly, for the reasons stated, plaintiff‟s Motion to
Compel Defendant “Kimberly Taylor” for Order of Discovery
Request [Doc. #107] is GRANTED, in part, and DENIED, in part, as
articulated above.
IV.
Motion to Order Defendants Taylor, Hightower, Gogins, and
the City to Comply with Court Order [Doc. #108]
Plaintiff‟s next motion seeks an order compelling
defendants Taylor, Hightower, Gogins, the City and Waller4 to
respond to plaintiff‟s document requests. [Doc. #108].5
4
Although Waller is not specifically named in the Motion to
Compel, as discussed during the February 17, 2016, case
management and discovery conference, plaintiff also takes issue
with the discovery responses provided by defendant Waller. See
Doc. #132 at 2. Accordingly, the court will review the responses
and objections of Waller to plaintiff‟s written discovery
10
a. Law Applicable to Certain Requests
Many of plaintiff‟s requests to the remaining defendants
are duplicative and/or implicate the same principles of law,
necessitating the below review of applicable law.
i.
“Answers” to Requests for Production
The Court‟s review of the defendants‟ responses to
plaintiff‟s discovery requests reveals that in a number of
instances, substantive narrative responses were provided instead
of documents due to the wording of plaintiff‟s requests. Such
responses constitute an “answer” which, pursuant to Rule 34 of
the Federal Rules of Civil Procedure, requires a signature under
oath by the responding party. See Napolitano v. Synthes USA,
LLC, 297 F.R.D. 194, 200 (D. Conn. 2014) (supplemental response
to request for production, which stated that all documents had
been produced, was “an answer” that required signature under
oath by party).
requests, which were filed on February 24, 2016. [Doc. #143].
5
To the extent that plaintiff seeks an order compelling the
Hartford Police Department to produce documents, as a defendant,
this request is DENIED, as moot, in light of Judge Thompson‟s
Order dismissing the Hartford Police Department from this case.
See Doc. #75. The Court further DENIES, as moot, plaintiff‟s
motion to compel as to defendant Taylor, in light of the Court‟s
Ruling on plaintiff‟s motion to compel with respect to this
defendant. See Section III., supra.
11
ii.
Assertions of Connecticut Law
Many of the defendants‟ objections, which invoke privacy
concerns akin to a privilege, are based on Connecticut state
law. “[Q]uestions about privilege in federal question cases are
resolved by the federal common law.” Woodward Governor Co. v.
Curtiss Wright Flight Sys., Inc., 164 F.3d 123, 126 (2d Cir.
1999) (alterations added); see also Vidal v. Metro-N. Commuter
Ry. Co., No. 3:12CV0248(MPS)(WIG), 2014 WL 413952, at *3 (D.
Conn. Feb. 4, 2014) (“Where the district court‟s subject matter
jurisdiction is based on a federal question, privilege issues
are governed by federal common law.”). Plaintiff brings this
action pursuant to 42 U.S.C. §1983 and Connecticut state law
alleging police misconduct, malicious prosecution, illegal
arrest, false arrest, obstruction of justice, defamation, libel,
retaliation, and intentional infliction of emotional distress.
See Doc. #42. “[T]he Second Circuit has held that where there is
federal question jurisdiction and the evidence sought is
relevant to both the federal and state claims, „courts
consistently have held that the asserted privileges are governed
by the principles of federal law.‟” Tavares v. Lawrence & Mem‟l
Hosp., No. 3:11CV770(CSH), 2012 WL 4321961, at *6 (D. Conn.
Sept. 20, 2012) (alterations added)(quoting von Bulow by
Auersperg v. von Bulow, 811 F.2d 136, 141 (2d Cir. 1987)). In an
action such as the one at issue here, “where federal
12
jurisdiction is based on the presence of a federal claim and
supplemental jurisdiction exists over the state claim, federal
law of privilege controls the question whether the privileges
asserted ... should be recognized.” Id. (alterations in
original). Accordingly, because plaintiff has filed a federal
claim seeking redress for alleged violations of his civil
rights, and has invoked the Court‟s supplemental jurisdiction
over his State law claims for defamation, libel, and intentional
infliction of emotional distress, any privileged asserted by the
defendants is governed by federal common law.
Among others, defendants specifically invoke Connecticut
General Statute section 31-128f, which recognizes a privacy
interest in personnel files. Although this statute, like the
others cited, “may be viewed as persuasive in expressing the
Connecticut legislature‟s desire to protect the privacy of such
records, [] it does not control.” Id. (alterations added).
“Judges in this District have repeatedly recognized that when
personnel information ... is necessary and relevant to a case, a
court may order limited disclosure of that information
consistent with the dictates of § 31–128f.” Gibbs v. Am. Sch.
For The Deaf, No. 3:05CV563(MRK), 2007 WL 1079992, at *1 (D.
Conn. Apr. 4, 2007) (alterations added) (collecting cases).
13
iii. Disclosure of Police Disciplinary Records
Plaintiff seeks documents relating to several of the
defendants‟ work histories within the Hartford Police and Fire
Departments, including suspensions, reprimands, disciplinary
histories and sanctions. See, e.g., Doc. #108 at 17. As a
general matter, in a section 1983 case such as this,
“[d]isciplinary records involving complaints of a similar
nature, whether substantiated or unsubstantiated, could lead to
evidence that would be admissible at trial and thus, are
discoverable.” Frails v. City of New York, 236 F.R.D. 116, 11718 (E.D.N.Y. 2006) (alterations added) (compiling cases). “The
theory for permitting discovery concerning disciplinary history
is that it may lead to evidence of pattern, intent and absence
of mistake, or support a plaintiff‟s claim for municipal
liability under Monell v. Department of Social Services, 436
U.S. 658 (1978)[.]” Phillips v. City of New York, 277 F.R.D. 82,
83 (E.D.N.Y. 2011) (internal citations omitted). “Accordingly,
courts have held that records of disciplinary charges, internal
investigations, and complaints concerning prior instances of
misconduct which are similar to the misconduct alleged by the
plaintiff „could lead to evidence that would be admissible at
trial and thus, are discoverable.‟” Chillemi v. Town of
Southampton, No. 12-3370(ADS)(AKT), 2015 WL 1781496, at *6
(E.D.N.Y. Apr. 20, 2015) (quoting Frails, 236 F.R.D. at 117-18).
14
With this framework in mind, the Court turns to the
discovery requests at issue.
b. Requests directed to Defendant Detective Gogins
Plaintiff served defendant Gogins, in both her individual
and official capacities, with two sets of requests for
production, dated September 7, 2015, and September 30, 2015,
respectively. See Doc. #108 at 11-16, 29-34. The Court‟s review
of the Requests, and defendant Gogins‟ responses, reveals that
both the Requests and the responses are identical. Accordingly,
for purposes of this Ruling, the Court will refer only to the
September 7, 2015, Requests, along with the respective responses
and objections.
i.
Request 1
Plaintiff‟s first Request seeks: “Any and all articles,
rules, policy, regulations of the Hartford Police Department
Officer‟s conduct or standards on and off duty[.]” [Doc. #108 at
11]. Defendant Gogins objected:
This defendant objects to this request for production
in so far as it is immaterial and irrelevant to the
allegations against this defendant. ... Furthermore
this request for production is unlike to lead to the
discovery
of
admissible
information
evidence.
Furthermore,
the
defendant
objects
because
this
request
production
is
overly
broad
and
unduly
burdensome.
Id. (sic). Plaintiff clarifies in his Brief in Support of
Motions to Compel Requested Discovery that he seeks the Hartford
15
Police Department‟s “code of conduct on duty, Police of standard
of care or duty of care that owed to the public in the
Community[,]” and a “Copy of Hartford police officers oaths to
become a police officer.” [Doc. #121 at 3]. Plaintiff‟s request
as phrased is overly broad and unduly burdensome on its face.
Nevertheless, in light of the allegations of plaintiff‟s Amended
Complaint which allege police misconduct and abuse of power
within the Hartford Police Department during the years 2012 and
2013, see, e.g., Doc. #42, at ¶¶30, 34-40, on or before May 16,
2016, defendant Gogins shall produce to plaintiff: (1) a copy of
the Hartford Police Department‟s Code of Conduct effective in
2012 and 2013; and (2) a copy of the police officer‟s oath upon
taking office effective in 2012 and 2013. Accordingly, the Court
GRANTS, in part, and DENIES, in part, plaintiff‟s motion to
compel with respect to Request 1 directed to defendant Gogins.
ii.
Request 2
Plaintiff‟s second Request seeks “Rule against falsifying
statements, or incident reports[,]” to which defendant Gogins
objected:
This defendant objects to this request for production
in so far as it is immaterial and irrelevant to the
allegations against this defendant. ... Furthermore
this request for production is unlike to lead to the
discovery
of
admissible
information
evidence.
Furthermore,
the
defendant
objects
because
this
request
production
is
overly
broad
and
unduly
burdensome.
16
[Doc. #108 at 11 (sic)]. In light of the plaintiff‟s pro se
status, the Court construes this request as seeking any Hartford
Police Department rules prohibiting the falsification of
incident reports or affidavits supporting warrant applications,
which were effective during 2012 and 2013. Again, this Request,
as construed by the Court, is relevant to plaintiff‟s allegation
that defendant Gogins “supplied a false statement in her
Affidavits for the arrest Warrant Applications ... and
fabricated false evidence and presented that information to [a
judge].” [Doc. #42 at ¶22]. It further goes to plaintiff‟s
Monell claims against the City that there was an “unofficial
policy” of Hartford police officers providing perjured
statements to obtain arrest warrants. Id. at ¶36. See, e.g.,
Fletcher by Fletcher v. City of New York, No. 84CV1376(IBC),
1988 WL 13770, at *4 (S.D.N.Y. Feb. 16, 1988) (In a section 1983
case alleging that defendant City of New York was negligent in
investigating a shooting and that through its employees it
violated decedent plaintiff‟s rights, the Court ordered
defendant to produce “Police Department guidelines, rules,
regulations, patrol guides, interim orders and any other
documents from the Police Academy as to the requirements for
submitting evidence obtained at a crime scene to police
laboratory for analysis, effective in 1983[.]”). Therefore, on
or before May 16, 2016, defendant Gogins shall produce to
17
plaintiff a copy of any Hartford Police Department rules which
were effective in 2012 and 2013, which prohibited the
falsification of incident reports or affidavits supporting
warrant applications. Accordingly, the Court GRANTS, in part,
and DENIES, in part, plaintiff‟s motion to compel with respect
to Request 2 directed to defendant Gogins.
iii. Request 3
Plaintiff‟s third Request seeks a “[c]opy of [A.P.‟s]
signed statements of sexual assault in 2013 during her first
original allegation, of the complaint case #2013-33708[.]” [Doc.
#108 at 11]. Defendant Gogins objected
in that is seeks production of information regarding
reports and identifying information of victims of
sexual assault, which is confidential and statutorily
protected from disclosure and/or limited to disclosure
only under particular circumstance, which are not
present in this case. See, Conn. Gen. Stat. §§ 54-86b
and 84-86e.
Id. at 12 (sic). The Court OVERRULES, in part, defendant Gogins‟
objections to this Request.
Federal common law applies to this action with respect to
any claimed evidentiary privileges, and the Court is not bound
by the dictates of Conn. Gen. Stat. §§54-86b and 84-86e, which
defendant relies upon to prevent disclosure of these records.
See Woodward, 164 F.3d at 126; Tavares, 2012 WL 4321961, at *6.
Defendants have not asserted any federal law basis for
withholding these materials, but presumably, defendants seek to
18
withhold such documents on the basis of undue burden or
embarrassment. The Court remains cognizant of the defendants‟
concerns regarding disclosure of any identifying information of
A.P. and her minor children.
In that regard, defendants‟ reply brief, which the Court
has stricken, [Doc. ##130, 137], partially relies on Connecticut
Practice Book section 40-10 to prevent the disclosure of A.P.‟s
statements. [Doc. #130 at 10]. This section provides, in
pertinent part, that materials furnished to counsel for a
criminal defendant in anticipation of trial may only be used for
purposes of defending the criminal case, and may not be
disclosed to other persons absent the prior approval of the
prosecuting authority or court. See Conn. Prac. §40-1(a).
However, such state rules are not dispositive in federal
question cases such as the one here. See Crosby v. City of New
York, 269 F.R.D. 267, 274 (S.D.N.Y. 2010).
[I]n cases presenting federal questions, such as here,
discoverability, privileges, and confidentiality are
governed by federal law, not state law. “[S]tate
statutory privileges ... must be construed narrowly,
„and must yield when outweighed by a federal interest
in presenting relevant information to a trier of
fact.‟” In other words, state privilege rules should
not be permitted to “frustrate the important federal
interests in broad discovery and truth-seeking and the
interest in vindicating important federal substantive
policy such as that embodied in section 1983.”
Nonetheless,
“the
policies
underlying
state
evidentiary privileges must still be given serious
consideration, even if they are not determinative.”
19
Id. (alterations modified) (footnotes omitted). Here, plaintiff
alleges that A.P. filed a false report against him, which was
used to support an affidavit seeking an arrest warrant. In light
of this allegation, the information sought, namely A.P.‟s
statements to law enforcement, is relevant, particularly in
light of the claim that A.P. changed her story regarding the
nature of the weapon with which plaintiff allegedly threatened
her.6 Plaintiff‟s need for this specific information outweighs
the policy underlying Connecticut Practice Book section 40-10.
Therefore, on or before May 16, 2016, defendant Gogins shall
produce to plaintiff a copy of A.P.‟s sworn statements
concerning her allegations of sexual assault in case number
2013-33708. Defendant Gogins shall redact from these documents
any identifying information of A.P., her minor children, and/or
any third-party witnesses. Accordingly, the Court GRANTS, in
6
Plaintiff‟s Request, even construed liberally, does not seek
disclosure of A.P.‟s medical records generated in the course of
her sexual assault investigation. Plaintiff reiterates in his
Brief in Support of Motions to Compel Requested Discovery that
he seeks A.P.‟s “original signed statements” because such
documents are “relevant to the plaintiff claim that defendant
Gogins submitted two different sworn statements of [A.P.]
alleged account of rape which [A.P.] claim allegedly she was
raped at gun point.” [Doc. #121 at 3 (sic) (alterations added).
Not only are A.P.‟s related medical documents not relevant to
this claim, but such documents implicate an entirely different
set of privacy and confidentiality concerns than a sworn
statement made to law enforcement. Accordingly, even to the
extent that Request 3 can be construed as seeking A.P.‟s related
medical records, the Court will not require defendant Gogins to
disclose such records to plaintiff.
20
part, plaintiff‟s motion to compel as to Request 3 directed to
defendant Gogins, subject to the Court‟s Protective Order.
iv.
Request 4
Plaintiff‟s fourth Request asks defendant Gogins to:
“Identify and attach copy of police report case# 2013-28253
relating to police report 2013-33708[.]” [Doc. #108 at 12].
Defendant Gogins objected that this request
is immaterial and irrelevant to the allegations
against this defendant. ... Furthermore this request
for production is unlike to lead to the discovery of
admissible information evidence.
Id. (sic). Plaintiff‟s Brief in Support of Motions to Compel
Requested Discovery argues that this information “is relevant to
the plaintiff claim that Defendant Gogins submitted two
different sworn statements of [A.P.‟s] alleged account of
rape[.]” [Doc. #121 at 3]. Based on these representations, and
in light of defendant Gogins‟ boilerplate objections, the Court
will require defendant Gogins to produce a copy of the police
report for case number 2013-2853 on or before May 16, 2016. See
In re Priceline.com Inc. Sec. Litig., 233 F.R.D. 83, 85 (D.
Conn. 2005) (“[T]he objecting party must „show specifically how,
despite the broad and liberal construction afforded the federal
discovery rules, each [request] is not relevant[.]‟”
(alterations modified) (quoting Compagnie Francaise d‟Assurance
Pour le Commerce Exterieur v. Phillips Petroleum Co., 105 F.R.D.
21
16, 42 (S.D.N.Y.1984))).
Defendant Gogins shall redact from
this document any identifying information of A.P. or her minor
children. Accordingly, the Court OVERRULES defendant Gogins‟
objections, and GRANTS, in part, plaintiff‟s motion to compel as
to Request 4 directed to defendant Gogins, subject to the
Protective Order.
v.
Request 5
Plaintiff‟s fifth Request seeks a “[c]opy of Det. Philip
Fuschino original report pertaining to sexual assault complaint
before you were assigned by police chief Hightower[.]” [Doc.
#108 at 12]. Defendant Gogins objected and responded as follows:
OBJECTION: Defendant objects to plaintiff‟s claim that
she was “assigned by police chief Hightower, and
objects to any inference that by answering this
request for production that the allegation is true.
RESPONSE:
Without
waiving
the
above
referenced
objection, Det. Fuscino did not write a report related
to the investigation of the sexual assault, which
occurred on February 12, 2013. Det. Fushino was
involved in another investigation related to a
separate assault by the plaintiff upon the victim
[A.P.] but due to a car accident in May 2013, primary
responsibility for that case transferred to Det.
Cheryl Gogins, and when the sexual assault allegation
was reported in September 2013, that case was assigned
to Det. Gogins as well.
[Doc. #108 at 12 (sic)]. In light of the representation that
Det. Fuschino did not write a report related to the
investigation of the sexual assault, the Court cannot order
defendant Gogins to produce something which does not exist.
22
Plaintiff has made no showing that the defendant is wrongfully
withholding this document, or has failed to make an adequate
search. Accordingly, the Court DENIES plaintiff‟s motion to
compel as to Request 5 directed to defendant Gogins.
Nevertheless, in light of detective Gogins‟ “response”, the
Court will require Detective Gogins to submit a sworn
verification of this response pursuant to Federal Rules of Civil
Procedure 34, on or before May 16, 2016. See Napolitano, 297
F.R.D. at 200.
vi.
Requests 6, 9 and 10
Plaintiff‟s sixth, ninth and tenth Requests seek documents
relating to defendant Gogins‟ completion of various training
courses relating to sexual assault and domestic violence:
6. Attach copy of completed certificate of sexual
assault
investigations
that
is
certified
by
Department
of
Emergency
Services,
and
Public
Protection proving Det. Cheryl Gogins completed this
course[.]
9. Copy of hours of sexual assault course training
program
and
investigations
of
rape
crisis
intervention pursuant to Conn. Gen. Stat. 7-294f
that “Cheryl Gogins” had completed which qualify her
to investigate sexual assaults, for the Hartford
Police Dept.
10. Copy of hours, and completed certificate of
Domestic Violence training course [] pursuant to
Conn. Gen. Stat[.] 7-294g that Cheryl Gogins
completed.
[Doc. #108 at 12-14]. Defendant raised the same objection to
each request:
23
OBJECTION: This defendant objects to this request for
production in so far as it is immaterial and
irrelevant to the allegations against this defendant.
... Furthermore this request for production is unlike
to lead to the discovery of admissible information
evidence[.]
Additionally,
any
such
records,
are
rightfully
characterized as portions of the defendant‟s personnel
records, which are protected from disclosure by Conn.
Gen. Stat. § 31-128f[.] ... Although the statute does
provide for some exceptions, including for disclosure
pursuant to a court order, the plaintiff has made no
showing whatsoever, to overcome the privilege and
expectation of privacy that the statute is intended to
provide.
Finally,
such
documents
may
contain
significant
personal and private information that the defendant
has a valid interest in keeping private ... Disclosure
of any such information exposes the defendant to an
unwarranted violation of her privacy, to the risk of
identity theft, and to the very real risks to her
personal safety that may be presented by providing her
personal information to the plaintiff[.]
[Doc. #108 at 12-14 (sic) (internal citations omitted)]. In his
Brief in Support of Motions to Compel Requested Discovery,
plaintiff represents that this information is relevant to his
claims of liability against the municipality. [Doc. #121]. The
Court finds that this information may lead to the discovery of
admissible evidence in light of the allegations in plaintiff‟s
Amended Complaint that defendant Gogins failed to adequately
investigate the alleged sexual assault of A.P. and fabricated
statements to obtain an arrest warrant. See generally Doc. #42
24
at ¶¶19-22, 25.7 Further, because federal common law applies to
this action with respect to any claimed evidentiary privileges,
the Court is not bound by the dictates of Conn. Gen. Stat. §31128f, which defendant relies upon to prevent disclosure of these
records. See Woodward, 164 F.3d at 126; Tavares, 2012 WL
4321961, at *6. Accordingly, to the extent defendant Gogins
objects on the grounds of Conn. Gen. Stat. §31-128f, this
objection is OVERRULED.
With respect to any alleged privacy concerns, the Court is
hard-pressed to imagine the sort of private and confidential
information that would be contained on any such course
completion certificate. Further, the plaintiff has made it
abundantly clear that he does not seek any private and
confidential information of the defendants. See doc. #121 at 4
(“The plaintiff does not seek „any personal records medical
7
In addition to the reasons stated, the Court further finds that
the documents sought in Request 6 are relevant to plaintiff‟s
claim for punitive damages against defendant Gogins. See Doc.
#42 at 44. Indeed, such evidence may support a claim that
Defendant Gogins was not merely negligent in her investigation
of the alleged sexual assault, but rather, that she wilfully and
maliciously failed to adequately investigate the alleged sexual
assault of A.P. See Doe v. City of Waterbury, No. CIV.
3:01CV2298, 2009 WL 3348314, at *2 (D. Conn. Oct. 15, 2009)
(“Punitive damages are available for Section 1983 claims to
punish the defendant for h[er] willful or malicious conduct and
to deter others from similar behavior.” (alterations added)
(citing Memphis Cmty. School Dist. v. Stachura, 447 U.S. 299,
307 n.9 (1986))).
25
records, [illegible], vacation, address, children names etc.‟”).
Moreover, any such concerns about the disclosure of private or
confidential information, any such information may be redacted
from these documents in accordance with Federal Rule of Civil
Procedure 5.2(a), District of Connecticut Local Civil Rule
5(e)8, and by agreement of plaintiff. Accordingly, defendant
Gogins‟ objections on the grounds of privacy concerns are
likewise OVERRULED, and plaintiff‟s motion to compel as to
Requests 6, 9, and 10 directed to defendant Gogins is GRANTED,
in part, as follows: On or before May 16, 2016, defendant Gogins
shall produce copies of any training/course completion
certificates relating to sexual assault investigation and/or
rape crisis intervention training she completed in the years
2011, 2012, and 2013.
vii. Request 7
Request 7 seeks a “[c]opy of number of sexual assaults
Cheryl Gogins investigated in the last three years[.]” [Doc.
#108 at 13]. Defendant Gogins objected and responded as follows:
OBJECTION: The defendant objects to this request for
production in that it is overbroad and unduly
burdensome. Additionally, the defendant objects to the
request for production in that it is vague, in
relation to what documents specifically the plaintiff
seeks. The defendant objects to this request for
production in so far as it may be construed to seek
documents or information other than statistical data,
such as police reports or incident reports or evidence
related to other cases. Any such information is
immaterial and irrelevant to the allegations against
26
this defendant. ... Additionally, such information may
be protected from disclosure by multiple Connecticut
statutes.
Additionally, the defendant objects because such case
files
may
contain
significant
confidential
and
personal information ... Any medical information in
the files would be protected from disclosure pursuant
to [HIPAA] and its corresponding federal regulations,
as well as Connecticut Statutes.
RESPONSE:
Without
waiving
the
above
referenced
objection, there are no statistics kept as to the
specific
number
of
sexual
assault
cases
that
individual officers have investigated. However, Det.
Gogins estimates that she has investigated well over
one hundred cases in the course of her career.
[Doc. #108 at 13-14 (internal citations omitted)]. The Court
will not require defendant Gogins to produce copies of the
reports, or other documents, relating to sexual assaults that
she has investigated in the past three years. Not only does this
request seek entirely irrelevant information, as it seeks
information that is not relevant to the time period at issue,
but the production of such information may jeopardize ongoing
investigations and the safety of victims. The Court further
finds that defendant Gogins‟ response adequately provides the
information that plaintiff seeks. Accordingly, the Court DENIES
plaintiff‟s motion to compel as to Request 7 directed to
defendant Gogins. Nevertheless, in light of detective Gogins‟
“response”, the Court will require Detective Gogins to submit a
sworn verification of this response pursuant to Federal Rules of
27
Civil Procedure 34, on or before May 16, 2016. See Napolitano,
297 F.R.D. at 200.
viii.
Request 8
Request 8 seeks a “[c]opy of municipal police department
course on sexual assault investigations and rape crisis
instruction that is required of the State of Connecticut General
Statute 7-294b and 7-294f the Hartford Police Dept. is required
to provide to all Hartford Police Officers[.]” [Doc. #108 at
14]. Defendant Gogins posed the same objection as that provided
in response to Request 6. Id. Connecticut General Statutes
section 7-294f provides, in pertinent part: “[A] municipal
police department in the state shall include a course on sexual
assault investigation and rape crisis intervention and each
review training program conducted by such agencies shall make
provision for such a course.” Conn. Gen. Stat. §7-294f. As an
initial matter, the Court OVERRULES defendant Gogins‟ objections
that the information sought “are rightfully characterized as
portions of defendant‟s personnel records,” and that “such
documents may contain significant personal and private
information that the defendant has a valid interest in keeping
private.” [Doc. #108 at 12]. Here, plaintiff appears to seek any
course materials used by the Hartford Police Department for
training on sexual assault investigations and rape crisis
intervention. Such information is not properly characterized as
28
part of a personnel record, nor is it likely to reveal any of
defendant Gogins‟ personal and private information. The Court,
however, will SUSTAIN the objection that such information is not
relevant to the plaintiff‟s claims. Although plaintiff
specifically alleges that Defendant Gogins failed to adequately
investigate the alleged sexual assault of A.P, see generally
Doc. #42 at ¶¶19-22, 25, the basis of plaintiff‟s Monell claim
against the City does not appear to relate to the failure to
train or supervise its employees, in connection with sexual
assault investigations. See id. at ¶¶34, 36 (alleging the
Hartford Police had an unofficial policy of using perjured
statements to obtain arrest warrants). “[T]o hold a city liable
under § 1983 for the unconstitutional actions of its employees,
a plaintiff is required to plead and prove three elements: (1)
an official policy or custom that (2) causes the plaintiff to be
subjected to (3) a denial of a constitutional right.” Wray v.
City of New York, 490 F.3d 189, 195 (2d Cir. 2007) (citing
Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983)). Where a
plaintiff alleges deliberate indifference to constitutional
rights on the basis of failure to train or supervise employees,
in addition, a plaintiff must “identify a specific deficiency in
the city‟s training program and establish that that deficiency
is closely related to the ultimate injury, such that it actually
caused the constitutional deprivation.” Id. (internal quotation
29
marks omitted) (quoting Amnesty Am. v. Town of W. Hartford, 631
F.3d 113, 129 (2d Cir. 2004)). No such allegation appears in the
Amended Complaint. Accordingly, because plaintiff‟s Monell claim
does not sound in failure to train, details of the Hartford
Police Department‟s sexual assault investigation training
program are not relevant. Moreover, producing this information
could divulge confidential information of the Hartford Police
Department which could jeopardize ongoing and future sexual
assault investigations. Accordingly, the Court DENIES
plaintiff‟s motion to compel as to Request 8 directed to
Defendant Gogins.
c. Requests directed to defendant Emory Hightower
Plaintiff served defendant Hightower, in both his
individual and official capacities, with two requests for
production, dated September 7, 2015, and September 30, 2015,
respectively. See Doc. #108 at 17-28. Many of the Requests are
nearly identical. Accordingly, to the extent possible, the Court
will group the Requests categorically.
i.
Request 1 (September 7 and 30, 2015, Requests)
Plaintiff‟s first Request seeks: “Any and all rules,
policy, guidelines, regulations of the Hartford Police
Department conduct, code, standards on and off duty.” [Doc. #108
at 17]; see also id. at 23. Defendant Hightower objected:
30
This defendant objects to this request for production
in so far as it is immaterial and irrelevant to the
allegations against this defendant. ... Furthermore
this request for production is unlike to lead to the
discovery
of
admissible
information
evidence.
Furthermore,
the
defendant
objects
because
this
request [for] production is overly broad and unduly
burdensome.
[Doc. #108 at 17 (sic)]; see also id. at 23. Plaintiff also
posed this Request to defendant Gogins. See section IV.b.1.,
supra. The Court has ordered that defendant Gogins produce a
copy of the Hartford Police Department‟s Code of Conduct
effective in 2012 and 2013. Id. Accordingly, the Court DENIES
plaintiff‟s motion to compel with respect to Request 1 directed
to defendant Hightower as the Request is unreasonably
duplicative of that propounded on defendant Taylor. See Fed. R.
Civ. P. 26(b)(2)(C)(i) (“On motion or on its own, the court must
limit the frequency or extent of discovery otherwise allowed by
these rules or by local rule if it determines that:
[] the discovery sought is unreasonably cumulative or
duplicative[.]” (alterations added)).
ii.
Requests 2, 3, 4 (September 7 and 30, 2015
Requests), and Request 5 (September 30, 2015
Request)
Plaintiff‟s second Request seeks a “[c]opy of any documents
relating to defendant „Hightower‟ work history within the police
dept. in the last six years far as suspensions, reprimands,
disciplinary history, sanctions.” [Doc. #108 at 17 (sic)]; see
31
also id. at 23. Requests 3 and 4 from both sets of Requests, and
Request 5 from the September 30, 2015, Requests, seek documents
relating to any misconduct, corruption, reprimands, or
complaints as to Defendant Hightower for the past six (6) years.
See Doc. #108 at 19, 25.
Defendant Hightower objected to each of these Requests:
The defendant objects to any disclosure of any records
related to his employment with the Hartford Police
Department. The plaintiff‟s request exceeds the scope
of
permissible
discovery.
There
was
never
any
complaint made by the plaintiff to the Hartford Police
Department regarding the incidents alleged in the
plaintiff‟s complaint against Emory Hightower and
there was never any discipline issued against the
defendant by the City in relation to the allegations
set forth in the plaintiff‟s complaint.
The only issue to be tried in this case is whether the
defendant violated the defendant‟s constitutional
rights.
Records
related
to
the
defendant‟s
processional record, and his personnel file are
absolutely irrelevant to the plaintiff‟s cause of
action.
Additionally, the defendant‟s personnel records are
protected from disclosure by Conn. Gen. Stat. §31128f[.]
In addition, the defendant objects to this request for
production because the plaintiff has not articulated
or made any showing as to what type or category of
admissible evidence he believes may be revealed by
discovery of the defendant‟s “suspensions, reprimands,
disciplinary history, sanctions.” The only possible
purpose
that
plaintiff
has
in
requesting
such
information is to conduct a blind fishing expedition
in the hopes of finding evidence of prior bad acts or
bad character. Such evidence would be not admissible,
and thus plaintiff‟s request is not “reasonably
calculated to the discovery of admissible” evidence.
32
... As such, the plaintiff‟s discovery request is not
within the scope of permissible discovery.
Furthermore,
any
“suspensions,
reprimands,
disciplinary history, sanctions”, to the extent that
they may exist in the request files, may contain
private information from third parties completely
unrelated to this claim. ... The defendant objects to
being required to produce private information of third
parties that may be contained in any such reports[.]
Additionally, the defendant objects in so far as the
records requested may contain any medical information
in the files would be protected from disclosure
pursuant to [HIPAA] and its corresponding federal
regulations, as well as Connecticut Statutes.
Finally, such files contain significant personal and
private information that the defendant has a valid
interest in keeping private ... Disclosure of any such
information exposes the defendant to an unwarranted
violation of his privacy[.]
[Doc. #108 at 18-19 (internal citations omitted)]; see also id.
at 23-25.
Federal common law applies to this action with respect to
any claimed evidentiary privileges, and the Court is not bound
by the dictates of Conn. Gen. Stat. §31-128f, which defendant
relies upon, in part, to prevent disclosure of these records.
See Woodward, 164 F.3d at 126; Tavares, 2012 WL 4321961, at *6.
The allegations of plaintiff‟s complaint relate to an
alleged abuse of defendant Hightower‟s power as Hartford‟s
Police Chief. See Doc. #42, at ¶¶17-19, 29-30; see also Doc.
#121 at 5 (“The plaintiff has alleged that this defendant used
his Authority for Corruption and Conspiracy against other
33
civilians[.]”). Such allegations, however, do not “convert
defendant [Hightower‟s] entire personnel file and disciplinary
history into discoverable information.” Badolato v. Adiletta,
No. 3:10CV1855(JBA), 2012 WL 28704, at *2 (D. Conn. Jan. 5,
2012) (alterations added). Nevertheless, the information that
plaintiff seeks, albeit in a more limited scope, is in fact
relevant and discoverable in actions similar to the one at issue
here. See Frails, 236 F.R.D. at 117 (“Disciplinary records
involving complaints of a similar nature, whether substantiated
or unsubstantiated, could lead to evidence that would be
admissible at trial and thus, are discoverable.” (citation
omitted)); Gibbs, 243 F.R.D. at 96 (in section 1983 civil rights
action alleging, inter alia, false arrest, unlawful retaliation,
fabricated evidence, and malicious prosecution, “[p]laintiffs
are presumptively entitled to discovery of documents on prior
complaints and police histories of individual defendants because
it could yield relevant information.” (alterations added)
(collecting cases)); Chillemi, 2015 WL 1781496, at *6 (“[C]ourts
have held that records of disciplinary charges, internal
investigations, and complaints concerning prior instances of
misconduct which are similar to the misconduct alleged by the
plaintiff „could lead to evidence that would be admissible at
trial and thus, are discoverable.‟” (alterations added) (quoting
Frails, 236 F.R.D. at 117-18)). Indeed, “the great weight of the
34
policy in favor of discovery in civil rights actions supplements
the normal presumption in favor of broad discovery[.]” Nat‟l
Cong. for Puerto Rican Rights ex rel. Perez v. City of New York,
194 F.R.D. 88, 96 (S.D.N.Y. 2000) (internal quotation marks
omitted) (quoting King v. Conde, 121 F.R.D. 180, 195 (E.D.N.Y.
1988)). Accordingly, on or before May 16, 2016, defendant
Hightower shall produce to plaintiff any records of disciplinary
charges, internal investigations, and complaints directly
related to allegations, if any, of abuse of power by defendant
Hightower in his position as police chief, for the time period
of January 1, 2011, through April 30, 2013.
Moreover, to the extent that defendant Hightower objects on
the basis of protecting his private and confidential
information, plaintiff reiterates that he does “not seek
„personal records‟ in any general way, he seeks document
pertaining to particular kinds of complaints about this
defendant ... he does not seek matters that may be in personal
records such as medical records, social security #, date of
births, vacations etc.” [Doc. #121 at 5 (sic)]. Accordingly, any
privacy concerns may be alleviated by redacting any such
personal information in accordance with the representations of
the plaintiff. See Gibbs, 243 F.R.D. at 96.
Accordingly, for the reasons stated, the Court GRANTS, in
part, as stated above, plaintiff‟s Motion to Compel with respect
35
to Requests 2, 3, 4 (September 7 and 30, 2015, Requests), and
Request 5 (September 30, 2015, Request) directed to defendant
Hightower.
iii. Request 5 (September 7 and 30, 2015, Requests)8
Plaintiff‟s fifth Request seeks a “[c]opy of citizen
complaints plaintiff Charles C. Williams filed in 2012, and 2013
and what was the findings, and what was the complaint about.”
[Doc. #108 at 19]; see also id. at 25. Defendant Hightower
objected and responded:
OBJECTION: This defendant objects to this request for
production in so far as it is immaterial and
irrelevant to the allegations against this defendant.
... Furthermore this request for production is unlike
to lead to the discovery of admissible information
evidence. Furthermore, the defendant objects because
this request production is overly broad and unduly
burdensome.
The defendant also objects to this request for
production in so far as it may seek production of
information
regarding
reports
and
identifying
information of victims of sexual assault[.]
Additionally, the defendant objects to disclosure of
these documents in so far as they may seek information
... that may results in a violation of privacy to
third parties, or which may reasonably be expected to
result in risk to third parties.
Additionally, the defendant objects in so far as the
records request may contain any medical information in
the files would be protected from disclosure pursuant
to [HIPAA] and its corresponding federal regulations,
as well as Connecticut statutes.
8
There are two requests labeled number 5 in plaintiff‟s
September 30, 2015, Requests.
36
RESPONSE:
Without
waiving
the
above
objection,
redacted copies of the plaintiff‟s citizen complaints
and findings are enclosed.
[Doc. #108 at 19-20 (sic) (internal citations omitted)]; see
also id. at 25-26. Plaintiff fails to articulate how defendant
Hightower‟s production is deficient with respect to this
Request. Because the Court cannot speculate as to what is
missing, or how defendant Hightower‟s production might be
deficient, the Court DENIES plaintiff‟s motion to compel as to
Request 5 directed to defendant Hightower.9
iv.
Request 6 (September 7 and 30, 2015, Requests)
Plaintiff‟s sixth Request seeks a “[c]opy of police chief
involvement in handling citizen complaint filed with the
Internal Affairs Division pertaining to complaint filed against
officers with the Hartford Police Department.” [Doc. #108 at
20]; see also id. at 25. Defendant Hightower objected and
responded:
OBJECTION: The defendant objects to the request for
production in that it is vague and unclear as to what
specifically the plaintiff seeks.
RESPONSE: Without waiving the above objections, the
defendant encloses a copy of the Hartford Police
Department procedure for investigation of Citizen
Complaints.
9
Plaintiff propounded an identical Request on defendant Taylor,
which the Court has addressed above, and has ordered Taylor to
produce additional documents. See Section III.b., supra.
37
[Doc. #108 at 20]; see also id. at 26. The Court has reviewed
the documents produced in response to this Request and finds,
from what the Court understands this Request to seek, that the
documents are adequately responsive. Plaintiff fails to
articulate how defendant Hightower‟s production is deficient
with respect to this Request. Because the Court cannot speculate
as to what is missing, or how defendant Hightower‟s production
might be deficient, the Court DENIES plaintiff‟s motion to
compel with respect to Request 6 directed to defendant
Hightower.
d. Requests directed to defendant Terry Waller
Plaintiff served defendant Waller in both his individual
and official capacities, with requests for production dated
November 11, 2015. See Doc. #143-1. The Court will address each
Request in turn.
i.
Request 1
Plaintiff‟s first Request seeks a “[c]opy of reasons why
you, Terry Waller, were demoted from Deputy Fire Chief
(Documents of your reason for being demoted).” [Doc. #143-1 at
1]. Defendant Waller objected and responded:
OBJECTION: This defendant objects to this request for
admission (sic) in so far as it is immaterial and
irrelevant to the allegations against this defendant.
Fed. R. Civ. P. 26(b)(1)[.]
RESPONSE:
Without
waiving
the
above
objection, the defendant was not demoted.
38
referenced
[Doc. #143-1 at 1 (sic)]. In light of the representation that
defendant Waller was not demoted, the Court cannot order
defendant Waller to produce something which does not exist
(namely documents reflecting the reasons for his alleged
demotion). Nevertheless, in light of defendant Waller‟s
“response”, the Court will require defendant Waller to submit a
sworn verification of this response pursuant to Federal Rules of
Civil Procedure 34, on or before May 16, 2016. See Napolitano,
297 F.R.D. at 200. Therefore, the Court DENIES plaintiff‟s
motion to compel with respect to Request 1 directed to defendant
Waller.
ii.
Request 2
Plaintiff‟s second Request seeks a “[c]opy of reason why
you retired or lost your job as Fire Department employee.” [Doc.
#143-1 at 1]. Defendant Waller objected and responded:
OBJECTION: This defendant objects to this request for
production in so far as it is immaterial and
irrelevant to the allegations against this defendant.
Fed. R. Civ. P. 26(b)(1)[.]
RESPONSE:
Without
waiving
the
above
referenced
objection, the defendant did not lose his job with the
Fire Department. The defendant retired.
[Doc. #143-1 at 1]. In light of the allegations of plaintiff‟s
Amended Complaint, the Court will SUSTAIN defendant Waller‟s
objection that this Request seeks immaterial and irrelevant
information. Nevertheless, in light of defendant Waller‟s
39
“response”, the Court will require defendant Waller to submit a
sworn verification of this response pursuant to Federal Rules of
Civil Procedure 34, on or before May 16, 2016. See Napolitano,
297 F.R.D. at 200. Therefore, the Court DENIES plaintiff‟s
motion to compel with respect to Request 2 directed to defendant
Waller.
iii. Request 3
Plaintiff‟s third Request seeks a “[c]opy of any reprimand
or complaints logged against you by your department in the last
six (6) years.” [Doc. #143-1 at 1]. Defendant Waller objected:
The defendant objects to any disclosure of any
reprimand or complaints. The plaintiff‟s request
exceeds the scope of permissible discovery. There was
never any complaint made by the plaintiff to the
Hartford Fire Department regarding the incidents
alleged in the plaintiff‟s complaint and there was
never any disciplined issued against the defendant by
the City in relation to the allegations set forth in
the plaintiff‟s complaint.
... Whether or not any discipline has been assessed
against the defendant for any other reason, is
absolutely irrelevant to the plaintiff‟s cause of
action.
The plaintiff has not articulated or made any showing
as to what type or category of admissible evidence he
believes may be reviewed by the discovery of the
defendants‟ “reprimands” or “complaints.” The only
possible purpose that plaintiff has in requesting such
information is to conduct a blind fishing expedition
in the hopes of finding evidence of prior bad acts or
bad
character.
Such
evidence
would
not
be
admissible[.]
Additionally, any such records, should they exist, are
rightfully
characterized
as
portions
of
the
40
defendant‟s personnel records, which are protected
from disclosure by Conn. Gen. Stat. § 31-128f[.]
Furthermore, any “complaints” or “reprimands,” to the
extent
that
they
exist,
may
contain
private
information from third parties completely unrelated to
this claim. ... The defendant objects to being
required to produce the private information of third
parties that may be contained in any such reports[.]
Finally, such files, to the extent that they exist,
may
contain
significant
personal
and
private
information that the defendant has a valid interest in
keeping private[.]
[Doc. #143-1 at 1-3].
For the reasons stated with respect to this same request
propounded on defendant Hightower, the Court will GRANT, in
part, plaintiff‟s motion to compel with respect to Request 3 as
to defendant Waller. See Section IV.c.ii., supra.
Again, here, the allegations of plaintiff‟s complaint
relate to an alleged abuse of defendant‟s power as Hartford‟s
Fire Chief. See Doc. #42, at ¶¶16-17, 29-30, 33. Although such
allegations, do not “convert defendant [Waller‟s] entire
personnel file and disciplinary history into discoverable
information,” Badolato, 2012 WL 28704, at *2, plaintiff is
entitled to disciplinary records involving complaints of a
similar nature.
See, e.g., Frails, 236 F.R.D. at 117.
Accordingly, on or before May 16, 2016, defendant Waller shall
produce to plaintiff any records of disciplinary charges,
internal investigations, and complaints directly related to
41
allegations, if any, of abuse of power by defendant Waller in
his position as Fire Chief, for the time period of January 1,
2011, through April 30, 2013. Again, to the extent that
defendant Waller objects on the basis of protecting his private
and confidential information, these privacy concerns may be
alleviated by redacting any such personal information, in
accordance with the representations of plaintiff. See Gibbs, 243
F.R.D. at 96.
Accordingly, for the reasons stated, the Court GRANTS, in
part, as stated above, plaintiff‟s Motion to Compel with respect
to Request 3 directed to defendant Waller.
iv.
Request 4
Plaintiff‟s fourth Request seeks “[c]opies of how long you
have worked for the City of Hartford.” [Doc. #143-1 at 3].
Defendant Waller objected, in pertinent part, as follows:
The defendant objects to providing any documents
relating to his work history with the City of
Hartford. The plaintiff‟s request exceeds the scope of
permissible discovery. There was never any complaint
made by the plaintiff to the Hartford Fire Department
regarding the incidents alleged in the plaintiff‟s
complaint and there was never any investigation or
discipline issued against the defendant by the City in
relation
to
the
allegations
set
forth
in
the
plaintiff‟s complaint.
The only issue to be tried in this case is whether the
defendant violated the [plaintiff‟s] constitutional
rights. Documents related to the defendant‟s work
history are absolutely irrelevant[.]
...
42
Additionally, the defendant‟s personnel records are
protected from disclosure by Conn. Gen. Stat. §31128f[.]
Furthermore, personnel records may contain private
information from third parties completely unrelated to
this claim. ... The defendant objects to being
required to produce the private information of third
parties that may be contained in any such reports.
Finally, the defendant‟s personnel file will contain
significant personal and private information that the
defendant has a valid interest in keeping private[.]
[Doc. #143-1 at 3-4]. Despite this objection, defendant Waller
responded that he “was employed by the Hartford Fire Department
for approximately 28 years, and retired on July 12, 2015.” Id.
at 5. The Court finds that in light of the allegations in the
Amended Complaint, documents related to defendant Waller‟s
general work history are not relevant to any party‟s claim or
defense, nor is the production of such documentation
proportional to the needs of the case. See Fed. R. Civ. P.
26(b)(1). Therefore, the Court SUSTAINS defendant Waller‟s
objections to this Request and will not require that he produce
any documents in response. Nevertheless, in light of defendant
Waller‟s “response”, the Court will require defendant Waller to
submit a sworn verification of this response pursuant to Federal
Rules of Civil Procedure 34, on or before May 16, 2016. See
Napolitano, 297 F.R.D. at 200. Therefore, the Court DENIES
43
plaintiff‟s motion to compel with respect to Request 4 directed
to defendant Waller.
v.
Request 5
Plaintiff‟s fifth Request seeks a “[c]opy of documents
explaining how long you owned the garage on 3311 Main Street
Hartford, CT.” [Doc. #143-1 at 5]. Defendant Waller objected and
responded:
OBJECTION: This defendant objects to this request for
production in so far as it is immaterial and
irrelevant to the allegations against this defendant.
Fed. R. Civ. P. 26(b)(1)... Additionally, this request
for production is overly broad and unduly burdensome,
and unlikely to lead to the discovery of admissible
evidence.
RESPONSE:
Without
waiving
the
above
referenced
objection, the defendant did not individually own a
garage on 3311 Main Street, Hartford, CT.
Id. The Court will not require defendant Waller to produce
documents in response to this Request in light of his
representation that he did not have an individual ownership
interest in the garage identified in the Request. Information
regarding ownership of property in the City of Hartford and the
ownership of businesses registered in the State of Connecticut
is publicly available. Thus, this information can be obtained by
plaintiff and is equally available to both parties. See Fed. R.
Civ. P. 26(b)(1). Nevertheless, in light of defendant Waller‟s
“response”, the Court will require defendant Waller to submit a
sworn verification of this response pursuant to Federal Rules of
44
Civil Procedure 34, on or before May 16, 2016. See Napolitano,
297 F.R.D. at 200. Therefore, the Court DENIES plaintiff‟s
motion to compel with respect to Request 5 directed to defendant
Waller.
vi.
Request 6
Plaintiff‟s sixth Request seeks a “[c]opy or list of all
property Terry Waller owns.” [Doc. #143-1 at 5]. Defendant
Waller objected:
This defendant objects to this request for production
in so far as it is immaterial and irrelevant to the
allegations against this defendant. Fed. R. Civ. P.
26(b)(1)... Additionally, this request for production
is overly broad and unduly burdensome, and unlikely to
lead to the discovery of admissible evidence. The list
of properties that Mr. Waller owns is utter irrelevant
to
whether
or
not
the
defendant
violated
the
plaintiff‟s constitutional rights.
[Doc. #143-1 at 5 (sic)]. In light of the allegations of
plaintiff‟s Amended Complaint, which do not implicate Waller as
a property owner but as a municipal employee, the Court will
SUSTAIN defendant Waller‟s objection that this request seeks
immaterial and irrelevant information.10 Further, to the extent
that plaintiff seeks a “list” of properties owned by defendant
Waller, Rule 34 only requires a party to produce documents that
exist at the time of the request; a party cannot be compelled to
create a document for its production. See, e.g., Harris v.
10
As noted above, plaintiff is free to conduct an investigation
into public records.
45
Advance Am. Cash Advance Ctrs., Inc., 288 F.R.D. 170, 172 (S.D.
Ohio 2012) (denying plaintiff‟s request that defendant create
“list” of specified information, because party is not required
to create documents in response to Rule 34 requests); Alexander
v. Federal Bureau of Investigation, 194 F.R.D. 305, 310 (D.D.C.
2000) (denying plaintiff‟s request for the FBI to create lists
of persons whose FBI reports were requested by White House, when
list did not exist); 7 James Wm. Moore, et al., Moore‟s Federal
Practice §30.12[2] (3d ed. 2014) (“A party cannot be compelled
to create, or cause to be prepared, new documents solely for
their production. Rule 34 only requires a party to produce
documents that are already in existence.”). Therefore, the Court
DENIES plaintiff‟s motion to compel with respect to Request 6
directed to defendant Waller.
vii. Request 7
Plaintiff‟s seventh Request seeks a “[c]opy or document or
items explaining you served on the „police review board‟ for the
City of Hartford.” [Doc. #143-1 at 5]. Defendant Waller objected
and responded:
OBJECTION: This defendant objects to this request for
production in so far as it is immaterial and
irrelevant to the allegations against this defendant.
Fed. R. Civ. P. 26(b)(1)... Additionally, this request
for production is overly broad and unduly burdensome,
and unlikely to lead to the discovery of admissible
evidence.
46
RESPONSE:
Without
waiving
the
above
referenced
objection, the defendant, Terry Waller, never served
on a police review board for the City of Hartford.
Id. In light of defendant Waller‟s response, the Court DENIES,
as moot, plaintiff‟s motion to compel with respect to Request 7
directed to defendant Waller. Nevertheless, in light of
defendant Waller‟s “response”, the Court will require defendant
Waller to submit a sworn verification of this response pursuant
to Federal Rules of Civil Procedure 34, on or before May 16,
2016. See Napolitano, 297 F.R.D. at 200.
viii.
Request 8
Plaintiff‟s eighth Request seeks a “[c]opy of rule,
regulations, guidelines of Employee Standards on and off duty,
for the employees of the Hartford Fire Department.” [Doc. #143-1
at 5]. Defendant Waller objected:
This defendant objects to this request for production
in so far as it is immaterial and irrelevant to the
allegations against this defendant. Fed. R. Civ. P.
26(b)(1)... Additionally, this request for production
is overly broad and unduly burdensome, and unlikely to
lead to the discovery of admissible evidence.
[Id. at 5-6]. Plaintiff‟s request as phrased is overly broad and
unduly burdensome. Nevertheless, in light of the allegations of
plaintiff‟s Amended Complaint which allege abuse of power by
Waller as an employee of the Hartford Fire Department during the
years 2012 and 2013, see, e.g., Doc. #42, at ¶¶16-17, 29-30, 33,
on or before May 16, 2016, defendant Waller shall produce to
47
plaintiff a copy of the Hartford Fire Department‟s Code of
Conduct effective in 2012 and 2013. Accordingly, the Court
GRANTS, in part, and DENIES, in part, plaintiff‟s motion to
compel with respect to Request 8 directed to defendant Waller.
e. Requests directed to the City of Hartford
Plaintiff served defendant City with a request for
production dated October 24, 2015. See Doc. ##138, 139. The
Court will address each Request in turn.
i.
Request 1
Plaintiff‟s first Request seeks “[a]ny and all rules,
policy, guidelines and regulations of the civilian police review
board[,]” to which defendant City responded, “[p]lease see
attached.” [Doc. #139]. Plaintiff does not articulate any way in
which defendant City‟s production is deficient. Accordingly, the
Court DENIES defendant‟s motion to compel with respect to
Request 1 directed to defendant City.
ii.
Request 2
Plaintiff‟s second request seeks a “[c]opy of defendant
„Kimberly Taylor‟ job description pertaining to reviewing
citizen complaints, and screening process evaluating citizen
complaints[,]” to which defendant City responded, “[p]lease
refer to documents produced by Kim Taylor, incorporated herein
by reference.” [Doc. #139 at 1]. Again, plaintiff fails to
articulate any way in which this response is deficient.
48
Therefore, the Court DENIES plaintiff‟s motion to compel with
respect to Request 2 directed to defendant City.
iii. Requests 3, 4, and 5
Plaintiff‟s next three requests all relate to “citizen
complaints” filed against the Hartford Police Department:
3. In the last (3) three years, how many citizen
complaints were filed against the Hartford Police
Department.
4. In the last (3) three years, how many citizen
complaints were found valid by the police review
board, or the Internal Affairs Department of the
police department.
5. In the last (3) years, how many citizen complaints
the police board reviewed, and how many of their
complaints were found valid.
[Doc. #139 at 1]. To each of these Requests, the City responded,
“[p]lease refer to response and documents provided by Kim
Taylor, incorporated herein by reference.” Id. Seemingly,
defendant City refers to defendant Taylor‟s response to
plaintiff‟s seventh Request in the requests for production dated
October 25, 2015: “List all the citizen complaints filed against
the Hartford Police Dept., in the last (3) years, and how many
of the citizen complaints were found to be valid by the police
review board panel.” [Doc. #107 at 7]. Defendant Taylor provided
the following, verified, response: “There were 615 citizen
complaints filed against the Hartford Police Department in the
last three (3) years. I am unaware how many were found to be
49
valid by the police review board panel.” Id. This response
adequately addresses Request 3, and accordingly, plaintiff‟s
motion to compel with respect to Request 3 directed to defendant
City is DENIED, as moot. However, defendant Taylor‟s response
does not address the information sought in Requests 4 and 5. The
City did not object to these requests. See Doc. #139.
Accordingly, on or before May 16, 2016, the City will provide
plaintiff with a verified response indicating: (1) how many of
these citizen complaints were reviewed by the police review
board and/or the internal affairs department; and (2) the number
of such complaints that were found valid. Accordingly, the Court
GRANTS, in part, and DENIES, in part, plaintiff‟s motion to
compel with respect to Requests 3, 4, and 5 directed to
defendant City.
iv.
Request 6
Plaintiff‟s sixth Request states: “In 2013, the chief of
police „Emery Hightower‟ performance, evaluations, and reviews
of citizen complaints filed by the plaintiff „Charles C.
Williams‟ or other citizens in 2013.” [Doc. #139 at 6 (sic)].
Defendant City objected: “The request is unintelligible as
stated and cannot be complied with or responded to.” Id. The
Court SUSTAINS the City‟s objection. The Court is unable to
decipher the information plaintiff seeks. Plaintiff has further
failed to articulate the basis for this request in any
50
subsequent Court filings. Accordingly, the Court DENIES
plaintiff‟s motion to compel as to Request 6 directed to
defendant City.
v.
Request 7
Plaintiff‟s seventh request seeks the “[n]ame of
individuals who sat on the police review board panel in 2012,
2013[,]” to which defendant City responded, “[p]lease refer to
response and documents provided by Kim Taylor, incorporated
herein by reference.” [Doc. #139 at 2]. Again, defendant City
appears to reference defendant Taylor‟s response to plaintiff‟s
fourth Request as set forth in his requests for production dated
September 30, 2015: “List names of individuals who make up the
civilian police review board panel in 2012-2013-2014 who
reviewed the plaintiff complaints[.]” [Doc. #107 at 18].
Defendant Taylor responded to this request, “See attached.” Id.
A review the documents attached to defendant Taylor‟s responses
reflects a list of the individuals comprising the civilian
police review board panel for the years 2012, 2013 and 2014. See
Doc. #107 at 14-16. Accordingly, because the information sought
has already been produced to plaintiff, the Court finds this
request unreasonably duplicative of requests propounded on codefendants, see Fed. R. Civ. P. 26(b)(2)(C)(i), and therefore,
the Court DENIES, as moot, plaintiff‟s motion to compel as to
Request 7 directed to defendant City.
51
vi.
Request 8
In his eighth Request, plaintiff seeks the production of
“any investigation reports pertaining to the plaintiff
complaints in 2012, 2013, 2015 by the police review board, the
City of Hartford, and the Hartford Police Dept. (I.A.D.) office
which was filed by the plaintiff.” [Doc. #139 at 2]. Defendant
City objected and responded:
The defendant objects to this request for production
in that it is overbroad and unduly burdensome.
Additionally, the Defendant objects to the request for
production in that it is vague, in relation to what
documents
specifically
the
plaintiff
seeks.
...
Additionally, such information may be protected from
disclosure by multiple Connecticut statutes.
Additionally, the Defendant objects because such case
files
may
contain
significant
confidential
and
personal information[.]
Notwithstanding and without waiver of this objection,
the City refers plaintiff to documents produced by
Cheryl Gogins and Emory Hightower, incorporated herein
by reference.
Id. at 2-3 (internal citations omitted). The Court has already
addressed this same Request with respect to defendants Taylor,
Gogins, and Hightower, and will not require the City to further
respond to this unreasonably duplicative request. See Fed. R.
Civ. P. 26(b)(2)(C)(i). Accordingly, the Court DENIES, as moot,
plaintiff‟s motion to compel as to Request 8 directed to
defendant City.
52
vii. Request 9
Plaintiff‟s ninth Request seeks a “[c]opy of disciplinary
report, reprimand, performance reviews, citizen complaints,
corruption complaints against Emery Hightower.” [Doc. #139 at
9]. Defendant City raised an extensive objection, similar to
that raised by defendant Hightower to this same request. Id. The
Court DENIES, as moot, plaintiff‟s motion to compel as to
Request 9 directed to defendant City, in light of its ruling on
this same request directed to defendant Hightower. See Section
IV.c.ii., supra.
CONCLUSION
Accordingly, the Court: DENIES, as moot, plaintiff‟s Motion
for Order Compelling Discovery [Doc. #103]; GRANTS, in part, and
DENIES, in part, plaintiff‟s Motion to Compel Defendant
“Kimberly Taylor” for Order of Discovery Request [Doc. #107];
and GRANTS, in part, and DENIES, in part, plaintiff‟s Motion to
Order Defendants Taylor, Hightower, Gogins, and the City to
Comply with Court Order [Doc. #108].
This is not a Recommended Ruling. This is an order
regarding discovery and case management which is reviewable
pursuant to the “clearly erroneous” statutory standard of
review. 28 U.S.C. §636(b)(1)(A); Fed. R. Civ. P. 72(a); and D.
Conn. L. Civ. R. 72.2. As such, it is an order of the Court
53
unless reversed or modified by the district judge upon motion
timely made.
SO ORDERED at New Haven, Connecticut this 2nd day of May
2016.
/s/
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE
54
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