American News & Information Svcs Inc et al v. Rovella et al

Filing 109

ORDER: Defendants' 80 Motion for Protective Order is DENIED. See attached ruling. Signed by Judge Donna F. Martinez on 08/30/2017. (Greenspoon, L.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
AMERICAN NEWS & INFORMATION SVCS., :
INC., ET AL.,
:
:
Plaintiffs,
:
:
v.
:
:
JAMES C. ROVELLA, ET AL.,
:
:
Defendants.
:

CASE NO. 3:15cv1209(RNC)

RULING ON PENDING MOTIONS
Plaintiffs, American News & Information Services, Inc.
(“American News”) and Edward Peruta (“Peruta”), bring this civil
rights action against several Hartford police officers1 alleging
violations of plaintiffs’ First and Fourteenth Amendment rights,
42 U.S.C. §§ 1983, 1988 and the Connecticut Constitution, Art.
I, §§ 4, 5. In particular, plaintiffs allege that on September
12, 2014 and August 7, 2015, Hartford police officers (1)
prevented Peruta “from videotaping and photographing police
officers in public” in the vicinity of 519 Park Street and 38

1 The

defendants are Chief of Police James C. Rovella, Lieutenant
Michael Coates, Lieutenant Brandon J. O’Brien, Sergeant Sean
Spell and Deputy Chief of Police Brian J. Foley, all in their
individual and official capacities. A suit against a local
official in his official capacity is tantamount to a suit
against the municipality. Kentucky v. Graham, 473 U.S. 159,
165–66 (1985), (holding that official-capacity suits “‘generally
represent only another way of pleading an action against an
entity of which an officer is an agent,’” quoting Monell v.
Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 690-94
n. 55 (1978)).

Kelsey Street, respectively, and (2) threatened Peruta with
arrest if he did not leave the scene. (Compl. ¶¶ 39-61, 82-101.)
Pending before the court are defendants’ motion for protective
order (doc. #80) and the City of Hartford’s motion to quash
subpoena and for a protective order (doc. #93).2

For the reasons

that follow, the motions are DENIED.
I.

Background
According to the complaint, Peruta owns and operates

American News, “a news and information company . . . that
operates throughout the United States, and which gathers and
provides raw, breaking news video, photographs, and news tips to
various mainstream media outlets.”

(Compl. ¶ 10.)

American

News broadcasts two regular programs: (i) “The Morning Report,”
broadcasted from 7:00 to 7:30 a.m., Monday through Thursday and
(ii) “Summary Judgment,” broadcasted from 4:00 to 6:00 p.m. on
Saturdays. (Doc. #80-1, Peruta Dep. at 5.) These programs are
broadcasted live on American News’ website, YouTube, and the
Facebook pages of both American News and Peruta.

(Id. at 5-7.)

The programs also are recorded and then distributed in
Connecticut for broadcast to local television stations, Cable 5
in Torrington, and Charter Communications in Winsted.

(Id.)

Plaintiffs’ counsel, Attorney Rachel Baird, is a “founding

2

U.S. District Judge Robert N. Chatigny referred the pending
motions to me. (Doc. ##71 and 94.)
2 

sponsor” of American News and co-hosts both news programs with
Peruta in a studio in her office building. (Id. and Doc. #80-2.)
II.

Motion for Protective Order (Doc. #80)

Defendants Brian J. Foley, Michael Coates, Brandon J.
O’Brien and Sean Spell, along with four non-party witnesses,3
filed the instant motion seeking a protective order (1)
prohibiting plaintiffs and their counsel from disclosing,
publishing or disseminating information obtained through
discovery; and (2) ordering plaintiffs to remove already–
published information from any website under their control.
(Doc. #80 at 1.)

As a separate matter, anticipating that

plaintiffs will seek discovery concerning certain events that
occurred on June 4, 2016 on Flatbush Avenue in Hartford,
defendants are seeking an order preventing such discovery. (Id.)
In support of their motion, defendants contend that Peruta
and his attorney have discussed the litigation and disclosed
information obtained through discovery on American News’
internet broadcasts.

It appears undisputed that they have read

portions of Peruta’s deposition transcript on air and published
at least one of the defendant’s written discovery responses on
plaintiffs’ and counsel’s website. (Doc. #80 at 9.)

In

addition, defendants maintain that plaintiffs and their counsel

3

The non-party witnesses are Stephen Barone, Kenneth Medina,
Vincent Marfella and Sean Michel. (Doc. #80 at 1.)
3 

have made “disparaging assertions against the character of
defendants . . . and defense counsel” during their internet news
broadcasts.

(Id.)

A. Rule 26(c) Standard
“The court may, for good cause, issue an order to protect a
party or person from annoyance, embarrassment, oppression, or
undue burden or expense.” Fed.R.Civ.P. 26(c)(1). Rule 26(c) “is
not a blanket authorization for the court to prohibit disclosure
of information whenever it deems it advisable to do so . . . .”
Bridge C.A.T. Scan Assocs. v. Technicare Corp., 710 F.2d 940,
944–45 (2d Cir. 1983). Rather, the “court may issue a protective
order only after the moving party demonstrates that ‘good cause’
exists for the protection of the material.” Burgess v. Town of
Wallingford, No. 3:11cv1129 (CSH), 2012 WL 4344194, at *6 (D.
Conn. Sept. 21, 2012).
“Good cause is established by demonstrating a clearly
defined and serious injury resulting from disclosure. . . .
Broad allegations of harm will not establish good cause, rather
to establish good cause under Rule 26(c), courts require a
particular and specific demonstration of fact, as distinguished
from stereotyped and conclusory statements.” Hansen v. U.S.
Airports Air Cargo, LLC, No. 3:07cv353 (JCH)(HBF), 2008 WL
4426909, at *1 (D. Conn. Sept. 26, 2008).

See, e.g., In re

Terrorist Attacks on Sept. 11, 2001, 454 F.Supp.2d 220, 222
4 

(S.D.N.Y. 2006)(holding that a party establishes “good cause” by
showing that a “clearly defined, specific and serious injury”
will occur in the absence of a protective order);

Burgess v.

Town of Wallingford, 2012 WL 4344194, at *6 ("Broad allegations
of harm, unsubstantiated by specific examples or articulated
reasoning, do not satisfy the Rule 26(c) test."); Uniroyal
Chemical Co. Inc. v. Syngenta Crop Protection, 224 F.R.D.53, 56
(D. Conn. 2004)(same). The court has “broad discretion” to
“decide when a protective order is appropriate and what degree
of protection is required.” Seattle Times Co. v. Rhinehart, 467
U.S. 20, 36 (1984). “The mere fact that some level of
discomfort, or even embarrassment, may result from the
dissemination of [defendant’s] deposition testimony is not in
and of itself sufficient to establish good cause to support the
issuance of [a] protective order.”

Flaherty v. Seroussi, 209

F.R.D. 295, 299 (N.D.N.Y. 2001).
“If the moving party meets its burden of establishing good
cause for a protective order, the court may balance any
countervailing interests in determining whether to exercise its
discretion to grant the order.” DaCosta v. City of Danbury, 298
F.R.D. 37, 38-39 (D. Conn. 2014)(citing Burgess, 2012 WL
4344194, at *6.))

“Such countervailing interests might include

whether the order will prevent the threatened harm, whether
there are less restrictive means of preventing the threatened
5 

harm, the interests of the party opposing the motion, and the
interests of the public.”

Id. at 39 (citations omitted).

B. Discussion
Defendants argue that a protective order is appropriate
because plaintiffs’ use of discovery materials is intended to
annoy, harass, and embarrass defendants and has the risk of
tainting the jury pool. (Doc. #80 at 20.) Plaintiffs respond
that defendants have not shown the good cause required to grant
a protective order and that a protective order would unduly
hamper the public’s access to materials bearing on matters of
public concern.
Generally speaking, dissemination of pretrial discovery
materials by the receiving party is not prohibited absent a
protective order.

See Burgess, 2012 WL 4344194, at *9 n.17

(“Absent a protective order, the discovery rules place no
[specific] limitations on what a party may do with materials
obtained during discovery . . . .”) (citation and internal
quotation marks omitted).

“Nonetheless, dissemination for non-

judicial purposes is unusual and rightly so.

The discovery

rules are ‘a matter of legislative grace.’” DaCosta v. City of
Danbury, 298 F.R.D. at 39 (quoting Seattle Times Co. v.
Rhinehart, 467 U.S. 20, 32 (1984)).

“They compel parties to

divulge information ‘for the sole purpose of assisting in the
preparation and trial, or the settlement, of litigated
6 

disputes.’”

Id. (quoting Seattle Times Co. v. Rhinehart, 467

U.S. at 34).
The liberality of this process creates “a significant
potential for abuse” such as delay, expense, misuse of court
process, and damage to the reputation and privacy of litigants
and third parties.

Id. at 34–35.

Courts therefore must be

mindful that the purpose of discovery is “to facilitate orderly
preparation for trial, not to educate or titillate the public.”
Joy v. North, 692 F.2d 880, 893 (2d Cir. 1982).

Although the

details underlying a particular litigation might hold some
interest for many members of the public:
[V]irtually all [members of the public] have an interest
in ensuring that everyone in our society ha[s] access to
a fair and impartial judicial system without having to
pay too high a price of admission in the form of the
surrender of personal privacy.
Thus, courts must be
vigilant to ensure that their processes are not used
improperly for purposes unrelated to their role.
Paisley Park Enterprises v. Uptown Prods., 54 F.Supp.2d 347, 349
(S.D.N.Y. 1999).

That said, “[i]n cases where issues of strong

public interest favoring the free dissemination of discovery
materials are at play, the normal practice of not according
discovery materials the same degree of access as those filed in
connection with trial gives way to a presumption of open
inspection.”

Flaherty v. Seroussi, 209 F.R.D. 295, 299

(N.D.N.Y. 2001).

With these principles in mind, I turn to

defendants’ specific arguments.
7 

1.

Annoyance, Embarrassment, or Harassment

Defendants first argue that plaintiffs’ dissemination and
discussion of materials obtained through discovery is designed
to annoy, embarrass, and harass defendants.
“Case precedent suggests that even when a party admittedly
seeks to publicly embarrass his opponent, no protection should
issue absent evidence of ‘substantial embarrassment’ or harm.”
DaCosta v. City of Danbury, 298 F.R.D. at 40 (citations
omitted); Charter Practices Internat’l v. Robb, No. 3:12cv1768 
(RNC)(DFM), 2015 WL 1268295 at *4 (D. Conn. Mar. 19,
2015)(same); Burgess, 2012 WL 4344194, at *11–12 (holding same,
and declining to prohibit disclosure of deposition transcript
where no showing of harm such as misuse of information for
financial or commercial gain, violation of deponent’s
constitutional rights, or disclosure of trade secrets that would
cause clearly defined and very serious injury).

“Good cause is

not established merely by the prospect of negative publicity.”
Dep’t of Econ. Dev. v. Arthur Andersen & Co., 924 F. Supp. 449,
487 (S.D.N.Y. 1996); see, e.g., Flaherty, 209 F.R.D. at 298-300.
In Flaherty, the district court denied the defendant Mayor’s
motion for protective order despite imminent public
dissemination of discovery materials based upon plaintiff’s
counsel’s past statements (i) that he “relish[es] the
opportunity to question [the Mayor and is] . . . going to
8 

concentrate [his] efforts on knocking [the Mayor]’s teeth down
his throat”; and (ii) that he was adamant about his “intention
to publicize the Mayor’s deposition, championing ‘the rights of
the citizens.’” Id. at 298.

The court held that there is a

strong public policy interest in free access to discovery
documents where litigation involves “elected officials and the
performance of their governmental responsibilities.”

Id. at

300.
Defendants make only general allegations of harm that might
result from plaintiffs’ dissemination of discovery materials.
They argue that depositions are private proceedings, that such
privacy would be defeated by publication, and that disclosure of
such information to the public is intended to “harass,
intimidate and embarrass” the defendants. (Doc. #80 at 14-22.)
Even assuming for the sake of argument that such allegations
were true, defendants have not met their burden of showing that
dissemination of information in this case will result in a
“clearly defined and serious injury.”
at *12.

Burgess, 2012 WL 4344194,

Mere embarrassment and annoyance are insufficient. See

Dep’t of Econ. Dev. v. Arthur Andersen & Co., 924 F. Supp. at
487 (S.D.N.Y. 1996); Flaherty, 209 F.R.D. at 298-300; DaCosta v.

9 

City of Danbury, 298 F.R.D. at 40.

A protective order is not

warranted on these grounds.4
2.

Jury Contamination

Defendants next argue that plaintiffs’ publication of
discovery information on the internet risks biasing the jury
pool and defendants’ right to a fair trial.
Defendants make only a general argument concerning the risk
of jury contamination.

As the movants on a motion for

protective order, defendants have the burden “to cite specific
examples or articulated reasoning in support of his order of
protection.”

Condit v. Dunne, 225 F.R.D. 113, 116 (S.D.N.Y.

2004) (internal quotation marks omitted).

They have failed to

do so.
Even assuming arguendo that potential jurors could be
tainted by obtaining discovery materials through plaintiffs’
websites or news broadcasts, voir dire of potential jurors is a
less restrictive means than the proposed protective order to

4

Defendants’ argument that Local Rule 30 prohibits disclosure of
discovery materials is also not persuasive. Local Rule 30 by
its terms does not purport to prohibit public dissemination of
deposition transcripts, nor have defendants offered any case law
so stating. (See D.Conn.L.Civ.R. 30.) Moreover, Connecticut
district courts have allowed the public dissemination of
deposition transcripts after 2003, when Local Rule 30 was
adopted. See, e.g., Burgess v. Town of Wallingford, No.
3:11CV1129 (CSH), 2012 WL 4344194, at *13 (D. Conn. Sep. 21,
2012); DaCosta v. City of Danbury, 298 F.R.D. 37, 38-39 (D.
Conn. 2014).
10 

ensure an impartial jury pool.

See United States v. Graham, 257

F.3d 143, 154 (2d Cir. 2001) (noting that “alternative remedies”
other than barring release of pretrial documents “exist to
ensure that the defendants receive a fair trial, [including] a
more searching voir dire”); Application of Dow Jones & Co., 842
F.2d 603, 611 (2d Cir. 1988) (noting the availability of various
means, including “searching voir dire, emphatic jury
instructions, and sequestration of jurors” as ways “to mitigate
. . . prejudicial publicity”); see also In re Gen. Motors LLC
Ignition Switch Litig., No. 14-MC-2543 (JMF), 2015 WL 4522778,
at *5 (S.D.N.Y. July 24, 2015) (“[C]ourts have frequently
recognized that searching voir dire of potential jurors can
provide an adequate means of ensuring an impartial jury pool,
even in the face of potentially damaging releases or press
coverage.”); Condit, 225 F.R.D. at 118 (finding that “publicity
is unlikely to color incurably jurors’ views, even in the most
high-profile cases . . . memories fade and, moreover, . . . any
tainting of the jury pool can be remedied through voir dire.”).
Defendants have provided no evidence that pretrial publicity has
been prejudicial or that any action contemplated in the future
will compromise defendants’ right to a fair trial.
available to ensure an impartial jury.

Voir dire is

Defendants have not

shown that a protective order is warranted to prevent the
potential risk of tainting the jury pool.
11 

3.

Inquiry into Flatbush Avenue Incident

Defendants also seek a protective order concerning
plaintiffs’ inquiry into an incident not alleged in the
complaint - the events of June 4, 2016 on Flatbush Avenue in
Hartford (“Flatbush Avenue incident”).

Defendants argue that

the Flatbush Avenue incident is not relevant because it occurred
after the complaint was filed, “ten months after the Kelsey
Street incident and is a wholly unrelated case.”
21.)

(Doc. #80 at

Plaintiffs respond that the Flatbush Avenue incident is

relevant in their attempt to show the defendants’ intent and/or
a pattern of disregard for civil rights.

(Doc. #82 at 14-16.)

The complaint alleges that defendants violated plaintiffs’
rights on September 12, 2014 and August 7, 2015 by preventing
plaintiffs from “videotaping and photographing police officers
in public.” (Compl. ¶ 101.) Although the complaint does not
encompass the June 2016 Flatbush Avenue incident, plaintiffs do
allege that the Hartford Police Department (“HPD”) has various
“policies, customs and practices,” regarding the news media that
prevent plaintiffs from “gathering, recording, and distributing
information of public interest,” which are violative of the
Constitution.5 (Compl. ¶ 101.) Plaintiffs’ counsel represented at

5

See Monell v. Dep't of Soc. Servs. of City of New York, 436
U.S. 658, 694 (1978)(holding that the government as an entity is
12 

oral argument that she intends to make limited inquiry into the
Flatbush Avenue incident to probe evidence regarding these
policies and practices.

Defendants have not met their burden of

showing a protective order is warranted with regard to the
Flatbush Avenue incident.

For these reasons, defendants’ motion

for protective order (doc. #80) is DENIED.
III. Motion to Quash Subpoena & for Protective Order (Doc.
#93)
The second motion pending before the court is the City’s
motion to quash plaintiffs’ subpoena of retired Hartford
Corporation Counsel, Saundra Kee Borges (“Borges”), and for a
protective order precluding plaintiffs from taking her
deposition.

(Doc. #93.) The City argues that the subpoena is

harassing, vexing, annoying, unduly burdensome, and not
necessary or proportional to plaintiffs’ claims.

The City also

asserts that Borges’ testimony is irrelevant and protected by
the attorney-client privilege.

(Doc. #93 at 3.)

The following

background is necessary to resolve the City’s motion.
The City of Hartford has an ordinance which establishes the
Hartford Civilian Police Review Board (the “civilian review
board”). (See Hartford City Code, Ch. 2, Art. V, Div. 5, § 2196(a), Doc. #97, Ex. 1.) The purpose of the civilian review

responsible under § 1983 when execution of a government's policy
or custom inflicts the injury).
13 

board is to “hear public complaints against members of the
Hartford Police Department.”

(Id.) In accordance with the

ordinance, the civilian review board:
shall have the authority to investigate
allegations through independent
investigators, of police misconduct, to
review reports and conclusions of the
Hartford Police Department's Internal
Affairs Division to determine that they are
complete, accurate and factually supported,
to make recommendations to the police chief
and to the mayor in connection therewith.
(Id.)
Plaintiffs filed a complaint with the civilian review board
alleging that on September 12, 2014, Hartford police officers
prevented Peruta from filming a crime scene. As discussed above,
this alleged conduct, together with similar allegations about a
subsequent incident on August 7, 2015, form the basis of this
lawsuit.

(Compl. ¶¶ 39-61, 82-100.)

Consistent with long-standing policy, the Corporation
Counsel advised the civilian review board to “table” plaintiffs’
complaint during the pendency of this lawsuit. (Doc. #97 at 24.)6 There are no allegations in this lawsuit concerning the

6

The City does not contest that the Office of Corporation
Counsel wrote an interdepartmental memorandum dated September
14, 2005, (9 years before plaintiffs filed a complaint with the
civilian review board on September 15, 2014) stating, in
relevant part, that complaints filed by citizens who also have
civil or criminal cases pending for the same allegations “should
not be heard until such time as the civil or criminal matter has
been resolved.” (Doc. #97, Ex. 4.) An Assistant Corporation
Counsel confirmed this opinion in a March 20, 2012 letter
14 

civilian review board.

Plaintiffs, however, seek to depose

former Corporation Counsel Borges to explore the issue of
whether the Corporation Counsel interfered with the handling of
their complaint pending before the civilian review board. (Id.
at 7.)
A. Standing
Although neither party raised the issue in its briefs or at
oral argument, as an initial matter the Court must determine
whether the City has standing to move to quash a subpoena
directed to a former employee who is not a party to the lawsuit.
Ms. Borges retired from her position as Hartford Corporation
Counsel on January 30, 2015, after one of the events that is the
subject of this lawsuit occurred, but before the lawsuit was
filed.

(Doc. #97 at 4 n. 3.)

Ordinarily, a party does not have standing to
move to quash a subpoena served on a third
party. Rather, only the person or entity to
whom a subpoena is directed has standing to
file a motion to quash. . . The exception to
this general rule is if a party seeks to
enforce a claim of privilege or personal
right. . . . The claim of privilege or right
must be personal to the movant, not to the
non-party witness on whom the subpoena was
served. . . .

addressed to the Chairperson of the Civilian Police Review
Board: “[I]t is the conclusion of this Office that the Board
must stay or postpone its review of police investigations into
civilian complaints, during the time in which the citizen has
litigation pending against the City and/or its police officers.
Once the litigation has concluded, the Board may conduct or
recommence as the case may be, its review of investigations into
such complaints.” (Doc. #97, Ex. 6.) 

15 

Thus, a party lacks standing to challenge
subpoenas issued to non-parties on the grounds
of relevancy or undue burden. . . .

Dominion Resources Services, Inc. v. Alstom Power, Inc., No.
3:16CV00544(JCH)(SALM), 2017 WL 3575892, at *3 (D. Conn. Aug. 18,
2017) (quotation marks and internal citations omitted).

Therefore,

the defendant may challenge the subpoena served on a former
employee, a third party, only to assert claims of privilege.
Defendant may not seek to quash the subpoena on the bases of
relevancy or burden. (Id.)

B. Privilege
The City’s concern about a possible breach of attorneyclient or work product privilege is not sufficient to warrant
precluding Borges’ deposition in its entirety.

“An order

precluding the deposition of a witness is of course the
exception rather than the rule in federal court.”

Martin v.

Valley Nat. Bank of Ariz., 140 F.R.D. 291, 314 (S.D.N.Y. 1991);
see Inv. Properties Int’l, Ltd. v. IOS, Ltd., 459 F.2d 705, 708
(2d Cir. 1972) (“[A]n order to vacate a notice of taking [of a
deposition] is generally regarded as both unusual and
unfavorable.”); Naftchi v. N.Y. Univ. Med. Ctr., 172 F.R.D. 130,
132 (S.D.N.Y. 1997) (“[I]t is exceedingly difficult to
demonstrate an appropriate basis for an order barring the taking
of a deposition.”).

16 

“[T]he need for protection [in a deposition] usually cannot
be determined before the examination begins, and a motion can be
made if any need for protection emerges during the course of the
examination.”

8A Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure § 2037 (3d ed. 2017).
[T]he normal practice is to allow a deposition to go
forward and have the parties complete as much of it as
possible before reaching an impasse. In that way, the
parties create a record of where questionable inquiries,
objections7 or assertions of privilege arose and furnish
a context for the disputes when a party makes a motion
to resolve the dispute (either to compel answers or to
enforce privileges and objections).
Based upon a
concrete record, the court facing that later motion then
can determine whether a particular line of questions
should or should not be answered or whether an objection
or privilege has merit.
Ceslik v. Miller Ford, Inc., No. 3:04CV2045 (AWT), 2007 WL
1794097, at *1–3 (D. Conn. June 19, 2007).
“The benefit of this approach of first attempting to
conduct the deposition then seeking judicial intervention on
particular matters is that there is a fleshed out record that
focuses the court’s inquiry on whether a particular question is
or is not privileged.”

Pritchard v. Cnty. of Erie, No.

04CV534C, 2006 WL 2927852, at *5 (W.D.N.Y. Oct. 12, 2006).

The

City has not demonstrated that a protective order to prevent a
potential breach of privilege is warranted at this time.

Any

7

Fed.R.Civ.P. 30(c)(2) provides that a person may instruct a
deponent not to answer when necessary to preserve privilege.
17 

claims of privilege with respect to specific questions or areas
of inquiry can be preserved on the record and addressed with the
court at a later date if necessary.
The City’s motion to quash and for a protective order (doc.
#93) is DENIED.
IV.

Conclusion

For these reasons, defendants’ motion for protective order
(doc. #80) is DENIED; and defendant’s motion to quash subpoena
and for protective order (doc. #93) is DENIED.
SO ORDERED at Hartford, Connecticut this 30th day of
August, 2017.
_________/s/___________________
Donna F. Martinez
United States Magistrate Judge

18