Ramos v. East Hartford et al

Filing 37

ORDER granting in part and denying in part 20 Motion to Compel. See attached memorandum of decision. Signed by Judge Vanessa L. Bryant on 12/19/2016. (Hoffman, S)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
WILSON RAMOS, Individually and as
administrator of the estate of
Jose A. Maldonado, and

:
:
:
:
:
:
:
:
:
:
:
:
:
:
:

Plaintiff,
v.
TOWN OF EAST HARTFORD, OFFICER
JASON KAPLAN, SERGEANT JAMES
LIS, OFFICER JASON COHEN, and
CHIEF SCOTT SANSOM OF THE EAST
HARTFORD POLICE DEPARTMENT
Defendants.

CIVIL CASE NUMBER:
3:16-cv-166 (VLB)

December 19, 2016

MEMORANDUM OF DECISION GRANTING-IN-PART AND DENYING-IN-PART
PLAINTIFF’S MOTION FOR AN ORDER TO COMPEL DISCOVERY [DKT. 20]
I.

Introduction
Plaintiff Wilson Ramos, individually and as administrator of the estate of

Jose A. Maldonado, brings this Motion for an Order to Compel Discovery from
Defendants Town of East Hartford, Jason Kaplan, James Lis, Jason Cohen, and
Scott Sansom. Plaintiff asks the Court to compel the Defendants to respond to
certain of the April 12, 2016 interrogatories and requests for production (“RFPs”)
to which Defendants objected. For the reasons that follow, Plaintiff’s motion is
GRANTED-IN-PART and DENIED-IN-PART.
II.

Background
Plaintiff brought this action under 42 U.S.C. §§ 1983 and 1985, alleging that

the Defendants engaged in the excessive and racially discriminatory use of force,

1

leading to Mr. Maldonado’s April 13, 2014 death while in police custody. [See Dkt.
36 (“Compl.”) ¶¶ 19-32, 34, 39-49, 52-60].
Plaintiff served its first set of discovery requests on April 12, 2016. [Dkt.
20-2, ¶ 4]. Defendants served their responses and objections on June 13, 2016.
[Dkt. 20-2, ¶ 4; 20-3 at 20]. The parties met and conferred as required by Federal
Rule of Procedure 37(a)(1), and Plaintiff filed its motion seeking an order to
compel on July 25, 2016. [See Dkt. 20; Dkt. 20-3, ¶¶ 6-9]. Plaintiff seeks
responses to Interrogatories 1, 2, 8-10, 12-21, 25-26, and 30 and RFPs 1-2, 4, 6-8,
10, 13, 17-18, and 22. These requests fall within the following subject areas:
(a)

The events surrounding Mr. Maldonado’s arrest, detention, and death
(Interrogatories 1, 2, 8, and 9, and RFP 13);

(b)

Disciplinary actions taken against the defendant officers prior to
April 12, 2014 (Interrogatory 10);

(c)

The racial and ethnic makeup of the East Hartford police force
(Interrogatories 12 and 13);

(d)

U.S. Census data for East Hartford (Interrogatories 14 and 15);

(e)

East Hartford arrest statistics (Interrogatories 16 and 17);

(f)
18,

Arrest statistics for each of the defendant officers (Interrogatories
19, and 20);

(g)

Third-party complaints against the East Hartford police department
for civil rights violations (Interrogatory 21);

(h)

Training policies and procedures (Interrogatory 25 and RFPs 2 and
22);

(i)

The department’s history of Taser use (Interrogatory 26);

(j)

Non-attorney individuals who participated in the preparation of
responses to discovery requests (Interrogatory 30);

2

(k)

Documents concerning communications between the parties (RFP
1);

(l)

The identities of police officers working the overnight shift on April
12-13, 2014 (RFP 4);

(m)

Personnel information for each of the defendant officers (RFPs 6-8
and 10);

(n)

The investigation of Mr. Maldonado’s death by Connecticut
authorities (RFP 17); and

(o)

Information regarding the Defendants’ insurance coverage (RFP 18).

Plaintiff requested the opportunity to make oral argument in support of
their motion, but he did not specify any particular reason why the Court could not
decide the matters at issue on the parties' briefs. The Court has sufficient
information to rule on the papers, and does not believe that oral argument would
be a productive use of the Court’s or the parties’ resources.
III.

Legal Standard
Pursuant to Federal Rule of Civil Procedure 37(a), a party seeking

discovery may move for an order to compel if opposing parties fail to answer
interrogatories propounded under Rule 33, or fail to produce or permit inspection
of documents requested under Rule 34. However, the Court “must limit the
frequency or extent of discovery . . . if it determines that . . . the discovery sought
is unreasonably cumulative or duplicative, or can be obtained from some other
source that is more convenient, less burdensome, or less expensive.” Fed. R.
Civ. P. 26(b)(2)(C). “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,

3

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.” Fed. R. Civ. P. 26(b)(1).
The Court notes that the 2015 revision of the Federal Rules precludes the
use of the type of boilerplate objections on which Defendants rely. See generally
2015 Committee Notes to Fed. R. Civ. P. 26(b), 33, and 34. Objections must be
stated “with specificity,” Rules 33(b)(4) and 34(b)(2)(B), and with respect to
document requests, must state whether any responsive materials are being
withheld on the basis of any objection, Rule 34(b)(2)(C). Further, “reasonably
calculated to lead to the discovery of admissible evidence” no longer governs the
scope of discovery. See 2015 Committee Notes to Fed. R. Civ. P. 26(b)(1) (“The
phrase has been used by some, incorrectly, to define the scope of discovery . . . .
The ‘reasonably calculated’ phrase has continued to create problems . . . and is
removed by these amendments.”] In this opinion, the Court therefore applies the
proportionality standard set forth in the amended Rule 26.
IV.

Discussion
A. The Events Surrounding Mr. Maldonado’s Arrest, Detention, and
Death (Interrogatories 1, 2, 8, and 9, and RFP 13)
Defendant Officer Jason Kaplan initially declined to respond to

Interrogatories 1, 2, 8, and 9, and RFP 13 “on the basis of his Fifth Amendment
privilege.” Since Plaintiff filed his Motion to Compel, however, Officer Kaplan
served amended responses to Plaintiff’s interrogatories and document requests,
and abandoned his assertion of the Fifth Amendment privilege as to all requests
4

except for Interrogatories 2 and 8. [See Dkt. 32, Exhs. A and B]. In his amended
responses to Interrogatories 1 and 9, Officer Kaplan stated, “Please see East
Hartford Police Department Incident Reports and attachments (“Incident Report #
201400009436 and # 201400009426).” Id. In his amended response to RFP 13, he
responded that the request was “more properly directed to the Town of East
Hartford defendants.” [See Dkt. 32, Exh. B at 17].1
With respect to Interrogatories 2 and 8, Plaintiff argues that Officer Kaplan
waived his claim of privilege under the Fifth Amendment “as to anything he
provided to the police or anyone other than his counsel.” [Dkt. 33 at 3]. Plaintiff
argues further that the cited police report does not set forth information sufficient
to fully respond, because the report “pertains only to the arrest and not the
holding cell incident which resulted in Jose Maldonado’s death.” Id. Defendant
denies that Officer Kaplan has waived his Fifth Amendment privilege, citing
Huaman v. Sirois, No. 3:13-cv-484, 2015 WL 1806660 (D. Conn. Apr. 21, 2015), for
the proposition that the “mere generating of an incident report” and statements
made during an Internal Affairs investigation, do not waive the privilege. [See
Dkt. 32 at 4]. Since filing the instant motion to compel, Plaintiff has narrowed his
request to seek only the information already provided to law enforcement
officials.
The Fifth Amendment provides, in relevant part, that “[n]o person ... shall
be compelled in any criminal case to be a witness against himself.” U.S. Const.
amend. V. “To qualify for the Fifth Amendment privilege, a communication must
1

Officer Kaplan used this response for most of Plaintiff’s Interrogatories and
RFPs. [See Dkt. 32, Exhs. A and B].
5

be testimonial, incriminating, and compelled.” Hiibel v. Sixth Judicial Dist. Court
of Nev., Humboldt Cty., 542 U.S. 177, 189 (2004). The Fifth Amendment privilege
“must be broadly construed to serve the right it was designed to protect,” Estate
of Fisher v. C.I.R., 905 F.2d 645, 648 (2d Cir. 1990), and the Court should not infer
a waiver of this constitutional right lightly, Emspak v. United States, 349 U.S. 190,
196 (1955).
“[A] civil litigant may legitimately use the Fifth Amendment to avoid having
to answer inquiries during any phase of the discovery process.” United States v.
Certain Real Prop. & Premises Known as 4003-4005 5th Ave., Brooklyn, N.Y., 55
F.3d 78, 82 (2d Cir. 1995) (citing 8 Charles A. Wright, Arthur R. Miller and Richard
L. Marcus, Federal Practice and Procedure § 2018, at 273 (2d ed. 1994)). A party
may invoke the Fifth Amendment to decline to answer an interrogatory when the
party “has reasonable cause to apprehend that answering the question will
provide the government with evidence to fuel a criminal prosecution.” Cf.
OSRecovery, Inc. v. One Groupe Int’l, Inc., 262 F. Supp. 2d 302, 306 (S.D.N.Y.
2003) (discussing circumstances under which an individual may decline to
answer deposition questions). “The danger of self-incrimination must be real, not
remote or speculative.” Estate of Fisher, 905 F.2d at 649 (citing Zicarelli v. New
Jersey State Comm’n of Investigation, 406 U.S. 472, 478 (1972)).
The Court recognizes that the Division of Criminal Justice investigation
into Mr. Maldonado's death pursuant to Connecticut General Statutes § 51-277a
remains pending; however, the Plaintiff now seeks only that material which
Officer Kaplan has already voluntarily disclosed to the law enforcement agency

6

investigating Mr. Maldonado’s death. Revealing this information during civil
discovery therefore cannot be thought of as “providing the government with
evidence to fuel a criminal prosecution,” OSRecovery, 262 F. Supp. 2d at 306.
Because law enforcement officials are already in possession of the information
Plaintiff seeks, disclosure of this information to the Plaintiff cannot expose
Officer Kaplan to a greater risk of prosecution. His Fifth Amendment right
against self-incrimination therefore does not entitle him to withhold it.
Allowing Officer Kaplan to withhold information during civil discovery that
he willingly provided to the law enforcement officials empowered to initiate a
criminal investigation, would improperly subvert the privilege’s purpose. The
Fifth Amendment protects individuals from being compelled to incriminate
themselves—it was not designed to shield defendants from civil liability. Cf.
Mitchell v. United States, 526 U.S. 314, 328 (1999) (“This Court has recognized the
prevailing rule that the Fifth Amendment does not forbid adverse inferences
against parties to civil actions when they refuse to testify in response to
probative evidence offered against them . . . . The rule allowing invocation of the
privilege, though at the risk of suffering an adverse inference or even a default,
accommodates the right not to be a witness against oneself while still permitting
civil litigation to proceed.” (internal quotation marks omitted)). Officer Kaplan
must therefore respond to Interrogatories 2 and 8—either with a written response
or via the production of business records pursuant to Federal Rule of Civil
Procedure 33(d)2—to the extent he has already provided responsive information
2

The Court notes that “The content of business records created on a voluntary
basis is not subject to Fifth Amendment protection.” OSRecovery, 262 F. Supp.
7

to law enforcement authorities. The Court notes that the most appropriate
sanction for failing to respond to these interrogatories—the drawing of an
adverse inference—would be the same regardless of whether Officer Kaplan
refuses in defiance of this Court’s order, or on Fifth Amendment grounds.
The parties’ briefing is insufficiently detailed to assist the Court in
determining whether Officer Kaplan may assert the privilege as to information
beyond what has already been provided to law enforcement officials. If the
Plaintiff seeks this information, he must file a new motion. The parties’ briefing
must set forth in detail the information sought, the content of Officer Kaplan’s
communications with law enforcement agents investigating this incident, and
argument regarding why the Defendant believes any withheld information is
privileged. The briefing must also cite relevant authority regarding the
circumstances under which a waiver may be inferred.
With respect to Interrogatories 1 and 9, Officer Kaplan also must respond
to the extent he has provided responsive information or documents to law
enforcement officials. This includes, if applicable, information regarding events
that may have transpired while the Plaintiff and Mr. Maldonado were detained
following their arrest.

2d at 311. “If the party asserting the Fifth Amendment privilege has voluntarily
compiled the document, no compulsion is present and the contents of the
document are not privileged.” United States v. Doe, 465 U.S. 605, 612 (1984).
Whether the act of production has testimonial value that would operate to
incriminate a party is a question of fact. Id. at 614. Here, where Plaintiff seeks
only information that has already been provided to law enforcement authorities,
the production of business records does not operate to incriminate Officer
Kaplan.
8

With respect to RFP 13, the Court disagrees that “there can be little dispute
that such a request is only properly directed to the Town of East Hartford.” [See
Dkt. 21 at 5]. If it is true that Officer Kaplan provided no “statements,
memoranda, photographs, video or audio recording, or other records or things
. . . to the Connecticut State Police in connection with the homicide of Jose
Maldonado,” or that he neither has nor can obtain copies of such material, Officer
Kaplan is required to so state in his responses to Plaintiff’s RFPs. See Fed. R.
Civ. P. 34(b)(2).
Similarly, Officer Kaplan may not withhold any responsive documents on
the grounds that he believes other Defendants have already produced identical
documents. The Defendants are represented by separate counsel and the
Plaintiff is entitled to production from each party independently. To the extent he
has an objection, he must articulate his specific objection and note in his
response whether any documents were withheld on the basis of this objection.
See id. (“For each item or category, the response must . . . state with specificity
the grounds for objecting to the request, including the reasons . . . . An objection
must state whether any responsive materials are being withheld on the basis of
that objection. An objection to part of a request must specify the part and permit
inspection of the rest.”). To the extent Officer Kaplan has any responsive
documents in his possession, custody, or control, he must produce them.
With respect to Interrogatories 2 and 8, Plaintiff’s motion is GRANTED to
the extent it seeks information that Officer Kaplan has already provided to law
enforcement officials investigating the death of Mr. Maldonado. It is DENIED

9

without prejudice, to the extent it asks the Court to infer that Officer Kaplan has
waived any Fifth Amendment privilege by unspecified disclosures to anyone
other than his counsel or the law enforcement agencies investigating the death of
Mr. Maldonado. With respect to Interrogatories 1 and 9, and RFP 13, Plaintiff’s
motion is GRANTED.
B. Disciplinary Actions Taken Against the Defendant Officers Prior to
April 12, 2014 (Interrogatory 10)
The Court finds that Interrogatory 10 is relevant to Plaintiff’s claims and
proportional to the needs of the case, as required by Rule 26(b)(1), except to the
extent it seeks unspecified information regarding “misconduct.” “Misconduct” is
a broad and vague term that could call for information unrelated to the claims in
this case. Connecticut General Statutes § 7-291c prohibits a police force from
hiring an officer found responsible for or who resigned or retired during an
investigation of malfeasance or serious misconduct. Connecticut law defines
those terms as follows:
For purposes of this section, (1) “malfeasance” means the commonly
approved usage of “malfeasance”; and (2) “serious misconduct” means
improper or illegal actions taken by a police officer in connection with such
officer’s official duties that could result in a miscarriage of justice or
discrimination, including, but not limited to, (A) a conviction of a felony, (B)
fabrication of evidence, (C) repeated use of excessive force, (D) acceptance
of a bribe, or (E) the commission of fraud. Conn. Gen. Stat. § 7-291c(d).
With respect to Interrogatory 11, Plaintiff’s motion is GRANTED insofar as it
seeks information concerning malfeasance or serious misconduct as those terms
are defined by Section 7-291c(d).

10

C. The Racial and Ethnic Makeup of the East Hartford Police Force
(Interrogatories 12 and 13)
The Court finds that Interrogatories 12 and 13 are relevant to Plaintiff’s
claims and proportional to the needs of this case, as required by Rule 26(b)(1). In
particular, the Interrogatories are relevant to the claim that “[i]t is the
longstanding widespread custom, habit, practice, and/or policy of Defendant
Town of East Hartford to permit police officers to use race and race-based
animus as motivating factors in police decisions and actions,” [see Compl. ¶ 55].
The statistics are also likely to be readily available and not burdensome to
produce. Plaintiff’s motion is GRANTED with respect to Interrogatories 12 and
13.
D. U.S. Census Data for East Hartford (Interrogatories 14 and 15)
The Court must consider the parties’ relative access to information when
determining whether a discovery request is reasonable. See Fed. R. Civ. P.
26(b)(1), (b)(2)(C)(iii), and 2015 Committee Notes. Because the information
sought is readily available in public records, it is equally available to both parties.
The Court will not require Defendants to do Plaintiff’s work for him. See Espinal
v. Coughlin, No. 98 CIV. 2579 (RPP), 2000 WL 245879, at *1 (S.D.N.Y. Mar. 3, 2000)
(citing Konczakowski v. Paramount Pictures, Inc., 20 F.R.D. 588, 593 (S.D.N.Y.
1957) (“Defendants should not have to conduct a review of records in the
possession of plaintiff or to which he has access and make determinations that
plaintiff can do for himself.”). With respect to Interrogatories 14 and 15, Plaintiff’s
motion is therefore DENIED.

11

E. East Hartford Arrest Statistics (Interrogatories 16 and 17)
The Court finds that Interrogatories 16 and 17 are relevant to Plaintiff’s
claims and proportional to the needs of this case, as required by Rule 26(b)(1). In
particular, the Interrogatories seek information relevant to Plaintiff’s claims that
the East Hartford Police Department has engaged in a pattern and practice of
discriminatory policing. [See Compl. ¶¶ 55, 66]. Plaintiff’s Motion is therefore
GRANTED as to Interrogatories 16 and 17.
F. Arrest Statistics for Each of the Defendant Officers (Interrogatories
18, 19, and 20)
The Court finds that Interrogatories 18, 19, and 20 are relevant to Plaintiff’s
claims and proportional to the needs of this case, as required by Rule 26(b)(1).
The Interrogatories seek information relevant to Plaintiff’s claims that the
Defendants have engaged in a pattern and practice of discriminatory policing,
including by “accosting” and deploying Tasers disproportionately against racial
minorities, and by condoning the use of “multiple blows to the head” to achieve
suspects’ compliance. [See Compl. ¶¶ 47, 50-55, 66]. To the extent Defendants
are concerned about the burden of reviewing “thousands of case incident
reports,” the Court notes that the Defendants may elect to produce business
records containing responsive information pursuant to Rule 33(d). Plaintiff’s
Motion is therefore GRANTED as to Interrogatories 18, 19, and 20.
G. Third-Party Complaints against the East Hartford Police Department
for Civil Rights Violations (Interrogatory 21)
The Court finds that Interrogatory 21 is relevant to Plaintiff’s claims and
proportional to the needs of this case, as required by Rule 26(b)(1). In particular,

12

the Interrogatory seeks information relevant to Plaintiff’s claims that the
Defendants have engaged in a pattern and practice of discriminatory policing.
[See Compl. ¶¶ 50-55, 66].
Defendants offer to provide Plaintiff information “involving allegations of
conduct substantially similar to that at issue in this case as to which a final
determination of culpability was reached.” [Dkt. 22 at 15]. Courts within the
Second Circuit “do not predominantly hold that only ‘substantiated’ complaints
of similar misconduct, specifically . . . excessive force complaints against
Defendant[s], are subject to discovery.” Gross v. Lunduski, 304 F.R.D. 136, 146
(W.D.N.Y. 2014); see also, e.g., Morales v. Town of Glastonbury, No. 3:09CV713
JCH, 2011 WL 3490080, at *2 (D. Conn. Aug. 10, 2011) (“[C]ourts permit discovery
of substantiated, unsubstantiated or even withdrawn complaints, if relevant.”);
Unger v. Cohen, 125 F.R.D. 67, 70 (S.D.N.Y. 1989) (“[C]omplaints that were
abandoned or conciliated may not be admissible at trial, but that does not make
them undiscoverable.”). Defendants’ offer is so narrowly circumscribed, and
allows Defendants so much discretion, that the resulting response provides
Plaintiff no information at all. [See Dkt. 22 at 15 (“The defendants answered the
interrogatory . . . stating that none of the defendant officers have any
substantiated complaints.”)]. Plaintiff’s Motion is therefore GRANTED as to
Interrogatory 21.
H. Training Policies and Procedures (Interrogatory 25 and RFPs 2 and
22)
Interrogatory 25 and RFPs 2 and 22 are relevant to Plaintiff’s claims and
proportional to the needs of this case, as required by Rule 26(b)(1). These
13

requests are particularly relevant to Plaintiff’s claim that the Town of East
Hartford and Chief Sansom “failed properly to hire, train, instruct, monitor,
supervise, evaluate, investigate, and discipline” the remaining Defendants, in
violation of Plaintiff’s civil rights. [See Compl. ¶ 67].
To the extent Defendants are concerned that any of Plaintiff’s requests
“may” call for privileged information, the Court notes that the Federal Rules
require Defendants to determine whether any responsive documents are
privileged, and to produce all responsive, non-privileged information along with a
privilege log describing the nature of the withheld documents. See Fed. R. Civ. P.
26(b)(5)(A)(ii). A privilege cannot be asserted without an accompanying privilege
log. “It is well settled that the burden is on a party claiming the protection of a
privilege to establish those facts that are the essential elements of the privileged
relationship. This burden must be met with an evidentiary showing based on
competent evidence and is not discharged by mere conclusory or ipse dixit
assertions, for any such rule would foreclose meaningful inquiry into the
existence of the relationship, and any spurious claims could never be exposed."
RMED Int’l, Inc. v. Sloan’s Supermarkets, Inc., No. 94 CIV. 5587PKLRLE, 2003 WL
41996, at *2 (S.D.N.Y. Jan. 6, 2003) (internal quotation marks and internal citations
omitted). Plaintiff’s motion is GRANTED as to Interrogatory 25 and RFPs 2 and
22.
I. The Department’s History of Taser Use (Interrogatory 26)
Interrogatory 26, which seeks information regarding the number and racial
composition of individuals warned regarding the potential use of a Taser or on

14

whom a Taser was drawn, is relevant to Plaintiff’s claims and proportional to the
needs of this case, as required by Rule 26(b)(1). This information is highly
relevant to the Plaintiff’s claim that the East Hartford Police Department relies
excessively on the use of Tasers against unarmed civilians, and that the
Defendants have “deployed Tasers against racial minorities with markedly
disproportionate frequency.” [See Compl. ¶¶ 53-54].
Connecticut General Statutes Section 7-282e provides:
“Each law enforcement unit, as defined in section 7-294a, shall create and
maintain a record detailing any incident during which a police officer, as
defined in section 7-294a, (1) uses physical force that is likely to cause
serious physical injury, as defined in section 53a-3, to another person or
the death of another person, including, but not limited to, striking another
person with an open or closed hand, club or baton, kicking another person
or using pepper spray or an electroshock weapon on another person.”
Conn. Gen. Stat. Ann. § 7-282e.
Thus the information sought is or should be readily available and not overly
burdensome to produce. Plaintiff’s motion is therefore GRANTED with respect to
Interrogatory 26.
J. Non-Attorney Individuals Who Participated in the Preparation of
Responses to Discovery Requests (Interrogatory 30)
Citing Strauss v. Credit Lyonnais, S.A., 252 F.R.D. 199, 231-32 (2007),
Defendants argue that Interrogatory 30 seeks information that is protected
attorney work product. However, this objection was not raised in a timely fashion
and is therefore waived. See Fed. R. Civ. P. 33(b)(2), 33(b)(4) (“The responding
party must serve . . . any objections within 30 days . . . . The grounds for
objecting to an interrogatory must be stated with specificity. Any ground not
stated in a timely objection is waived.”); accord Horace Mann Ins. Co. v.

15

Nationwide Mut. Ins. Co., 238 F.R.D. 536, 538 (D. Conn. 2006) (“Any ground not
stated in a timely objection is waived unless the party's failure to object is
excused by the court for good cause shown.”).
It is worth noting, however, that the information Plaintiff seeks is not work
product. In Strauss, the Eastern District of New York held that “requiring [parties]
to reveal the identities of individuals who assisted them with their interrogatory
responses could easily reveal every person whom [the parties] or their agents
have contacted, interviewed or communicated with concerning [their] allegations
. . . or even which persons [the parties] believe to have the most relevant
information.” Strauss, 242 F.R.D. at 232. The court then stated that such
information was work product. Id. This principle conflicts with the plain
language of Rule 26(b)(3)(A), which protects from disclosure only “documents
and tangible things that are prepared in anticipation of litigation or for trial”
(emphasis added). Individuals’ identities are not documents or tangible things.
Therefore, this Court will not hold that the “identity of every individual, with
the exception of counsel, who assisted in the preparation of the responses to
these interrogatories or who engaged in the search for documents responsive to
the plaintiff’s requests for production of documents” constitutes work product.
This language is the subject of “the most standard of discovery request[s].” See
Omega Eng’g, Inc. v. Omega, S.A., No. CIV. 398CV2464AVC, 2001 WL 173765, at *4
(D. Conn. Feb. 6, 2001) (“Interrogatories Nos. 7 and 8 represent the most standard
of discovery requests in that they simply seek: 1) the names of individuals who
participated in the preparation of the interrogatory answers; and 2) the identity of

16

any document used for that same purpose.”); see also Equal Employment
Opportunity Comm’n v. Sterling Jewelers Inc., No. 08-CV-00706(A)(M), 2010 WL
2803017, at *4 (W.D.N.Y. July 15, 2010) (holding a party “entitled to the identity of
the individuals that assisted in preparation of the interrogatory responses”). And
this type of information helps parties identify individuals with relevant
knowledge, and document custodians capable of authenticating what is
produced. The Court therefore GRANTS Plaintiff’s motion with respect to
Interrogatory 30.
K. Documents Concerning Communications Between The Parties (RFP
1)
The Court finds that RFP 1 is relevant to Plaintiff’s claims and proportional
to the needs of this case, as required by Rule 26(b)(1). Documents concerning
communications between the parties may contain admissions that will help the
parties and the Court resolve this matter. The Court also notes that Defendants
did not properly assert their privilege objections. As stated in Sections III, IV.A.,
and IV.H., supra, Defendants must include in their response whether they have
withheld any documents on the basis of their objections, see Rule 34(b)(2), and
they must produce a privilege log where responsive documents are withheld
pursuant to the attorney client privilege or work product doctrine, see Rule
26(b)(5)(A)(ii). Defendants have therefore failed to meet their burden of
establishing the existence of a privilege.
Plaintiff’s motion is therefore GRANTED with respect to RFP 1, and
Defendants are ordered to produce all responsive, non-privileged documents,
and a privilege log if applicable.
17

L. The Identities of Police Officers Working the Overnight Shift on April
12-13, 2014 (RFP 4)
Because Defendants indicated in their Opposition that they produced the
requested documents, [see Dkt. 22 at 21], Plaintiff’s motion with respect to RFP 4
is MOOT.
M. Personnel Information for Each of the Defendant Officers (RFPs 6-8
and 10)
Defendants’ reliance on Williams v. City of Hartford, No.
3:15CV00933(AWT), 2016 WL 1732719, at *12 (D. Conn. May 2, 2016), and Badolato
v. Adiletta, No. 3:10CV1855 (JBA), 2012 WL 28704, at *2 (D. Conn. Jan 5, 2012), is
misplaced. In both of those cases, the allegations concerned the abuse of power
of individual police officers during discrete incidents, and the plaintiffs were
prevented from accessing personnel files wholly unrelated to those incidents.
Here, Plaintiff has alleged a pattern and practice of the excessive and
discriminatory use of force, and the requested documents are relevant to
Plaintiff’s claims that Chief Sansom and the Town of East Hartford “failed to
properly hire, train, instruct, monitor, supervise, evaluate, investigate, and
discipline” the defendant officers. [Compl. ¶ 67]. These are broader claims than
were raised in either cited case, and they therefore call for a broader scope of
discovery.
The fact that the claims implicate important federal civil rights—and involve
a homicide allegedly resulting from the violation of these rights—also counsels in
favor of requiring greater disclosure under the Rules’ proportionality standard.
See Fed. R. Civ. P. 26(b)(1) (stating that one factor relevant to whether discovery

18

is proportional to the needs of the case is “the importance of the issues at stake
in the action”); cf. Kelley v. City of Hamden, No. 3:15CV00977(AWT), 2015 WL
9694383, at *4 (D. Conn. Nov. 23, 2015) (“[I]mportant federal interests in broad
discovery and truth-seeking and the interest in vindicating important federal
substantive policy such as that embodied in section 1983 prevails over any
interest in the confidentiality of the arrest records.”).
This case’s standing protective order should also mitigate Defendants’
concerns about the disclosure of sensitive personal information. Cf. Crespo v.
Beauton, No. 15-CV-412(WWE)(WIG), 2016 WL 525996, at *2 (D. Conn. Feb. 9,
2016) (“While the Commissioner's concern about producing confidential
information is understandable, such concern can be addressed . . . by entering
into a protective order limiting the use and disclosure of any personally
identifiable information contained in the records.”). The Court entered the
protective order to encourage fulsome disclosures during the discovery process,
and it permits the Defendants to designate as confidential any “information
implicating an individual’s legitimate expectation of privacy.” [See Dkt. 5 ¶ 3].
The Court also agrees with Plaintiff that he has requested files that Defendants
likely already maintain, and for which production would pose little burden.
While the scope of documents sought through these requests is broad, the
production (or inspection) of responsive documents is warranted. Plaintiff’s
Motion is therefore GRANTED with respect to RFPs 6-8 and 10.

19

N. The Investigation of Mr. Maldonado’s Death by Connecticut
Authorities (RFP 17)
As stated in Section IV.D., supra, the Defendants are not obligated to
produce documents that are equally available to both parties. Here, Defendants
claim (1) they have produced all documents concerning the state investigations
that remain in their possession, custody or control; and (2) additional responsive
documents are in Connecticut state authorities’ custody. These documents are
equally available (or unavailable) to all parties via subpoena or Freedom of
Information Act request. Plaintiff’s motion is therefore DENIED with respect to
RFP 17.
O. Information Regarding the Defendant’s Insurance Coverage (RFP 18)
Defendants have cited no precedent for their assertion that Rule
26(a)(1)(A)(iv) bars Plaintiff from requesting, or precludes the production of,
“reservation of rights correspondence and/or other such documentation.” The
Court also finds it puzzling that Defendants apparently raised no relevance
objections to the interrogatory seeking the identification of the requested
documents, but believes them too irrelevant to produce. [See Dkt. 20-1 at 28].
RFP 18 is relevant to the issue of damages, and proportional to the needs of the
case—particularly because producing documents that they have already
identified imposes little burden on Defendants. Plaintiff’s motion is therefore
GRANTED as to RFP 18.
V.

Conclusion
For the foregoing reasons, Plaintiff’s Motion for an Order Compelling

Discovery is GRANTED-IN-PART and DENIED-IN-PART.
20

Within 21 days of the date of this Order, Defendants are hereby ORDERED
to:
1) Respond in full to Interrogatories 12, 13, 16, 17, 18, 19, 20, 21, 25, 26,
and 30.
2) Respond to Interrogatory 11 to the extent it seeks information
concerning “malfeasance” or “serious misconduct” as those terms
are defined by Conn. Gen. Stat. § 7-291c(d).
3) Produce all non-privileged documents in their possession, custody,
or control that are responsive to Requests for Production 1, 2, 6, 7, 8,
10, 18, and 22, along with a privilege log, if applicable. The parties
are ordered to meet and confer concerning any such log and seek a
court order within 63 days of the date of this order, should they be
unable to resolve any resulting disputes.
In addition, Defendant Officer Kaplan is specifically ORDERED to:
1) Respond in full to Interrogatories 1 and 9;
2) Respond to Interrogatories 2 and 8 to the extent he has voluntarily
provided responsive information to the law enforcement officials
investigating the alleged homicide of Mr. Maldonado; and
3) Produce all non-privileged documents in his possession, custody, or
control that are responsive to RFP 13, along with a privilege log, if
applicable. The parties are ordered to meet and confer concerning
any such log and seek a court order within 63 days of the date of this
order, should they be unable to resolve any resulting disputes.

21

IT IS SO ORDERED.

_ ______ /s/ ______________
Hon. Vanessa L. Bryant
United States District Judge

Dated at Hartford, Connecticut: December 19, 2016

22