Estate of Gugsa Abraham Dabela et al v. Redding et al
Filing
71
ORDER granting in part and denying in part 56 Motion for Protective Order. See attached ruling and order. Signed by Judge Donna F. Martinez on 3/23/2018. (Constantine, A.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ESTATE OF GUGSA ABRAHAM
DABELA, et al,
Plaintiffs,
v.
TOWN OF REDDING, et al.,
Defendants.
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CASE NO.
3:16cv534(RNC)
RULING ON MOTION FOR PROTECTIVE ORDER
The plaintiffs, the Estate of Gugsa Abraham Dabela and Abraham
Dabela, the personal representative of the Estate, bring this
§ 1983 action against the Town of Redding, the Chief of Police
Douglas Fuchs, certain Redding police officers (collectively "the
Redding defendants") and "Killer John Doe."
that
the
Redding
defendants
"failed
The plaintiffs allege
to
conduct
a
proper
investigation regarding the manner of death" of Gugsa Abraham
Dabela ("Dabela") and "concluded the case [w]as a suicide because
Dabela was an African-American."1
(Compl. ¶97.)
During the course
of discovery, the plaintiffs deposed State's Attorney Stephen
Sedensky ("Sedensky"), who is not a defendant, regarding his
determination that the evidence did not support a conclusion that
Dabela's death was a homicide. Sedensky declined to answer certain
questions, asserting the attorney work-product and the deliberative
process/mental process privileges.
1
Pending before the court is
The plaintiffs believe that Dabela's death was the result of
a homicide.
Sedensky's motion for protective order.
(Doc. #56.)
He requests
that the court (1) sustain his objections and (2) preclude the
plaintiffs from disclosing the deposition transcript and/or video
recording
of
the
deposition
and
from
making
concerning this case while this case is open.
public
comment
(Doc. #56 at 1.)
The motion for protective order is granted in part and denied in
part.
I.
Deposition Questions
Sedensky argues that the "objectionable questions are focused
on discovering [his] methodology and substance of his analysis of
the evidence, the content of his discussions with investigators
concerning the case, and his judgment as to the credibility of
certain witnesses."
A.
(Doc. #57 at 19.)
Deliberative Process/Mental Process Privilege2
The deliberative process privilege protects communications
that are part of the decision-making process of a governmental
agency.
See Nat'l Council of La Raza v. Dep't of Justice, 411 F.3d
350, 356 (2d Cir. 2005) ("[T]he deliberative process privilege [is]
a sub-species of work-product privilege that covers documents
reflecting advisory opinions,3 recommendations and deliberations
2
Because plaintiffs have asserted federal constitutional
claims in this action, Sedensky's privilege claims are governed by
federal common law. Nat'l Cong. for Puerto Rican Rights ex rel.
Perez v. City of New York, 194 F.R.D. 88, 92 (S.D.N.Y. 2000).
3
"The deliberative process privilege applies to depositions of
government employees as well as discovery requests for documents."
2
comprising part of a process by which governmental decisions and
policies are formulated.").
It "has been applied to protect not
only decisions made by federal government agencies, but also
decisions by prosecutors."
Starkey v. Birritteri, No. CIV.A.
12-10988, 2013 WL 3984599, at *2 (D. Mass. Aug. 2, 2013).
To
qualify under the deliberative process privilege, the document or
testimony must be "(1) predecisional - that is, prepared in order
to assist an agency decisionmaker in arriving at a decision," and
(2) deliberative - that is, actually related to the process by
which policies are formulated.
Dep't
of
"[F]actual
Homeland
material
Sec.,
not
process is not protected."
253
Unidad Latina En Accion v. U.S.
F.R.D.
reflecting
44,
the
47
(D.
agency's
Conn.
2008).
deliberative
Local 3, International Brotherhood of
Electrical Workers v. NLRB, 845 F.2d 1177, 1180 (2d Cir. 1988).
"Courts sometimes distinguish between the deliberative process
and mental processes privileges in that the former applies to
material reflecting the pre-decisional, mental, and deliberative
process, and the latter to the decision-maker's actual thought
process. . . . However, each privilege complements the other, and
in combination they operate to preserve the integrity of the
deliberative process itself." In re World Trade Ctr. Disaster Site
Litig., No. 05 CIV. 9141, 2009 WL 4722250, at *2 n.1 (S.D.N.Y. Dec.
Anilao v. Spota, No. CV 10-32, 2015 WL 5793667, at *18 (E.D.N.Y.
Sept. 30, 2015).
3
9, 2009); Dowling v. Arpaio, No. CV-09-1401-PHX-JAT, 2011 WL
1456732, at *3 (D. Ariz. Apr. 15, 2011) ("[T]he two concepts are
viewed in conjunction with one another — a party seeks the mental
impressions of a person as contained in that person's deliberative
process.")
The privilege is a qualified one:
If the privilege is found
to apply, the court uses a "balancing approach that considers the
competing interests of the party seeking disclosure and of the
government
—
deliberations
specifically,
without
the
its
need
omnipresent
to
engage
threat
of
in
policy
disclosure."
Winfield v. City of New York, No. 15CV05236, 2018 WL 716013, at *5
(S.D.N.Y. Feb. 1, 2018).
"In assessing whether and to what extent
the privilege bars disclosure, courts 'must balance the extent to
which
production
of
the
information
sought
would
chill
the
[government's] deliberations concerning such important matters . .
. against any other factors favoring disclosure.'"
Id. at *6.
Courts weigh (i) the relevance of the evidence sought to be
protected; (ii) the availability of other evidence; (iii) the
seriousness of the litigation and the issues involved; (iv) the
role of the government in the litigation; and (v) the possibility
of future timidity by government employees who will be forced to
recognize that their secrets are violable. Id.
B.
Common Law Work Product Doctrine under Hickman v. Taylor
The work product privilege "provides qualified protection for
4
materials prepared by or at the behest of counsel in anticipation
of litigation or for trial."
In re Grand Jury Subpoena Dated July
6, 2005, 510 F.3d 180, 183 (2d Cir. 2007); see also United States
v. Adlman, 134 F.3d 1194, 1196–97 (2d Cir. 1998) (work product
doctrine "is intended to preserve a zone of privacy in which a
lawyer can prepare and develop legal theories and strategy 'with an
eye toward litigation,' free from unnecessary intrusion by his
adversaries") (quoting Hickman v. Taylor, 329 U.S. 495, 510–11
(1947)).
The work product doctrine under Hickman extends to
nonparties and depositions. See In re Payment Card Interchange Fee
& Merch. Disc. Antitrust Litig., No. 05-MD-1720, 2018 WL 1162552,
at *11 (E.D.N.Y. Feb. 26, 2018)("Work product that is not in a
tangible form is protected under Hickman v. Taylor, 329 U.S. 495
(1947)"); Tankleff v. Cty. of Suffolk, No. 09-CV-1207, 2011 WL
5884218, at *1–2 (E.D.N.Y. Nov. 22, 2011)("The common law work
product doctrine . . . extends to nonparties").
"A party seeking discovery of attorney work-product must show
'substantial need,' for fact work-product."
In re Grand Jury
Proceedings, 219 F.3d 175, 190 (2d Cir. 2000). As for work-product
that shows mental impressions, conclusions, opinions, or legal
theories of an attorney, "at a minimum such material is to be
protected unless a highly persuasive showing [of need] is made."
Id. at 190–91 (quoting Adlman, 134 F.3d at 1204).
5
C.
Discussion
After careful review of the deposition transcript, following
the principles enunciated above, the court rules as follows:
1.
The motion for protective order is granted and the
objections sustained as to the following questions because the
answers
would
reveal
recommendations,
the
debate,
deliberations,
and/or
advice
analysis,
regarding
opinions,
Sedensky's
prosecutorial decision: dep. at 15, lines 3-5; dep. at 16, lines 810; dep. at 17, line 14; dep. at 22, lines 10-12; dep. at 23, lines
2-4; dep. at 25, lines 18-19; dep. at 30, lines 17-21; dep. at 57,
lines 13-17; dep. at 60, lines 12-15; dep. at 66, lines 19-22; dep.
at 78, line 25 to dep. at 79, lines 1-3; dep. at 89, lines 18-19;
dep. at 102, lines 5-6; dep. at 103, lines 2-3; dep. at 119, lines
8-11; dep. at 168, line 18 and lines 23-25; dep. at 175, lines
9-11; dep. at 176, lines 23-25; dep. at 177, lines 14-16;
dep. at
192, lines 17-19; dep. at 235, lines 6-7; dep. at 236, lines 20-22;
dep. at 238, lines 2-6 and lines 23-25 and dep. at 240, lines 3-5.
The plaintiffs contend that even if the deliberative process
privilege applies, the court should allow discovery because "all of
the factors" of the balancing test "favor disclosure."
(Doc. #59
at 11.)
The court must "balance the public interest in nondisclosure
against the need of the particular litigant for access to the
information."
In re World Trade Ctr. Disaster Site Litig., No. 05
6
CIV. 9141(AKH), 2009 WL 4722250, at *5 (S.D.N.Y. Dec. 9, 2009).
In
this case, while the issues presented are undeniably serious and
the evidence is arguably relevant, Sedensky is merely a witness and
the plaintiffs have had access to all the underlying evidence,
including
witness
reconstruction
interviews,
report.
More
forensic
to
the
analyses,
point,
and
into
inquiry
the
the
exercise of prosecutorial discretion would have a significant
negative impact on the State's Attorney.
It is in the public's
interest to encourage - not discourage - unreserved discussion and
frank analysis in prosecutorial decisionmaking. As Sedensky points
out, there are "systemic liabilities" of "publicly second-guessing
the decision of a prosecutor to forego a criminal prosecution."
(Doc.
#60
at
6.)
On
balance,
the
governmental
interest
in
nondisclosure outweighs the plaintiffs' interest in disclosure.
2.
The motion is denied as moot as to the questions at dep.
at 57, lines 24-25 to dep. at 58, lines 1-4 and dep. at 58, lines
17-21
because
the
witness
subsequently
answered
the
essentially the same query at dep. 59 at lines 14-22.
same
or
The motion
also is moot as to the question at dep. at 83, lines 8-10 (answered
at dep. at 83 at line 12) and the question at dep. at 120, lines
15-23 (answered at dep. at 121, lines 14-15.)
II.
Disclosure
Sedensky next moves for a protective order precluding the
plaintiffs from publicly disclosing the transcript and/or the video
7
recording of his deposition and from making "public comment" about
this case.
He argues that a protective order is appropriate
because the plaintiffs have "demonstrated [their] propensity to
rely on the 'exploitative media' in [their] attempt to foster a
'circus-like atmosphere' surrounding the issues raised in the
current litigation."
(Doc. #57 at 23.)
"[T]he court may issue a protective order only after the
moving party demonstrates that good cause exists for the protection
of the material."
Am. News & Info. Servs., Inc. v. Rovella, No.
3:15cv1209(RNC)(DFM), 2017 WL 3736700, at *2 (D. Conn. Aug. 30,
2017)(internal quotation mark and citation omitted).
"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
statements."
distinguished
Hansen
v.
from
U.S.
stereotyped
Airports
Air
and
Cargo,
conclusory
LLC,
No.
3:07cv353(JCH)(HBF), 2008 WL 4426909, at *1 (D. Conn. Sept. 26,
2008).
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 [a witness's]
deposition
testimony
is
not
in
8
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).
See DaCosta v. City of Danbury, 298 F.R.D. 37, 40 (D. Conn.
2014)("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.")(citation omitted.)
"Generally
speaking,
dissemination
of
pretrial
discovery
materials . . . is not prohibited absent a protective order."
News & Info. Servs., 2017 WL 3736700, at *2.
Am.
"Nonetheless,
dissemination for non-judicial purposes is unusual and rightly so.
The discovery rules are 'a matter of legislative grace.'" DaCosta,
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 disputes.'" Id. (quoting Seattle Times
Co., 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
litigants and third parties.
to
the
reputation
Id. at 34–35.
and
privacy
of
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).
The court does not countenance the public dissemination of
9
discovery materials.
However, on the record before the court,
Sedensky makes only vague and general allegations of harm and has
not shouldered his burden of demonstrating good cause, that is, a
clearly defined and serious injury, to warrant a protective order.
Sedensky
also
seeks
a
protective
order
precluding
plaintiffs from making public comment concerning this case.
the
In
support, Sedensky cites Local Criminal Rule 57(e), which governs
statements by counsel in a criminal case.
He argues that Local
Civil Rule 83.2 provides that Local Criminal Rule 57 applies to
civil
litigation.
As
the
plaintiffs
incorrect reading of the rule.
apply to civil cases.
point
out,
this
is
an
Local Criminal Rule 57(e) does not
The request for a protective order is
denied.
III. Conclusion
For these reasons, the motion for protective order (doc. #56)
is granted in part and denied in part.
SO ORDERED at Hartford, Connecticut this 23rd day of March,
2018.
___________/s/________________
Donna F. Martinez
United States Magistrate Judge
10
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