Chase v. Nodine's Smokehouse, Inc. et al
Filing
115
ORDER granting 99 Motion to Compel Town Defendants to Produce Privilege Log; denying 100 Motion to Compel Town Defendants to Produce Additional Information Re: Cases Handled by Defendants Colangelo and Gompper for the reasons in the attached ruling. Signed by Judge Vanessa L. Bryant on 6/6/2019. (Bryan, Kelsey)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
NICOLE CHASE,
Plaintiff,
v.
NODINE’S SMOKEHOUSE, INC.,
CALVIN NODINE,
TOWN OF CANTON,
JOHN COLANGELO,
ADAM GOMPPER,
Defendants.
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No. 3:18-CV-00683 (VLB)
June 6, 2019
RULING GRANTING MOTION TO COMPEL PRIVILEGE LOG [DKT. 99] AND
DENYING MOTION TO COMPEL CASE DETAILS [DKT. 100]
Before the Court are two motions to compel discovery responses from
Defendants Adam Gompper, John Colangelo, and Town of Canton (the “Town
Defendants”).
The first seeks a privilege log from the Town Defendants for
documents responsive to Plaintiff’s discovery requests but withheld based on
asserted privileges. See [Dkt. 99 (MTC Privilege Log)]. The second seeks the
identities of two victims of alleged sexual assaults whose cases were handled by
Defendants Gompper and Colangelo and whose allegations did not result in an
arrest. [Dkt. 100 (MTC Victim Identification)]. For the reasons set forth below, the
Court GRANTS both motions.
I.
Background
Plaintiff brought an action alleging, inter alia, false arrest, malicious
prosecution, and denial of equal protection under 42 U.S.C. § 1983 and Connecticut
state law against the Town Defendants. See generally [Dkt. 1 (Compl.)]. The claims
1
arise out of the Town Defendants’ investigation into Plaintiff’s allegations of sexual
assault against her employer and Plaintiff’s eventual arrest and prosecution for
making a false statement. Id.
Plaintiff served her first set of discovery requests on the Town Defendants
on June 25, 2018. The Town Defendants submitted objections to some of the
requests, including assertions of privilege, though provided no privilege log. On
November 14, 2018, rather than ordering production of withheld documents for
failure to comply with Federal Rule of Civil Procedure 26(b)(5),1 the Court ordered
the Town Defendants, within 14 days of the order, to serve on Plaintiff a privilege
log identifying the factual and legal basis as to any assertion of privilege in
response to an interrogatory or request for production. See [Dkt. 52 (Nov. 14, 2018
Order)]. Following a discovery status teleconference on March 6, 2019, the Court
ordered the Town Defendants to produce within 30 days of the order all records of
complaints, reports, and investigations of sexual assault, domestic violence, and
crimes involving perjury, making a false statement, falsely reporting an incident,
and hindering a prosecution from the past 10 years. See [Dkt. 76 (Mar. 6, 2019
Order)]. The Town Defendants produced responsive documents to Plaintiff on
April 3, 2019. Plaintiff laid out her objections to that production in the two motions
to compel, addressed in turn below.
1
Failure to provide a privilege log as required by the rules may result in a finding
that the privilege has been waived and an order for production of withheld
materials. See Chase Manhattan Bank, N.A. v. Turner & Newall, PLC, 964 F.2d 159,
166 (2d Cir. 1992); Ruran v. Beth El Temple of W. Hartford, Inc., 226 F.R.D. 165, 16869 (D. Conn. 2005) ); Horace Mann Ins. Co. v. Nationwide Mut. Ins. Co., 238 F.R.D.
536, 538 (D. Conn. 2006).
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II.
Discussion
1. Motion to Compel Privilege Log
Plaintiff contends that the Town Defendants have not produced all
responsive records and that she is entitled to a privilege log of those withheld from
production. [Dkt. 99 at 3]. The Court has already determined that all records of
complaints, reports, and investigations of sexual assault, domestic violence, and
crimes involving perjury, making a false statement, falsely reporting an incident,
and hindering a prosecution are relevant to the claims and defenses in this case,
see [Dkt. 76], and that a privilege log of any unproduced responsive records is
generally required by the Federal Rules of Civil Procedure. Fed. R. Civ. P. 26(b)(5).
The Town Defendants represent that they produced all responsive records
but those subject to erasure and/or protected within juvenile or youthful offender
records by Connecticut General Statutes §§ 54-142a, 54-76l, 46b124. [Dkt. 101 at ].
Connecticut General Statute § 54-142a provides, in pertinent part:
(a) Whenever in any criminal case, on or after October 1, 1969, the
accused, by a final judgment, is found not guilty of the charge or the
charge is dismissed, all police and court records and records of any
state’s attorney pertaining to such charge shall be erased upon the
expiration of the time to file a writ of error or take an appeal, if an
appeal is not taken[.]
...
(e)(1) The Clerk of the court or any person charged with retention and
control of such records in the records center of the Judicial
Department or any law enforcement agency having information
contained in such erased records shall not disclosure to anyone,
except the subject of the record, upon submission pursuant to
guidelines prescribed by the Office of the Chief Court Administrator
of satisfactory proof of the subject’s identity, information pertaining
to any charge erased under any provision of this section[.]
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...
(f) Upon motion properly brought, the court or a judge of such court .
. . shall order disclosure of such records (1) to a defendant in an action
for false arrest arising out of the proceedings so erased, or (2) to the
prosecuting attorney and defense counsel in connection with any
perjury charges which the prosecutor alleges may have arisen from
the testimony elicited during the trial, or any false statement charges,
or any proceeding held pursuant to section 53a-40, or (3) counsel for
the petitioner and the respondent in connection with any habeas
corpus or other collateral civil action in which evidence pertaining to
a nolled or dismissed criminal charge may become relevant.
Conn. Gen. Stat. § 54-142a(a), (e), (f) (2019).
Some federal courts have considered whether a federal court, as opposed to
a state court, may order the disclosure of erased records under § 54-142a(f). See,
e.g., Edwards v. Stewart, No. 3:15CV01257(CSH), 2016 WL 3906572, at *2 (D. Conn.
Oct. 5, 2015) (denying motion for disclosure based on principles of federalism
because defendants “identified no authority demonstrating that Connecticut has
consented to a federal court ordering disclosure of records pursuant to Section 54142a(f)”); Oliphant v. Villano, No. 3:09CV862(JBA), 2010 WL 4909238, at *2 (D. Conn.
Nov. 24, 2010) (denying motion for disclosure because defendants did not indicate
how the statute provided the federal district court with authority to do so); United
States v. Thorne, 467 F. Supp. 938, 941 (D. Conn. 1979) (ordering production of
evidence subject to erasure pursuant to the Supremacy Clause and the court’s duty
to do justice in criminal proceedings). This Court, however, agrees with the court
in Kelley v. City of Hamden, which determined that “[t]he key question appears to
be not whether section 54-142a(f) permits a federal court to enter an order of
disclosure, but rather, whether the remainder of section 54-142a permits the state
to withhold materials from disclosure in the federal discovery process if such
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materials are otherwise discoverable.” No. 3:15CV00977(AWT), 2015 WL 9694383,
at *2 (D. Conn. Nov. 23, 2015). This Court further agrees with the Kelley Court that
the answer to this question is no. Id.
Federal Rule of Civil Procedure 26 provides that “[p]arties may obtain
discovery regarding any nonprivileged matter that is relevant to any party’s claim
or defense—including the existence, description, nature, custody, condition, and
location of any documents or other tangible things and the identity and location of
persons who know of any discoverable matter.” Fed. R. Civ. P. 26(b)(1) (emphasis
added). “Questions of privilege in federal civil rights cases are governed by federal
law.” Kelley, 2015 WL 9694383, at *3 (quoting King v. Conde, 121 F.R.D. 180, 187
(E.D.N.Y. 1988)).
The Second Circuit has concluded that § 54-142a is a confidentiality statute
and effectively creates a privilege under Connecticut law. United States v. One
Parcel of Property Located at 31-33 York St. Hartford, Conn., 930 F.2d 139, 141 (2d
Cir. 1991) (hereinafter One Parcel); see also Kelley, 2015 WL 9694383, at *3. “Under
Connecticut law ‘erasure’ does not mean physical destruction of records but rather
non-disclosure of them when mandated by statute.” Id. at 140. “An assertion of
privilege may preclude the admission of relevant evidence but only to the extent
the privilege is recognized ‘by the principles of the common law as they may be
interpreted by the courts of the United States.” One Parcel, 930 F. 2d at 141. The
privilege created by § 54-142a “has been created by state statute, and does not
arise from common law.” One Parcel, 930 F.2d at 141. Accordingly, “[i]t does not
. . . automatically preclude the use of otherwise admissible evidence.” Id. (citing
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Memorial Hosp. v. Shadur, 664 F.2d 1058, 1061-63 (7th Cir. 1981)). As a matter of
comity, federal courts accord deference to state-created privileges. Id. However,
these state-created privileges are construed narrowly and must “yield when
outweighed by a federal interest in presenting relevant information to a trier of
fact[.]” Id.
Connecticut General Statute § 54-76l(a) provides that “[t]he records or other
information of a youth . . . shall be confidential and shall not be open to public
inspection or be disclosed except as provided in this section.” Subsection (b) sets
out specific allowances for disclosure of the youth’s information and subsection
(c) provides that the records “may be disclosed upon order of the court to any
person who has a legitimate interest in the information and is identified in such
order.” Conn. Gen. Stat. § 54-76l(b), (c). Connecticut General Statute § 46b-124(b),
governing family law, provides, in pertinent part, that “[a]ll records of cases of
juvenile matters . . . shall be confidential and for the use of the court in juvenile
matters, and open to inspection or disclosure to any third party, including bona
fide researchers commissioned by a state agency, only upon order of the Superior
Court[.]”
Section 46b-124 governs handling of juvenile records in the family law
context.
See Conn. Gen. Stat. § 46b-124 (part of the Family Law Title).
The
Connecticut Appellate Court has held that § 46b-124(b) does not create a statutory
privilege against disclosure of juvenile records, but a policy of confidentiality of
such records which may be overcome by a demonstration of compelling need.
State v. William B., 822 A.2d 265, 284 (Conn. App. Ct. 2003); see also Casertano v.
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Kerwin, No. 9-CV-1853 (CFD), 2011 WL 283990, at *2 (D. Conn. Jan. 24, 2011)
(recognizing Connecticut statutory presumption of confidentiality for juvenile
records). Similarly, § 54-76l controls the confidentiality of youth offender records
in the criminal procedure context. State v. Easton, 100 A.3d 18, 24 (Conn. App. Ct.
2014). It is a “safeguard [] helpful to the state in ensuring that such records will
not be released to the general public” but does not confer a privilege against
disclosure. Id. (quoting United States v. Jiles, 658 F.2d 194, 200 (3d Cir. 1981)).
Thus, with regard to each of the statutes invoked by the Town Defendants in
support of their argument against disclosure of responsive records deemed
confidential under Connecticut law, a balancing of interests will determine whether
that information should be disclosed to Plaintiff.2
In One Parcel, the court concluded that the federal interest in eradicating the
illegal drug trade by seizing the tools which facilitate that trade prevails over any
interest in the confidentiality of arrest records. Id. As a result, the Second Circuit
held that § 54-142a did not bar the admissibility of records to refute the innocent
owner defense put forth by the defendant in a forfeiture case. Id.
In Kelley v. City of Hamden, the defendants sought disclosure of all police
and court records and records of any state’s attorney pertaining to the criminal
arrest of the plaintiff, who claimed violations of his constitutional rights under the
Fourth, Fifth, and Fourteenth Amendments, as well as state law claims of false
2
The Town Defendants are correct that federal courts are bound to interpret state
statutes in accordance with state law. See [Dkt. 101 at 7-8]. However, the question
here does not concern interpretation of the Connecticut statutes, but whether and
to what extent they apply in the federal discovery context. Thus, the Court does
not address the Town Defendants’ statutory interpretation arguments.
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arrest, malicious prosecution, infliction of emotional distress, libel and slander.
2015 WL 9694383, at *1.
The court concluded that the plaintiff’s interest in
confidentiality of the arrest records was outweighed by important federal interests
in broad discovery and truth-seeking and in vindicating the important federal
substantive policy embodied in § 1983. Id. at * 4. Additionally, the court noted that
the plaintiff’s lack of a privacy interest in the records sought and their direct
relevance to the claims and defenses in the case weighed in favor of disclosure.
Id.
Similarly, in Crespo v. Beauton, the court considered an objection based on
§ 54-142a by third-party Connecticut Police Commissioner to the production of
incident reports concerning conduct similar to that at issue in the plaintiff’s § 1983
case against a police officer for excessive force. No. 15-cv-412 (WWE) (WIG), 2016
WL 525996, at *1 (D. Conn. Feb. 9, 2016). As in Kelley, the court concluded that the
interests in broad discovery and vindication of § 1983 policy outweighed
confidentiality interests, which could be managed by entering a protective order
limiting the use and disclosure of personally identifiable information in the records.
Id. at *2.
Here, Plaintiff has asserted various § 1983 claims, including denial of equal
protection based on unequal investigation and prosecution of sexual assault
claims by women and prosecution of false statement charges by the Town
Defendants. Plaintiff sought records relating to other complaints, arrests, and
investigations relating to sexual assault, domestic violence, and false reporting.
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[Dkt. 99 at 2]. These records are relevant to Plaintiff’s § 1983 equal protection claim
and discoverable under Federal Rule of Civil Procedure 26(b)(1).
The Town Defendants contend that Plaintiff has not set forth any interest that
prevails over the confidentiality interests of the information sought. [Dkt. 101 at 2].
The Town Defendants point out the difference between the request in Kelley versus
this case, highlighting that the defendants in that case sought records relating to
the plaintiff’s arrest underlying the claims at issue. See [Dkt. 101 at 10]. Because
of this, the Kelley Court noted that the plaintiff did not have a privacy interest in the
records, having put his arrest in issue, and was unlikely to suffer any prejudice.
Kelley, 2015 WL 9694283, at *4. The circumstances are different here. As the Town
Defendants point out, the subjects of the records sought are not plaintiffs in this
case and have not put their records at issue. Additionally, the Town Defendants
question the relevance of certain of the records—those that do not involve
Defendants Colangelo or Gompper—as there is no Monell claim, only claims
against the individual Defendants.
See [Dkt. 101 at 11-12].
Thus, the Town
Defendants argue that Plaintiff has not established a legitimate interest in records
unrelated to Defendants Colangelo or Gompper which outweighs the presumption
of confidentiality of the records created by the Connecticut statutes. Id.
The Court recognizes the legitimate confidentiality interests which the
statutes address. However, the same important federal interests in comprehensive
discovery and truth-seeking in vindicating § 1983 claims recognized in Kelley and
Crespo are present in this case as well. See Kelley, 2015 WL 9694383, at *4; Crespo,
2016 WL 525996, at *2. Additionally, the confidentiality interests are addressed
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here by the fact that Plaintiff seeks only a log setting forth limited information
regarding the relevant cases, which does not include information identifying any
victims or suspects.3 See [Dkt. 99 at 5]. Further, imposition of a protective order
and specific guidelines regarding usage and disclosure of any sensitive
information will largely address any remaining confidentiality concerns.
The Town Defendants request that, in the event the Court orders production
of the requested information, they be allowed to produce the records in full rather
than a log which would require additional work on counsel’s part. [Dkt. 101 at 12;
n.1]. The Town Defendants may produce the actual records rather than a log.
However, in order to address the confidentiality interests, the Court orders that
identifying information of victims and juveniles must be redacted and the records
must be designated for “Attorneys’ Eyes Only.”
2. Motion to Compel Victim Identification Information
In producing records of sexual assault and domestic violence cases on April
3, 2019, the Town Defendants withheld certain information by way of redaction, as
provided for by the Court in its March 6, 2019 Order, see [Dkt. 76].
Also in
accordance with that Order, Plaintiff has now moved for production of certain
limited information which the Town Defendants redacted.
See [Dkt. 100].
Specifically, Plaintiff seeks identity and contact information of victims in two
3
Plaintiff seeks the following information: (1) the date of each complaint and report;
(2) each case number; (3) the name of the investigator/police officers involved in
each case; (4) the nature of the charges; (5) whether an arrest warrant was filed;
and (6) the outcome/disposition in each case (dismissal, Juvenile Delinquency,
Youthful Offender, nolle prosequied, closed without arrest, pretrial/diversionary
program, etc.). [Dkt. 99 at 4-5].
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sexual assault cases (Case Nos. 17-82 and 16-6473) and in two domestic
disturbance cases (Case Nos. 15-7121 and 10-3362) in which Defendants Gompper
or Colangelo were involved in order to determine whether those victims have
relevant information regarding Defendants. Id. at 1-2.
The Town Defendants argue against disclosure of this information based on
Connecticut General Statute § 54-86e. [Dkt. 102 at 1-2]. Section 54-86e provides
that the names, addresses, and other identifying information of victims of sexual
assault and similar crimes “shall be confidential and shall be disclosed only upon
order of the Superior Court” except in certain circumstances where the information
is disclosed to the accused and under a protective order. Conn. Gen. Stat. § 5486e. The Town Defendants cite a number of Connecticut Superior Court decisions
applying the statute in support of their argument. See [Dkt. 102 at 1-2]. The
Connecticut statute and the cited cases, however, are inapposite here. Because
this case is in federal court and presents a federal question, “matters respecting
discovery, privileges and confidentiality are governed by federal law, not state
law.” Garner v. City of New York, No. 17-CV-843 (JGK) (KNF), 2018 WL 5818109, at
*4 (S.D.N.Y. Oct. 17, 2018) (quoting Ligon v. City of New York, No. 12-CV-2274, 2012
WL 2125989, at *1 (S.D.N.Y. June 12, 2012)). As discussed supra, Connecticut state
law does not govern discoverability and confidentiality in federal civil rights
actions. See Von Bulow v. Von Bulow, 811 F.2d 136, 141 (2d Cir. 1987); Fed. R.
Evid. 501. Nonetheless, the policies underlying the state confidentiality statutes
must be given serious consideration. Id. Moreover, federal courts, too, recognize
the interests of victims and juveniles in privacy and confidentiality of sensitive
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records and the need to balance those against competing interests before ordering
disclosure. See 18 U.S.C. § 3771(a)(8) (expressing victims’ “right to be treated with
fairness and with respect for the[ir] dignity and privacy”).
The Town Defendants argue that Plaintiff fails to demonstrate a legitimate
interest in disclosure which outweighs the privacy interests of the victims of
domestic violence or sexual assault. [Dkt. 102 at 2-3]. The Town Defendants point
out that Plaintiff’s counsel seeks this information in order to determine whether the
individuals have relevant evidence but provides no basis to believe that they will
and thus, Plaintiff has not presented a substantial need for the information but
rather has indicated that it is sought in order to enable a fishing expedition. Id.
The Court agrees that Plaintiff has failed to provide a specific interest in the
information sought which outweighs the victims’ interest in privacy. Plaintiff states
that counsel “seeks the identity of these individuals to determine whether they
have any information that may be relevant to defendants Gompper and Colangelo.”
[Dkt. 100 at 2]. Plaintiff does not say why the four particular cases are potentially
relevant to this case or what distinguishes them from the other case records
produced by the Town Defendants which warrants disclosure of the redacted
identifying information.
Moreover, Plaintiff identifies no concrete information
which she believes these victims have that would be relevant to the claims and
defenses in this case. As a result, the Court concludes that Plaintiff is not entitled
to the information.
However, in line with the Court’s order during the April 8, 2019
teleconference regarding communication with individuals referenced in the Town
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records reviewed by the Court in camera, the Court will allow Plaintiff to write a
letter to each of the victims at issue and deliver those letters in sealed envelopes
to counsel for the Town Defendants. Counsel for the Town Defendants must, within
7 days of receipt of the letter(s) from Plaintiff’s counsel, send the letters via express
certified mail to the corresponding victims. Counsel for the Town Defendants must
within a day thereafter file receipts of mailing under seal on the docket for the Court
to verify compliance with this order. This approach will maintain the privacy of the
victims but also allow them an opportunity to communicate with Plaintiff’s counsel
should they so choose and in the event they have relevant information.
III.
Conclusion
For the foregoing reasons, the Court GRANTS Plaintiff’s motion to compel
production of a privilege log, [Dkt. 99]. The Town Defendants may produce the
actual records rather than a log, but must redact all identifying information of
victims and juveniles from those records and must designate them “Attorneys’
Eyes Only.” The Court DENIES Plaintiff’s motion for the identifying information of
certain victims, [Dkt. 100], but permits Plaintiff, through counsel for the Town
Defendants, to send letters to those four victims giving them the opportunity to
reach out should they so choose.
IT IS SO ORDERED.
________/s/______________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: June 6, 2019
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