Moses v. Mele

Filing 26

ORDER granting in part and denying in part 17 Motion for Protective Order. So Ordered by Magistrate Judge Landya B. McCafferty. (gla)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Crystal Moses
v.

Civil No. 10-cv-253-PB

Mark Mele
O R D E R
Plaintiff Crystal Moses (“Moses”) has filed a civil rights
action against defendant Mark Mele (“Mele”) alleging unlawful
seizure, false arrest, malicious prosecution, deprivation of
freedoms of speech and association, a violation of plaintiff‟s
substantive due process rights, and state law torts for false
arrest and malicious prosecution.

See Compl. (doc. no. 1).

The

complaint alleges that Mele, while employed as a police officer
in Lebanon, New Hampshire, caused Moses to be arrested for and
charged with a crime, for which he did not have probable cause,
by falsely representing to other officers, the Lebanon District
Court, and the Grafton County grand jury, that Moses had
committed the felony of tampering with witnesses and informants.
See id.
Before the court is defendant‟s motion for a protective
order (doc. no. 17) and addendum to motion for a protective
order (doc. no. 21), and plaintiff‟s objection thereto (doc. no.

25).

For the reasons explained herein, the motion is granted in

part and denied in part.
Background1
On July 15, 2008, Moses accompanied her son‟s girlfriend,
Catherine Sims, to the Lebanon Police Department (“LPD”).

Mele

had requested that Sims come to the LPD to be questioned
regarding a car accident in which her boyfriend (Moses‟s son)
was involved, and to which she was a witness.

Mele stated that

he wanted to question Sims to determine whether Sims had
previously provided the police with a false statement about the
accident.

Sims agreed to speak with defendant if Moses could

accompany her.

Mele agreed that Moses could accompany Sims.

At the police station, however, Mele refused to speak to
Sims with Moses present.

Sims stated that she would not speak

with Mele alone, and that she wanted to call her mother and to
speak with Moses.

Sims, following Moses‟s advice and

accompanied by Mele, walked outside the police station to call
Sims‟s mother.

Once outside, Mele confronted Sims and Moses and

urged Sims to come back into the police station.
called other LPD officers for assistance.
1

Mele also

Moses “ushered” Sims

The factual background is drawn from plaintiff‟s complaint
(doc. no. 1).

2

into the passenger side of Moses‟s car and, while still on the
passenger side of the car, argued with Mele, who was attempting
to convince Sims to get out of the car.
Mele requested that the other officers who had responded to
his call for assistance separate Sims and Moses and detain
Moses.

Mele told one of the other officers to arrest Moses for

witness tampering for telling Sims that she couldn‟t talk to
Mele alone.

Moses claims that Mele‟s accusation of witness

tampering was false and that Mele knew it was false when he made
it.

Moses was arrested and processed.

Mele filed a complaint

in the Lebanon District Court accusing Moses of tampering with a
witness or informant, a felony, by inducing Sims to withhold
information and by trying to forcibly remove Sims from the LPD
when Sims wanted to give a statement.
Moses was released on bail and retained counsel to
represent her on the criminal charges.

At a September 23, 2008,

probable cause hearing in the criminal case, Mele testified
falsely that Sims had agreed to speak with him alone but that
Moses forcibly removed Sims from the LPD to prevent Sims from
talking to Mele.

The case was bound over to the Grafton County

Superior Court where the grand jury indicted Moses on November
21, 2008, ostensibly after hearing Mele‟s testimony.

3

One day before a scheduled hearing on Moses‟s motion to
dismiss the indictment, the government nol prossed the
indictment “due to witness problems.”

Moses then learned that a

number of criminal cases involving Mele were dismissed due to
some issue regarding his credibility, and that Mele had been
terminated from the LPD.
Procedural History
On October 12, 2010, the parties to this action submitted a
discovery plan to the court which was approved on October 13,
2010.

Trial is set for October 4, 2011.

On November 10, 2010, plaintiff served a subpoena on the
Grafton County Superior Court requesting a recording of the
grand jury testimony for her criminal case, and “[a] copy of all
ex parte motions and supporting exhibits filed by the Grafton
County Attorney‟s Office during the years 2008 and 2009 that
pertain in any way to Lebanon Police Officer Mark Mele, and
copies of any ex parte court orders issued upon such motions.”
On that day, plaintiff also served a subpoena on the Lebanon
Police Department for production of, among other things,
materials related to plaintiff‟s arrest or prosecution, a
complete copy of Mele‟s personnel file, including all records of
citizen complaints, internal complaints, or internal

4

disciplinary proceedings, and any police department paperwork
located within or outside of Mele‟s file having anything to do
with Mele‟s termination from the police department.
On November 19, 2010, defendant filed a motion to quash the
subpoenas pursuant to Fed. R. Civ. P. 45(c)(3)(A)(iv) (doc. no.
9), asserting that, among other things, the requested
information should not be disclosed, as it was confidential or
subject to privilege, and because disclosure of the requested
materials pursuant to the subpoena would unduly burden Mele.
On December 16, 2010, the court granted the motion to
quash.

Shortly thereafter, plaintiff filed a motion to vacate

the order, and a response to the motion to quash (doc. nos. 10
and 11).
12).

Defendant objected to the motion to vacate (doc. no.

The court directed the parties to confer and attempt to

resolve the matter by agreement (doc. no. 13).

Pursuant to that

order, defendant filed a status report on January 21, 2011 (doc.
no. 14).
The status report indicated that the motion to quash would
be withdrawn.

Doc. No. 14.

Further, the status report

indicated that counsel for defendant agreed to review Mele‟s
personnel record and to produce a privilege log.

5

Id.

Defendant‟s counsel also agreed to turn over any withheld items
to the court for in camera review.2

Id.

Defendant has now filed, for in camera review, copies of
Mele‟s entire LPD personnel record and records regarding an
internal investigation conducted by the LPD in the spring and
summer of 2009.

A motion for in camera review (doc. no. 19) and

a motion to seal the documents submitted (doc. nos. 16 and 22)
have been filed and granted.

Defendant has provided records for

in camera review to the court and a privilege log (doc. no. 23)
to plaintiff.
Simultaneously with filing the records, defendant filed a
motion for a protective order (doc. no. 17).

Defendant has also

filed an addendum to the motion for a protective order (doc. no.
21).

Plaintiff has filed an objection (doc. no. 25).

The

motion for a protective order was referred to the magistrate
judge by Judge Barbadoro, pursuant to 28 U.S.C. § 636(b)(1)(A).
In the motion for a protective order, defendant requests that
the court decline to order disclosure of any of the documents
submitted.
2

The parties agreed that, as the State of New Hampshire had
provided plaintiff with a Rule 45(c)(2)(B) objection letter
regarding the grand jury subpoena, plaintiff would file a motion
to compel to obtain the records requested from the Grafton
County Superior Court in the future, if necessary. Doc. No. 14.
No issue regarding those records is before the court at this
time.
6

This court has conducted an in camera review of the
documents submitted by defendant.

As explained below, the

motion for a protective order (doc. nos. 17 and 20) is granted
in part and denied in part.
Discussion
I.

Discovery Standard Generally
Unless otherwise limited by court order, the scope of
discovery . . . [extends to] 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 . . . .
Relevant information need not be admissible at the
trial if the discovery appears reasonably calculated
to lead to the discovery of admissible evidence.

Fed. R. Civ. P. 26(b)(1).

"The purpose of pretrial discovery is

to make trial less a game of blindman's bluff and more a fair
contest with the basic issues and facts disclosed to the fullest
practicable extent."

Wamala v. City of Nashua, No. 09-cv-304-

JD, 2010 WL 3746008, at *1 (D.N.H. Sept. 20, 2010) (internal
quotation marks omitted).
II.

Motion for Protective Order
The court may grant a protective order, for good cause, “to

protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense.”
26(c)(1).

Fed. R. Civ. P.

“Rule 26(c) confers broad discretion on the trial

7

court to decide when a protective order is appropriate and what
degree of protection is required. . . . The trial court is in
the best position to weigh fairly the competing needs and
interest of parties affected by discovery.”
v. Rhinehart, 467 U.S. 20, 36 (1984).

Seattle Times Co.

Rule 26(b)(2) allows the

court to limit discovery of both privileged and nonprivileged
information, and requires the court to balance the burdens that
would be imposed by the proposed discovery against the benefits
of disclosure.

See Gill v. Gulfstream Park Racing Ass‟n, 399

F.3d 391, 400 (1st Cir. 2005).
“[T]he party seeking a protective order has the burden of
showing that good cause exists for issuance of that order.”

See

Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 789 (1st
Cir. 1988).

The “good cause” standard “„is a flexible one that

requires an individualized balancing of the many interests that
may be present in a particular case,‟” including “considerations
of the public interest, the need for confidentiality, and
privacy interests.”

Gill, 399 F.3d at 402 (citing Seattle

Times, 467 U.S. at 35 n.21).
Defendant has moved for a protective order to prevent the
disclosure of the materials reviewed in camera on the following
grounds: (1) disclosure would violate a Lebanon District Court
order sealing the documents; (2) the documents are protected by
8

a state law privilege; (3) the documents are irrelevant to the
instant case; and (4) disclosure of the records would constitute
an invasion of Mele‟s right to privacy.

Applying the relevant

standard for evaluating a motion for a protective order, the
court finds good cause for issuing a protective order to prevent
third party access to Mele‟s personnel file and the internal
investigation files, and directs disclosure of the documents at
issue to plaintiff and plaintiff‟s counsel, as specified below.
A.

Lebanon District Court Order

Defendant claims that the LPD internal investigation file
and Mele‟s LPD personnel file have been sealed by an order of
the Lebanon District Court, preventing counsel from providing
those files to plaintiff.

Defendant has identified a number of

documents submitted for in camera review which he does not
object to providing to plaintiff, but which, he states, he is
prevented from disclosing due to the Lebanon District Court
order.
Plaintiff argues that no copy of the Lebanon District Court
order has been provided to the court, in violation of United
States District Court District of New Hampshire Local Rule
(“LR”) 7.1.

LR 7.1 requires a party relying on facts not found

9

in the record, to be “accompanied by affidavits or other
documents showing the facts.”
Upon review of the records submitted, the court has
discovered that, in fact, the Lebanon District Court order was
submitted for in camera review.

The privilege log identifies,

at documents numbered LPDIA 1-4,3 a letter and motion for in
camera review filed in the Lebanon District Court.

The motion,

located at LPDIA 2-4, pertains to a criminal case before the
Lebanon District Court (“LDC”), unrelated to the matter here, in
which the internal investigation and personnel records requested
here were submitted to that court for in camera review.

The

State, in the motion at issue, sought to seal the records, and
to protect the records from being disclosed in further criminal
proceedings, if the LDC, after conducting its in camera review,
found that the information contained therein was not
discoverable.

The LDC granted the motion for in camera review

by endorsed order.
Nothing has been submitted, however, that shows that the
LDC in fact sealed the records after granting the motion and
conducting its in camera review.
3

Even if the motion to seal had

The submitted documents have been divided into two groups,
an internal investigation file, with pages numbered as LPDIA 1444, and Mele‟s LPD personnel file, with pages numbered as MMPRS
1-217. Documents will be identified by these page numbers in
this order.
10

been granted, however, the order would appear only to restrict
the use of the records in further criminal proceedings and would
not apply to a civil case such as this case involving private
parties, and not the State.
The court finds that there is no LDC order that affects
this court‟s discovery decisions in this matter.

Defendant has

stated that he does not object to the provision of certain
records and would not seek a protective order as to such records
if the court deems them not protected by an LDC order.

As the

court finds they are not protected by an LDC order, those
records, identified at the following page numbers, must be
disclosed to plaintiff4:
LPDIA
LPDIA
LPDIA
MMPRS
MMPRS
MMPRS
MMPRS

pp. 47-109
pp. 171-178
pp. 349-357
pp. 6-59
pp. 88-118
p. 121
pp. 126-130

Plaintiff also argues that defendant waived his argument
that the records are sealed by the LDC by voluntarily providing
the records to this court for in camera review.

4

Because the

Many of the documents submitted appear in both the internal
investigation file and Mele‟s personnel file, as noted in the
privilege log. The defendant need not provide more than one
copy of those documents to plaintiff.
11

court finds the records are not subject to an LDC seal, the
court need not reach plaintiff‟s waiver argument.
B.

State Law Statutory Privilege

Defendant urges the court to apply N.H. Rev. Stat. Ann.
(“RSA”) § 516:36, II, which protects internal investigation
records of a law enforcement officer from being admitted in
evidence in a civil action.

That law states:

All records, reports, letters, memoranda, and other
documents relating to any internal investigation into
the conduct of any office, employee, or agent of any
state, county, or municipal law enforcement agency
having the powers of a peace officer shall not be
admissible in any civil action other than in a
disciplinary action between the agency and its
officers, agents, or employees. Nothing in this
paragraph shall preclude the admissibility of
otherwise relevant records of the law enforcement
agency which relate to the incident under
investigation that are not generated by or part of the
internal investigation. For the purposes of this
paragraph, “internal investigation” shall include any
inquiry conducted by the chief law enforcement officer
within a law enforcement agency or authorized by him.
RSA § 516:36, II.
“[I]t is generally recognized that, with respect to federal
claims, a court is not obligated to apply the privileges
provided by a state statute unless the court chooses to do so.”
Hoyt v. Connare, 202 F.R.D. 71, 74 (D.N.H. 1996).

Assertions of

privilege in federal court, in cases dealing with federal
questions, are governed by federal law.

12

See Fed. R. Evid. 501.

State statutes, while binding on state courts determining
privilege, do not bind federal courts deciding federal
questions.

See Green v. Fulton, 157 F.R.D. 136, 139 (D. Me.

1994) (citing In re Hampers, 651 F.2d 19, 21-24 (1st Cir.
1981)).
Even where federal courts are not required to apply state
evidentiary privileges, however, federal courts may, and in some
cases should, recognize state evidentiary privileges where to do
so would not come at substantial cost to federal procedures and
substantive policies.

See Green, 157 F.R.D. at 139; see also

Hampers, 651 F.2d at 22 (discussing factors to be balanced by
federal court in weighing whether to recognize a state statutory
privilege).

The specific issue before this court, whether the

requested records are discoverable to assist plaintiff in
prosecuting her § 1983 action, is a federal question before a
federal court.

Accordingly, Fed. R. Ev. 501 applies, and the

court, in making its determination, will decide questions of
privilege based on federal law.

See Krolikowski v. Univ. of

Mass., 150 F. Supp. 2d 246, 248 (D. Mass. 2001); see also N.O.
v. Callahan, 110 F.R.D. 637, 640 (D. Mass. 1986) (Fed. R. Evid.
501, which governs evidentiary privileges in federal court,
applies to pretrial discovery disputes).

13

In a case where a statutory privilege may apply to bar
disclosure of certain evidence in discovery, “New Hampshire
courts considering issues of disclosure utilize a balancing
test, the intent of which is to determine whether the benefits
of disclosure outweigh the benefits of nondisclosure.”

Hoyt,

202 F.R.D. at 75 (internal citations and quotation marks
omitted).

This balancing test has been utilized in this court.

Id.
Defendant argues that the court should utilize the process
outlined in Hampers to determine whether to apply the state law
privilege in federal court.

Under Hampers, to aid in its

decision regarding whether to apply a state law privilege, a
court should first determine whether the state court would
recognize the privilege.

See Hampers, 651 F.2d at 22.

If the

court determines that the state court would recognize the
asserted privilege, the court should then determine whether the
asserted privilege is “intrinsically meritorious.”

Id.

The

Hampers court cautioned, however, that “honoring such a
privilege in federal court will usually involve some cost to the
federal interest in seeking the truth in federal question cases.
It makes a difference whether the federal interest in seeking
full disclosure is a weak or strong one.”

Id.

The court

further recognized that “the whole purpose behind § 1983 was to
14

insure an independent federal forum for testing alleged
constitutional violations by state officials.”

Id.

RSA § 561:36, II, does not, by its terms, bar disclosure of
police internal investigation files in discovery.

The statute

states, instead, that police records of internal investigations
shall not be “admissible in any civil action” in a court.
Accordingly, it is not at all clear that the courts of New
Hampshire would apply this statute to bar discovery of these
documents in this case.

Defendant has not proffered any case

law or other authority, and the court finds none, which would
indicate that New Hampshire state courts would apply RSA
§ 561:36, II, to prevent discovery in a civil case, even where
the documents might not be admissible themselves, but might lead
to the discovery of admissible evidence.
In this case, weighing the plaintiff‟s need for the
disclosure of the records and the defendant‟s interest in
application of the privilege, assuming, arguendo, that the
privilege would apply to a discovery question, the court finds
that the balance of interests weighs in favor of the plaintiff.
The state statutory privilege, if applied in this case, would
work a substantial harm on the policy of providing citizens with
a federal forum in which to litigate their civil rights claims.
The records sought in this case, as more fully discussed below,
15

if disclosed, are reasonably likely to be useful to plaintiff in
prosecuting this action, whether or not they are ultimately
deemed admissible by the trial court.

The plaintiff has a

strong interest in access to information that may impact central
issues in her case.

Accordingly, the court will not apply the

privilege found in RSA § 561:36, II, to bar discovery of the
internal investigation records in this case.
C.

Relevancy

Defendant seeks to block the disclosure of the submitted
documents by arguing that the contents of those documents are
neither relevant to the dispute between the parties, nor likely
to lead to relevant evidence in the case.

Specifically,

defendant states that the internal investigation occurred “well
after” the July 2008 events which form the basis of the instant
suit, and that the subject matter of the internal investigation
is related to Mele‟s application for worker‟s compensation
benefits, not to actual “police work.”
Plaintiff disagrees, stating that the internal
investigation appears to be related to Mele‟s truthfulness, as
the outcome of the investigation involved the dismissal of a
number of criminal cases, including, apparently, plaintiff‟s
case, which was dropped by the state due to “witness problems.”

16

Mele was the principal witness in plaintiff‟s criminal case.
Under the circumstances, it is not unreasonable for plaintiff to
assume that the “witness problems” that caused the state to drop
her case concerned Mele‟s credibility.

Plaintiff claims that

incidents of untruthfulness or dishonesty by Mele, in relation
to his worker‟s compensation claim, are relevant to this action
because Mele‟s credibility is the central issue in the instant
case.
Plaintiff has asserted claims of malicious prosecution and
false arrest against Mele, based on Mele‟s alleged fabrication
of probable cause to arrest plaintiff in July 2008.

Plaintiff

claims that Mele caused her damages by lying to fellow officers
about the existence of probable cause, lying to the court at a
probable cause hearing, and, presumably, lying to, or otherwise
causing false information to be presented to, the grand jury
that indicted plaintiff.
Fed. R. Civ. P. 26(b)(1) allows discovery of “any
nonprivileged matter that is relevant to any party‟s claim or
defense.”

“[W]hen an objection arises as to the relevance of

discovery, the court would become involved to determine whether
the discovery is relevant to the claims or defenses and, if not,
whether good cause exists for authorizing it, so long as it is
relevant to the subject matter of the action.”
17

In re Subpoena

to Witzel, 531 F.3d 113, 118 (1st Cir. 2008) (internal citation
and quotation marks omitted); In re Sealed Case (Med. Records),
381 F.3d 1205, 1215 n.11 (D.C. Cir. 2004) (recognizing that Rule
26 distinguishes discovery relevant to claims or defenses and
discovery relevant to the subject matter of the action, and that
the rule tolerates discovery of both).

If the requested

internal investigation and personnel records are relevant to
either the claims or defenses in this action or are otherwise
relevant to the subject matter of the action, Rule 26 authorizes
their discovery.
The evidence submitted for in camera review bears on Mele‟s
honesty, truthfulness, or credibility.

As defendant concedes,

plaintiff‟s case boils down, in large part, to whether probable
cause actually existed to arrest and charge Moses, or whether
Mele fabricated facts regarding the July 2008 incident.

The

materials submitted, therefore, are discoverable to the extent
they bear on Mele‟s credibility, honesty, or truthfulness.
Further, whether these documents are ultimately deemed
admissible, the court finds that their discovery could lead to
relevant and admissible evidence.

Under Fed. R. Evid. 404, 405

and 608, in some circumstances, certain evidence and testimony,
including evidence of discrete prior bad acts, may be admitted
on the question of a party‟s or witness‟s character or
18

reputation.

The records here may be admissible themselves and,

in any event, might well lead to the discovery of admissible
evidence.5
D.

Invasion of Privacy

Defendant asserts that his right to privacy outweighs
plaintiff‟s right to discovery of his personnel records, as
those records are not relevant to plaintiff‟s cause.

As

discussed above, the court has found that many of the records
reviewed in camera are relevant to Mele‟s credibility.

Mele‟s

credibility is relevant to the subject matter of plaintiff‟s
cause and the records should therefore be disclosed.
“[P]ersonnel files contain perhaps the most private
information about an employee within the possession of an
employer.”

Whittingham v. Amherst Coll., 164 F.R.D. 124, 127

(D. Mass. 1995).

The court will direct disclosure only of those

personnel records that are relevant to Mele‟s honesty and
truthfulness, or which defendant has expressed some willingness
to provide.

The court finds that, to the extent the records

relate to Mele‟s honesty and truthfulness, the plaintiff‟s
interest in such records outweighs any privacy right that
defendant may have in the records.
5

To the extent records are

The court makes no finding and takes no position on the
future admissibility of any evidence in this case.
19

included in the submitted personnel file that do not have any
bearing on any credibility issue themselves, or any relation to
the incidents giving rise to any credibility issue, such records
do not need to be disclosed.
Defendant‟s privilege log notes that he would agree to
provide certain records without a court order upon execution of
a confidentiality agreement by plaintiff‟s counsel.

These

documents are numbered as:
MMPRS
MMPRS
MMPRS
MMPRS
MMPRS
MMPRS
MMPRS
MMPRS
MMPRS

pp. 1-5
pp. 60-65
pp. 82-87
pp. 119-120
pp. 122-125
pp. 134-136
pp. 167-168
p. 210
p. 212

As explained more fully below, all of the records ordered
disclosed will be subject to a protective order, the terms of
which are spelled out below, which will prevent plaintiff, or
plaintiff‟s counsel, from further disclosing any information
contained in the records without first seeking permission of the
court.

Thus, prior to introducing the evidence at trial,

including it in an unsealed filing, or disclosing the contents
to any third party, plaintiff or counsel must first seek the
court‟s permission.

If plaintiff makes such a request, the

court will have the opportunity to evaluate, with specificity,
20

the competing interests of the plaintiff in utilizing a
particular piece of information for a particular purpose, and
the defendant in preventing further disclosure.

Any threat that

does exist to defendant‟s privacy is thus minimized.
The protective order issued this date eliminates
defendant‟s need for a confidentiality agreement.

Accordingly,

those records defendant has identified that he will disclose
without objection, as listed above, will be ordered disclosed.
Where defendant has not made any relevancy or invasion of
privacy objections to the disclosure of these, the court will
make no independent determination of their relevance or their
imposition on Mele‟s privacy at this time.
Finally, the court notes that the records submitted for in
camera review arrived at the court with certain information
already redacted.

For example, defendant‟s social security

number, date of birth, account numbers, the full names of
certain people with whom defendant communicated, and personal
information of witnesses, have all been redacted from the
records.

The court approves maintaining these redactions in the

disclosure of the records as there is no apparent need for
plaintiff to have that information.

21

III. Disclosure Order
The court, after review of the documents in camera, finds
that the following documents are discoverable as they are
relevant to the subject matter of the instant action, not
invasive of Mele‟s privacy, and not subject to any privilege or
nondisclosure order:
LPDIA
LPDIA
LPDIA
LPDIA
LPDIA
MMPRS
MMPRS

pp.
pp.
pp.
pp.
pp.
pp.
pp.

1-6
11-46
110-210
225-424
426-444
1-177
181-191

The court further finds that the following documents are
not relevant either to the claims or defenses in this case, or
to the subject matter of this case.

These documents need not be

disclosed to plaintiff:
LPDIA
LPDIA
LPDIA
MMPRS
MMPRS
MMPRS
MMPRS
IV.

pp. 7-10
pp. 211-224
p. 425
pp. 178-180
pp. 192-209
p. 211
pp. 213-217

Protective Order
Rule 26 allows the court broad discretion in limiting the

scope of discovery.

Here, defendant has requested only a

general protective order barring disclosure of the contents of

22

the submitted materials to plaintiff.

The court finds, as

explained above, that defendant does not possess a privacy
interest that outweighs plaintiff‟s right to access some of the
submitted documents.
The burden rests on defendant to demonstrate good cause for
a protective order.

See Public Citizen, 858 F.2d at 789.

The

defendant‟s pleadings are silent on the issue of whether, if
plaintiff is provided access to the records, some protective
order prohibiting public disclosure of the records is
appropriate.

The court finds, however, that personnel and

related records are inherently private and entitled to some
measure of protection from public disclosure.

See Whittingham,

164 F.R.D. at 127.
Neither party has addressed the issue of whether the public
has an interest in either the disclosure or nondisclosure of the
records.

The court finds that, generally, the public has an

interest in both transparency in the working of agencies that
serve the public, and in access to information regarding the
efficacy of law enforcement agencies in policing their own.

The

court also finds, however, that the public has an interest in
confidentiality in internal investigations, so that informants
might be candid and forthcoming in reporting police misconduct
without fear of retaliation.
23

In this case, however, the court finds that there is
minimal public interest in granting access to the submitted
information to nonparties prior to a determination of
admissibility.

To the extent the records may be relevant to

Mele‟s credibility as a witness in criminal cases, and therefore
of arguable public concern, it appears those issues have already
been addressed by the LPD and Grafton County Attorney‟s Office.
There is no indication that, two years after Mele was terminated
from the LPD, there remain any issues of public import related
to Mele‟s honesty and trustworthiness.
Accordingly, the court finds that the public interest in
access to records is outweighed, at this time, by Mele‟s
interest in privacy in the personnel, employment, and internal
investigation records.

Further, the court‟s power to modify

this order “provides a safety valve for public interest
concerns, changed circumstances or any other basis,” and is
sufficient to protect any public interest in disclosure asserted
at a later date.

See Poliquin v. Garden Way, Inc., 989 F.2d

527, 535 (1st Cir. 1993).
Plaintiff and plaintiff‟s counsel are ordered not to
disclose to any third party any such documents, without the
specific permission of the court unless defendant assents to
disclosure or waives nondisclosure.
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Unless defendant assents to

a particular disclosure, plaintiff must seek permission to use
this information in open court, in an unsealed filing, or in
communications with anyone not a party to this case.

To obtain

permission to further disclose the information contained in
Mele‟s personnel records or the internal investigation file,
plaintiff must make a particularized showing of need to disclose
that document that is not outweighed by defendant‟s privacy
interests.

Upon completion of this matter, and all appeals of

this matter, counsel shall return to defendant or his counsel
all of the submitted documents, including any copies thereof, or
shall certify to defendant and to the court that those documents
have been destroyed.
Conclusion
The motion for protective order (doc. nos. 17 and 20) is
GRANTED in part and DENIED in part, as specified herein.
Defendant must, within ten days of the date of this order,
provide plaintiff with copies of the following documents, as
redacted when submitted for in camera review:
LPDIA
LPDIA
LPDIA
LPDIA
MMPRS
MMPRS
MMPRS
MMPRS

pp. 1-6
pp. 11-210
pp. 225-424
pp. 426-444
pp. 1-177
pp. 181-191
p. 210
p. 212

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All of the documents directed disclosed are subject to the
protective order against third party access, described in this
order.
Defendant need not provide duplicate documents to
plaintiff; each document need be provided only once.
SO ORDERED.

_____________________________
Landya B. McCafferty
United States Magistrate Judge
Date: June 1, 2011
cc:

Brian Robert Marsicovetere, Esq.
Daniel J. Mullen, Esq.

LBM:jba

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