WILSON v. PLAYER et al

Filing 50

LETTER OPINION AND ORDER DENYING the release of the pltf's PSR. Signed by Magistrate Judge Joel Schneider on 7/15/11. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

CHAMBERS OF

MITCHELL H. COHEN COURTHOUSE

JOEL SCHNEIDER

1 John F. Gerry Plaza, Room 2060
CAMDEN, NJ 08101-0887
[phone]

UNITED STATES MAGISTRATE JUDGE

LETTER OPINION AND ORDER
ELECTRONICALLY FILED
July 15, 2011

Susan Bellwoar Ayres, Esquire
Hill & Associates PC
123 South Broad Street
Suite 1100
Philadelphia, PA 19109
Kristin Lynn Vassallo, Esquire
Office of the U.S. Attorney
District of New Jersey
970 Broad Street
Newark, NJ 07102
Re:

John Charles Gillespie,
Esquire
Parker McCay, PA
Three Greentree Centre
7001 Lincoln Drive West
PO Box 974
Marlton, NJ 08053

Wilson v. Player, et al.
Civil No. 10-3866 (RBK/JS)

Dear Counsel:
The Court has been asked by the parties to Order or authorize
plaintiff to release to defendants a copy of plaintiff’s PreSentence Report (“PSR”).
The Court has reviewed the PSR in
camera. For the reasons to be discussed, the parties’ request is
DENIED.
By way of background, PSRs are prepared by a probation
officer for use by a District Judge in sentencing. The reports
contain background information on the criminal defendant (in this
case plaintiff Ken Wilson) and the circumstances of his offense.
After sentencing, the reports are typically given to the Bureau of
Prisons. See United States Department of Justice v. Julian, 486
U.S. 1, 3-4 (1988). Federal Rule of Criminal Procedure 32(d-g)
addresses PSRs. No corresponding rule of civil procedure addresses
when a party can review a civil plaintiff’s PSR. Wilson’s PSR
contains the following language: “It is the policy of the federal
judiciary and the Department of Justice that further redisclosure
of the presentence investigation report is prohibited without the
consent of the sentencing judge.”

July 15, 2011
Page 2

The Court has not identified a case from this District
discussing if and when a PSR may be discovered in a civil case.
However, although the applicable legal standard may be worded
differently around the country, courts uniformly hold that PSRs
may not be routinely discovered. See In re Siler, 571 F. 3d 604,
611 (6th Cir. 2009)(lower court did not abuse its discretion in
finding there was not the required “special need” for their
release); United States v. Schlette, 842 F.2d 1574, 1581 (9th Cir.
1988)(“a third party who asks a court to disclose the [PSR] must
make some threshold showing that disclosure will serve the ends of
justice”); United States v. Charmer, 711 F.2d 1164, 1176 (2d Cir.
1983)(collecting cases)(a PSR should not be released to a third
party “unless that person has shown a compelling need for
disclosure to meet the ends of justice”). See also Julian, 486
U.S. at 12 (emphasis in original). (“Both parties agree that in
both civil and criminal cases the courts have been very reluctant
to give third parties access to the pre-sentence investigation
report prepared for some other individual or individuals”).
There are at least two reasons why third party requests for
the disclosure of PSRs are not routinely granted. One is that
disclosure of the PSRs will chill the willingness of individuals
to supply information for the report. The second reason is the
need to protect the confidentiality of the information in the
report. Id. See also Board of Ed. of Evanston Tp. High School
Dist. No. 202, Cook County, Ill. v. Admiral Heating and
Ventilation, Inc., 513 F. Supp. 600, 605 (N.D. Ill., E.D.
1981)(“We judges would break faith with defendants, whom we
uniformly urge to cooperate with and make full disclosure to the
Probation Office to assist us in our sentencing decisions, if we
opened the reports up to public scrutiny”).
The Court’s in camera review of plaintiff’s PSR reveals that
much of the included information is irrelevant to the issues in
the case.
Examples are the status of the co-defendants, the
sentencing analysis, and different sentencing options. As to the
arrest and incident at issue in the case, it appears that the
information included in the PSR came from identified witnesses who
are available to be deposed. In addition, the details of
plaintiff’s plea agreement and plea are matters of record that are
available for defendants’ review. It therefore does not appear
that plaintiff’s PSR contains any relevant information that is not
available to defendants from plaintiff or other readily accessible
sources.
Based on the applicable law and present record, the Court
will not Order or authorize plaintiff to produce his PSR. The
Court finds that no special need or circumstance exists to justify

July 15, 2011
Page 3
the production. As noted in Schlette, supra, PSRs “should not be
made available to [parties] to save them time in preparing
lawsuits.” 842 F.2d at 1584. See also in re Siler, 571 F.3d at
611 (when virtually everything in the PSR is available from other
sources there is no special need for access). Courts that have
released a PSR to a third party have found that the information
contained therein was not otherwise available.
See, e.g.,
Schlette, 842 F.2d at 1584; United States v. Watkins, 623 F. Supp.
2d 514, 517 (S.D.N.Y. 2009). This is not the case here.
Although the Court will not Order or authorize plaintiff to
produce his PSR, plaintiff is still under a duty to produce nonprivileged and relevant requested information. Pursuant to Fed. R.
Civ. P. 26(e), all parties are under a duty to supplement their
disclosures and answers to written discovery with relevant
information not previously produced.
Accordingly, for all the foregoing reasons, the Court will
not Order or authorize plaintiff to produce to defendants a copy
of his PSR.1
Very truly yours,

s/Joel Schneider
JOEL SCHNEIDER
United States Magistrate Judge
JS:jk
cc: Hon. Robert B. Kugler

1. It makes no difference to the Court’s ruling if plaintiff
consents to the production of his PSR. Even if the subject of a
PSR consents, the routine release of PSRs could chill persons
from supplying complete and accurate information relevant to a
defendant’s sentencing and treatment. The rationale behind
keeping PSRs confidential is not exclusively focused on the
protection of a criminal defendant’s privacy.