CASTELLANI v. CITY OF ATLANTIC CITY et al

Filing 81

MEMORANDUM OPINION AND ORDER denying 56 Motion for Protective Order and ordering Defendant Atlantic City to produce to Plaintiff copies of the Defendant Officers IA files redacted only as to social security numbers, birth dates, and motor vehicle information; and that production shall be completed by no later than twenty (20) days from entry of this Order; such production shall be subject to the consent confidentiality order entered on June 5, 2014.. Signed by Magistrate Judge Ann Marie Donio on 4/9/15. (dd, )

[Doc. No. 56]

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

DAVID CONNOR CASTELLANI,

Civil No. 13-5848 (RMB/AMD)

Plaintiff,
v.
CITY OF ATLANTIC CITY, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
In

this

action,

Plaintiff

David

Connor

Castellani

(hereinafter, “Plaintiff”) asserts claims under 42 U.S.C. § 1983
against

Defendant

Wheaten,

Darren

Sendrick,
“Defendant

Atlantic
Lorady,

Matthew

(hereinafter,

and

“Defendant

Police

Avette

Rogers,

Officers”)

City

and

Officers

Harper,

Kevin

John

Does

1-4

Defendant

City

of

Atlantic

City”).

The

Sterling

Law,

Scott

(hereinafter,
Atlantic

issue

City

presently

before the Court is whether Defendant Atlantic City may redact
the

names

and

identifying

information

of

the

witnesses

and

complainants from the Internal Affairs files (hereinafter, “IA
files”)

relating

to

the

Defendant

Officers.

(See

Motion

for

Protective Order (hereinafter, “Def.’s Mot.”) [Doc. No. 56].)

1

For the reasons set forth herein, the Court denies Defendant
Atlantic City’s request to redact such information. Accordingly,
Defendant

Atlantic

City

is

hereby

ordered

to

produce

the

IA

files of the Defendant Officers, without redaction of the names,
addresses,

and

telephone

numbers

of

the

complainants

and

witnesses.
The

present

litigation

relates

to

an

incident

that

occurred on June 15, 2013 at the Tropicana Hotel and Casino in
Atlantic City, New Jersey, and resulted in Plaintiff allegedly
sustaining “serious and life-threatening injuries.” (See Amended
Complaint [Doc. No. 7], ¶ 37.) Plaintiff acknowledges that he
“was intoxicated” at the time of the incident (id. at ¶¶ 17-18),
but

asserts

that

through

no

fault

of

his

own,

a

“heated”

exchange with certain Defendant Officers became physical and the
Defendant Officers “began to punch, kick, knee, and club the
Plaintiff[.]” (Id. at ¶ 29.) Plaintiff also contends that during
the physical altercation, Defendant Officer Wheaton arrived with
“his canine” and “directed the canine to attack the upper body
of Plaintiff, including his neck and head.” (Id. at ¶¶ 32-33.)
Plaintiff filed the amended complaint on October 21,
2013, asserting claims under 42 U.S.C. § 1983 for violations of
Plaintiff’s Fourth, Fifth, and Fourteenth Amendment rights, a
civil conspiracy claim, and various state law claims against
Defendant

Atlantic

City

and

the
2

Defendant

Officers.

(See

generally

Amended

Complaint

[Doc.

No.

7].)

In

the

amended

complaint, Plaintiff also asserts several municipal/supervisory
liability
inter

claims

alia,

a

against

failure

Defendant

to

Atlantic

investigate

City

claim.

(See

including,
id.

at

¶

48(a).) Specifically, Plaintiff alleges that Defendant Atlantic
City

“formally

procedures
filed

adopted

designed

with

statements

[the]
of

[]

to

policies

prevent

Internal
police

and

formal

Affairs

officers

standard

complaints

[U]nit
over

and

the

operating
from

favoring

statements

being
the
of

a

citizen complaining of police abuse or misconduct[.]” (Id.)
In their answer to the amended complaint, Defendants
collectively assert that the Defendant Officers did not “use[]
any force greater than was necessary and reasonable under the
circumstances[]” (Defendants’ Answer to Amended Complaint [Doc.
No. 19], ¶ 29), and further assert that Plaintiff’s allegations
of

constitutional

misleading[.]”

violations

(See,

e.g.,

“are
id.

at

untrue,
¶

44

inaccurate
(setting

and
forth

Defendants’ answer to Count I of the amended complaint).) In
addition, Defendants set forth a number of legal defenses to
Plaintiff’s claims. (See id. at 19-21 on the docket.)
The issue presently before the Court pertains to the
redaction of names and identifying information of witnesses and
complainants

from

the

IA

files

of

the

Defendant

Officers.

Counsel for Defendant Atlantic City has agreed to produce the IA
3

files for a six (6) year period, but seeks to redact certain
identifying

information

from

these

files

pursuant

to

Federal

Rule of Civil Procedure and Local Civil Rule 5.2. 1 (See Letter
[Doc.

No.

redactions

50],

Sept.

included

(1)

16,

2014,

removing

1-2.)

the

Counsel’s

names

of

proposed

“all

civilian

complainants and witnesses, leaving first and last initials;”
and

(2)

removing

“all

personal

identifiers

such

as

social

security numbers, birth dates, addresses, telephone numbers, and
motor vehicle information[]” of any complainants and witnesses.
(Id. at 2.) Plaintiff’s counsel generally opposes the redaction
of the names and identifying information of the complainants and
witnesses. 2
Defendant
identifying

Atlantic

information

of

City

alleges

complainants

that

and

the

names

witnesses

in

and
the

_________________________
1
Defendant Atlantic City cites to both Local Civil Rule 5.2 and
Federal Rule of Civil Procedure 5.2. (See Letter [Doc. No. 50],
Sept. 16, 2014, 2.) However, neither Local Civil Rule 5.2 nor
Federal Rule of Civil Procedure 5.2 serve as a basis for
precluding discovery. See generally LOCAL CIV. R. 5.2; see also
FED. R. CIV. P. 5.2. Local Civil Rule 5.2 addresses the
electronic filing of documents, see LOCAL CIV. R. 5.2, and
Federal Rule of Civil Procedure 5.2(a) pertains to the redaction
of certain personal information. See FED. R. CIV. P. 5.2(a).
2

At a September 17, 2014 telephone conference held on the
record, Plaintiff’s counsel agreed to the redaction of the
social security numbers, birth dates, and motor vehicle
information of the complainants and witnesses named in the IA
files for the Defendant Officers. Consequently, at issue here is
Defendant Atlantic City’s request to redact, and thereby not
produce to Plaintiff, the names, addresses, and telephone
numbers of the complainants and witnesses.
4

Defendant Officers’ IA files should remain redacted for three
reasons. (See generally Brief in Support of Defendant City of
Atlantic

City’s

Motion

for

a

Protective

Order

(hereinafter,

“Def.’s Br.”) [Doc. No. 56-1].) First, Defendant Atlantic City
contends

that

complainants

“the
and

investigations
police

names

witnesses

concerning

officers

and

in

the

identifying

in

all

the

information

prior

internal

individually

instant

case

are

named
not

of

the

affairs
Defendant

relevant

to

Plaintiff’s Monell claims[.]” (Id. at 4.) Second, even if the
information is relevant, Defendant Atlantic City asserts that
there

is

good

cause

for

the

entry

of

a

protective

order

precluding the production of the identifying information. (Id.
at

8.)

Third,

Defendant

Atlantic

City

contends

that

the

identifying information “is protected [by] the law enforcement
privilege.” (Id. at 13.) In opposition, Plaintiff argues that
the information is relevant, Defendant Atlantic City has not
demonstrated
information

good
is

not

cause

for

a

privileged.

protective
(See

order,

generally

and

Response

the
in

Opposition (hereinafter, “Pl.’s Opp.”) [Doc. No. 60].) The Court
previously conducted oral argument on the pending motion. This
Opinion supplements the Court’s prior opinion from the bench on
December

12,

2014,

at

which

time

the

Court

denied

Defendant

Atlantic City’s motion [Doc. No. 56]. 3
_________________________
The Court notes that on February 27, 2015 Plaintiff moved for a

3

5

Federal Rule of Civil Procedure 26(b)(1) provides that
“[p]arties

may

obtain

discovery

regarding

any

nonprivileged

matter that is relevant to any party's claim or defense[.]” FED.
R. CIV. P. 26(b)(1). Furthermore, “[t]he Court may also permit
for ‘good cause’ discovery of matters that are ‘relevant to the
subject matter involved in the action.’” Hite v. Peters, No. 074492, 2009 WL 1748860, at *3 (D.N.J. June 19, 2009) (quoting FED.
R. CIV. P. 26(b)). In assessing relevancy under Rule 26(b), “the
question of relevancy is to be more loosely construed at the
discovery stage than at the trial.” Nestle Foods Corp. v. Aetna
Cas. & Sur. Co., 135 F.R.D. 101, 104 (D.N.J. 1990). The scope of
discovery

is

not

discovery

is

“circumscribe[d]”

claims[,]”

and

limitless;

“[i]t

rather,
by

is

the

“[t]he

against

scope

of

complaint

these

relevant
and

claims

its
that

discoverability is determined as to each discovery request[.]”
Toth v. Cal. Univ. of Pa., No. 09-1692, 2011 WL 2436138, at *2
(W.D. Pa. June 15, 2011) (citation omitted).
In this action, Plaintiff asserts a Monell claim that
Defendant

Atlantic

City

inadequately

investigates

civilian

complaints of police officer misconduct. See generally Monell v.

partial stay of this action. (See Motion to Stay Discovery in
Part [Doc. No. 76].) Defendants oppose the entry of a partial
stay. (See Brief in Opposition [Doc. No. 78]; see also Brief in
Opposition [Doc. No. 80].) This motion to stay is presently
before the Court; however, it does not impact this motion for a
protective order.
6

N.Y.C. Dep’t. of Social Services, 436 U.S. 658 (1978). "[I]n
order to prove municipal liability under § 1983, a plaintiff
must prove that the alleged constitutional violation resulted
from

an

official

policy

or

an

unofficial

custom."

Torres

v.

Kuzniasz, 936 F. Supp. 1201, 1206 (D.N.J. 1996) (citing Monell
v.

New

York

City

Dep’t.

of

Social

Services,

436

U.S.

658

(1978)). As set forth in the Court’s prior opinion in Reid v.
Cumberland Cnty.,
A government policy or custom can be established
in two ways. Policy is made when a decisionmaker
possessing
final
authority
to
establish
a
municipal policy with respect to the action
issues an official proclamation, policy, or
edict. A course of conduct is considered to be a
custom when, though not authorized by law, such
practices
of
state
officials
[are]
so
permanently and well-settled as to virtually
constitute law. McTernan v. City of York, 564
F.3d 636, 658 (3d Cir. 2009) (quotations
omitted). Proving the existence of a custom
"requires proof of knowledge and acquiescence by
the decisionmaker." Id. "A custom of failing to
investigate citizen complaints may provide a
basis for municipal liability if ‘a policy-maker
(1) had notice that a constitutional violation
was likely to occur, and (2) acted with
deliberate indifference to the risk.'" Merman v.
City of Camden, 824 F. Supp. 2d 581, 589 (D.N.J.
2010) (quoting Brice v. City of York, 528 F.
Supp. 2d 504, 518 (M.D. Pa. 2007)).
Reid v. Cumberland Cnty., 34 F. Supp. 3d 396, 403 (D.N.J. Mar.
18, 2013).
Although courts “have grappled with the issue of what
type of evidence a plaintiff” must proffer in excessive force

7

cases

in

order

municipality’s

to

establish

action

and

a

a

causal

link

subsequent

between

a

constitutional

deprivation, in general “statistical evidence alone, ‘isolated
and

without

further

context,’

generally

‘may

not

justify

a

finding that a municipal policy or custom authorizes or condones
the unconstitutional acts of police officers.’” See Katzenmoyer
v. Camden Police Dep’t., No. 08-1995, 2012 WL 6691746, at *4
(D.N.J. Dec. 21, 2012) (quoting Merman, 824 F. Supp. 2d at 591).
Therefore, “a plaintiff must do more than ‘recit[e] a number of
complaints or offenses.’” Reid, 34 F. Supp. 3d at 403 (citation
omitted).

“Rather,

a

plaintiff

‘must

show

why

those

prior

incidents deserved discipline and how the misconduct in those
situations was similar to the present one.’” Id. (citing Merman,
824 F. Supp. 2d at 591); see also Franks v. Cape May Cnty., No.
07-6005, 2010 WL 3614193, at *12 (D.N.J. Sept. 8, 2010) (holding
that statistical evidence of prior instances of excessive force
alone did not establish a failure to investigate claim since the
plaintiff

“provide[d]

no

evidence

that

those

complaints

that

were dismissed were improperly investigated and should have been
sustained”).
In

this

action,

Plaintiff

asserts

that

Defendant

Atlantic City has a policy, practice, or custom of inadequately
investigating civilian complaints of police officer misconduct
and thus implicitly condones, acquiesces, or permits its police
8

officers to misuse force on duty. (See Amended Complaint [Doc.
No. 7], ¶ 48(a)-(d).) Defendant Atlantic City does not object to
the production of any closed IA files related to the Defendant
Officers; 4 however, Defendant Atlantic City contends that the
names

and

identifying

complainants

identified

information
in

the

IA

of

files

the
are

witnesses
not

relevant

and
to

Plaintiff’s Monell claim (Def.’s Br. [Doc. No. 56-1] at 5-7),
and

further

contends

that

discovery

related

to

Plaintiff’s

failure to investigate claim should be limited to information
pertaining to Defendant Atlantic City’s internal investigative
process. 5 (Id. at 5-7.) Defendant Atlantic City alleges that as
the witnesses and complainants “are not privy to any information
regarding the investigation process[,]” their identities are not
relevant
Brief

to

to

Plaintiff’s

Opposition

to

failure
Motion

to

investigate

[Doc.

No.

63],

claim.
3.)

(Reply

Defendant

_________________________
4
Atlantic City objects to the production of any pending IA
files. Plaintiff’s counsel has agreed that in any pending
internal affairs case, Defendant Atlantic City need only produce
at this time the internal affairs complaint.
5

This Opinion addresses only the production of the Defendant
Officers’ IA files. The issue of the scope of production of
other IA files beyond the Defendant Officers has presently been
brought before the Court by way of motions recently filed in
Stadler v. Abrams (see Stadler v. Abrams, No. 13-2741, Motion
for Protective Order [Doc. No. 83], Apr. 1, 2015), and Adams v.
Atlantic City. (See Adams v. Atlantic City, No. 13-7133, Motion
to Compel [Doc. No. 82], Mar. 23, 2015.) In addition, that issue
is also before Magistrate Judge Joel Schneider in Costantino v.
City of Atlantic City, No. 13-6667.
9

Atlantic City therefore asserts that such information is outside
the scope of relevant discovery. 6 (Def.’s Br. [Doc. No. 56-1], 56.)
The

Court

finds

that

the

names

and

identifying

information 7 of the witnesses and complainants in the Defendant
Officers’

IA

files

constitute

discoverable

information

with

respect to Plaintiff’s Monell claim. Defendant Atlantic City is
therefore
Plaintiff.
police

hereby

to

“[D]ocumentation

department’s

necessary

ordered

to

the

produce

of

resultant

this

civilian

complaints

investigations

plaintiffs’

burden

information

of

are

to

and

the

relevant

and

establishing

the

requisite policy or custom and causation required for municipal
liability

under

§

1983[.]”

Torres

v.

Kuzniasz,

936

F.

Supp.

_________________________
6
Defendant Atlantic City cites both Beck v. City of Pittsburgh,
89 F.3d 966 (3d Cir. 1996) and Walker v. Jacques, No. 04-351,
2007 WL 2122028 (D.N.J. July 23, 2007), and alleges that since
the plaintiffs’ municipal liability claims in both Beck and
Walker were sufficiently pled so as to survive motions for
judgment as a matter of law and for summary judgment
respectively, Plaintiff does not need the redacted information
to state his failure to investigate claim. (Def.’s Br. [Doc. No.
56-1], 5-6.) The Court finds that this argument misstates the
relevancy inquiry under Rule 26(b)(1) as sufficiency is not the
test for relevancy. See FED. R. CIV. P. 26(b)(1). Neither case
addressed the specific relevancy issue in dispute in this case.
See Beck v. City of Pittsburgh, 89 F.3d 966 (3d Cir. 1996);
Walker v. Jacques, No. 04-351, 2007 WL 2122028 (D.N.J. July 23,
2007).
7

For the purposes of this Opinion, the identifying information
at issue is the name, address, and telephone number of the
complainants and witnesses identified in the IA files relating
to the Defendant Officers.
10

1201, 1206 (D.N.J. 1996). The Court rejects Defendant Atlantic
City’s attempt to carve out from production of this relevant
information the names of the complainants and witnesses. These
individuals have knowledge concerning the internal investigation
process

with

respect

to

the

IA

files

in

which

they

are

identified. 8 Moreover, Plaintiff is not required to rely solely
on Defendant Atlantic City’s interpretation or characterization
of

its

internal

particular

IA

investigative

file.

process

Plaintiff

is

as

described

entitled

to

in

test

any
the

sufficiency and accuracy of the internal affairs investigations
in connection with Plaintiff’s argument that Defendant Atlantic
City

had

a

policy,

practice,

and/or

custom

of

inadequately

investigating civilian complaints. Without access to the names
and addresses of the complainants and witnesses, Plaintiff would
be

forced

to

accept

Atlantic

City’s

conclusions

in

the

IA

reports without any means or avenues of independently verifying
the accuracy of the reports. Indeed, the names and addresses of
individuals who could verify (or contradict) the accuracy of the
IA reports and shed light on the extent of the IA investigations
—

investigations

which

Plaintiff

claims

were

insufficient

or

_________________________
In Adams v. City of Atlantic City, No. 13-7133, a matter
pending
before
this
Court,
Atlantic
City
produced,
and
acknowledged it produced during a December 17, 2014 combined
hearing in this matter and the Adams matter, the IA files of the
Defendant Officers without the redactions Defendant Atlantic
City seeks to sustain here.
8

11

inadequate — clearly are relevant. In the recent case of Mehr v.
Atlantic City, No. 12-4499, 2014 WL 4350546 (D.N.J. Sept. 2,
2014)

the

District

Court

denied

Atlantic

City’s

motion

for

summary judgment on the issue of municipal liability based on
Atlantic City’s “custom of failing to remedy police officers’
use of excessive force[.]” See Mehr v. Atlantic City, No. 124499, 2014 WL 4350546, at ** 8-11 (D.N.J. Sept. 2, 2014). The
District

Court

proffered

concluded

sufficient

in

Mehr

evidence

—

that

the

which

plaintiff

included

had

internal

complaints “lodged” against Atlantic City Police Officers and
internal

affairs

investigation

reports

—

from

which

“a

reasonable jury could conclude that Atlantic City employed a
shallow

Internal

Internal

Affairs

Affairs

investigation

investigations

process[,]”

were

and

“that

insufficient

or

inadequate[.]” Id. at ** 10-11; see also Groark v. Timek, 989 F.
Supp. 2d 378, 394 (D.N.J. 2013) (“[t]he requested IA files are
directly

relevant

to

whether

Atlantic

City’s

IA

process

is

‘real[]’”). Consequently, the Court finds that as the witnesses
and complainants possess information regarding the adequacy, or
inadequacy,

of

Defendant

Atlantic

City’s

internal

affairs

process, the names and addresses are relevant to Plaintiff’s
Monell claim and are therefore discoverable.
As

an

alternative

argument

to

support

redaction,

Defendant Atlantic City alleges that Plaintiff should not be
12

permitted to discover the names and identifying information of
the witnesses and complainants until Plaintiff can make a more
specific

and

narrowed

showing

of

“need”

to

interview

a

particular witness or complainant identified in a specific IA
file. (See Def.’s Opp. [Doc. No. 56-1], 7, 12.) In essence,
Defendant Atlantic City argues for staged discovery in which
Plaintiff

would

obtain

the

IA

files

with

redacted

names

and

identifying information of the witnesses and complainants, and
then would be required to file a subsequent application to the
Court that demonstrated an additional showing of relevance. (See
Def.’s Opp. [Doc. No. 56-1], 7, 12.) The Court rejects this
staged

discovery

argument

as

imposing

an

unreasonable

and

inappropriate hurdle to Plaintiff’s right to obtain discoverable
information pursuant to Rule 26(b)(1). Defendant Atlantic City
also argues that good cause exists for a protective order under
Federal Rule of Civil Procedure 26(c)(1) to preclude production
of the redacted information. (See Def.’s Opp. [Doc. No. 56-1],
8-12.)
Under Rule 26(c)(1), “[t]he court may, for good cause,
issue an order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense[.]” Id.
Consequently, “it is well-established that a party wishing to
obtain

an

demonstrate

order
that

of

protection

‘good

cause’
13

over

discovery

exists

for

material
the

order

must
of

protection.” Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786
(3d Cir. 1994) (citing FED. R. CIV. P. 26(c)). Thus, protective
orders are appropriate only “where the party seeking the order
‘show[s]

good

cause

by

demonstrating

a

particular

need

for

protection.’” Pearson v. Miller, 211 F.3d 57, 72 (3d Cir. 2000)
(citation omitted). “To make a showing of good cause, the party
seeking confidentiality has the burden of showing the injury
‘with specificity.’” Id. (citing Publicker Indus., Inc. v. Cohen,
733 F.2d 1059, 1071 (3d Cir. 1984)). “Broad allegations of harm,
unsubstantiated

by

specific

examples,

[]

will

not

suffice.”

Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995)
(citing Pansy, 23 F.3d at 786)). “Upon a showing of good cause,
the Court may ‘forbid[ ] the disclosure or discovery,’ or may
‘forbid[ ] inquiry into certain matters, or limit[ ] the scope
of

disclosure

or

discovery

to

certain

matters[.]’”

Hite

v.

Peters, No. 07-4492, 2009 WL 1748860, at *2 (D.N.J. June 19,
2009) (citation omitted). The burden is on the party seeking the
protective

order

to

“demonstrate

a

‘particular

need

for

protection.’” Id. (citation omitted).
In assessing whether sufficient good cause exists for
the

issuance

of

a

protective

order,

the

courts

typically

consider a number of factors, set forth in Pansy v. Borough of
Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1994), such as:

14

1)
2)

3)
4)

5)

6)

7)

whether disclosure will violate any privacy
interest;
whether the information is being sought for
a legitimate purpose or for an improper
purpose;
whether disclosure of the information will
cause a party embarrassment;
whether confidentiality is being sought over
information important to public health and
safety;
whether the sharing of information among
litigants
will
promote
fairness
and
efficiency;
whether a party benefitting from the order
of confidentiality is a public entity or
official; and
whether the case involves issues important
to the public.

Glenmede Trust Co., 56 F.3d at 483 (citing Pansy, 23 F.3d at
787-91.)
Defendant Atlantic City asserts that the witnesses and
complainants
information
process

only

possess
and

a

privacy

participated

under

“an

interest

in

the

expectation

in

the

internal
of

redacted

investigation

confidentiality

and

limited involvement.” (Def.’s Br. [Doc. No. 56-1] at 10-11.)
Defendant Atlantic City further alleges that disclosure of the
redacted

information

complainants

and

could

witnesses

“open[]
to

be

the

requested

door”

for

the

to

testify

in

“innumerable future cases” 9 and would therefore “chill” civilian
_________________________
9
Defendant Atlantic City argues that “[a]llowing Plaintiff
access to the names and identifying information of the
complaints
and
witnesses
in
unrelated
internal
affairs
investigations opens the door for these complainants and
witnesses to be solicited as parties or witnesses in innumerable
15

participation in the internal affairs process. 10 (Id. at 11.) In
opposition, Plaintiff contends that a protective order is not
warranted as (1) the redacted information is not confidential;
(2) the redacted information “is being sought for a legitimate
purpose[;]” (3) disclosure of the redacted information will not
result
redacted

in

any

embarrassment

information

“is

to

the

important

complainants;
to

public

(4)

the

health

and

safety[;]” (5) “sharing of the information will promote fairness
and efficiency[;]” (6) “the party benefitting from the order of
confidentiality

is

a

public

official[;]”

and

(7)

“the

case

involves issues important to the public.” (Pl.’s Opp. [Doc. No.
60] at ¶¶ 16-22.) In response, Defendant Atlantic City alleges
that the Pansy factors “are neither mandatory nor exhaustive[,]”
(Reply

Brief

to

Opposition

to

Motion

(hereinafter,

“Def.’s

future cases and pending cases unrelated to the instant case[.]”
(Def.’s Br. [Doc. No. 56-1], 11.) Defendant Atlantic City should
not be relieved of its obligation to produce relevant discovery
because it foresees having to defend itself in “innumerable
future actions.” See Groark, 989 F. Supp. 2d at 391 n.13
(setting forth cases involving Atlantic City Police Officers).
10

Plaintiff has argued that Defendant Atlantic City lacks
standing to assert the complainants and witnesses’ privacy
interests in the redacted information in support of the present
motion [Doc. No. 56]. In response, Defendant Atlantic City
alleges in its brief that it “has an interest in preserving the
integrity of the process to allow for civilians to make
complaints
and
otherwise
cooperate
with
internal
affairs
investigators while preserving their confidentiality and privacy
interests.” (Def.’s Br. [Doc. No. 56-1], 11.) As set forth
infra, the Court finds that the release of the redacted
information
under
the
present
circumstances
does
not
significantly undermine any privacy interest.
16

Reply”) [Doc. No. 63], 3 (citing Pansy, 23 F.3d at 787)), and
that

the

complainants’

privacy

interest

in

their

names

and

identifying information outweighs any interest Plaintiff has in
obtaining such information. (Id. at 4.)
The

Court

finds,

for

the

following

reasons,

that

Defendant Atlantic City has not demonstrated that a protective
order

is

warranted

to

preclude

production

of

the

redacted

information to Plaintiff under the present circumstances. The
Pansy factors do not support denying Plaintiff access to the
names

and

identifying

information

of

other

complainants

and

witnesses identified in the IA files relating to the Defendant
Officers. 11
The Court first considers whether the disclosure of
the information will violate any privacy interest. See, e.g.,
Pansy, 23 F.3d at 787. This factor typically weighs in favor of
a protective order when the disclosure of the information will
cause the “infliction of unnecessary or serious pain on parties
who the court reasonably finds are entitled to such protection.”
Id.

Defendant

Atlantic

City

raises

two

distinct

privacy

interests: (1) Defendant Atlantic City’s ability to maintain the
_________________________
11
The parties have addressed the issue as it relates to
production to Plaintiff. Neither party addresses whether the
material should be made public. As this matter is before the
Court by way of a discovery motion, the Court shall, at this
time, require that the information be produced to Plaintiff, but
remain confidential among the parties to the litigation as set
forth herein.
17

confidentiality

of

its

investigative

process

and

ensure

the

efficiency of its internal affairs review process; and (2) the
privacy interests of the witnesses and complainants. The Court
notes that the information sought by Plaintiff will be disclosed
pursuant

to

a

Discovery

Confidentiality

Order

(see

Consent

Discovery Confidentiality Order [Doc. No. 43]), thereby negating
any general disclosure. See, e.g., Torres, 936 F. Supp. at 121314 (ordering the production of IA case files from the City of
Camden subject to a protective order, limiting review of the
documents to “the plaintiffs’ counsel, plaintiffs’ experts, or
other agents,” and permitting the files to “be used solely for
the

purposes

“complainants

of
and

th[e]

litigation”).

witnesses

involved

Moreover,
in

law

although

enforcement

investigations” may possess “a valid expectation of privacy with
respect to their identities[,]” that privacy interest can be
addressed by way of a confidentiality order. See, e.g., McGee v.
City of Chicago, No. 04-6352, 2005 WL 3215558, at *4 (N.D. Ill.
June 23, 2005) (noting that as the identities of witnesses and
complainants would be disclosed only to an attorney and not to
the public, the defendants’ assertion that privacy interests may
be

undermined

did

not

justify

a

protective

order);

see

also

Kelly v. City of San Jose, 114 F.R.D. 653, 666 (N.D. Cal. 1987)
(“in

the

absence

of

special

circumstances

proved

by

law

enforcement defendants, courts should ascribe little weight to a
18

police

department's

purported

interest

in

preserving

the

anonymity of citizen complainants[]”) (citation omitted); Medina
v. Cnt’y of San Diego, No. 08-1252, 2014 WL 4793026, at *11
(S.D.

Cal.

Sept.

25,

2014)

(granting

a

request

for

the

production of IA files of defendant officers in an excessive
force case including “the names, address and telephone numbers
of the persons who filed the complaints” and “private persons[]
who were percipient witnesses to the events [giving] rise to the
filing

of

the

complaints”);

Reid,

34

F.

Supp.

3d

at

408-09

(noting that “any potential harm resulting from the disclosure
of those interviewed in the investigations is negated by the
confidentiality

order”).

Accordingly,

the

first

Pansy

factor

does not weigh in favor of the issuance of a protective order.
As to the second Pansy factor, the Court considers
whether the information is sought for a “legitimate purpose[,]”
which, if so, supports disclosure. Pansy, 23 F.3d at 787. Here,
Plaintiff

seeks

the

information

to

support

a

Monell

claim

against a public entity in connection with an excessive force
action. Furthermore, there has been no showing that Plaintiff
seeks the information for any “improper” purpose, and Defendant
Atlantic City has not asserted any such motive. Consequently,
the second Pansy factor does not weigh in favor of the issuance
of a protective order.

19

The
whether

Court

disclosure

next
of

considers

third

Pansy

information

the

the

will

factor

cause

a

—

party

embarrassment. Pansy, 23 F.3d at 787. Defendant Atlantic City
does not allege that any witness or complainant will suffer any
embarrassment,
information

serious

to

embarrassing

or

otherwise,

Plaintiff.

about

the

In

by

the

addition,

complaints.

release

“there

.

.

is

[i]n

of

the

nothing

fact,

the

complainants may very well want their identities revealed[.]”
Groark, 989 F. Supp. 2d at 391. The Court therefore finds that
the third Pansy factor does not weigh in favor of the issuance
of a protective order.
Pursuant

to

the

remaining

Pansy

factors,

the

Court

considers whether the information sought is important to public
health

and

litigants

safety,
will

litigation,

whether

promote

whether

a

the

sharing

fairness

party

of

and

information

efficiency

benefitting

from

the

among

in

the

order

of

confidentiality is a public entity or official, and whether the
case involves issues important to the public, respectively. See
Pansy, 23 F.3d at 787-88. In assessing these factors, if the
matter

“involves

involves

matters

issues
of

or

parties

legitimate

of

public

a

public

concern,

nature,
[then]

and
that

should be a factor weighing against entering or maintaining an
order of confidentiality.” Pansy, 23 F.3d at 788. In contrast,
“if a case involves private litigants, and concerns matters of
20

little

legitimate

public

interest,

[then]

that

should

be

a

factor weighing in favor of granting or maintaining an order of
confidentiality.” Id.
Here,

the

present

matter

involves

a

public

entity,

public safety, and matters of public concern — all factors which
support

the

disclosure

of

the

information

in

this

case

to

Plaintiff. The present litigation involves claims pertaining to
alleged police officer misconduct, and “[p]erformance of police
duties and investigations of their performance is a matter of
great public importance.” McGee, No. 04-6352, 2005 WL 3215558 at
*3

(citation

omitted).

Moreover,

“[a]

request

for

citizen

complaints against police officers must be evaluated against the
backdrop

of

the

strong

public

interest

in

uncovering

civil

rights violations and enhancing public confidence in the justice
system through disclosure.” Soto v. City of Concord, 162 F.R.D.
603, 621 (N.D. Cal. 1995) (citing Kelly, 114 F.R.D. at 660-61).
In addition, as the witnesses and complainants possess relevant
information

concerning

Defendant

Atlantic

City’s

internal

affairs process, the disclosure of their identifying information
to Plaintiff’s counsel will promote fairness and efficiency in
the pending litigation. See, e.g., Reid, 34 F. Supp. 3d at 41316 (rejecting the defendant’s assertion of privilege to prevent
the disclosure of prior excessive force complaints in light of
the relevance of the information). Consequently, the Court finds
21

that the remaining Pansy factors do not weigh in favor of the
issuance of a protective order.
Furthermore, Defendant Atlantic City has not proffered
any specific or “clearly defined” injury that would result from
disclosure of the identifying information sufficient to warrant
the issuance of a protective order. The Court rejects Defendant
Atlantic

City’s

general

allegation

that

participation

in

the

internal affairs investigation process would be “chill[ed]” if
the redacted information was disclosed. 12 Rather, the disclosure
of information pertaining to prior investigations in IA files
“is more likely to increase candor than to chill it.” See Wong
v. City of New York, 123 F.R.D. 481, 483 (S.D.N.Y. 1989) (noting
that

the

disclosure

of

IA

files

would

likely

increase

an

officer’s candor in the internal affairs investigatory process)
(citation omitted); see also Groark, 989 F. Supp. 2d at 391
(noting

that

civilian

complainants

may

be

“comfort[ed,]”

not

deterred, by the fact “that there are other similarly situated
individuals who are pursuing relief for alleged constitutional
_________________________
Defendant Atlantic City cites to the New Jersey Attorney
General Guidelines for Internal Affairs Policy and Procedure as
supporting its assertion that it is “well settled that an
internal affairs investigation and related file information is
considered confidential in New Jersey law enforcement.” (Def.’s
Br. [Doc. No. 56-1], 9.) However, as noted by the court in
Groark, “Atlantic City disregards the substantial unassailable
body of New Jersey case law which evidences that a court can
Order the production of IA reports in a § 1983 lawsuit.” Groark,
989 F. Supp. 2d at 388 (citations omitted).
12

22

violations[]”). Consequently, Defendant Atlantic City has failed
to demonstrate good cause to preclude production of the names
and identifying information of the complainants and witnesses in
the Defendant Officers’ IA files.
Defendant Atlantic City’s final basis to support its
request

for

enforcement
“qualified

a

protective

privilege.
privilege

order

The

law

is

designed

to

an

assertion

enforcement
prevent

of

the

privilege

the

is

disclosure

law
a
of

information that would be contrary to the public interest in the
effective functioning of law enforcement.” Torres, 936 F. Supp.
at 1209. 13 Accordingly, “[i]n each case that the privilege is
claimed, the court is required to balance the public interest in
having the information remain secret against the litigants' need
to obtain discovery.” Chladek v. Com. of Pa., No. 97–0355, 1998
WL 126915, at *2 (E.D. Pa. Mar. 10, 1998).
In order to assert such a privilege, “[a] claim of
[official information] privilege must be asserted by the head of
the agency claiming the privilege after he or she has personally
reviewed the material and submitted ‘precise and certain reasons
for

preserving’

the

confidentiality

of

the

communications.”

Torres, 936 F. Supp. at 1210 (citing U.S. v. O'Neill, 619 F.2d
_________________________
Although Defendant Atlantic City designate the privilege as a
“law enforcement privilege” (see Def.’s Br. [Doc. No. 56-1], 1316), the privilege is “sometimes referred to as” the “official
information privilege[.]” Torres, 936 F. Supp. at 1209.
13

23

222, 226 (3d Cir. 1980)). Moreover, a party must “‘provide a
court

with

the

information

necessary

to

make

a

reasoned

assessment of the weight of interests against and in favor of
disclosure,’ and to allow the plaintiff ‘a fair opportunity to
challenge the bases for the assertion of the privilege.’” Id.
Such information includes:
(1) an affirmation that the agency generated or
collected the material in issue and has in fact
maintained its confidentiality (if the agency has
shared some or all of the material with other
governmental agencies it must disclose their
identity
and
describe
the
circumstances
surrounding the disclosure, including steps taken
to assure preservation of the confidentiality of
the material), (2) a statement that the official
has personally reviewed the material in question,
(3) a specific identification of the governmental
or privacy interests that would be threatened by
disclosure of the material to plaintiff and/or
his lawyer, (4) a description of how disclosure
subject to a carefully crafted protective order
would create a substantial risk of harm to
significant governmental or privacy interest, (5)
and a projection of how much harm would be done
to the threatened interests if the disclosure[s]
were made.
Torres, 936 F. Supp. at 1210 (quoting Miller v. Pancucci, 141
F.R.D. 292, 300 (C.D. Cal. 1992)). Furthermore, it is only after
the

court

determines

that

the

party

asserting

the

official

information privilege has provided a sufficient affidavit does
the Court then conduct an analysis of the government's interest
in

protecting

the

information

at

issue

and

a

plaintiff's

presumed right to discovery. Reid, 34 F. Supp. 3d at 403. A

24

claim of the official information “privilege in a § 1983 case
‘[m]ust

be

importance

so
of

meritorious
a

law

meant

as

to
to

overcome
insure

the

each

fundamental

citizen

from

unconstitutional state action.’” Reid, 34 F. Supp. 3d at 405
(quoting Scouler v. Craig, 116 F.R.D. 494, 496 (D.N.J. 1987)).
In assessing these “competing interests with respect to this
privilege,” the courts generally consider the factors set forth
in Frankenhauser v. Rizzo, 59 F.R.D. 339, 344 (E.D. Pa. 1973).14
Reid, 34 F. Supp. 3d at 405.
Here, Defendant Atlantic City has not proffered any
affidavit from the head of an agency, or any other affidavit, to
support the privilege claim. This privilege therefore has not
been properly raised, and the Court finds that it is unavailable
_________________________
These factors include: “(1) the extent to which disclosure
will discourage citizens from giving the government information;
(2) the impact upon such persons of having their identities
disclosed; (3) the degree to which governmental self-evaluation
and program improvement will be chilled by disclosure; (4)
whether the information sought is factual or evaluative; (5)
whether the party seeking discovery is or may become a defendant
in a criminal proceeding stemming from the incident in question;
(6) whether the police investigation has been completed; (7)
whether departmental disciplinary proceedings have arisen or may
arise from the investigation; (8) whether the plaintiff's suit
is brought in good faith; (9) whether the information sought is
available through other sources; and (10) the importance of the
information sought to the plaintiff's case.” Reid, 34 F. Supp.
3d at 405 (citing Crawford v. Dominic, 469 F. Supp. 260, 263
(E.D. Pa. 1979)); see also Frankenhauser v. Rizzo, 59 F.R.D.
339, 344 (E.D. Pa. 1973). The Court notes that several of these
factors are similar to the factors previously addressed by the
Court in connection with the good cause standard for a
protective order.
14

25

to Defendant Atlantic City. The Court rejects Defendant Atlantic
City’s blanket assertion of the law enforcement privilege. In
addition, the Court notes that privilege arguments with respect
to

information

contained

in

IA

files

in

connection

with

excessive force claims have been previously rejected by this
Court

in

(finding

Reid.
that

withholding

See,
the

e.g.,

Reid,

34

Frankenhauser

production

of

F.

Supp.

factors

defendant

3d

did

officers’

IA

at

not

412-13
support

files);

see

also Groark, 989 F. Supp. 2d at 391, 389-92 (rejecting Atlantic
City’s assertion of the law enforcement privilege with respect
to the defendant officers’ IA files).
The

Court

makes

one

final

note.

Defendant

Atlantic

City previously limited production of the IA files to a period
of six (6) years notwithstanding Plaintiff’s request for all the
IA files of the Defendant Officers. The Court rejects Defendant
Atlantic City’s attempt to limit these IA files as there has
been no showing that such a limitation is appropriate. Defendant
Atlantic City therefore shall produce all of the IA files of the
Defendant Officers redacting only the social security numbers,
birth dates, and motor vehicle information of the complainants
and witnesses identified therein. Consequently, for the reasons
set forth herein,
IT IS on this 9th day of April 2015:

26

ORDERED that Defendant Atlantic City’s motion for a
protective order [Doc. No. 56] shall be, and is hereby, DENIED;
and it is further
ORDERED that Defendant Atlantic City shall produce to
Plaintiff copies of the Defendant Officers’ IA files redacted
only

as

to

social

security

numbers,

birth

dates,

and

motor

vehicle information; and it is further
ORDERED that production shall be completed by no later
than twenty (20) days from entry of this Order; such production
shall be subject to the consent confidentiality order entered on
June 5, 2014.

s/ Ann Marie Donio
ANN MARIE DONIO
UNITED STATES MAGISTRATE JUDGE
cc: Hon. Renée Marie Bumb

27