COSTANTINO v. CITY OF ATLANTIC CITY et al

Filing 141

OPINION FILED. Signed by Magistrate Judge Joel Schneider on 4/10/15. (js)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
JANINE COSTANTINO,
Plaintiff,
Civil No. 13-6667 (RBK/JS)

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

OPINION
The incessant discovery disputes regarding the production
of

Atlantic

City’s

Internal

Affairs

(“IA”)

files

which

have

plagued the case have gone on long enough. It is time to end the
bickering.
Internal

The

Court

Affairs

will

(“IA”)

decide

files

once

Atlantic

and

for

City

all

must

how

many

produce

in

discovery.1 The Court does not want there to be any ambiguity
about its ruling. In short, plaintiff will get everything she
originally asked for. Atlantic City is ordered to produce all of
its

IA

files

from

2003

to

December

1

31,

2014.

This

totals

In New Jersey a municipal police department is not a
separate legal entity from the governing municipality. Franks v.
Cape May County, C.A. No. 07-6005 (JHR), 2010 WL 3614193, at *7
(D.N.J. Sept. 8, 2010). Thus, unless appropriate the Court will
refer to Atlantic City and not the Atlantic City Police
Department (“ACPD”).

1

approximately

files.2

2,000

In

addition

to

ordering

the

production of the files, the parties shall meet and confer to
propose

a

reasonable

schedule

to

produce

the

responsive

documents. If the parties are unable to agree the Court will
issue

an

appropriate

order.

The

parties

will

be

given

a

reasonable but short time to agree as the case has already been
delayed too long.
In brief summary, after the Court preliminarily indicated
that it would not order Atlantic City to produce all of its IA
files,

plaintiff

requested

721.

However,

after

extensive

briefing and oral argument, and after hearing the testimony of
the

parties’

experts

and

the

officer

in

charge

of

Atlantic

City’s Internal Affairs Unit, the Court is firmly convinced that
Atlantic City should produce all of its IA files. The files are
vital to plaintiff’s Monell claim. Further, the parties’ experts
agree that in order to conduct the most accurate and complete
analysis of Atlantic City’s IA process, all IA files should be
reviewed. In addition, the complete production will not only
halt the ongoing dispute over what is a “representative sample”
of files, but it will also short circuit unnecessary evidentiary
disputes

and

motion

practice.

In

contrast

to

these

benefits

Atlantic City has not shown that it will be unduly burdensome to
2

Plaintiff has a choice whether she wants copies of all
files or whether she first wants to inspect the files to
designate what she wants copied.
2

produce the requested files. In fact, the opposite is true. And,
whatever present burden results from the Court’s Order will be
offset by the future efficiencies and benefits Atlantic City
will earn.3
Background
The background of the case has already been set forth in
detail in other rulings issued in the case.4 For present purposes
it is enough to know that plaintiff alleges that on July 21,
2012, she was assaulted by security personnel and Atlantic City
police officers at the Dusk Nightclub in Atlantic City, New
Jersey. Plaintiff alleges that when she tried to record the
incident Officer Sterling Wheaten not only assaulted her but
also took her cell phone which has not been recovered. Plaintiff
alleges Wheaten taunted her and filed false criminal charges
which were eventually dropped. Plaintiff filed her § 1983 civil
rights complaint naming Atlantic City and Officers Wheaten and
Garafolo on November 1, 2013.

3

To be clear, this Opinion does not address the merits of
plaintiff’s claims. This Opinion simply decides the parties’
discovery dispute regarding how many IA files should be
produced.
4

See Costantino v. City of Atl. City, C.A. No. 13-6667
(RBK/JS), 2015 WL 668161 (D.N.J. Feb. 17, 2015) (denying
Atlantic City’s request to stay the case because of the
bankruptcy
filing
of
co-defendant
Caesar’s
Entertainment
Corporation); Costantino v. City of Atl. City, C.A. No. 13-6667
(RBK/JS), 2014 WL 6474076 (D.N.J. Nov. 19, 2014) (granting in
part and denying in part plaintiff’s motion to amend).
3

Plaintiff is pursuing a Monell claim against Atlantic City.
Plaintiff intends to show, inter alia, that Atlantic City has a
custom, practice and policy of acquiescing in the habitual use
of excessive force and the filing of false criminal charges by
its police officers which it knew or shown have known would
result in the violation of citizens’ civil rights. Plaintiff
contends

that

Atlantic

City’s

actions

encourage,

foster

and

cause police misconduct. In short, plaintiff alleges Atlantic
City’s IA process is a sham.
To date Atlantic City has only produced the IA files of the
two police officer defendants. The underlying discovery dispute
concerns Atlantic City’s objection to producing any additional
IA files. While plaintiff wants to review all of Atlantic City’s
IA files, she requested a “representative sample” of files based
on the assumption that the Court would not order Atlantic City
to

produce

plaintiff’s
should

be

all

of

request
produced.

its
and
The

files.5
argues
rub

Atlantic
that

is

no

that

City

objected

additional
while

IA

Atlantic

to

files
City

continues to argue that any conclusions plaintiff’s expert draws
from

a

representative

sample

is

inadequate

and

not

representative of Atlantic City’s conduct, Atlantic City objects
to producing any more IA files. Therein lies the conundrum.
5

See Dec. 12, 2012 Tr. 10:12-19. Plaintiff’s assumption is
not unfounded given the Court’s previous rulings in another
Atlantic City case.
4

Additional background information is necessary to put the
current discovery dispute in perspective. Atlantic City and its
police department, and Wheaten in particular, are no strangers
to § 1983 lawsuits in this District. According to the Court’s
rough count, Atlantic City is a named defendant in approximately
thirty (30) pending § 1983 cases.6 This number underestimates the
number of § 1983 cases involving Atlantic City because it does

6

See Aksanov v. Harrah’s Casino Hotel, et al., C.A. No. 105883 (JEI/AMD); Abbot v. City of Atlantic City, et al., C.A. No.
11-4851 (JHR/AMD); Groark v. Timek, et al., C.A. No. 12-1984
(RBK/JS); Muhammad v. State of NJ, et al., C.A. No. 12-7206
(RBK/JS); Michelle Alfred v. State of NJ, et al., C.A. No. 13332 (RBK/AMD); Worster-Sims, et al. v. Tropicana Entertainment,
Inc., et al., C.A. No. 13-1981 (RBK/JS); Steven M. Stadler v.
Glenn Abrams, Jr., et al., C.A. No. 13-2741 (RBK/AMD); Hopewell
v. Pali, et al., C.A. No. 13-5801 (RBK/AMD); Castellani v. City
of Atlantic City, et al., C.A. No. 13-5848 (RMB/AMD); Adams v.
City of Atlantic City, et al., C.A. No. 13-7133 (JBS/AMD);
Bocchino v. City of Atlantic City et al., C.A. No. 14-233 (AMD);
T.B. v. City of Atlantic City, et al., C.A. No. 14-0109
(JHR/AMD); Mauceri, et al. v. Harrah’s Resort Casino, et al.,
C.A. No. 14-2477 (RBK/JS); Palms v. Giercyk et al., C.A. No. 142467 (JBS/KMW); Montanez v. City of Atlantic City, et al., C.A.
No. 14-4055 (RBK/JS); Sharp v. City of Atlantic City, et al.,
C.A. No. 14-4256 (JBS/JS); Gooden v. Jubilee et al., C.A. No.
14-4415 (RMB/JS); Viscio v. Marina District Development Co.,
LLC, et al., C.A. No. 14-4642 (RBK/JS); Coney v. Caesar’s
Entertainment Corp., et al., C.A. No. 14-4981 (RBK/JS); Walsh v.
Caesar’s Entertainment Corp., et al., C.A. No. 14-5263 (NLH/JS);
Graver v. Atlantic City, et al., C.A. No. 14-5520 (RMB/AMD);
Charlie Harrison v. City of Atlantic City, C.A. No. 14-6292
(JHR/AMD); Bryan v. City of Atlantic City, et al., C.A. No. 146319 (JS); Jonathan A. Cohn v. Scott J. Fenton et al., C.A. No.
14-6647 (RMB/AMD); Troy Rivera v. City of Atlantic City, et al.,
C.A. No. 14-6883 (NLH/AMD); Michelle Alfred v. Atlantic City
Police Department SWAT, et al., C.A. No. 14-7536 (RBK/JS); Ruby
Conde v. City of Atlantic City, C.A. No. 14-7531 (JHR/AMD);
Nicholas Zampetis v. City of Atlantic City, C.A. No. 15-1231
(NLH/AMD).
5

not

include

cases,

or

the

cases

substantial
tried

to

number

verdict,

of
of

settled
which

or

there

dismissed
are

many.

Indeed, plaintiff’s counsel is presently handling five (5) of
these cases. Wheaten is a named defendant in at least two other
pending cases.7 Not unexpectedly or surprisingly, Atlantic City
has been ordered to produce IA files in numerous other cases.8
A

not

too

dissimilar

case

relevant

to

appreciating

the

background of this case is Groark v. Timek, et al., C.A. No. 121984 (RBK/JS). The Groark complaint, filed on April 2, 2012, is
similar to the spate of other § 1983 civil rights actions naming
Atlantic City and its police officers, including Wheaten. The
case is significant because virtually all IA related discovery
issues decided in Groark are or were at issue in this case.
Groark also “sets the scene” for the discovery dispute addressed
in this Opinion.
In Groark the plaintiff alleged that while he was a patron
at the Dusk Nightclub in Caesar’s Casino in Atlantic City on
August 7, 2010, Wheaten and another police officer assaulted him
without

provocation.

Also

like

this

case,

the

plaintiff

was

arrested and criminal charges were filed which were eventually

7

See Groark v. Timek, et al., C.A. No. 12-1984 (RBK/JS);
Castellani v. City of Atlantic City, et al., C.A. No. 13-5848
(RMB/AMD).
8

See Groark v. Timek(“Groark I”), 989 F. Supp. 2d 378, 391
n.14 (D.N.J. 2013).
6

dropped.

In

Groark,

Atlantic

City

initially

objected

to

plaintiff’s request for its IA files.9 On November 27, 2013, the
Court granted Groark’s motion to compel discovery and directed
Atlantic City to produce (1) the “complete” Internal Affairs
files for the defendant police officers, including Wheaten10; (2)
all Internal Affairs Index Cards for the defendant officers; and
(3) the complete records and investigations regarding the August
7, 2010 incident. At bottom, the Court justified its decision by
ruling that the plaintiff’s interest in the requested IA files
substantially
concerns.

outweighed

Groark

I,

989

Atlantic
F.

Supp.

at

City’s

confidentiality

390-94.

The

Court

also

discussed in detail how and why the requested discovery was
relevant to Groark’s Monell claim. Id. at 393.
Subsequent
requested

all

to
of

its

November

Atlantic

City’s

27,
IA

2013
files

decision,
from

2003

Groark
to

the

present, not just those of the defendant officers. The Court

9

On various occasions Atlantic City objected to producing
any IA files, IA files for anything other than “excessive force”
and “false arrest” complaints, and IA complaints that post-dated
the August 7, 2010 incident. These objections were all
overruled.
10

These included all IA files that pre-dated and post-dated
the August 7, 2010 incident at issue. These also included IA
files for all complaints, not just those categorized as
“excessive force” or “improper arrest.” The “Index Card” for
Wheaten listed 26 complaints from September 19, 2008 to April
26, 2012. As to Wheaten’s co-defendant, Officer Frank Timek, his
“Index Card” listed 52 complaints from May 30, 2001 to March 20,
2012. Groark I, 989 F. Supp. 2d at 383.
7

estimated that 1,887 files existed (not including 2013 files).
Atlantic

City

producing

objected

what

it

to

the

request.

referred

to

as

It

also

objected

“factually

to

dissimilar

complaints.” On July 18, 2014, the Court granted in part and
denied in part Groark’s motion to compel discovery. Instead of
directing Atlantic City to produce all of its IA files, the
Court Ordered Atlantic City to produce a “representative sample
of its IA files from January 1, 2003 to August 10, 2011 (one
year post-incident).” See Groark v. Timek (Groark II), C.A. No.
12-1984

(RBK/JS),

2014

WL

3556367,

at

*10

(D.N.J.

July

18,

2014). The Court also ruled that plaintiff may discover IA files
for all police officers, not just the named defendants, and IA
files for all serious police complaints, not just the limited
categories Atlantic City requested.11
Rather than defining the number of files that comprised a
“representative sample,” and hoping that a reasonable compromise
could be worked out, the Court directed the parties to meet and
confer to see if they could agree. After the parties did not
agree, the Court issued its August 14, 2014 [Doc. No. 82] and
October 2, 2014 Orders [Doc. No. 96].12 Although Groark requested
20% of the available IA files, or approximately 340 files, and
11

Atlantic City’s appeal of the Court’s Order was denied.
See C.A. No. 12-1984 (RBK/JS), Doc. No. 117.
12
Despite the Court’s ruling Atlantic City refused and
continues to refuse to commit to the number of IA files that
comprise a “representative sample.”
8

supported his request with the reports of his consultant, the
Court denied the request. The Court concluded that plaintiff’s
request had no adequate support since the sum and substance of
his consultant’s methodology was the summary conclusion that, “I
think that a 20% sample of those files should be adequate to
answer

the

questions

discussions.”

See

Aug.

that
14,

counsel

2014

has

Order

at

raised
2.

our

Court

The

in

also

denied Groark’s request for 340 files because “plaintiff has
already received the most important IA files in the case” (i.e.,
those of the defendant police officers), and that the importance
and

relevance

of

the

340

IA

files

plaintiff

requested

was

disproportional to the burden and expense to produce the files.
Id. at 3-4; see also Oct. 2, 2014 Order at 2. Instead, the Court
directed

Atlantic

City

to

produce

a

random

sample

of

32

IA

files. See Aug. 14, 2014 Order at 7.
Turning back to this case, the Court has already decided
most of the discovery disputes that typically plague Atlantic
City’s § 1983 cases. These include issues such as whether IA
files other than for the July 21, 2012 incident at issue have to
be produced (yes), whether all IA files of the defendant police
officers must be produced (yes), whether all categories of IA
complaints are relevant and not just excessive force complaints
(yes),

and

whether

post-incident

9

IA

files

must

be

produced

(yes).13 The core issue that now has to be decided is how many IA
files should be produced. Plaintiff wants all of the IA files
but in the alternative is requesting 721. Atlantic City objects
to producing any additional IA files but grudgingly agrees to
produce 32.
An

important

point

still

needs

to

be

mentioned.

As

discussed on numerous occasions with the parties, the reason
plaintiff

is

requesting

additional

IA

files

is

because

of

Atlantic City’s insistence that it reserves its right to argue
at

trial

that

the

IA

files

produced

to

date

are

not

representative of its IA process. In other words, that plaintiff
did

not

review

representative

enough

picture

IA
of

files
Atlantic

to

get

an

adequate

or

City’s

IA

process.

If

Atlantic City had agreed that the files produced thus far are
representative, plaintiff did not need or want to review more IA
files.14 Atlantic City did not agree. Further, if Atlantic City
had

agreed

that

a

specific

number

of

IA

files

were

13

Depending on which counsel represents Atlantic City at
the time, the Court is faced with all or some of these arguments
in Atlantic City’s cases. Given that different arguments are
presented in different cases, it does not appear that Atlantic
City has a consistent position with regard to the production of
its IA files.
14

Plaintiff’s
counsel
stated:
“Your
Honor,
if
the
defendants would agree that whatever conclusions we draw from
Officer Wheaten’s Internal Affairs history is – establishes our
Monell claim, we can be done here today.” Dec. 12, 2014
Transcript (“Tr.”) 33:20-23.

10

representative, even if that number is substantially less than
721,

plaintiff

Thus,

if

would

Atlantic

have

City

agreed

would

to

have

the

agreed

limited
that

production.

the

IA

files

produced to date plus the 32 files produced in Groark comprised
a

representative

sample,

plaintiff

would

have

limited

her

request to only 32 IA files. Atlantic City did not agree. As is
its right, Atlantic City steadfastly refuses to commit to how
many IA files comprise a “representative sample.” Thus, it is
left to the Court to determine the number of IA files to be
produced.15

15

Atlantic City can’t make up its mind about what it wants
to do. Although it has consistently refused to acknowledge that
plaintiff has enough files to adequately evaluate its IA
process, its recent brief seems to take a different position.
Atlantic City writes:
As a result, on behalf of the City, we propose the
solution that Plaintiff has sufficient discovery to
have a reasonable opportunity to prove the allegations
of the Complaint from the internal affairs files of
the defendant officers. If the Court believes that the
individual defendant officers are not a fair cross
section for Plaintiff to seek to prove her case, then
a number like 32 or 25 is a fair number which balances
the burden on the City and the intrusion on the
privacy and confidentiality rights of the complainants
and targets of these investigations to be free from
having their closed cases re-opened, scrutinized and
litigated, against the real need for the discovery in
relation to the allegations pleaded in the Complaint.
Jan. 30, 2015 Letter Brief (“LB”) at 24-25. By making the
statement that plaintiff already has a reasonable number of
files or a fair cross-section, Atlantic City is explicitly or
implicitly representing that it will not challenge the number of
files plaintiff reviewed. If Atlantic City had made this
11

At

plaintiff’s

request

the

Court

held

an

evidentiary

hearing to address how many IA files should be produced.16 Dr.
Shane testified for plaintiff.

Lt. Hendricks from the ACPD and

Atlantic

Bernard

City’s

expert,

Dr.

Lentz,

testified

for

Atlantic City. Their testimony will be summarized, infra.
Discussion
1.

Relevance of Atlantic City’s IA Files
Although

it

is

beyond

peradventure,

the

Court

will

provide a brief background as to why Atlantic City’s IA files
are critically important. Plaintiff is pursuing a Monell claim
against Atlantic City. See Monell v. Dep't of Soc. Servs. of
City

of

New

York,

436

U.S.

658

(1978).

Pursuant

to

Monell

Atlantic City may be liable for an unconstitutional policy or
custom.

As

to

policy,

municipalities

like

Atlantic

City

are

liable where “the action that is alleged to be unconstitutional
implements

or

executes

a

policy

statement,

ordinance,

representation in court or directly to plaintiff, it is probable
this Opinion and the past few months of wrangling would not have
been necessary. In view of Atlantic City’s failure to give a
“straight answer” and the work that has already been done, the
Court’s ruling will stand unless plaintiff and Atlantic City
stipulate to an alternative production. In other words, the
Court will not backtrack unless plaintiff agrees. The Court does
not blame plaintiff if she does not compromise with defendant.
Atlantic City had an opportunity to compromise before plaintiff
spent a substantial amount of time and resources to pursue her
discovery request.
Plus, plaintiff’s preference all along was
to review all of Atlantic City’s IA files.
16

The hearings were held on December 12, 2014 and February
2, 2015.
12

regulation, or decision officially adopted and promulgated by
that body’s officers.” Id. at 690. As to custom, municipalities
may be sued for “constitutional deprivations visited pursuant to
governmental ‘custom’ even though such a custom has not received
formal approval through the body’s official decision[-]making
channels.” Id. at 690-91. Liability based on a custom rather
than a formal adopted policy proceeds on the theory that the
relevant practice is so widespread as to have the force of law.
Board of County Com’rs. of Bryan County, Okl. v. Brown, 520 U.S.
397, 404 (1997). Custom may also be established by proof of
knowledge and acquiescence. McTernan v. City of York, 564 F.3d
636, 658 (3d Cir. 2009). The Supreme Court has recognized that
where a violation of federal rights is a “highly predictable
consequence” of an inadequate custom in a situation likely to
recur,

municipal

liability

may

attach

based

upon

a

single

application of the custom. Monaco v. City of Camden, C.A. No.
04-2406 (JBS), 2008 WL 8738213, at *7 (D.N.J. April 14, 2008)
(citing Board of County Com’rs, 520 U.S. at 409-10 (1997)).
In order to impose § 1983 liability pursuant to a custom,
“plaintiff must show that the municipal action was taken with
the requisite degree of culpability and [there must be]... a
direct

causal

link

between

the

municipal

action

and

the

deprivation of federal rights.” Board of County Com’rs, 520 U.S.
at 404. A pattern or continued adherence to an approach that a
13

municipality knows or should know has failed to prevent tortious
conduct

of

police

officers

may

establish

“the

conscious

disregard for the consequences of [its] action – the ‘deliberate
indifferences’ - necessary to trigger municipal liability.”

Id.

at 407.
One focus of plaintiff’s case is Atlantic City’s internal
affairs process. The goal of internal affairs “is to ensure that
the integrity of the department is maintained through a system
of

internal

investigation

discipline

where

and

assure

review

an

objective

fairness

and

and

impartial

justice.”

N.J.

Attorney General Internal Affairs Policy & Procedures17 (“IAPP”)
(revised

July

2014)

at

12.

“Achieving

the

desired

level

of

discipline within the law enforcement agency is among the most
important responsibilities of the law enforcement executive.”
Id. at 6. The IAPP recognizes the importance courts put on the
IA function:
[T]he courts, particularly the federal courts, have
focused on the importance of the internal affairs
function. They have come to perceive this function as
an important means of protecting the constitutional
rights and civil liberties of the state’s citizens.
Id. at 3. This is understandable since “indifference to the
internal affairs function will have a negative impact on the

17

The most up to date policy is available at
www.nj.gov./oag/dcj/agguide/internalaffairs.
14

administration of criminal justice and the delivery of police
services to New Jersey’s citizens.” Id. at 5.
Like all municipalities in New Jersey, Atlantic City is
required to adopt and implement an internal affairs process to
investigate

and

resolve

complaints

of

police

misconduct.

See

generally Groark I, 989 F. Supp. 2d at 384-86. The IA process
must (1) provide for a “meaningful and objective investigation
of citizen complaints of police misconduct”; (2) monitor and
track police misconduct, and (3) correct officer misconduct. Id.
at

384.

The

Attorney

General

requires

that

certain

critical

performance standards be implemented and followed to meet these
requirements.
detailed

Amongst

the

recordkeeping

requirements

will

standards

that

requirements.

document

that

a

must

If

thorough

be

met

followed,
and

are
the

impartial

investigation was done. Id.
Amongst other issues, plaintiff is taking direct aim at
Atlantic City’s IA process and its alleged custom of exonerating
and failing to adequately monitor its rogue police officers.
Plaintiff’s second amended complaint alleges:
62. Defendant Atlantic City permitted, encouraged,
tolerated, and knowingly acquiesced to an official
pattern, practice, and/or custom of its police
officers . . . of violating the constitutional rights
of the public at large, including the Plaintiff. In
particular, the City of Atlantic City had actual
knowledge that defendant had a propensity to deprive
the citizens of Atlantic City, New Jersey of their
constitutional rights and failed to take proper action
15

to protect the citizens of Atlantic City, New Jersey
from defendant.
. . .
65. Defendant Atlantic City is directly liable for
the Plaintiff’s damages due to the following policies,
practices, or customs . . .;
a. [A]llowing police officers . . . to
employ excessive force while effectuating
arrests . . . ;
b. [A]llowing police officers . . . to use
excessive force and/or unreasonable force
without fear of discipline . . . ;
c. [A]llowing police officers … to falsely
arrest and charge civilians without probable
cause as a tool to conceal their own illegal
and unreasonable conduct . . . ;
d. [A]llowing police officers … to file
false police reports, fabricate evidence,
destroy evidence, and make false statements
. . . ;
e. [F]ailing to protect the Citizens of
Atlantic City from the unconstitutional
actions of police officers … by exonerating
rogue
police
officers,
by
refusing
to
investigate civilian complaints, and by
convincing civilians not to file formal
complaints with the Internal Affairs Unit .
. . ;
f. [R]efusing to adequately respond to and
investigate
complaints
regarding
officer
misconduct by the citizenry . . . ;
66. Defendant Atlantic City is directly liable for
Plaintiff’s damages due to the following policies or
customs
of
inadequate
training,
supervision,
discipline, screening, or hiring, which were in effect
at the time of this incident and which were the
underlying cause of the Plaintiff’s injuries:

16

a.
[Failing]
to
adequately
train
and
supervise police officers . . . regarding
proper arrest procedures and techniques; use
of force; probable cause determinations;
criminal
investigations;
and
internal
affairs procedures . . . ;
b. [Failing] to adequately monitor and
evaluate the performance of its officers …
and [their] compliance with the laws and
policies, practices and customs with respect
to probable cause determinations, internal
affairs procedures, the use of physical
force; arrest procedures, . . . ;
c. [Failing] to properly discipline its
officers …
with respect to violations of
the law of the State of New Jersey, the
Constitution of the United States, and its
own policies on use of force, probable cause
determinations, internal affairs procedures,
preservation
of
evidence,
and
arrest
procedures
creating
a
pattern,
policy,
practice, custom or atmosphere where such
illegal and unconstitutional behavior is
tolerated, condoned, and accepted by the
Atlantic
City
Police
Department
in
deliberate indifference to and reckless
disregard of the public at large, including
the Plaintiffs;
. . .
e. Atlantic City and the Atlantic City
Police Department knew that “a code of
silence” existed between and among their
officers
and
with
security
personnel
employed by Atlantic City casinos . . .
whereby officers would not report misconduct
of other officers to their superiors and
failed to take steps necessary to break the
“code of silence”[.]
Plaintiff alleges that because Atlantic City’s IA process
is a sham it has a custom of not adequately monitoring and

17

tracing the performance of individual officers. Further, that
because of the inadequate IA process Atlantic City has a custom
of

tolerating

and

unconstitutional

acquiescing

conduct

which

in

its

violates

police

citizens’

officers’
rights.

If

proven, plaintiff’s arguments are supported in the case law.
“[T]olerance

of

encouragement

unconstitutional

of

conduct

such

Foley

conduct[.]”

is
v.

tantamount

City

of

to

Lowell,

Mass., 948 F.2d 10, 14-15 (1st Cir. 1991) (citation omitted).
Further, “if a city fails to either punish officers or change
procedures

after

subsequent

particularly

acceptance

of

egregious

the

police

dangerous

conduct,

behavior

this

by

the

policymaker tends to prove a preexisting policy.” Skibo v. City
of New York, 109 F.R.D. 58, 65 (E.D.N.Y. 1985).
Although it should be obvious, in order to prove her Monell
allegations

it

is

essential

that

plaintiff

be

permitted

to

review Atlantic City’s IA files. Scouler v. Craig, 116 F.R.D.
494,

496

(D.N.J.

1987)

(“[T]here

can

be

no

question

of

the

relevancy of [the IA files] to the allegations of the complaint”
particularly where the complaint alleges inadequate supervision
and training under § 1983.). Indeed, the IA files are vital to
plaintiff’s Monell allegations. Groark I, 989 F. Supp. 2d at
393. As the Court noted in Groark I, “the requested IA files are
fair game for discovery because they are directly relevant to
plaintiff’s claim that Atlantic City’s IA process is a sham and
18

that Atlantic City failed to properly train its officers.” Id.
at 394. This explains the unremarkable fact that production of
IA files is routinely ordered in § 1983 cases.
Atlantic

City’s

IA

process

must

be

“real”

and

the

investigation “meaningful and objective.” Id. at 386. The mere
existence of a grievance procedure does not protect a citizen’s
constitutional

rights.

Id.

at

394.

Plaintiff’s

review

of

Atlantic City’s IA files will reveal whether in fact the IA
process

is

a

sham.

The

requested

files

are

also

directly

relevant to Atlantic City’s defense that its IA procedures are
adequate. Id. at 394. Only by looking at the content of the IA
files can plaintiff learn whether Atlantic City’s investigations
were

“real,”

“meaningful,”

and

“objective.”

Id.18

Further,

plaintiff must review Atlantic City’s IA files to be able to
compare

the

necessitated

facts
by

in

this

applicable

case

to

precedent.

other

cases.

According

to

This

is

numerous

cases, in order to make out a Monell claim, plaintiff “must show
why

.

.

.

prior

incidents

deserved

discipline

and

how

the

misconduct in those situations was similar to the present one.
Merman v. City of Camden, 824 F. Supp. 2d 581, 591 (D.N.J. 2010)
(citation omitted); Franks v. Cape May County, C.A. No. 07-6005
18

Each IA file should contain a “written report consisting
of an objective investigative report recounting all of the
case’s facts and a summary of the case, along with conclusions
for each allegation, and recommendations for further action.”
IAPP at 40.
19

(JHR/JS), 2010 WL 3614193, at *12 (D.N.J. Sept. 8, 2010) (“[A]
plaintiff

must

show

why

.

.

.

prior

incidents

deserved

discipline and how the misconduct in those case is similar to
that

involved

in

the

present

action”;

Katzenmoyer

v.

Camden

Police Department, C.A. No. 08-1995 (RBK/JS), 2012 WL 6691746,
at *12 (D.N.J. Dec. 21, 2012). Further, as the Court noted in
Reid

v.

Cumberland

County,

34

F.

Supp.

3d

396,

403

(D.N.J.

2013), “a plaintiff must show why those prior incidents deserved
discipline

and

how

the

misconduct

in

those

situations

was

similar to the present one.” Plaintiff cannot satisfy her burden
of proving a Monell claim without looking at the content of
Atlantic City’s IA files. Production of the files is critical to
plaintiff’s case.
2.

Whether 721 IA Files Should be Produced?19

Having

established

that

Atlantic

City’s

IA

files

are

relevant and discoverable, the question then becomes how many IA
files should be produced. The Court concludes that plaintiff has
made a convincing case for why she is entitled to at least 721
files. Taking notice of the Court’s decision in Groark II that
it would not direct Atlantic City to produce all of its IA
files, plaintiff retained Dr. Jon M. Shane to produce a report

19

Although not discussed in detail herein, it is obvious
that the Court finds that under the circumstances of this case
the law enforcement privilege does not bar discovery of the
requested files. See Groark I, 989 F. Supp. 2d at 389-93.
20

to

help

identify

“patterns

and

practices

with

respect

to

Internal Affairs investigations in the [ACPD]” (Dec. 12, 2012
Tr. 40:4-8), and how many IA files Dr. Shane needed in order to
review

a

sample.”20

“representative

Id.

9:2

to

10:19.

Shane

teaches a graduate level statistical course at the John Jay
College of Criminal Justice. Shane was formerly employed as a
longtime member of the Newark Police Department where he reached
the rank of Captain when he retired in 2005. Shane professes to
have

detailed

knowledge

regarding

local,

state

and

national

norms regarding Internal Affairs policies. Dec. 12, 2014 Tr.
39:2-23. Without getting into the nuances of Dr. Shane’s reports
and

testimony,

Dr.

Shane

ultimately

20

concluded

he

needed

to

See Groark II, 2014 WL 3556367, at *1 (“Although the
Court denies plaintiff’s request for all of Atlantic City’s IA
files, it directs Atlantic City to produce a ‘representative
sample’[.]”).

21

review 721 files to do his analysis.21 Shane also set forth a
procedure to assure that the 721 files are randomly selected.22
Shane proposes to perform two general types of analysis on
Atlantic City’s IA files: a process or a qualitative analyses
and

a

multiple

regression

statistical

analysis.

As

to

the

former, Shane will examine the IA files to evaluate Atlantic
City’s
General

compliance

with

Guidelines

statistical

analyses

for

the

applicable

conducting

will

test

IA

New

Jersey

Attorney

investigations.

plaintiff’s

hypotheses

The
and

determine if certain conduct and actions were predictable. In
general, Shane is “trying to capture . . . the overall picture
of how [Atlantic City’s] Internal Affairs investigations play
themselves out.” Id. 92:17-19. This will include an analysis of
whether

Atlantic

City’s

IA

process

conforms

to

state

and

national norms. Id. 104:20-23.

21

Dr. Shane’s analysis may test several preliminary
hypotheses plaintiff is exploring such as (1) whether Atlantic
City is more likely to sustain internal complaints made by
fellow police officers as opposed to citizen complaints, (2)
Atlantic City’s dismal record of sustaining excessive force
complaints, and (3) the high incidence of excessive force
complaints involving the Police Department’s Special Employment
Detail. Dec. 12, 2012 Tr. 107:1-116:10. The actual hypotheses to
be tested from looking at Atlantic City’s IA files has not yet
been decided. Id. 99:1-4.
22

See id. 69:2 to 71:13. The 721 files comprise 36 percent
of the universe of 2,002 total IA files for the relevant time
period. Id. 69:22 to 70:3.
22

Having studied Dr. Shane’s reports and hearing his live
testimony, the Court finds his testimony sufficient to justify
plaintiff’s discovery request. Further, plaintiff’s request is
not out of line with IA productions in other cases. Torres v.
Kuzniasz,

936

F.

Supp.

1201,

1214

(D.N.J.

1996)

(ordering

production of 1,200 files); Foley v. Boag, C.A. No. 05-3727
(SRC) 2006 WL 6830911, at *3 (D.N.J. May 31, 2006) (requiring
production

of

all

internal

affairs

records

and

complaints

against all police officers in the defendant municipality for
ten (10) years); see also Weller v. Am. Home Assur. Co., C.A.
No.

05-0090,

2007

WL

1097883,

at

*4-5

(N.D.W.

Va.

2007)

(overruling objection despite claim that responding to discovery
would be a “Herculean task” that would take “at least hundreds
of

man

hours.”).

Accordingly,

the

Court

grants

plaintiff’s

discovery request asking Atlantic City to produce 721 randomly
selected IA files.
3.

Atlantic City’s Arguments

Atlantic City makes four general arguments why it should
not have to produce any more IA files. First, Atlantic City
argues

that

Monell

liability

alternative,

plaintiff

it

must

make

a

before

she

receives

argues

plaintiff’s

23

“preliminary
more
Monell

IA

showing”

files.

claim

In

should

of
the
be

bifurcated.23 In other words, Atlantic City wants to stop IA
discovery

in

regarding

whether

made,

until

or

argues

it

Atlantic

is

City

its

tracks
an

after

adequate
a

burdensome
argues

until

no

jury
to
more

after

a

“preliminary
verdict.
produce
than

hearing
showing”

Second,
more

the

32

or

IA

motion

has

been

Atlantic

City

files.

files

Third,

produced

in

Groark should be produced here. Last, Atlantic City argues Dr.
Shane’s opinions are flawed and should be disregarded. All of
Atlantic City’s arguments are rejected.
A.

Requiring
Plaintiff
to
Showing” or Bifurcation

Make

a

“Preliminary

Especially under the circumstances of this case, Atlantic
City’s argument that plaintiff must make a “preliminary showing”
of

Monell

liability

or

the

case

should

be

bifurcated

is

impractical, unnecessary and inefficient. Atlantic City has not
set out in detail its “preliminary showing” proposal except to
say that plaintiff has to make out a “preliminary showing” of a
Monell violation before getting more IA files. What type of
showing must be made or the evidentiary standard to be met is
not mentioned. According to Atlantic City, before plaintiff is
entitled to more IA discovery she must demonstrate a viable
Monell claim from only the information she has received to date.
No matter what standard and evidentiary burden Atlantic City

23

See Dec. 12, 2014 Tr. 23:14-19; 26:2-14; 32:12-18.
24

concocts, its proposal adds a procedural hurdle to obtaining
relevant

discovery

that

does

not

exist

in

the

Rules.

The

proposal will undoubtedly delay the progress of the case, delay
ongoing discovery, and result in even more discovery disputes.
The

discovery

tools

available

pursuant

to

Fed.

R.

Civ.

P

26(b)(2)(C) already give the Court the flexibility it needs to
prevent

discovery

abuses

and

to

assure

that

proportional

discovery is taken. The Court need not stagger or bifurcate
discovery to protect Atlantic City’s interests. Atlantic City is
well aware that it has been ordered to produce its IA files in a
substantial number of § 1983 excessive force cases. In not one
of the cases did Atlantic City request, nor did the court order,
the

“preliminary

showing”

it

now

proposes.

Further,

Atlantic

City cites no persuasive case law to support its request.
To the extent Atlantic City wants to be assured plaintiff
is not on a “wild goose chase”, the Court is already satisfied
this is not the case. In Groark II, 2014 WL 3556367, at *5, a
case involving an analogous fact scenario and essentially the
same cast of characters, the Court wrote that if plaintiff was
on a “fishing expedition” the Court would not hesitate to limit
his discovery requests. See Fed. R. Civ. P. 26(b)(2)(C)(iii)
(the Court must limit the extent of discovery if it determines
the burden or expense of the proposed discovery outweighs its
likely benefit). The same is true here. As the Court indicated
25

in Groark, the non-frivolous nature of plaintiff’s claims is
evidenced

by

the

fact

that

scores

of

complaints

have

been

asserted against Atlantic City’s police officers who were never
disciplined.

“Tolerance

of

unconstitutional

conduct

is

tantamount to encouragement of such conduct and is therefore a
basis for municipal liability.” Skibo, 109 F.R.D. at 65. In
addition, “if a city fails to either punish officers or change
procedures
subsequent

after

particularly

acceptance

of

egregious

the

police

dangerous

conduct,

behavior

by

this
the

policymaker tends to prove a preexisting policy”. Id. There is
already enough evidence in the record to make out “preliminary
showing”

of

a

prima

facie

case

of

a

Monell

violation.

Put

another way, the evidence is sufficient to show something is
“rotten

in

Denmark.”

Plaintiff

need

not

further

justify

her

request for relevant discovery.
The Court is not done demonstrating that plaintiff need not
make out another “preliminary showing” of Monell liability to
obtain relevant Monell discovery. In Groark, plaintiff’s counsel
represented that only a miniscule percentage of Atlantic City’s
reported excessive force complaints were sustained or resulted
in any discipline. Although in and of itself these statistics
are not enough to impose liability on Atlantic City (see, e.g.,
Katzenmoyer

v.

Camden

Police

Department,

C.A.

No.

08-1995

(RBK/JS), 2012 WL 6691746, at *5 (D.N.J. Dec. 21, 2012); Troso
26

v. City of Atlantic City, C.A. No. 10-1566 (RMB/JS), 2013 WL
6070028,

*1

(D.N.J.

Nov.

15,

2013)),

they

lend

credence

to

plaintiff’s claims that there is good cause to believe Atlantic
City’s IA process is deficient. Again, while statistics alone
may not be sufficient to prove a Monell claim at trial, for
discovery purposes it is reasonable to infer something may be
amiss when so many excessive force citizen complaints and § 1983
lawsuits

are

filed

against

Atlantic

City.

For

discovery

purposes, plaintiff clearly has good cause to believe something
is

amiss

with

Atlantic

City’s

internal

affairs

process

when

hundreds of citizen complaints do not result in discipline.24
The

Court

is

not

alone

in

finding

that

a

“preliminary

showing” has already been made that Atlantic City’s IA process
is deficient. When Atlantic City’s summary judgment motion was
denied in Cordial v. Atlantic City, C.A. No. 11-01457 (RMB/AMD),
2014

WL

1095584

(D.N.J.

March

19,

2004),

the

decision

also

called into question Atlantic City’s IA process. The Court wrote
that the plaintiff “presented evidence from which a reasonable
24

Given this record one wonders how many citizens decided
not to file internal affairs complaints for excessive force or
false arrest based on their perception of Atlantic City’s whitewashing. In Adams v. City of Atlantic City, C.A. No. 13-7133
(JBS/AMD), Adams alleged in his November 22, 2013 complaint that
police officers assaulted him without provocation on June 17,
2011, and that after he filed an internal affairs complaint with
the ACPD, police officers and their canine dogs brutally
attacked him on February 28, 2012, in retaliation for filing the
complaint. See Compl. [Doc. No. 1].

27

jury could infer that [Atlantic City’s] IA investigation process
is designed to insulate the accused officers from penalty.” Id.
at *6. The decision also noted that Atlantic City’s IA reports
reflected

that

the

“complainant

was

not

always

interviewed,

officers were only asked to provide a written statement, and
officer statements were given much greater weight than civilian
statements.” Id.

The Court held:

From this evidence, a reasonable jury could find that
the IA investigations were insufficient or inadequate
and
that
Atlantic
City
exhibited
deliberate
indifference to the risk that its officers would use
excessive force in a manner similar to that alleged
here.
Id. at 6.
The plaintiff’s expert report in Groark also evidences the
non-frivolous

nature

of

Costantino’s

Monell

claim.

The

Court

summarized the expert’s conclusions:
[T]here was a “catastrophic failure of [Atlantic
City’s] Internal Affairs to impartially and thoroughly
investigate
[the]
subject
officer(s)
of
citizen
complaints.” He opines that Atlantic City’s “police
officers engaged in misconduct or criminal acts with
impunity and little or no oversight of the officers of
He also opines that, “[t]he
Internal Affairs.” Id.
pattern of inadequate and biased (in favor of subject
officers) IA investigations allowed Timek and Wheaton
to continue their misconduct unchallenged throughout
their careers culminating in more than six dozen IA
cases adjudicated with “not sustained” or “exonerated”
investigative findings.” [The expert also concluded
that] Atlantic City’s IA findings involving Timek and
Wheaten “are deliberately flawed and intentionally
inadequate in favor of the officers and coincides with
an organizational culture that encourages misconduct
and corruption.”
28

Groark II, 2014 WL 3556367, at *6.
Based

on

the

foregoing,

the

Court

is

convinced

that

plaintiff’s request for more IA files is justified, necessary,
and

proportional

to

her

needs

and

the

importance

of

the

evidence. Plaintiff does not need to go through the unnecessary
hurdle

of

making

another

“preliminary

showing”

to

obtain

relevant and responsive discovery, especially when the alleged
misdeeds of the ACPD has already been thoroughly laid out in
reported decisions.
To the extent Atlantic City wants to bifurcate the case the
proposal is also rejected. It makes no sense to first try the
case against the defendant police officers and then only if a
liability

verdict

is

returned

does

plaintiff

get

additional

Monell discovery. This would substantially delay the ultimate
resolution of the case and would require duplicative discovery.
In fact, the Court previously denied a request to bifurcate a
similar case. In D’Arrigo v. Gloucester City, C.A. No. 04-5967
(JBS), 2007 WL 4440222 (D.N.J. Dec. 17, 2007), the plaintiff
brought a § 1983 excessive force case against the Gloucester
City Municipal Police Department and individual police officers.
Before trial Gloucester City moved to bifurcate the Monell claim
from the case against the individual defendants Gloucester City
argued prejudice would result from a joint trial. It also argued

29

efficacy

and

judicial

economy

would

result

from

bifurcation.

Like this case the Court soundly rejected the proposal. The
reasoning in D’Arrigo is equally applicable here:
The Court rejects defendants’ argument that separate
trials would be more convenient and efficient.
Two
trials would necessarily involve an overlap of
witnesses and evidence which would result in a
duplication of effort.
. . .
It is not unusual in § 1983 cases for plaintiffs to
pursue claims against individual defendants while at
the same time pursuing a Monell claim against a
municipality. This case presents no unusual or special
circumstances that justify bifurcation. If [the] Court
granted bifurcation in this case, it would in essence
be agreeing that as a matter of routine bifurcation
should be granted in cases of this type. This practice
is not permitted. Lis v. Robert Packer Hospital, 579
F. 2d 819, 824 (3d Cir. 1978) (a routine order of
bifurcation is a practice at odds with the requirement
that discretion be exercised and seems to run counter
to the intention of the rule drafters).
Id. at *3, 4. The Court also noted, “[t]here are less burdensome
ways to deal with [the] situation, including use of a special
verdict form, a well-adapted jury charge, and carefully crafted
limiting instructions.” Id. (citation omitted).
The

Court

recognizes

that

there

are

cases

around

the

country that grant bifurcation of Monell claims. Id. at *3.
This is not surprising because “[s]ince the decision whether to
bifurcate requires a fact-intensive analysis left to the sound
discretion of the court, based on the facts in a specific case,
different

courts

are

bound

to

30

rule

that

bifurcation

is

appropriate.”

Id.

at

*3.

Nevertheless,

substantial

authority

exists to deny bifurcation motions. Id.
Notably, Atlantic City has not cited a single New Jersey
District Court police § 1983 case where bifurcation was granted,
including the scores of cases where it was a named defendant.
The

Court

is

not

surprised

by

the

fact

that

there

is

no

applicable New Jersey precedent and not one Atlantic City case
where bifurcation was ordered. The Court has no intention of
breaking this streak.
B.

Burden

Atlantic City’s argument that it would be unduly burdensome
to produce the requested IA files has been soundly discredited.
Before it changed counsel the focus of Atlantic City’s objection
to producing more IA files was that it would be burdensome. To
finally get to the bottom of this argument and to avoid relying
upon conclusory affidavits, the Court ordered Atlantic City to
produce

a

witness

to

support

its

argument.

Atlantic

City

produced Lt. Hendricks, the commander of the ACPD’s legal unit
who

recently

assumed

command

duties

in

the

internal

affairs

office. Tr. (v2) 4:20 to 5:1.25 Unfortunately for Atlantic City,

25

The transcript of the December 12, 2014 hearing is split
into two volumes that are not consecutively numbered. The
designation v2 refers to the second volume. To be clear, there
is no evidence Lt. Hendricks had an internal affairs role when
the relevant events occurred in this case or the 30 other
currently pending Atlantic City § 1983 cases.
31

although Hendricks’s testimony was direct, straightforward and
credible, the testimony completely discredited Atlantic City’s
previous untested assertion that it was burdensome to produce
its IA files. Hendricks testified that Atlantic City’s IA files
are “not disposed of” (id. 10:23-25) and they are “organized
sequentially by number in the IA Office” (id. 11:1-10).
IA

files

are

easily

retrievable

as

evidenced

by

These

Hendricks’

acknowledgment that the files are located in his office and it
is not burdensome to locate and pull the IA files. Id. 11:11-16.
According to Hendricks, the only burden to produce IA files is
in regard to the time it takes to copy the files.
The

problem

with

Atlantic

City’s

Id. 11:17-22.

burdensome

argument

is

that its burden is its own doing. The reason it is burdensome
for Atlantic City to copy IA files is because it only has one
civilian clerk to do all the paperwork in its Legal Unit and
“any file production that has to be done falls on her[.]” Id.
6:12-16. Thus, if copying IA files has to be done the clerk has
to fit it in between her other duties such as coordinating with
investigators

and

sending

cases

back

and

forth

to

the

Prosecutor’s Office. Id. 6:11-16. Given the clerk’s duties she
has to fit copying IA files in “after hours for overtime.” Id.
7:13-18.

And

to

top

it

off,

Atlantic

City

is

in

financial

distress and they may not approve overtime for the clerk. Id.
7:15-18.
32

Atlantic City’s excuse for not being able to produce copies
of its IA files is preposterous. Given its critical importance
to protecting citizens’ rights Atlantic City’s IA Unit should
not be treated like the proverbial “stepchild.” “Indifference to
the internal affairs function will have a negative impact on the
administration of criminal justice and the delivery of police
services

to

New

Jersey’s

citizens.”

IAPP

at

5.

In

order

to

adequately respond to discovery in civil litigation all parties
incur unwanted burdens and costs. Nevertheless, a party cannot
shirk

its

responsibilities

by

failing

to

dedicate

sufficient

resources to respond to appropriate and necessary discovery. If
the situation were otherwise the Court would be bombarded with
excuses for why relevant discovery does not have to be produced.
Further, if Atlantic City was able to shirk its responsibilities
so easily, it would encourage other parties to avoid discovery.
The

fact

that

a

party

must

devote

reasonable

resources

to

respond to legitimate discovery requests is simply a necessary
evil

that

all

litigants

must

endure.

It

is

certainly

not

plaintiff’s fault that Atlantic City has an inordinate number of
citizen complaints about its police officers which results in a
substantial number of IA files.
The Court has no sympathy for Atlantic City’s argument that
it does not have to produce relevant discovery because it is
burdened

by

the

fact

that

it
33

has

too

many

citizen

police

complaints and § 1983 lawsuits. In a serious lawsuit challenging
the ACPD and its IA process, it is ironic that Atlantic City
argues it should not have to produce more discovery because it
has too many citizen complaints and IA files. The argument is
akin to the old saw about the son who kills his parents and then
complains
created

because

this

[Atlantic

he

situation

City]

should

is
.

an
.

bear

orphan.
.

it

the

“Since

seems
burden

[Atlantic

only
of

City]

reasonable

any

that

inconvenience

resulting from the situation it has created.” Calabrian Co. v.
Bankok Bank, Ltd., 55 F.R.D. 82, 87 (S.D.N.Y. 1972). The Court
agrees with plaintiff:
[T]he City’s overly burdensome argument should carry
little to no weight. ACPD should not be rewarded for
maintaining a police force that has accumulated such a
shocking number of internal affairs complaints [and §
1983 lawsuits] that the mere act of copying the files
is overly burdensome.
Jan. 31, 2014 LB at 2 [Doc. No. 124].
The Court is not oblivious to the fact that Atlantic City
is experiencing financial difficulties and copying the requested
files will take time and money. However, these facts do not
establish an unreasonable burden. The Court fails to see how it
is burdensome for a low level employee to stand at a photocopy
machine

and

copy

documents

that

are

easily

retrievable

and

organized sequentially. It is unacceptable for a defendant to
avoid legitimate discovery because it does not devote reasonable

34

resources to defending a case. As Justice Cardozo wrote, it is
fundamental that “[h]e who prevents a thing from being done may
not avail himself of the nonperformance which he has himself
occasioned.[]” R.H. Stearns Co. v. United States, 291 U.S. 54,
61, 54 (1934) (quoting Dolan v. Rodgers, 149 N.Y. 489, 491, 44
N.E. 167 (1896)). It is patently unreasonable to rely on one
citizen clerk to copy all discovery documents especially when
the clerk has to “fit in” her copying between all her other
duties. The Court will not stand for this excuse.
This Court is not alone in insisting that a party devote
sufficient resources to defending a case. The Court’s colleague
faced

a

similar

situation

in

Reid,

supra.

In

that

case

the

plaintiff brought a § 1983 excessive force lawsuit against the
Cumberland

County

Department

of

Corrections

(“CCDOC”)

and

several Correction Officers. In discovery the plaintiff asked
for the excessive force complaints and files of all the CCDOC’s
officers for a four-year time period. In opposition the CCDOC
argued

it

was

burdensome

to

produce

the

requested

records

because, inter alia, it would take 140 hours to produce the
records. In addition, the CCDOC argued it did not have adequate
personnel to copy the files and if required to produce the files
in “would effectively ‘shut down’ their department.” 34 F. Supp.
3d at 413. Like this case, the Court shot down these arguments.
The Court wrote:
35

[T]he fact that the department responsible for
conducting such a search is not adequately staffed to
handle the necessary search, do[es] not excuse
production of those documents when the location of the
documents and the understaffing of the department is
partly the cause of any burden on CCDOC. Permitting a
party to avoid discovery simply by keeping files in a
disorderly or unsearchable manner would improperly
benefit the producing party while precluding the
requesting party from obtaining clearly relevant
material.
Id. at 414-15 (citations omitted) (collecting cases); see also A
& R Body Specialty & Collision Works, Inc. v. Progressive Cas.
Ins. Co., C.A. No. 07-929, 2013 WL 6044333, at *11-12 (D. Conn.
Nov. 14, 2013) (finding that while an insurance agency claimed
undue burden due to the amount of information sought, its small
staff size, and its limited resources and that production of the
documents

“would

functions,”

it

prevent
was

not

[them]

from

performing

unduly

burdensome,

[their]

adding

core

that

the

information was “probative of central issues in the case”); Ohio
Citizen Action v. City of Englewood, C.A. No. 05-263, 2008 WL
3889967,

at

*2

(S.D.

Ohio

Aug.

19,

2008)

(holding

that

plaintiff’s burden argument was unavailing as the organization
had merely shown that it had a “relatively small staff and one
staff

member

Olathe,

[was]

Kansas,

on

203

maternity
F.R.D.

leave”);

489,

493-94

Beach
(D.

v.

City

Kan.

of

2001)

(overruling objection where responding to interrogatory required
hundreds of hours of document review of internal affairs and
personnel files); Beach v. City of Olathe, 203 F.R.D. 489, 49336

94

(D.

Kan.

2001)

(overruling

objection

where

responding

to

interrogatory required hundreds of hours of document review);
Weller v. Am. Home Assur. Co., 2007 WL 1097883 *4-5 (N.D.W. Va.
2007) (overruling objection despite responding party’s affidavit
which stated response would entail “a least hundreds of man
hours”).
The two cases Atlantic City cites to support its argument
are inapposite. In Skibo v. City of New York, supra, the Court
denied the plaintiffs’ request for 1,300 files as burdensome and
instead ordered 150 files produced. 109 F.R.D. at 65. However,
unlike in Skibo, here Atlantic City’s burdensome argument has
been

discredited.

disclosure
analysis.

of

Further,

all

Also,

IA

unlike

the

files
in

parties’

results

Skibo,

experts

in

the

Atlantic

agree

most

City

that

accurate

reserves

its

right to argue plaintiff did not review enough IA files. The
same

factors

distinguish

that

this

distinguish

case

from

this

Alli

case

Katt

v.

from
the

Skibo

N.Y.C.

also
Police

Department, 95 Civ. 8283 (LMM), 1997 U.S. Dist. LEXIS 10014
(S.D.N.Y.

July

14,

1997),

the

employment

discrimination

and

harassment case Atlantic City relies upon.
C. Groark
Having

dismissed

all

efforts

to

reach

a

reasonable

compromise on the number of IA files to produce, Atlantic City
cites to Groark, supra, to support its grudging agreement to
37

produce another 32 IA files. As noted, that is the number of
additional IA files the Court directed Atlantic City to produce
in

the

case.

plaintiff

The

Court

failed

to

self-selected

produce

the

persuasive

number

after

the

evidence

that

the

files he requested was necessary.
The Court declines to act in lockstep with Groark for two
main

reasons.

evidence

that

plaintiff

First,
more

unlike

files

submitted

a

Groark,

should
letter

be

plaintiff
produced.

from

his

has
In

expert

supplied

Groark

the

summarily

concluding that 340 files should be produced. Here, however,
plaintiff

produced

a

detailed

expert

report

and

presented

credible supporting testimony at an evidentiary hearing. This
evidence persuades the Court that plaintiff’s methodology and
approach

is

sufficiently

credible

to

justify

the

requested

discovery. The plaintiff’s evidence in Groark did not pass this
threshold.
Another reason this case is different than Groark is that
the Court now has a fuller understanding of Atlantic City’s
burdensome

argument.

The

argument

has

been

completely

discredited. When the Court ruled on the number of IA files to
produce in Groark the Court was under the mistaken belief that
it was legitimately burdensome to Atlantic City to produce its
IA files. See Groark II, 2014 WL 3556367, at *9. The Court did
not

know

at

the

time

that

Atlantic
38

City

was

not

dedicating

meaningful resources to responding to discovery. Since then the
Court has been enlightened.
D. Dr. Shane’s Opinions
Atlantic City dismisses Dr. Shane’s reports, testimony and
conclusions
opinions.

and
The

asks

the

Court

Court

disagrees

to
and

completely
finds

discount

that

Dr.

his

Shane’s

opinions carry sufficient weight and trustworthiness to support
plaintiff’s

discovery

statistician

with

request.

substantial

Dr.
real

Shane
world

is

a

police

qualified
experience.

Although the Court is obviously not ruling on the admissibility
of his opinions at trial, the Court found Dr. Shane’s testimony
to be relatively straightforward and sound. While Atlantic City
disagrees with Shane, for discovery purposes Shane’s opinions
are

logical,

support

based

plaintiff’s

on

competent

discovery

evidence,

request.

and

For

sufficient

the

purpose

to
of

deciding the discovery dispute at issue, the Court finds Shane’s
opinion that 721 IA files should be produced to be reasonable.
The

Court

does

not

need

to

find

that

Shane’s

opinions

are

admissible in evidence in order to rely upon them to decide this
discovery dispute. “[I]n ruling on a discovery motion the Court
is not limited to only relying upon admissible evidence”. Groark
II,

2014

WL

3556367,

at

*7

(citation

omitted).

At

the

appropriate time Atlantic City can assert its Daubert challenge
to Dr. Shane; now is not the time.
39

In contrast to Dr. Shane, Dr. Lentz’s report and testimony
is not helpful. Dr. Lentz does not know what a representative
sample is (Feb. 2, 2015 Tr. 32:18-20), and he repeatedly refused
to identify the number of IA files that should be reviewed to
determine if Atlantic City had a particular custom. Id. 33:1935:18. Lentz testified:26
BY THE COURT:
Q --what if I use the term "custom or practice", and I
said to you how many IA files does one have to look at
to see if the Atlantic City Police Department has a
custom or practice of conducting inadequate and
insufficient IA investigations? If I phrased the
question that way, can you tell me how many of the
1,800 some odd IA files would have to be looked at not
see if there's a force of law, but if they have a
custom or practice?
A Again, Your Honor, the concept of custom or practice
is also not a term of statistical art with which I am
familiar.
Q So A You know, it is not.
Q So the answer is A We may -- we may have as the -- a sense of what that
is, we as individuals of what a custom is.
Q So is the answer you could not give me a number of
how many IA files to review to determine if Atlantic
City has a custom or practice of doing a particular
thing?
A Not with -- not with any technical scientific
statistical basis. I could say what my common sense is,
sir.

26

The Court must unfortunately include long excerpts of Dr.
Lentz’s testimony because it was difficult to get him to respond
directly to questions.
40

Q Okay. What if I said to you you may -- what if I
define a custom as follows?
A Okay.
Q You may find that a custom exists if there was a
practice that was so well-settled and widespread that
the policy making officials of Atlantic City either
knew or should have known of the practice? What if I
said that to you? Could you give me a number?
A It -- not behaviorally. I could not. I could not,
again, based upon statistics per se.
Q You still couldn't tell me if the universe is 18 so - 1,800 some odd files, using this definition of
custom, you still couldn't tell me how many files you
would have to look at to see if there was a custom in
Atlantic City of doing a particular thing?
A I mean, I'd have to say based upon the scientific
knowledge that I have as a statistician, no, because it
is not a statistical concept.
. . .
BY THE COURT:
Q What if I defined it this way? You may find an
official custom by showing the existence of a practice
is so widespread and well settled, that it constitutes
a standard operating procedure of Atlantic City. How
many files then would you have to look at?
A Same answer.
Q Still can't tell me?
A It is not -- you're not talking statistical concepts
here, Your Honor.
Id. 33:19 to 35:18.
The fundamental mistake Atlantic City and Dr. Lentz make is
their misreading of the Court’s intent when it used the term
“representative sample.”

The Court does not purport to be an

expert statistician and will not abdicate its role to manage
discovery to such an expert. This accounts for why the Court
41

never

used

Instead,

the

the

term

Court

“statistically

used

the

term

representative

“representative”

sample.”
as

it

is

defined in the dictionary. See www.merrianwebster.com (“typical
of a particular group of people or of a particular thing”);
www.macmillandictionary.com (“typical of people or things in a
particular
internet

group”).
search

to

Moreover,
see

that

one

need

the

only

Court’s

conduct
use

of

a
the

basic
term

“representative sample” has a logical common sense meaning. See
investopedia.com/term

(“A

subset

of

a

statistical

population

that accurately reflects the members of the entire population. A
representative sample should be an unbiased indication of what
the population is like”); www.businessdictionary.com/definition
(“A small quantity of something . . . whose characteristics
represent (as accurately as possible) the entire batch, lot,
population, or universe”). This is exactly the meaning the Court
intended.
Dr. Lentz’s testimony is also not helpful because he could
not and did not present an alternative to Dr. Shane’s opinion to
determine how many IA files should be produced to adequately
analyze Atlantic City’s IA process. Id. 63:21-64:2. This being
the case, it is hard to understand the purpose of Dr. Lentz’s
testimony since he did not and could not shed any light on the
key

issue

the

Court

has

to

decide.

testified:
42

For

example,

Dr.

Lentz

Q.
Okay, Second question, as you sit here today, you
cannot tell this Court an alternative methodology for
reaching a stratified random sample for the issues
regarding the internal affairs process of the Atlantic
City Police Department that we had discussed that are
in the complaint and that have been the subject of
these proceedings.
A.

As I sit here today. [no].

Id. 63:21-64:2. Dr. Lentz did not even squarely address Atlantic
City’s argument that the IA files plaintiff already had, even
with 32 additional files, is adequate for plaintiff’s purposes.
If the purpose of Dr. Lentz’s testimony was to discredit Dr.
Shane

and

to

present

a

viable

alternative,

the

effort

was

resoundingly unsuccessful. Even if Dr. Shane does not agree with
the

term

“representative

sample”,

it

is

astounding

that

he

provided no helpful input on how many additional IA files should
be produced. If he was of the opinion that plaintiff already had
enough IA files, he kept this a secret. Plaintiff correctly
pointed this out. See Jan. 31, 2015 LB at 2 (“Notably . . .
Defendant’s expert report does not posit how many files would
provide sufficient data from which to make reliable conclusions
about

ACPD’s

internal

affairs

procedures.”

(emphasis

in

original)).
Atlantic City’s critique of Dr. Shane’s report raises a
strawman and then attempts to knock it down. Dr. Shane is not
offering his ultimate opinions for trial. Instead, Dr. Shane
merely opined that 721 files should be produced if he could not
43

review everything. Dr. Shane is not, as Atlantic City suggests,
attempting

to

quantify

the

number

or

percentage

of

IA

transgressions that is sufficient to establish a custom under
Monell. See Jan. 30, 2015 Letter Brief (“LB”) at 3-9 [Doc. No.
123]. This quantification is not necessary since the case law
already

establishes

what

evidence

is

necessary

to

establish

liability. See Monell, 436 U.S. at 691 (the custom, pattern or
practice must be so persistent and widespread as to practically
have the force of law). The Third Circuit’s Model Jury Charge
also evidences that plaintiff need not rely on statistics or
percentages to prove that Atlantic City had an unconstitutional
custom

of

acquiescing

unconstitutional conduct.

and

tolerating

its

police

officers’

The charge reads:

4.6.6
Section 1983 –
Liability in Connection with the Actions of Another
Municipalities – Custom
[Plaintiff] may prove the existence of an official
custom by showing the existence of a practice that
is
so
widespread
and
well-settled
that
it
constitutes
a
standard
operating
procedure
of
[municipality]. A single action by a lower level
employee does not suffice to show an official
custom. But a practice may be an official custom if
it is so widespread and well-settled as to have the
force of law, even if it has not been formally
approved. [You may find that such a custom existed
if there was a practice that was so well-settled and
widespread
that
the
policymaking
officials
of
[municipality] either knew of it or should have
known of it. . .]

44

There is no support for Atlantic City’s argument that 90% of its
IA

files

must

be

deficient

to

establish

an

unconstitutional

custom.27
Despite plaintiff’s detailed Monell allegations summarized
earlier,

Atlantic

approach

is

not

City

persists

“consistent

in

with

arguing
the

that

Court’s

Dr.

Shane’s

discovery

and

pleadings rules.” LB at 11. Atlantic City again misses the mark.
Plaintiff is not, as Atlantic City posits, requesting discovery
in an effort to support a new claim that has not already been
pled. To the contrary, plaintiff’s discovery is directed to the
detailed

allegations

in

the

complaint.

To

obtain

relevant

discovery Dr. Shane did not have to specifically set forth his
opinions and theories in his reports served thus far, especially
when the reports were not intended to address the merits of the
case but only the number of IA files that should be produced.
The

scope

of

relevant

discovery

is

not

framed

by

the

four

corners of Dr. Shane’s preliminary report used for discovery
purposes. Instead, it is axiomatic that plaintiff may obtain
discovery regarding the claims in her complaint. Fed. R. Civ. P.
26(b)(1). The relevant inquiry is significantly broader at the
27

See Jan. 30, 2015 LB at 6-7 (“We suggest that in
accordance with the case law, the percentage would have to be in
the mid to upper 90’s, with perhaps something even greater than
90% of Atlantic City’s internal affairs files being ‘shoddy,’ in
order for the custom, pattern or practice of ‘shoddy’
investigations to have the force of law, like a formally adopted
policy.”).
45

discovery stage than at the trial stage. Nestle Foods Corp. v.
Aetna

Cas.

&

Sur.

Co.,

135

F.R.D.

101,

104

(D.N.J.

1990).

Plaintiff’s complaint sets out in detail her Monell allegations,
including

her

claims

as

to

Atlantic

City’s

internal

affairs

procedures. See Second Am. Compl. ¶¶ 61-69.
Atlantic City’s argument that plaintiff’s complaint is “not
a source to which [it] can turn to see with any degree of
clarity what Plaintiff means to have pleaded in the case” is
meritless. LB at 18. Indeed, it is hard to fathom how plaintiff
could be more specific. For example, plaintiff alleges Atlantic
City has a practice or custom of using excessive force, falsely
arresting and charging citizens, filing false police reports,
“refusing

to

investigate

convincing

civilians

not

civilian
to

file

complaints,

formal

and

complaints

.

.

with

.
the

Internal Affairs Unit”, and “refusing to adequately respond to
and investigate civilian complaints.” Id. ¶ 65. Plaintiff also
alleges

Atlantic

City

failed

to

adequately

train

its

police

officers as to internal affairs procedures, it failed to monitor
and

evaluate

failed
custom

to

compliance

properly

where

condoned

engage

conduct

in

internal

discipline

“illegal

tolerated,

with

and

its

and

officers

procedures,

which

unconstitutional

accepted”,

violating

affairs

allowing

citizens’

its

created

behavior
officers

constitutional

it
a
is
to

rights

without fear of discipline. Id. ¶ 66. The Court is at a loss to
46

understand how plaintiff’s complaint could be more specific. As
already discussed in detail, Atlantic City’s IA files are vital
discovery for plaintiff’s Monell claims that are pled in detail
in the complaint.
4.

All IA Files Should be Produced

Although
relief,

the

the
main

Court

is

issue

granting

plaintiff

surrounding

the

plaintiff's

requested

application

remains unresolved. Plaintiff aims to show that Atlantic City’s
police officers were not properly monitored, investigated and
disciplined. In order to make this showing plaintiff asked to
examine

a

"representative

sample"

of

approximately

2,000

IA

files. Plaintiff's expert opined that a "representative sample"
is 721 files. Despite the Court's urging for Atlantic City to
come

up

with

an

alternative

number

of

files

which

could

be

considered a "representative sample", it remained silent. As a
result, Atlantic City will continue to dispute the legitimacy of
the sample. Thus, even if plaintiff reviews another 721 IA files
in an attempt to show a custom, pattern or practice, in Atlantic
City’s eyes the question will remain as to whether the sample
has any meaning at all. Presumably, Atlantic City will continue
to challenge the validity of the sample. Accordingly, the Court
finds that the best course of action is to grant plaintiff’s
original request and compel Atlantic City to produce all of its
IA files. This way, there will be no question later on as to
47

whether plaintiff examined a sufficient number of files to draw
accurate findings about the IA process. This course of action is
the most efficient means to move the case forward and remove
lingering issues.
As the Court mentioned at the outset of this Opinion, the
case has been plagued with discovery disputes regarding Atlantic
City’s IA files. The disputes have consumed substantial time and
resources of the parties and the Court. Now, however, although
the Court has ruled that an additional 721 IA files have to be
produced,

the

fact

of

the

matter

is

that

needless

disputes

regarding the IA files will persist. Even after the 721 files
are

produced

Atlantic

City

will

argue

that

this

is

not

a

sufficient representative sample, which will inevitably result
in a round of in limine and Daubert motions before and during
trial. This occurrence leads the Court to revisit plaintiff’s
original discovery request for all of Atlantic City’s IA files.
After

exhaustive

briefing

and

argument,

the

Court

is

firmly

convinced that plaintiff should get what she originally asked
for — all of Atlantic City’s IA files.
Frankly, now having the benefit of a complete record the
Court is at a loss to think of a good reason not to order the
production of all of Atlantic City’s IA files.28 The files are

28

The police officers’ privacy interests are protected
because a Discovery Confidentiality Order has been entered which
48

unquestionably relevant to plaintiff’s Monell claim, the scope
of the production is not unprecedented, and the production will
help avoid and streamline future evidentiary issues and motion
practice. Further, the parties’ experts agree it is preferable
to review all the files. Even Dr. Lentz testified that this is
the preferred course of action:
Q.
So is the best way to know exactly what is going
on with Atlantic City’s IA files to look at every
file?
A.
Oh, invariably, getting all of – all of possible
realizations – I mean all of the realizations – excuse
me -- of possible data is always the best[.]
. . .
Q. The entire population is more statistically
reliable or let me – let me rephrase and use your
terminology. The known population is going to me more
reliable from which to draw inferences and conclusions
than any stratified random sample, right?
A.

Yes.

Feb. 2, 2015 Tr. 43:10-15; 63:15-20. Dr. Shane agrees.

Dec.12,

2014 Tr. 9:2-10; 47:23-48:7.

limits the use of the IA files to this case by a limited number
of individuals who have authorized access. Further, it does not
go unnoticed that while Atlantic City repeatedly claims that
disclosure of its IA files will have a detrimental effect on the
effectiveness of its IA process, it has yet to produce a
scintilla of evidence to support this assertion. Nor has
Atlantic City produced evidence that disclosure of its IA files
will “chill” citizens from making internal affairs complaints.
49

The public interest favors the Court’s ruling. The Court
wholeheartedly agrees with Skibo, 109 F.R.D. 61 where the Court
wrote:
Plaintiffs’ allegations of police misconduct and of
the city’s acquiescence in and support of the
officers’ illegal acts in both cases lends support to
the government’s interest in compelling disclosure of
the documents requested. In addition to the full
development of the facts and protection of the
plaintiffs’ civil rights, the federal government has
an interest in maintaining the integrity of the state
and federal law enforcement institutions. Misconduct
by
individual
officers,
incompetent
internal
investigations, or questionable supervisory practices
must be exposed if they exist.
Full disclosure will permit plaintiff to get to the bottom
of the alleged problems with Atlantic City’s IA process. If
there

is

a

justifiable

reason

why

Atlantic

City’s

police

officers, according to plaintiff, act with impunity, and why
Atlantic City is subject to so many citizen complaints and §
1983 lawsuits, the public has a right to know.
of

Atlantic

City’s

IA

files

will

reveal

Full disclosure
what

is

really

happening. Given the facts before the Court, a snapshot will not
do. In addition, as discussed in detail, full disclosure is also
supported by the fact that Atlantic City’s burdensome argument
has

been

completely

discredited.

The

Court

understands

that

Atlantic City may quibble about the number of pre and post-

50

incident years that are encompassed within the Court’s ruling.29
However,

having

exhaustively

examined

the

record

and

having

managed the case from its outset, the Court could not be more
convinced that all IA files should be produced. “[M]atters of
docket control and conduct of discovery are committed to the
sound

discretion

of

the

district

court.”

In

re

Fine

Antitrust Litigation, 685 F.2d 810, 817 (3d Cir. 1982).
where

there

afforded

is

“great

no

controlling

discretion.”

rule

Reid,

a

34

Indeed,

Magistrate
F.

Supp.

Paper

Judge

3d

at

is
415

(citation and quotation omitted).
Atlantic City cannot “have it both ways.” On the one hand,
Atlantic City refuses to produce more IA files but on the other
hand it wants to argue plaintiff did not review enough IA files
to

meaningfully

evaluate

its

IA

process.

As

is

its

right,

Atlantic City can decide for itself its defense strategy. The
Court will not dictate to Atlantic City how it should defend the
case. However, Atlantic City must live with the consequences of
its

strategy.

Given

its

insistence

that

it

wants

to

argue

plaintiff did not review enough IA files, all IA files must be
produced.
To be sure, the Court is not ruling that in all cases
municipalities

must

produce

all

29

of

their

IA

files.

To

the

The Court has already held that the post-incident events
are relevant to proving that an unconstitutional custom exists.
Groark I, 989 F. Supp. 2d at 397-98.
51

contrary,

the

Court

has

repeatedly

said

that

every

case

is

different and each case must be evaluated on its own merits.
Groark I, 989 F. Supp. 2d at 399 (“Every case is different and a
party’s discovery requests must be evaluated pursuant to the
standards

set

production

is

forth

in

Rules

warranted

here

26(b)
based

and
on

26(b)(2)(C).”).
a

number

of

Full

factors,

including: (1) the case involves a police officer and department
that have repeatedly been charged with excessive force and false
arrest

claims

by

citizens

and

litigants;

(2)

the

offending

police officer has never been meaningfully disciplined; (3) the
parties’ experts agree that production of all IA files will
result in the most accurate and complete analysis; (4) Atlantic
City refuses to compromise on the number of IA files to produce;
(5) Atlantic City reserves its right to argue that plaintiff did
not review enough IA files to give a qualified opinion regarding
its Monell liability; (6) the production of the files will not
be

unduly

burdensome;

and

(7)

the

production

will

avoid

additional in limine and Daubert motions in the future.
5.

Allocation of Costs

Having

decided

that

Atlantic

City

must

produce

all

IA

files, the Court turns to the question of who should bear the
cost of the production. Ordinarily a party pays its own costs to
respond to discovery. Oppenheimer Fund, Inc. v. Sanders, 437
U.S. 340, 358 (1978). Nevertheless, in appropriate circumstances
52

the Court may allocate costs. Most cases discussing the sharing
of discovery costs arise in the context of electronic discovery.
See, e.g., Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y.
2003); Major Tours, Inc. v. Colorel, C.A. No. 05-3091 (JBS/JS),
2009 WL 3446761, at *5-6. (D.N.J. Oct. 20, 2009). However, the
Court may impose cost sharing outside the electronic discovery
context. See Boeywaems v. LA Fitness International, LLC, 285
F.R.D. 331, 336 (E.D. Pa. 2012) (“Although by its terms [Fed. R.
Civ. P. 26(b)(2)(B)] is limited to ESI, courts are permitted to
apply

similar

cost

allocations

in

cases

involving

extensive

production of paper discovery)); Foreclosure Management Co. v.
Asset

Management

Holdings,

LLC,

C.A.

No.

07-2388,

2008

WL

3822773, at *7 (D. Kan. Aug. 13, 2008) (“a court has discretion
under

Rule

26(c)

to

condition

discovery

on

the

requesting

party’s payment of the costs of discovery”); Schweinfurth v.
Motorola, Inc., C.A. No. 05-0024, 2008 WL 4449081, at *2 (N.D.
Ohio Sept. 30, 2008) (ordering cost sharing for 1 million pages
of paper discovery).30
Since the Court has determined that it will not be unduly
burdensome for Atlantic City to produce its IA files, the Court
30

“[T]he good-cause inquiry and consideration of the
Rule 26(b)(2)(C) limitations are coupled with the authority to
set conditions for discovery. The conditions may . . . include
payment by the requesting party of part or all of the reasonable
costs of obtaining information from sources that are not
reasonably accessible.” Fed. R. Civ. P. 26 Advisory Committee
Note to 2006 Amendment.
53

will not order cost-sharing at this time. However, given the
expected cost of production, and the well-known facts concerning
Atlantic

City’s

dire

financial

situation,

the

parties

are

encouraged to agree upon a reasonable cost sharing arrangement.
Plaintiff’s counsel has already indicated a willingness to share
costs. The added benefit of requiring the parties to share costs
is that it encourages the parties to come up with a discovery
plan that is time and cost efficient. Boeynaems v. LA Fitness
Intern., LLC, 285 F.R.D. at 331, 337 (E.D. Pa. 2012) (citation
omitted). Plus, cost-sharing should remove an excuse to delay
production.
As to the timing of Atlantic City’s production and the
possible cost-sharing arrangement, the parties shall meet and
confer in good faith about the issue. If the parties do not
agree, the Court will determine a production schedule. There are
endless possibilities to share the cost of copying (or scanning)
Atlantic City’s files. For example, the parties can hire an
outside company to bring its own copy machine to the ACPD and
copy the IA files. The parties can also share the cost of paying
a new clerical employee to copy the files. The parties can also
share

the

cost

of

paying

Atlantic

City’s

existing

clerical

employee to copy its files.
To be clear, however, the Court will not permit Atlantic
City to impose unreasonable and unnecessary obstacles to copying
54

its files. Lt. Hendricks testified that only the ACPD’s clerk
can copy its files. This is not correct. See IAPP at 43 {“[T]he
law

enforcement

executive

officer

may

authorize

access

to

a

particular file or record for good cause.”). Absent good cause
the Court sees no reason why any qualified person cannot copy
the

files.

sufficient
expedient

Further,
time

to

fashion.

whoever
the

The

copies

effort
Court

to

will

the

files

complete
not

allow

must

dedicate

the

job

in

an

the

case

to

be

unreasonably delayed.
The Court is not unmindful of the benefits that will inure
to Atlantic City from this Opinion.

The Court has seen time and

time again how much effort Atlantic City puts into resisting
discovery

in

its

§

1983

cases

without

success.

Given

the

substantial number of § 1983 cases it is defending, Atlantic
City will benefit from one complete set of IA files.

In the

future it will not have to “reinvent the wheel” in every case as
has happened so often in the past. Further, if Atlantic City’s
IA process is as meaningful and effective as it posits, its
production should buttress and not hurt its defense. If Atlantic
City allocates the cost of its production amongst its cases, the
cost to each case is likely to be negligible.
In short, the Court has no hesitation in directing Atlantic
City to produce all of its IA files from 2003 through December
31, 2014. The IA files are unquestionably relevant, Atlantic
55

City refuses to compromise on the number of files to produce,
and it is not unduly burdensome to produce the files. Under the
circumstances of this case, the public interest in assuring that
citizens’ constitutional rights are not abused by the police
substantially outweighs Atlantic City’s interest in keeping its
IA files secret. The public has a paramount right to know what
is going on and why.
Conclusion
For all the foregoing reasons, the Court grants plaintiff’s
request for production of all of Atlantic City’s IA files from
2003

through

December

31,

2014.

The

parties

shall

meet

and

confer to propose a reasonable production schedule and possible
cost-sharing arrangement. An appropriate Order accompanies this
Opinion.
s/Joel Schneider
JOEL SCHNEIDER
United States Magistrate Judge
Dated: April 10, 2015

56