MARTINEZ v. FUENTES et al

Filing 40

MEMORANDUM OPINION filed. Signed by Magistrate Judge Tonianne J. Bongiovanni on 5/30/2017. (km)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JOEL MARTINEZ,

Civil Action No. 15-2932 (BRM)

Plaintiff,
v.

MEMORANDUM OPINION

COLONEL JOSEPH R. FUENTES, et al.,
Defendants.

BONGIOVANNI, Magistrate Judge
This matter comes before the Court upon Plaintiff Joel Martinez’s (“Plaintiff” or
“Martinez”) motion to compel the production of four documents being withheld by the New
Jersey State Police (the “NJSP”), a non-party in this matter, based on the attorney-client
privilege, deliberative process privilege and/or self-critical analysis privilege. NJSP opposes
Plaintiff’s motion, arguing that the documents at issue are protected both by the deliberative
process privilege and self-critical analysis privilege. The Court has fully reviewed and
considered all arguments made in support of and in opposition to Plaintiff’s motion to compel.
The Court considers Plaintiff’s motion without oral argument pursuant to L.Civ.R. 78.1(b). For
the reasons set forth more fully below, Plaintiff’s motion is DENIED.
I.

Background and Procedural History
This is a civil rights matter, arising from the alleged wrongful arrest of Plaintiff by

Defendant Trooper I Jose G. Rivera (“Trooper Rivera”) on April 26, 2013. Plaintiff alleges that
a personal history existed between him and Trooper Rivera: Trooper Rivera had an extramarital
affair with Plaintiff’s wife and displayed a general animosity toward Plaintiff. (Compl. ¶¶ 21,

22). On April 26, 2013, a verbal altercation ensued between Plaintiff and Trooper Rivera. (Id. ¶
18). Subsequent to same, Trooper Rivera arrested Plaintiff. (Id. ¶ 16). As a result of the arrest,
Plaintiff was charged with disorderly conduct; though ultimately the charges against him were
dismissed by the municipal court. (Id. ¶ 25).
On April 26, 2013, while he was detained, Plaintiff made a verbal complaint to the NJSP,
outlining “Trooper Rivera’s personal history and animus against Plaintiff, [and] Rivera’s affair
with Plaintiff’s wife[.]” (Id. ¶ 22). On April 29, 2013, DSG Ismael E. Vargas (“Vargas”)
opened an investigation into Plaintiff’s “allegations of false arrest, conflict of interest and failure
to notify the Division of Information.” (Id. 23). Vargas completed the investigation on October
16, 2014, ultimately determining that the investigation “had failed to develop sufficient evidence
to substantiate [Martinez’s] allegations[.]” (Id. ¶ 24). On December 29, 2014, Captain Scott
Ebner sent Plaintiff a letter informing him of the investigatory findings. (Id. ¶ 24).
Based on the foregoing, Plaintiff filed the instant litigation, asserting claims against
Trooper Rivera under 42 U.S.C. § 1983 and the New Jersey Civil Rights Act (“NJCRA”),
alleging that Trooper Rivera’s conduct violated his “federal constitutional rights to be free from
unlawful restraint, unlawful seizure, warrantless and wrongful arrest and unreasonable searches
of his person and property, and malicious prosecution for charging Plaintiff with disorderly
conduct” and sought to punish Plaintiff for his “protected speech[.]” (Id. ¶¶ 28, 31). Plaintiff
also asserted claims against six of Trooper Rivera’s supervisors – Colonel Joseph R. Fuentes,
Colonel Patrick Callahan, Major Kevin Dunn, Acting Major Mark Wondrack, Captain Scott
Ebner and DSG Ismael E. Vargas (the “Supervisory Defendants”) – asserting that they
maintained a “policy of lax or no supervision and lax or no correction of subordinates when they
engage in conduct that violates” the Constitution and that the Supervisory Defendants failed to

2

properly train, supervise or discipline Trooper Rivera. (Id. ¶¶ 36-38). Plaintiff asserted the
aforementioned claims against Trooper Rivera and the Supervisory Defendants in their official
and individual capacities. (Id. ¶ 14).
All Defendants moved to dismiss the claims asserted against them in their official
capacities on August 19, 2015. (See, generally, Def. Mot. to Dismiss; Docket Entry No. 12).
The Supervisory Defendants also moved to dismiss the substantive claims Plaintiff asserted
against them based on their alleged supervisory liability under 42 U.S.C. § 1983 for failure to
state a claim. (Id.) The District Court granted Defendants’ motion to dismiss the claims asserted
against them in their official capacities as well as the Supervisory Defendants motion to dismiss
Plaintiff’s supervisor liability claims on February 3, 2016. (See Op. and Order of 2/3/2016;
Docket Entry Nos. 19 & 20). Thus, the only claims that remain in this case are those asserted by
Plaintiff against Trooper Rivera.
After a decision was rendered on Defendants’ motion to dismiss, the Court conducted an
Initial Pretrial Conference on May 17, 2016. As a result of that conference, a schedule was
entered in this matter. (See Scheduling Order of 5/18/2016; Docket Entry No. 24). Pursuant to
same, all motions to amend the pleadings had to be filed by August 10, 2016. (Id. at 1). That
deadline was later twice extended in order to provide Plaintiff with sufficient time to review
certain material subpoenaed from the NJSP before having to move to amend. (See Letter Orders
of 8/10/2016 and 9/23/2016; Docket Entry Nos. 27 & 31). On October 19, 2016 during a
telephone conference conducted by the Court, the deadline to move to amend was adjourned
again to allow Plaintiff to file and obtain a decision on the instant motion to compel before being
required to move to amend his Complaint. (See Minute Entry of 10/19/2016).

3

Via the instant motion, Plaintiff seeks to compel the NJSP to produce four documents
that are either being partially or fully withheld from production: (1) NJSP Martinez 001- NJSP
Martinez 006, Internal Investigation 2013-0216, Allegations & Conclusions; (2) NJSP Martinez
009- NJSP Martinez 030, Internal Investigation 2013-0216 report; (3) NJSP Martinez 059 –
NJSP Martinez 063, Memorandum RE: Internal Investigation 2013-0216; and (4) NJSP Martinez
066, Letter RE: Internal Investigation 2013-0216. (See Br. in Support of Motion to Compel (“Pl.
Br.”) at 2-3, Docket Entry No. 32-1; Ex. A to Motion to Compel, Docket Entry No. 33). The
NJSP has refused to produce these documents. In its privilege log, the NJSP indicates that these
documents are protected by the deliberative process privilege, self-critical analysis privilege
and/or the attorney-client privilege. 1 However, the NJSP in its opposition brief relies solely on
the deliberative process privilege and self-critical analysis privilege to oppose Plaintiff’s motion.
Since the NJSP bears at least the initial burden of establishing that each privilege applies, the
Court does not address the applicability of the attorney-client privilege. See Redland Soccer
Club, Inc. v. Dept. of Army of U.S., 55 F.3d 827, 854 (3d Cir. 1995) (noting that “initial burden
of showing [deliberative process] privilege applies is on the government.”); Bobryk v. Durand
Glass Mfg. Col, Inc., Civil No. 12-5360 (NLH/JS), 2013 WL 5604342, *3 (D.N.J. Oct. 11, 2013)
(noting that party claiming self-critical analysis privilege bears burden to prove it exists and
applies); Louisiana Mun. Police Employees Ret. Sys. v. Sealed Air Corp., 253 F.R.D. 300, 305
(D.N.J. 2008) (noting that “[t]he party asserting the attorney-client privilege bears the burden to
show that it applies.”) The NJSP has not even attempted to meet its burden of establishing the
applicability of same.

1

Additional privileges are claimed with respect to NJSP Martinez 001- NJSP Martinez 006. The
parties do not address same in their briefing on this motion. As such, neither does the Court
herein.
4

Plaintiff argues that the four documents at issue are “of central importance to the question
of possible culpability on the part of State Police officials of supervisory or policy making
status.” (Pl. Br. at 2). Indeed, Plaintiff claims that the withheld documents are “central to the
question of whether Plaintiff would seek relief in this case against the supervisory or policy
making officials of the New Jersey State Police.” (Id.) Plaintiff explains that “[i]n the context of
a ‘Monell’ claim (or a supervisory liability claim) alleging a denial of constitutional rights via
unlawful and unconstitutional policy, practice or custom, a plaintiff claiming culpability on the
part of superiors may focus upon the inadequacies or even bankruptcies of an internal affairs
process or internal affairs investigations--to show the culpability of the upper echelon for a
constitutional tort.” (Id. at 5). Plaintiff argues that “the complete internal affairs investigation
file, including the evaluative portions and all those parts that show how the decision-makers
considered, weighed, and utilized the evidence to reach the agency’s decision of
‘unsubstantiated’” is needed in order to honestly “evaluate the fairness of the decision to reject
[Plaintiff’s] claim[.]” (Id. at 6).
Plaintiff maintains that his need for the information at issue outweighs the NJSP’s claims
of privilege. In this regard, Plaintiff notes that the materials he seeks contain “the how and why
of the state’ [sic] police’s evaluation of Defendant Rivera’s conduct and its ultimate rejection of
the citizen complaint that the arrest was wrongful and the Trooper wrongful in his conduct.” (Id.
at 8). Plaintiff argues that he “needs to know whether the agency’s assessment of Rivera’s
conduct was fair and balanced, or instead tendentious and partisan-- and thus revelatory of a
condoning or acquiescence in wrongful, unconstitutional conduct and abuse of power.” (Id.)
Indeed, Plaintiff contends that “[t]he stuff of the superiors’ evaluation of Rivera’s conduct may
speak volumes as to what policies the state police had or failed to have, and as to whether they

5

acquiesced in wrongful conduct by failing to impose a sanction.” (Id.) Plaintiff claims that what
is at issue here “is the importance of transparency” and “[f]ull disclosure as to how the superior
[sic] of Rivera came to their decision will reveal or reflect the policies or lack of polices, the
fairness or lack of fairness in how this police agency and its higher-ups handle a claim of abuse
of official power for personal ends.” (Id. at 9). Plaintiff argues that “[t]he factual materials
released under the subpoena raise serious questions as to the basis of Rivera’s conduct” and, as
such, Plaintiff “deserves a chance to see the entire report with all of its analysis,
recommendations and ways and means of reaching its result.” (Id. at 10). Plaintiff also claims
that “[t]he notion that disclosure would somehow chill future reviews seems nonsensical when
one considers that in this case the publicly revealed stance of the agency is that the citizen’s
complaint is meritless.” (Id.)
The NJSP, however, maintains that the four documents at issue are protected from
disclosure by the deliberative process and self-critical analysis privilege and that even after
balancing Plaintiff’s need for the information, the documents should remain protected. In this
regard, the NJSP argues that all four documents are pre-decisional and deliberative. Specifically,
it asserts that:
The Allegations & Conclusions of the Internal Investigation report
is an evaluation by the investigating officer regarding evidence
gathered during the internal investigation and his recommendation
as to the merit of the Complaint. That recommendation is
forwarded up the chain of command at NJSP and used in
determining whether disciplinary charges should be levied against
the officer. The Memorandum withheld seeks legal advice from
the Office of the Attorney General on how to proceed with the
Complaint, and the letter constitutes the Attorney General’s
response. As such, these documents are of the type of predecisional documents identified by the Supreme Court as worth
[sic] of the application of the deliberative process privilege as all
contain advisory opinion [sic] and recommendations used in the

6

final agency decision declining to bring disciplinary charges
against Trooper Rivera.
(NJSP Opp. Br. at 4-5; Docket Entry No. 38).
Further, the NJSP contends that on balance its need for closure outweighs Plaintiff’s need
for disclosure. In this regard, in light of the fact that the NJSP’s evaluation occurred after the
alleged violation of Plaintiff’s constitutional rights, the NJSP argues it “holds no evidentiary
significance to a claim of supervisory liability.” (Id. at 6). The NJSP also argues that disclosing
the subject documents “would undoubtedly result in a chilling effect upon the investigating
officers’ willingness to share gut feelings and anecdotal information which might subject them to
criticism outside of the chain of command.” (Id. at 8). The NJSP argues that the “interest in
confidentiality to ensure that investigating officers communicate candidly outweighs Plaintiff’s
state [sic] interest that he requires this additional information, despite already having all facts
relied upon by the officer, to determine whether supervisory liability exists.” (Id. at 8-9). In
addition, the NJSP argues that “disclosure of the State’s process of determining how to proceed
with internal investigations would undermine the State’s deliberative process.” (Id. at 9).
The NJSP also argues that the Allegations & Conclusions, which contain analysis of the
evidence gathered in the investigation, including testimonial evidence, are subject to the selfcritical analysis privilege. In this regard, the NJSP argues that disclosure of such material “could
chill future agency investigative functions by discouraging witness cooperation if analysis and
credibility determinations of a witness' statement are subject to public disclosure.” (Id. at 11). In
addition, the NJSP claims that “non-disclosure of the sought material promotes frank selfcritique and candor in NJSP internal investigations by allowing the investigation officer to
investigate the Complaint without fear of criticism outside of the chain of command.” (Id.) The
NJSP maintains that here, where “the recommendation of the investigating officer [over] whether
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Plaintiff’s Complaint is substantiated holds no evidentiary value to a claim of supervisory
liability because the recommendation occurs after the alleged constitutional violation and does
not shed light on whether the supervisor had personal involvement or knowledge” and where
Plaintiff “has already been provided with the Internal Investigation report containing the identity
of the investigating officer, the identities and statements of all witnesses, and all facts determined
in the investigation and relied upon in the officer’ determination that the Complaint was
unsubstantiated[,]” further disclosure is not warranted. (Id. at 12).
II.

Analysis
The Court has broad discretion in deciding discovery issues such as those presented in

Plaintiff’s motion to compel. See Gerald Chamles Corp. v. Oki Data Americas, Inc., Civ. No.
07-1947 (JEI), 2007 WL 4789040, at *1 (D.N.J. Dec. 11, 2007) (stating that it is “well-settled
that Magistrate Judges have broad discretion to manage their docket and to decide discovery
issues[.]”) Indeed, it is well settled that the appropriate scope of discovery and the management
of requests for discovery are left to the sound discretion of the Court. See In re Fine Paper
Antitrust Litig., 685 F.2d 810, 817 (3d Cir. 1982) (finding that conduct of discovery is committed
to sound discretion of Court). According to FED.R.CIV.P. (“Rule”) 26(b):
Unless otherwise limited by court order, the scope of discovery is as
follows: Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense and
proportional to the needs of the case, considering the importance of
the issues at stake in the action, the amount in controversy, the
parties’ relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the issues,
and whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information within the scope of
discovery need not be admissible in evidence to be discoverable.
Thus, to be discoverable, the information must be (1) relevant to any party’s claim or defense;
(2) nonprivileged; and (3) proportional to the needs to the case.
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Here, the Court has serious concerns regarding the relevancy of the four documents at issue
in Plaintiff’s motion to compel. As noted above, throughout his motion, Plaintiff focuses on the
relevancy of the four documents to his supervisory liability claim:
•

The four documents at issue are “of central importance to the question of possible
culpability on the part of State Police officials of supervisory or policy making
status.” (Pl. Br. at 2).

•

The withheld documents are “central to the question of whether Plaintiff would
seek relief in this case against the supervisory or policy making officials of the
New Jersey State Police.” (Id.)

•

Plaintiff seeks disclosure of the four documents because he “needs to know
whether the agency’s assessment of Rivera’s conduct was fair and balanced, or
instead tendentious and partisan-- and thus revelatory of a condoning or
acquiescence in wrongful, unconstitutional conduct and abuse of power.” (Id.)

•

“The stuff of the superiors’ evaluation of Rivera’s conduct may speak volumes as
to what policies the state police had or failed to have, and as to whether they
acquiesced in wrongful conduct by failing to impose a sanction.” (Id.)

•

What is at issue here “is the importance of transparency.” “Full disclosure as to
how the superior [sic] of Rivera came to their decision will reveal or reflect the
policies or lack of polices, the fairness or lack of fairness in how this police
agency and its higher-ups handle a claim of abuse of official power for personal
ends.” (Id. at 9).

As this case currently stands, however, there are no supervisory liability claims in the
operative Complaint. Instead, the District Court dismissed same on February 3, 2016, finding

9

that Plaintiff “failed to allege sufficient facts under the deliberate indifference theory to state a
claim of supervisory liability” and likewise failed to “state a claim under the knowledge and
acquiescence theory of supervisory liability.” (Op. of 2/3/2016 at 7, 8). Thus, the only claims
that remain are Plaintiff’s 42 U.S.C. § 1983 and NJCRA claims against Trooper Rivera.
“The purpose of discovery is to uncover evidence of the facts pleaded in the Complaint,
not ‘to find a cause of action.’” Smith v. Lyons, Doughty & Veldhuius, Civil Action No. 075139, 2008 WL 2885887, *5 (D.N.J. July 23, 2008) (quoting Ranke v. Sanofi-Synthelabo Inc.,
436 F.3d 197, 204 (3d Cir. 2006) (citation omitted). Discovery is meant to bear on the claims
and defenses actually present in a matter. It “should not serve as a fishing expedition during
which Plaintiff searches for evidence in support of facts he has not yet pleaded.” Smith, 2008
WL 2885887, at *5. “‘The discovery rules are designed to assist a party to prove a claim it
reasonably believes to be viable without discovery, not to find out if it has any basis for a
claim.’” Claude P. Bamberger Intern., Inc. v. Rohm and Haas Co., No. CIV 96-1041 (WGB),
1998 WL 684263, *2 (D.N.J. April 1, 1998) (quoting Micro Motion, Inc. v. Kane Steel Co., Inc.,
894 F.2d 1318, 1326 (Fed. Cir. 1990)). Here, there is presently no cause of action for
supervisory liability and the facts alleged are insufficient to support such a claim. As a result,
the Court is hard-pressed to find that the discovery sought by Plaintiff is “relevant to any party’s
claim” under Rule 26(b).
Nevertheless, even if the Court were to assume that the information sought was at least
marginally relevant to Plaintiff’s present claims, the Court would also find that the four
documents have been appropriately withheld under the deliberative process privilege. The
deliberative process privilege “permits the government to withhold documents containing
‘confidential deliberations of law or policymaking, reflecting opinions, recommendations or

10

advice.’” Redland Soccer, 55 F.3d at 853 (quoting In re Grand Jury, 821 F.2d 946, 959 (3d Cir.
1987)). It “‘protects agency documents that are both predecisional and deliberative.’”
Abdelfattah v. U.S. Dept. of Homeland Sec., 488 F.3d 178, 183 (3d Cir. 2007) (quoting Judicial
Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C.Cir. 2006)). The privilege “recognizes ‘that were
agencies forced to operate in a fishbowl, the frank exchange of ideas and opinion would cease
and the quality of administrative decisions would consequently suffer.’” Redland Soccer, 55
F.3d at 854 (3d Cir. 1995) (quoting First Eastern Corp. v. Mainwaring, 21 F.3d 465, 468
(D.C.Cir. 1994) (quotations and internal ellipses omitted)).
In order to assert the deliberative process privilege, the following three procedural
requirements must be satisfied: (1) the head of the department which has control over the matter
must make a formal claim of privilege after actually considering the matter; (2) the responsible
agency official must provide precise and certain reasons for asserting the privilege over the
government information or documents at issue; and (3) the government information or
documents sought to be shielded from disclosure must be identified and described. U.S. v.
Ernstoff, 183 F.R.D. 148, 152 (D.N.J. 1998). After these three procedural requirements are met,
the Court must determine whether the government has substantively established a prima facie
case that the deliberative process privilege applies. As noted above, to do so, the government
must show that the documents in question are pre-decisional and deliberative. Abdelfattah, 488
F.3d 178, 183 (3d Cir. 2007). In order to be pre-decisional, a document must concern an
anticipated agency decision and have been generated prior to the actual decision being reached; it
cannot involve a communication concerning the decision made after the decision has already
been adopted. See N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 151-52, 95 S.Ct. 1504, 44
L.Ed.2d 29 (1975). Further, to be deliberative, a document must reflect “‘advisory opinions,

11

recommendations and deliberations comprising part of a process by which governmental
decisions and policies are formulated.’” Id. at 150 (quoting Carl Zeiss Stiftung v. V.E.B. Carl
Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C. 1966)).
Here, the NJSP has met the three procedural requirements needed in order to assert the
deliberative process privilege. Further, the NJSP has established that the information being
withheld is predecisional and deliberative. The four withheld documents pertain to the NJSP’s
anticipated decision regarding whether Trooper Rivera should be sanctioned in relation to his
conduct toward Plaintiff on April 26, 2013 and all four documents were created before the
decision to reject Plaintiff’s claim against Trooper Rivera as unsubstantiated was made. Further,
the four documents expose advisory opinions, recommendations and deliberations encompassing
part of the process by which the NJSP determined whether or not to sanction Trooper Rivera. As
such, the Court finds that the NJSP appropriately withheld the documents in question based on
the deliberative process privilege.
The Court’s analysis, however, does not end there because “[t]he privilege, once
determined to be applicable, is not absolute.” Redland Soccer Club, 55 F.3d at 854. Instead,
after a government agency establishes that the deliberative process privilege applies, the Court
performs a balancing test to weigh the parties’ competing interests. “The party seeking
discovery bears the burden of showing that its need for the documents outweighs the
government’s interest.” Id. In balancing the parties’ competing interests, the Court considers:
“(i) the relevance of the evidence sought to be protected; (ii) the availability of other evidence;
(iii) the ‘seriousness’ of the litigation and the issues involved; (iv) the role of the government in
the litigation; [and] (v) the possibility of future timidity by government employees who will be
forced to recognize that their secrets are violable.” Id. (quoting First Eastern Corp. v.

12

Mainwaring, 21 F.3d 465, 468 n.5 (D.C. Cir. 1994)) (internal quotation marks omitted); see
Ernstoff, 183 F.R.D. at 153.
The Court finds that Plaintiff has failed to establish that his need for the withheld
documents outweighs the NJSP’s interest in maintaining the confidentiality of same. Indeed,
given the marginal (if any) relevance of the documents to Plaintiff’s existing claims and the fact
that the NJSP has already provided Plaintiff with the Internal Investigation report containing the
identity of the investigating officer, the identities and statements of all witnesses and all of the
facts established in the investigation and relied upon by the investigating officer in determining
Plaintiff’s complaint was unsubstantiated, coupled with the fact that Plaintiff can depose
witnesses regarding the non-evaluative aspects of the Internal Investigation report, the Court
finds that on balance, the NJSP’s interests outweigh Plaintiff’s. 2
III.

Conclusion
For the reasons set forth above, Plaintiff’s motion to compel is DENIED. An appropriate

Order follows.
Dated: May 30, 2017
s/ Tonianne J. Bongiovanni
HONORABLE TONIANNE J. BONGIOVANNI
UNITED STATES MAGISTRATE JUDGE

2

In light of the Court’s determination regarding the applicability of the deliberative process
privilege, the Court does not reach the question of whether any of the documents withheld by the
NJSP would also be protected from disclosure based upon the self-critical analysis privilege.
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