Coggins v. County of Nassau et al
Filing
166
ORDER denying 160 Motion for Protective Order; denying 164 Motion to Strike. For the reasons set forth herein, the Court denies Buonora's requests for gag and protective orders, denies Coggins's request for fees, and denies Coggins's motion to strike. SO ORDERED. Ordered by Judge Joseph F. Bianco on 2/6/2014. (Chipev, George)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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DARRYL T. COGGINS,
:
:
Plaintiff,
:
: MEMORANDUM AND ORDER
-against: 07-CV-3624 (JFB)(AKT)
:
COUNTY OF NASSAU, NASSAU COUNTY
:
POLICE DEPARTMENT, POLICE OFFICER
:
JAMES VARA, IN HIS INDIVIDUAL AND
:
OFFICIAL CAPACITY, POLICE OFFICER
:
CRAIG BUONORA, IN HIS INDIVIDUAL AND :
OFFICIAL CAPACITY, AND JOHN DOES
:
1-10, IN THEIR INDIVIDUAL AND OFFICIAL, :
CAPACITY,
:
:
Defendants.
:
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JOSEPH F. BIANCO, District Judge:
Defendant Craig Buonora moves the Court to issue a gag order forbidding plaintiff
Darryl Coggins and his counsel from discussing this case with anyone, including the press or in
social media, and a protective order pursuant to Fed. R. Civ. P. 26(c) with respect to matters
learned from discovery. According to Buonora, this relief is necessary because plaintiff
discussed this case with Newsday, which published an article regarding the Nassau and Suffolk
County Police Departments and detailing Coggins’s lawsuit on December 18, 2013. Buonora
claims that information plaintiff provided to Newsday was unsubstantiated or requires a jury
finding, and Buonora is concerned that the misinformation will prejudice him and make it harder
for him to get a fair trial. Buonora also requests a protective order because, for example, the
Newsday article references an Internal Affairs (“IA”) report exchanged in discovery. Plaintiff
argues that Buonora does not make a proper showing for an injunction, prior restraint, or
protective order. Plaintiff requests fees and costs for defending the present motion, and moves to
strike Buonora’s reply because it discussed items not addressed in the initial motion. For the
following reasons, the Court denies Buonora’s motion, Coggins’s request for fees and costs, and
the motion to strike.
I.
Motion for a Gag Order and Protective Order
A.
Gag Order
Buonora argues that a gag order is necessary to avoid tainting the prospective jury pool.
Before a court may impose any sort of “gag order,” it must, among other things, determine
whether “other available remedies would effectively mitigate the prejudicial publicity.” In re
App. of Dow Jones & Co., 842 F.2d 603, 611 (2d Cir. 1988); see Local Crim. R. 23.1(h)
(requiring that before imposing an order governing “extrajudicial statements,” the court “shall
consider whether such an order will be necessary to ensure an impartial jury and must find that
other, less extreme available remedies, singly or collectively, are not feasible or would not
effectively mitigate the pretrial publicity and bring about a fair trial”). Possible measures include
a change of venue, trial postponement, a searching voir dear, emphatic jury instructions, and
emphatic warnings to the press and parties. See Sheppard v. Maxwell, 384 U.S. 333, 358–63
(1966); United States v. Quattrone, 402 F.3d 304, 311–12 (2d Cir. 2005); Dow Jones, 842 F.2d
at 611; see also Local Crim. R. 23.1(h).
At this stage, the Court concludes that an appropriate combination of these “alternative
remedies” will mitigate any prejudicial effects of the publicity in Newsday, or any subsequent
publicity that may occur. The record before the Court does not indicate that Coggins has made
any other statements to the press or other individuals. Most importantly, if the case ultimately
proceeds to trial, the Court is prepared to conduct an exhaustive jury selection process to
empanel a fair and impartial jury. Questions to prospective jurors could focus on each
prospective juror’s exposure to news coverage or other information on this case, as well as
whether any prospective juror that has been exposed to such information could be able to put
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aside anything she may have seen and decide the issues solely based on the evidence presented.
Based on the Court’s experience, it believes that, at least given the press coverage to date and the
stage of the proceedings, this process alone will root out any bias. See United States v. Wilson,
925 F. Supp. 2d 410, 412 (E.D.N.Y. 2013) (denying request to restrain parties from speaking to
member of press regarding criminal case because of existence of other available remedies); see
also Constand v. Cosby, 229 F.R.D. 472, 475 (E.D. Pa. 2005) (“Given the First Amendment
implications of a sweeping gag order, . . . limiting speech by parties and witnesses, particularly
in a civil case and this early in the proceeding, is not likely to be undertaken.”).1
Accordingly, Buonora’s motion for a gag order is denied.
B.
Protective Order
1.
Legal Standard
A district court has “broad discretion to determine whether an order should be entered
protecting a party from disclosure of information claimed to be privileged or confidential.”
Penthouse Int’l, Ltd. v. Playboy Enters., Inc., 663 F.2d 371, 391 (2d Cir. 1981); AMW Materials
Testing, Inc. v. Town of Babylon, 215 F.R.D. 67, 72 (E.D.N.Y. 2003) (“While the Federal Rules
mandate a liberal standard, district courts are empowered to issue protective orders to temper the
scope of discovery under [Rule 26(c)].”). Under Rule 26(c), “a court may, for good cause, issue
an order to protect a party or person from annoyance, embarrassment, oppression, or undue
burden or expense.” Fed. R. Civ. P. 26(c). This equitable power includes prohibiting the
disclosure of certain materials. See Fed. R. Civ. P. 26(c)(A). “The unique character of the
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Nevertheless, the Court encourages all parties and counsel to minimize the risk of
negative pre-trial publicity that may frustrate the ability to select a fair and impartial jury if the
case proceeds to trial. The Court also refers counsel to their ethical obligations under Rule 3.6 of
the New York State Rules of Professional Conduct. See N.Y. Comp. Codes R. & Regs. tit. 22 §
1200.0 (Rule 3.6).
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discovery process requires that the trial court have substantial latitude to fashion protective
orders.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 26 (1984); see also In re Zyprexa
Injunction, 474 F. Supp. 2d 385, 415 (E.D.N.Y. 2007) (“Much of the material produced in
discovery is neither incorporated in motions made to the court nor admissible at trial. In order to
mitigate the substantial risk of litigants’ privacy and other rights posed by the expansive scope of
pretrial discovery, courts are given broad discretion in Rule 26(c) to craft sealing orders”).
Because protective orders can implicate the public’s First Amendment and common law right of
access to the courts, however, Rule 26(c) requires the party seeking the order to demonstrate
good cause. See In re Agent Orange Prod. Liab. Litig., 821 F.2d 139, 145 (2d Cir. 1987); In re
Terrorist Attacks on Sept. 11, 2001, 454 F. Supp. 2d 220, 221 (S.D.N.Y. 2006).
Under Rule 26(c), the moving party must establish “particular and specific facts” rather
than “conclusory assertions,” that justify the imposition of a protective order. Rofail v. United
States, 227 F.R.D. 53, 54–55 (E.D.N.Y. 2005) (quoting AMW Materials, 215 F.R.D. at 72); see
also Bank of N.Y. v. Meridien BIAO Bank Tanzania Ltd., 171 F.R.D. 135, 143 (S.D.N.Y. 1997)
(“Under Rule 26(c), the moving party is required to establish good cause by a particular and
specific demonstration of fact, as distinguished from stereotyped and conclusory statements. . . .
Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not
satisfy the Rule 26(c) test.” (citations and quotations omitted)). “[I]f the movant establishes good
cause for protection, the court may balance the countervailing interests to determine whether to
exercise discretion and grant the order.” Hasbrouck v. BankAmerica Hous. Servs., 187 F.R.D.
453, 455 (N.D.N.Y. 1999) (collecting cases). Such countervailing interests include the public’s
interest in the information contained in the documents. See, e.g., Cumberland Packing Corp. v.
Monsanto Co., 184 F.R.D. 504, 505 (E.D.N.Y. 1999); In re Zyprexa Injunction, 474 F.Supp.2d at
415 (“Balancing requires taking into account litigants’ privacy rights as well as the general
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public’s interest in the information.”).
2.
Analysis
Buonora’s request for a protective order is premised on Coggins’s alleged disclosure of
information in an IA report to Newsday. According to Buonora, such information is protected from
public disclosure by N.Y. Civil Rights Law § 50-a(1), which provides that “[p]ersonnel records of
police officers . . . used to evaluated performance toward continued employment or promotion, under
the control of any police agency . . . of the state or any political subdivision thereof . . . shall be
considered confidential and not subject to inspection or review without the express written consent
of such police officer . . . except as mandated by lawful court order.” Given that argument, to the
extent Buonora requests a protective order over all discovery, the request is denied because Buonora
fails to establish any good cause for a blanket protective order in this case.
The Court also concludes that Buonora has failed to show good cause to warrant restricting
access to the IA report. Magistrate Judge Tomlinson’s analysis in Dorsett v. County of Nassau, 762
F. Supp. 2d 500 (E.D.N.Y. 2011), is particularly instructive.2 There, in considering a motion for a
protective order under Rule 26(c), Judge Tomlinson examined an IA report, affidavits, and other
information submitted by the defendants, held that the law enforcement privilege applied to the
report and issued a protective order because the plaintiffs had failed to overcome the defendants’
baseline showing of good cause. See id. at 519–26. Buonora, on the other hand, generally relies on
conclusory assertions that a protective order is necessary. The Court has not been provided with the
IA report, nor any other evidence to support a showing of good cause. This is insufficient. See
2
Judge Spatt affirmed the portions of Judge Tomlinson’s order that were not mooted by
the parties’ settlement in the case. See generally Dorsett v. Cnty. of Nassau, 800 F. Supp. 2d 453
(E.D.N.Y. 2011); Dorsett v. Cnty. of Nassau, 289 F.R.D. 54 (E.D.N.Y. 2012). The Second
Circuit affirmed Judge Spatt’s decision to not unseal the IA report, which was based in part on
Judge Tomlinson’s finding of good cause in connection with defendants’ Rule 26(c) motion.
Newsday LLC v. Cnty. of Nassau, 730 F.3d 156, 167–68 (2d Cir. 2013).
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Rofail, 227 F.R.D. at 54–55.
In Dorsett, Judge Tomlinson also addressed defendants’ argument that the IA report enjoyed
statutory protections against inspection and review because it was part of a personnel file pursuant
to N.Y. Civil Rights Law § 50-a. Judge Tomlinson reasoned that, although portions of the IA report
fell within the definition of “personnel records” under§ 50-a(1), “even in state court where § 50-a
is directly applied, police personnel records are not afforded absolute protection from disclosure.”
762 F. Supp. 2d at 531 (citations omitted). She then applied the two-prong test established in King
v. Conde, 121 F.R.D. 180 (E.D.N.Y. 1988), and determined that defendants had not satisfied the
threshold showing in King to bring the IA report within the confidentiality provisions of § 50-a. Id.
at 532–33. Under the first prong of the King test, “the police bear the burden of making a
‘substantial threshold showing’ that harm is likely to occur as a result of disclosure of the requested
documents.” Cody v. N.Y.S. Division of State Police, No. CV 07-3735, 2008 WL 3252081, at *3
(E.D.N.Y. July 31, 2008) (quoting King, 121 F.R.D. at 189). “Unless the government, through
competent declarations, shows the court what interests [of law enforcement or privacy] would be
harmed, how disclosure under a protective order would cause the harm, and how much harm there
would be, the court cannot conduct a meaningful balancing analysis.” King, 121 F.R.D. at 189
(internal quotations omitted) (emphasis in original). The declaration or affidavit submitted must (1)
be under oath and penalty of perjury; (2) from a responsible official within the agency who has
personal knowledge of the principal matters to be attested to; and (3) upon personal review of the
documents. Id. Only upon satisfying this initial threshold showing will a court turn to the next prong
and weigh the factors in favor of and against disclosure. See Cody, 2008 WL 3252081, at *3. In this
case, Buonora has not submitted any declarations to make the “substantial threshold showing.” King,
121 F.R.D. at 189. Therefore, he has not shown that the IA report falls within the confidentiality
provisions of § 50-a(1).
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Accordingly, Buonora’s motion for a protective order is denied.
II.
Request for Fees and Costs
Plaintiff moves for fees and costs for defending the present motion. Plaintiff, however, does
not justify the request. Further, under Rule 11, to avoid the risk of sanctions, counsel must undertake
reasonable inquiry to “ensure that papers filed are well-grounded in fact, legally tenable, and not
interposed for any improper purpose.” Gal v. Viacom Int’l, Inc., 403 F. Supp. 2d 294, 307
(S.D.N.Y.2005) (internal quotation marks omitted) (quoting Cooter & Gell v. Hartmarx Corp., 496
U.S. 384, 393 (1990)). In considering a motion for sanctions under Rule 11, this Court applies an
objective standard of reasonableness. See MacDraw, Inc. v. CIT Grp. Equip. Fin., Inc., 73 F.3d
1253, 1257–58 (2d Cir. 1996). Moreover, “Rule 11 is violated only when it is patently clear that a
claim has absolutely no chance of success.” Oliveri v. Thompson, 803 F.2d 1265, 1275 (2d Cir.
1986) (internal quotation marks and citation omitted). Additionally, “when divining the point at
which an argument turns from merely losing to losing and sanctionable, . . . courts [must] resolve
all doubts in favor of the signer” of the pleading. Rodick v. City of Schenectady, 1 F.3d 1341, 1350
(2d Cir. 1993) (internal quotation marks omitted). The Court has no basis to conclude that the instant
motion was brought in bad faith or that Buonora did not reasonably believe that his rights were
prejudiced by plaintiff’s statements to Newsday. That the Court denies the motion does not warrant
the awarding plaintiff fees and costs. See, e.g., Eisenberg v. Yes Clothing Co., No. 90 CIV.
8280(JFK), 1992 WL 36129, at *4 (S.D.N.Y. Feb. 19, 1992) (“Rule 11 sanctions are not to be
imposed on every litigant that files a motion that the Court deems premature, or ill-advised, or
weak.”). Accordingly, Coggins’s request for fees and costs is denied.
III.
Motion to Strike
Finally, there is no reason to strike Buonora’s reply or provide plaintiff with a further
opportunity to respond. First, the Court has denied Buonora’s motion. Second, the issues Buonora
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addresses in his reply were raised by plaintiff in his opposition, including prior restraint on the press,
the applicability of Fed. R. Civ. P. 65, and plaintiff’s reliance on New York statutes. There is no
legal ground to deny Buonora the opportunity to respond to plaintiff’s arguments, much less sanction
him for doing so. Accordingly, Coggins’s motion to strike is denied.
IV.
Conclusion
For the foregoing reasons, the Court denies Buonora’s requests for gag and protective orders,
denies Coggins’s request for fees and costs, and denies Coggins’s motion to strike.
SO ORDERED.
_________________________
Joseph F. Bianco
United States District Judge
Dated: February __, 2014
Central Islip, NY
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