Dorsett v. County Of Nassau et al
Filing
110
MEMORANDUM OF DECISION AND ORDER - It is hereby ORDERED that the plaintiffs and the Press Intervenors objections to Judge Tomlinsons Order dated January 14, 2011 are denied, and that order is affirmed; and it is further that the plaintiffs and the P ress Intervenors objections to Judge Tomlinsons Order dated January 19, 2011 are dismissed as moot, without prejudice to renew if a final settlement in this case is not consummated; and it is further ORDERED that the portion of the Press Intervenors objections relating to the proper maintenance of a public docket is denied, without prejudice to renew as set forth in this Order. Ordered by Senior Judge Arthur D. Spatt on 8/8/2011. (Coleman, Laurie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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SHARON DORSETT, individually and as the
Administratrix of the Estate of JO‘ANNA BIRD,
Plaintiff,
-against-
MEMORANDUM OF
DECISION AND ORDER
10-cv-1258 (ADS)(AKT)
COUNTY OF NASSAU, NASSAU COUNTY
POLICE DEPARTMENT, OFFICE OF THE
NASSAU COUNTY DISTRICT ATTORNEY,
Detective ROBERT ARIOLA, in his official and
individual capacities, Police Officers and/or
Detectives JOHN AND JANE DOES 1–10,
District Attorney JOHN AND JANE DOES 1–
10, and LEONARDO VALDEZ-CRUZ,
Defendants.
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APPEARANCES:
Law Offices of Frederick K. Brewington, Esq.
Attorneys for the plaintiff
556 Peninsula Boulevard
Hempstead, NY 11550
By:
Frederick K. Brewington, Esq.,
Valerie M. Cartright, Esq., of Counsel
Nassau County Attorney John Ciampoli
Attorney for all named defendants, except Leonardo Valdez-Cruz
1 West Street
Mineola, NY 11501
By:
Assistant County Attorney Sondra Meryl Toscano,
Assistant County Attorney Liora M. Ben-Sorek
Levin Sullivan Koch & Schulz, LLP
Attorneys for the intervenor plaintiffs Newsday LLC and News 12 Networks LLC
321 West 44th Street, Suite 510
New York, NY 10036
By:
Jacob P. Goldstein, Esq., of Counsel
NO APPEARANCE:
Defendant Leonardo Valdez-Cruz
SPATT, District Judge.
The present plaintiff, Sharon Dorsett, and two news organizations, Newsday LLC
and News 12 Networks, LLC, object to the entry of a protective order in this case that
prohibits the plaintiff from disseminating an internal report that the plaintiff obtained
from the defendant Nassau County Police Department in discovery. For the reasons that
follow, the Court affirms the entry of the protective order.
I. BACKGROUND
On March 19, 2009, Leonardo Valdez-Cruz murdered Jo‘Anna Bird in her Nassau
County home. According to the plaintiff, Bird had repeatedly appealed to the Nassau
County Police for protection from Valdez-Cruz prior to her March 19, 2009 death, but the
police department had ignored her pleas. On the one year anniversary of Bird‘s killing,
her mother, Sharon Dorsett, commenced the present civil action against (1) Nassau
County, (2) the Nassau County Police Department, (3) the Office of the Nassau County
District Attorney, (4) Nassau County Police Detective Robert Ariola, and (5) certain
unnamed Nassau County police officers and district attorneys (collectively, the ―County
Defendants‖), asserting various federal and state causes of action based on the County
Defendants‘ alleged wrongful failure to protect Bird from Valdez-Cruz. Dorsett also
named as a defendant Valdez-Cruz, who is currently serving a prison sentence for Bird‘s
murder and who has defaulted in this case.
After Bird was killed, the Nassau County Police Department Internal Affairs Unit
began an investigation into the police department‘s involvement in the events
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surrounding Bird‘s death. The result was Internal Affairs Unit Report 14-2009 (―the IAU
Report‖), a 712-page document that the plaintiff then sought to obtain through discovery
in this case. In their initial response to this request, the County Defendants produced
only a highly redacted version of the report. In reply, the plaintiff moved to compel
production of the full document. On October 29, 2010, after reviewing the IAU Report in
camera, United States Magistrate Judge A. Kathleen Tomlinson directed the County
Defendants to produce the report with only minor redactions, and with only two of the
712 pages marked ―attorneys‘ eyes only‖. The County Defendants complied with this
order sometime before November 10, 2011, and delivered the IAU Report to the plaintiff.
At no time before or at production of the IAU Report did the County Defendants request
a protective order limiting the dissemination of the report‘s contents.
Approximately twenty-five days after production of the IAU Report, on
November 30, 2010, counsel for the plaintiff announced that he would hold a press
conference on Wednesday, December 1, 2010, at which he would make public the
contents of the IAU Report. The County Defendants learned of the impending event
before it took place, and immediately contacted Judge Tomlinson to request a temporary
restraining order barring any dissemination of the IAU Report by the plaintiff. Judge
Tomlinson granted the motion, and requested briefing on the issue of whether the
plaintiff should be barred from publishing the IAU Report on a more long-term basis. In
response, Judge Tomlinson received papers from the plaintiff, the County Defendants,
and several amici curiae. In addition, Judge Tomlinson heard and granted a petition by
Newsday LLC and News 12 Networks, LLC (collectively, the ―Press Intervenors‖) to
intervene and oppose the County Defendants‘ request to keep the report secret.
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On January 14, 2011 and January 19, 2011, Judge Tomlinson resolved the dispute
over the IAU Report by issuing the two orders presently being appealed to this Court.
First, in her January 14, 2011 Order, Judge Tomlinson found that, while no injunction
should issue concerning the IAU Report, the County Defendants had shown ―good cause‖
to entitle them to a Fed. R. Civ. P. 26(c) protective order that prohibited the plaintiff from
publishing the IAU Report outside of this litigation. See Dorsett v. County of Nassau,
762 F. Supp. 2d 500 (E.D.N.Y. 2011) (―Dorsett I‖). Second, in her January 19, 2011
Order (published on January 20, 2011), Judge Tomlinson outlined the limitations on the
plaintiff‘s use of the IAU Report within the litigation.
On January 28 and 29, the Press Intervenors and the plaintiff, respectively, filed
objections to both of Judge Tomlinson‘s Orders. The plaintiff and the Press Intervenors
contended, among other things, that the County Defendants waived their right to request
confidential treatment of the IAU Report when they produced it without requesting such
protection. The County Defendants deny that they waived this right, and do not object to
Judge Tomlinson‘s Orders.
On July 20, 2011, approximately seven months after the parties‘ objections were
filed, but before this Court ruled on those objections, the County Defendants filed a letter
with Judge Tomlinson indicating that they had signed a settlement agreement and release
with the plaintiff, and requesting that all court deadlines be held in abeyance. Two days
later, on July 22, 2011, the Press Intervenors wrote the Court to request that,
notwithstanding the settlement, the Court rule on their objections to Judge Tomlinson‘s
Orders, as the Press Intervenors retained an asserted First Amendment interest in the
publication of the IAU Report, regardless of the status of this case. The County
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Defendants have filed an opposition to this request. For their part, the plaintiff has not
expressly indicated whether she continues to object to Judge Tomlinson‘s Orders now
that she has apparently settled her claims against the County Defendants. Without such
an indication, the Court assumes that the plaintiff‘s objections remain pending, as Judge
Tomlinson‘s order precluding dissemination will remain in effect after this case has
concluded.
II. DISCUSSION
A. As to Judge Tomlinson’s January 19, 2011 Order
As a preliminary matter, the Court finds that all parties‘ objections to Judge
Tomlinson‘s January 19, 2011 Order are mooted by the settlement of the case. The
portions of the January 19, 2011 Order to which the parties object relate solely to the
plaintiff‘s use of the IAU Report in the context of this litigation, and do not affect the
broader publication of that document. Those objections therefore have no relevance now
that this litigation has provisionally ended. The objections are denied as moot, with leave
to re-file if a final settlement is not consummated in this case.
B. As to Judge Tomlinson’s January 14, 2011 Order
By contrast, Judge Tomlinson‘s January 14, 2011 Order will continue to affect
both the plaintiff and the Press Intervenors even after a settlement has been
consummated. The Court therefore finds that the parties‘ objections to this Order are not
mooted, and now addresses them.
1. Standard of Review
The plaintiff and the Press Intervenors appeal from a protective order issued
pursuant to Rule 26(c), which is a non-dispositive matter. See, e.g., Thomas E. Hoar, Inc.
5
v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990). When reviewing a Magistrate
Judge‘s decision on a non-dispositive matter, the Court will modify or set aside any
portion of the magistrate‘s order found to be ―clearly erroneous or contrary to law.‖ Id.;
28 U.S.C. § 636(b)(1)(A) (―A judge of the court may reconsider any [non-dispositive]
pretrial matter . . . where it has been shown that the magistrate judge‘s order is clearly
erroneous or contrary to law.‖); Fed.R.Civ.P. Rule 72(a). A finding is clearly erroneous
if ―the reviewing court on the entire evidence is left with the definite and firm conviction
that a mistake has been committed.‖ United States v. U.S. Gypsum Co., 333 U.S. 364,
395, 68 S. Ct. 525, 92 L. Ed. 746 (1948); United States v. Isiofia, 370 F.3d 226, 232 (2d
Cir. 2004). An order is contrary to law ―when it fails to apply or misapplies relevant
statutes, case law, or rules of procedure.‖ Catskill Dev., L.L.C. v. Park Place Entrn‘t
Corp., 206 F.R.D. 78, 86 (S.D.N.Y. 2002) (citation omitted).
Nevertheless, the Press Intervenors urge the Court to review Judge Tomlinson‘s
Order de novo. They maintain that the Order ―reflect[s] [a] final adjudication[] on the
First Amendment rights of the Press Intervenors and others,‖ and therefore must be
analyzed under the non-deferential standard that applies to dispositive determinations by
Magistrate Judges. (Press Intervenors‘ Objections at 9, citing Fed. R. Civ. P. 72(b).) In
the Court‘s view, the Press Intervenors‘ argument goes too far. Under their reasoning,
every Rule 26(c) protective order limiting the public dissemination of documents—and
the Court notes that this type of protective order is granted daily in federal cases—would
be subject to de novo review if challenged, because every such order has final First
Amendment implications. The Court cannot agree that de novo review of such a
common part of discovery is appropriate. See, e.g., Dubai Islamic Bank v. Citibank,
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N.A., 211 F. Supp. 2d 447, 448–49 (S.D.N.Y. 2001) (applying the ―clearly erroneous or
contrary to law‖ standard of review to a challenge to a Rule 26(c) protective order
limiting dissemination of discovery materials).
Moreover, the Press Intervenors present no case that supports reviewing a Rule
26(c) protective order de novo. Instead, the Press Intervenors rely on cases in which
parties were permitted to file interlocutory appeals to challenge gag orders. See United
States v. Cutler, 58 F.3d 825, 832–33 (2d Cir. 1995); United States v. Salameh, 992 F.2d
445 (2d Cir. 1993) (per curiam); In re N.Y. Times Co., 878 F.2d 67 (2d Cir. 1989) (per
curiam); ABC, Inc. v. Stewart, 360 F.3d 90, 97 (2d Cir. 2004). The Court finds these
cases inapposite, and reviews Judge Tomlinson‘s Order under the ―clearly erroneous or
contrary to law‖ standard.
2. The First Amendment’s Restrictions on the Protective Order
Rule 26(c) provides that ―[t]he court may, for good cause, issue an order to
protect a party or person from annoyance, embarrassment, oppression, or undue burden
or expense.‖ It is well-settled that courts have broad power to enter protective orders
under Rule 26(c) that prohibit parties from sharing discovery materials with non-litigants
(such orders are typically referred to as ―confidentiality orders‖). See, e.g., AT & T
Corp. v. Sprint Corp., 407 F.3d 560, 562 (2d Cir. 2005) (recognizing the validity of a
Rule 26(c) confidentiality order entered on good cause).
Nevertheless, a confidentiality order limits a litigant‘s speech rights, and this
implicates the First Amendment free speech clause. U.S. Const. 1st Am. (―Congress
shall make no law . . . abridging the freedom of speech‖). In 1984, the United States
Supreme Court resolved this conflict, deciding the seminal case analyzing the interplay
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between confidentiality orders and the First Amendment. The facts of that case, Seattle
Times Co. v. Rhinehart, 467 U.S. 20, 104 S. Ct. 2199, 81 L. Ed. 2d 17 (1984), involved a
religious group who sued two newspapers for suggesting that the religious group engaged
in dubious practices. During discovery, the newspapers sought and received detailed
information about the religious organization, but were barred by a confidentiality order
from publishing what they had received. The newspapers challenged the confidentiality
order in the United States Supreme Court on First Amendment grounds, without success.
Explaining the Court‘s decision, Justice Powell recognized that ―there is certainly
a public interest in knowing more about [the religious group],‖ and that this public
interest possibly extended to every single item that the newspapers had received from the
religious group in discovery. Id., 467 U.S. at 31. However, Justice Powell noted that a
party‘s reception of documents in civil discovery was ―a matter of legislative grace,‖ and
therefore, that ―continued court control over the discovered information does not raise the
same specter of government censorship that such control might suggest in other
situations.‖ Id. at 32. Justice Powell did acknowledge that parties receiving discovery
information have a First Amendment right to freely use that information, but ultimately
explained that this right was relatively limited. Thus, Justice Powell stated for the Court
that where ―a protective order [1] is entered on a showing of good cause as required by
Rule 26(c), [2] is limited to the context of pretrial civil discovery, and [3] does not restrict
the dissemination of the information if gained from other sources, it does not offend the
First Amendment.‖
Here, in objecting to Judge Tomlinson‘s January 14, 2011 Order, neither party
suggests that, if timely requested and analyzed under the First Amendment and Rule
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26(c) good cause standard, the County Defendants would have been denied a
confidentiality order. The objectors do suggest that, even if timely requested, the
protective order places improper limits on the use of the IAU Report in litigation.
However, the Court finds that these objections have been mooted by the settlement of the
case. Further, to the extent that the Court could read into the parties‘ submissions an
objection to the County Defendants‘ ―good cause‖ for a timely protective order, the Court
finds that Judge Tomlinson adequately identified sufficient good cause for the order. See
Dorsett I, 762 F. Supp. 2d at 514–26 (finding that the County Defendants‘ interests in
keeping certain law enforcement techniques and sources of information non-public
established the requisite harm to establish good cause for a protective order).
Nevertheless, the Press Intervenors do make an additional First Amendmentbased objection to the January 14, 2011 Order. According to the Press Intervenors, Judge
Tomlinson incorrectly premised the protective order on her Rule 26(c) power to prohibit
public dissemination of discovery materials on a mere showing of good cause. The Press
Intervenors maintain that, given that the County Defendants had already produced the
IAU Report when the confidentiality order was entered, the confidentiality order is more
accurately characterized as a gag order—which is only supported by an exacting showing
of harm not made here. Thus, the Press Intervenors urge the Court to ignore whether
there was mere good cause for the protective order, and reverse what is actually an
improper gag order.
In the Court‘s view, this argument suffers from two deficiencies. First, the Press
Intervenors‘ argument requires that, once the County Defendants delivered the IAU
Report to the plaintiff without restriction, a court could no longer limit the plaintiff‘s use
9
of that document based on a showing of good cause. However, the cases that the Press
Intervenors rely on do not support this contention. Those cases, Smith v. Daily Mail Pub.
Co., 443 U.S. 97, 99 S. Ct. 2667, 61 L. Ed. 2d 399 (1979), and Nebraska Press Ass‘n v.
Stuart, 427 U.S. 539, 96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976), stand for the proposition
that, once information is made generally available to the public, the First Amendment
strongly protects speakers‘ rights to repeat that information. Here, the IAU Report was
not made generally available to the public, even in a limited forum. Rather, it was
produced only to the plaintiff, and unlike in Smith and Nebraska Press Association, the
public‘s access to the IAU Report was contingent on the plaintiff‘s decision to share it.
To be sure, the plaintiff could have published the IAU Report before the County
Defendants requested a confidentiality order. However, the plaintiff did not do so, and
the Court therefore does not read Smith or Nebraska Press Association as applying to the
present situation. As the Press Intervenors suggest, there is a ―bright line‖ in First
Amendment analysis between the treatment of public and non-public information related
to judicial proceedings. However, the Press Intervenors provide no support for showing a
―bright line‖ between the First Amendment‘s treatment of (1) non-public discovery
documents whose use was restricted at the time of production, and (2) identical
documents whose use at the time of production was not restricted.
Second, the Press Intervenors‘ characterization of the protective order as a gag
order ignores differences between the breadth of the protective order and the breadth of a
true gag order. Here, the plaintiff is not generally precluded from discussing her case in
public. More importantly, she is also not precluded from discussing the contents of the
IAU Report if she obtains that information from a source other than civil discovery in this
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case. Cf. Seattle Times Co., 467 U.S. at 34 (―the party may disseminate the identical
information covered by the protective order as long as the information is gained through
means independent of the court‘s processes‖). Unlike a gag order, which places general
limits on speech regardless of the source of the information being shared, the present
protective order only precludes the dissemination of the IAU Report as received through
discovery. The single fact that the Press Intervenors identify so as to transform this
protective order into a gag order is that the plaintiff possessed the IAU Report without
restriction—and also without publishing it—for approximately twenty-five days. The
Court cannot conclude from this that the plaintiffs are entitled to stronger First
Amendment protections, or that the protective order is in fact a gag order. As such, the
Court finds that, in spite of the fact that the County Defendants produced the IAU Report
without restriction, the First Amendment only requires a showing of good cause to limit
the dissemination of the still-unpublished IAU Report.
3. Waiver
Nevertheless, while the First Amendment does not require more than a showing
of good cause in this situation, it is not obvious that, even with a showing of good cause,
Rule 26(c) permits a confidentiality order to issue when it is requested after the relevant
document has been produced without restriction. This, then, is the most substantial
challenge to the January 14, 2011 Order: namely, whether the County Defendants‘
production of the IAU Report without restriction waived its right to later request
confidential treatment for that document. It is at least arguable that, because this
objection has no First Amendment dimension, the Press Intervenors have no standing to
make it. However, as this does not affect the outcome of the Court‘s decision, the Court
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need not resolve this issue. With respect to the substance of the objection, Judge
Tomlinson addressed this issue in the January 14, 2011 Order itself, and ultimately
determined that the County Defendants did not waive their right to seek a confidentiality
order. Here, the Court finds that, given the deferential standard under which the Court
reviews Judge Tomlinson‘s decision, her finding granting the protective order should not
be disturbed.
As a preliminary matter, the objectors both assert that the County Defendants
waived their right to seek a protective order by failing to request one prior to September
3, 2010, approximately two months before the IAU Report was produced in unredacted
form. Judge Tomlinson dismissed this contention in her decision, noting that, while she
had set September 3, 2010 as a deadline for requesting protective orders, this deadline did
not apply to confidentiality orders, which she had discussed separately with the parties.
See Dorsett I, 762 F. Supp. 2d at 527–28. The Court has reviewed the relevant
documents, and finds that Judge Tomlinson‘s interpretation of her own order will stand.
The County Defendants did not waive their right to seek a confidentiality order by failing
to request such an order by September 3, 2010.
More troublesome is the fact that the County Defendants also failed to request a
confidentiality order before or at the time they produced the IAU Report—the date of
production being sometime between October 29, 2010 and November 10, 2010. In the
Court‘s view, there is no doubt that this failure to request a confidentiality order waived
the County Defendants‘ right to seek redress had the plaintiff published the IAU Report
while no protective order was in place. Similarly, there is no doubt that, if the plaintiff
had made the document public, the First Amendment would require more than a showing
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of good cause to limit further dissemination. However, the relevant question here is
whether the County Defendants, by failing to seek a confidentiality order at the time of
production, waived their right to seek a confidentiality order after production, but before
the IAU Report was published.
As a starting point, Rule 26(c) makes no mention of a timeliness requirement for
seeking a protective order—although its pre-1970 predecessor required that requests for
protective orders be made ―seasonably‖. See Fed. R. Civ. P. 30(b), 48 F.R.D. 487, 510
(1970). Nevertheless, several courts have held that Rule 26(c) implicitly requires parties
to request a protective order at the time of production, and provides that a failure to do so
permanently waives the right to such an order. See, e.g., Schiller v. City of New York,
Nos. 04-cv-7922 & 04-cv-7921, 2007 WL 136149, *5 (S.D.N.Y. Jan. 19, 2007) (Francis,
M.J.) (holding that production of documents without a claim of privilege waives the right
to later claim that privilege); Brittain v. Stroh Brewery Co., 136 F.R.D. 408, 413
(M.D.N.C. 1991) (holding that production of documents without seeking a protective
order waives the right to such an order, unless there is a showing of good cause for the
delay); Nestle Foods Corp. v. Aetna Cas. and Sur. Co., 129 F.R.D. 483, 487 (D.N.J.
1990) (―While this Court looks first to the substantive ground of whether defendants have
demonstrated good cause for a protective order, nonetheless, the Court cannot ignore the
untimeliness of these motions.‖); U.S. v. International Business Machines Corp., 70
F.R.D. 700, 701 (S.D.N.Y. 1976) (―CIA‘s first motion [for a protective order] was dated
more than two months after the return date of the subpoena and weeks after CIA
produced documents subject to the subpoena. It is therefore untimely‖). Even Judge
Tomlinson has previously held that ―objections not timely stated may be deemed
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waived.‖ Ehrlich v. Incorporated Village of Sea Cliff, No. 04-cv-4025, 2007 WL
1593241 (E.D.N.Y. Jun. 1, 2007) (also stating that ―[a] waiver based upon a failure to
timely object applies not only to general objections to discovery demands, but also to a
motion for a protective order which must be served before the date set for production.‖
(internal quotations omitted)).
However, the Court is aware of no Second Circuit law that requires this outcome.
In addition, some district courts have at least implicitly held to the contrary, granting
confidentiality orders even after documents had been produced—although the relevance
of some of these cases is suspect. See Standard Inv. Chartered, Inc. v. Nat‘l Assoc. of
Securities Dealers, 621 F. Supp. 2d 55 (S.D.N.Y. 2007), aff‘d 347 Fed. App‘x 615 (2d
Cir. 2009) (granting a confidentiality order after production was made, although the
produced documents had been subject to a private confidentiality agreement); Peskoff v.
Faber, 230 F.R.D. 25, 33–34 (D.D.C. 2005) (granting a retroactive confidentiality order,
although most of the terms of the order were agreed to by the parties); Byrnes v. Empire
Blue Cross Blue Shield, No. 98-cv-8520, 2000 WL 60221, **1, 5 (S.D.N.Y. Jan. 25,
2000) (Dolinger, M.J.) (granting ―[a]t the tail-end of discovery‖ a motion to have
discovery materials treated as confidential).
Ultimately, in the absence of clear authority on this issue from the Second Circuit
or Rule 26(c), the Court resolves the parties‘ dispute based on the core definition of
waiver, which is ―‗an intentional relinquishment or abandonment of a known right or
privilege.‘‖ Doe v. Marsh, 105 F.3d 106, 111 (2d Cir. 1997) (quoting Johnson v. Zerbst,
304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461 (1938)). As noted above, many
courts have implicitly found that production of documents without a protective order in
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place constitutes a knowing waiver of a right to Rule 26(c) protection. However, the
specific facts of this case make that conclusion untenable. First, it is obvious that the
County Defendants strenuously attempted to prevent the disclosure of the IAU Report to
the plaintiff, and produced it in unredacted form only when compelled. Second, there is
no doubt that the County Defendants viewed the IAU Report as very sensitive, and that
the County Defendants had denied previous attempts by various parties to obtain the IAU
Report through New York‘s Freedom of Information Law. Third, within hours of
discovering that the plaintiff sought to publish the IAU Report, the County Defendants
moved to prevent its dissemination.
To be sure, the Court is unimpressed by the County Defendants‘ assertion that
they did not seek a protective order at the time of production because ―[a]t no time was
defense counsel informed that the contents of the IAU Report would be made public.‖
(County Defs.‘ Opp. to Pl.‘s Objections at 7.) A party in possession of unrestricted
discovery documents has no legal obligation to inform a counterparty of what it plans to
do with those documents. Nor does the Court view in a positive light the County
Defendants‘ refusal to recognize that their failure to seek a protective order at the time of
production was an oversight. Nevertheless, the Court can reach no other conclusion than
that the County Defendants never intended to consent to the publication of the IAU
Report. Rather, their failure to timely seek a protective order was an unintentional
mistake—a mistake from which the County Defendants timely attempted to recover when
they realized that the plaintiff intended to publish the IAU Report. As such, the Court
holds that, given the relatively unique facts of this case, Judge Tomlinson correctly found
that no waiver took place. The Court therefore affirms Judge Tomlinson‘s Order of
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January 14, 2011, and upholds the protective order preventing public dissemination of the
IAU Report.
As an addendum, the Court notes that the plaintiff asserts in her objection that the
County Defendants waived their right to seek a protective order not only by producing
the IAU Report, but also through various actions and statements related to the contents of
the IAU Report. The Court has reviewed the relevant facts and law, and finds that these
objections are without merit.
C. As to the Court’s Public Docket in this Case
Finally, the Press Intervenors have included in their objection a request that all
documents filed with the Court in this case be reflected on the Court‘s docket. Not only
do Judge Tomlinson‘s orders of January 14, 2011 and January 19, 2011 not address this
issue, but the Press Intervenors themselves relate that, as of their submission, at least part
of—and possibly all of—the asserted failure to maintain a public docket had been
ameliorated. Accordingly, the Court denies this portion of the Press Intervenors‘
objection, with leave to refile a similar request (1) as a separate motion, and (2) setting
forth, to the best of the Press Intervenors‘ knowledge, the documents believed to be
presently improperly excluded from the public docket in this case.
III. CONCLUSION
For the foregoing reasons, it is hereby
ORDERED that the plaintiff‘s and the Press Intervenors‘ objections to Judge
Tomlinson‘s Order dated January 14, 2011 are denied, and that order is affirmed; and it is
further
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ORDERED that the plaintiff‘s and the Press Intervenors‘ objections to Judge
Tomlinson‘s Order dated January 19, 2011 are dismissed as moot, without prejudice to
renew if a final settlement in this case is not consummated; and it is further
ORDERED that the portion of the Press Intervenors‘ objections relating to the
proper maintenance of a public docket is denied, without prejudice to renew as set forth
in this Order.
SO ORDERED.
Dated: Central Islip, New York
August 8, 2011
__/s/ Arthur D. Spatt_______
ARTHUR D. SPATT
United States District Judge
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