Moroughan v. The County of Suffolk et al
Filing
198
ORDER terminating 140 Motion to Compel; granting 141 Motion to Compel. SEE ATTACHED ORDER for details. Ordered by Magistrate Judge A. Kathleen Tomlinson on 9/16/2015. (Kandel, Erin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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THOMAS M. MOROUGHAN,
Plaintiff,
MEMORANDUM
AND ORDER
-againstCV 12-512 (JFB) (AKT)
THE COUNTY OF SUFFOLK, SUFFOLK
COUNTY POLICE DEPARTMENT,
SUFFOLK DETECTIVES RONALD
TAVARES, CHARLES LESER, EUGENE
GEISSINGER, NICHOLAS FAVATTA, and
ALFRED CICCOTTO, DETECTIVE/SGT.
WILLIAM J. LAMB, SGT. JACK SMITHERS,
SUFFOLK POLICE OFFICERS WILLIAM
MEANEY, and JESUS FAYA and SUFFOLK
JOHN DOES 1-10, THE COUNTY OF NASSAU,
NASSAU COUNTY POLICE DEPARTMENT,
SGT. TIMOTHY MARINACI, DEPUTY CHIEF
OF PATROL JOHN HUNTER, INSPECTOR
EDMUND HORACE, COMMANDING OFFICER
DANIEL FLANAGAN, DETECTIVE/SGT. JOHN
DEMARTINIS, NASSAU POLICE OFFICERS
ANTHONY D. DILEONARDO, EDWARD BIENZ
and JOHN DOES 11-20,
Defendants.
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A. KATHLEEN TOMLINSON, Magistrate Judge:
Presently before the Court is Plaintiff’s letter motion to compel Defendant the County of
Nassau (“Nassau County” or “the County”) to produce discovery responsive to Plaintiff’s
demands for documents concerning indemnification and disciplinary proceedings brought
against Defendants Anthony D. DiLeonardo (“P.O. DiLeonardo”) and Edward Bienz (“P.O.
Bienz”). DE 141. For the reasons set forth below, Plaintiff’s motion is GRANTED to the extent
that Nassau County is directed to provide the Court all documents responsive to Plaintiff’s
demands for an in camera review within ten (10) days of this Order.
I.
BACKGROUND
A.
Plaintiff’s Discovery Demands
Plaintiff requests an Order compelling the production of discovery sought pursuant to
Plaintiff’s Fifth and Sixth Demands for the Production of Documents and Things. See DE 141.
Plaintiff’s Fifth Demand seeks “any and all documents, records, and minutes of testimony
recorded in connection with any and all indemnification proceedings and/or hearings held by the
Nassau County Police Officer Indemnification Board” (“the Indemnification Board”) regarding
P.O. DiLeonardo and P.O. Bienz. Id., Ex. A. Nassau County objected to this demand on the
grounds of “relevancy, privacy and privilege pursuant to New York Civil Rights Law § 50-a.”
Id., Ex. C. Notwithstanding these objections, Nassau County asserted that “there are no minutes
or records maintained of testimony and proceedings” before the Indemnification Board. Id.
Plaintiff’s Sixth Demand requests “any and all documents, records, and minutes of
testimony recorded in connection with any and all departmental proceedings and/or hearings held
by the Nassau County Police Department regarding Officer Anthony DiLeonardo.” Id., Ex. B.
Nassau County objected to this demand as follows:
Response: Plaintiff's Sixth Demand for the Production of
Documents and Things seeks reports, documents, minutes,
proceedings, and other discovery from COUNTY OF NASSAU and
the NASSAU COUNTY POLICE DEPARTMENT AND NASSAU
POLICE OFFICER ANTHONY D. DILEONARDO. In addition to
the General Objections set forth above, Defendants object on the
grounds of privilege and relevance. The interdepartmental hearing
constitutes personnel documents, which are protected under official
information privilege, which protects police personnel files from
“fishing expeditions.” (Velez v. City of New York, 2010 WL
2265443, [E.D.N.Y. 2010]). In addition, New York Civil Rights
Law § 50-a protects “all personnel records, used to evaluate
2
performance toward continued employment or promotion, under the
control of any police agency or department of the state,” and are to
be considered confidential and “not subject to inspection or review.”
Since the disciplinary hearing was conducted to evaluate the
conduct and performance of Police Officer DiLeonardo, it falls
under the purview of personnel documents. As to relevancy, upon
information and belief, the interdepartmental disciplinary hearing of
Police Officer DiLeonardo consisted of the testimony of just one
person, the police sergeant who composed the IAU report, who was
not a witness to any of the incidents which occurred on February 27,
2011, and was not involved in the investigation until June 2011, four
months after the events at issue. The complete IAU records and
report have previously been provided to counsel.
Id., Ex. D.
B.
Correspondence Between Counsel
Upon receiving Nassau County’s responses, Plaintiff’s counsel sent a letter to Deputy
County Attorney Michael Ferguson (“Attorney Ferguson”). See id., Ex. E.1 In his letter,
Plaintiff’s counsel stated that it seemed “highly improbable” that there was no written
documentation or records concerning the indemnification process for P.O. DiLeonardo and P.O.
Bienz. Id. Counsel pointed out that P.O. DiLeonardo had appealed the initial decision by the
Indemnification Board denying his application for indemnification, and that this decision was
later affirmed on appeal. See id. Counsel reiterated that it “seems unlikely that there would be
absolutely no records created regarding this process.” Id. Plaintiff’s counsel also inquired
whether Nassau County was willing to disclose any non-privileged documents responsive to
Plaintiff’s Sixth Demand. See id.
In his response, Attorney Ferguson stated that he was present at the initial
indemnification hearing as to P.O. DiLeonardo and P.O. Bienz on March 6, 2012. Id., Ex. F.
1
Attorney Ferguson no longer represents Nassau County. On September 26, 2014, the
firm of Leahey & Johnson, P.C. was substituted as counsel of record for Nassau County in place
of the Nassau County Attorney. DE 151.
3
According to Attorney Ferguson, “there was no record, transcript, or documentation made of the
proceedings other than the determination of the indemnification board,” which was already
produced to Plaintiff’s counsel. Id., Ex. F. Although Attorney Ferguson “was not present at the
second police indemnification board proceedings on April 15, 2013 when Officer DiLeonardo
appealed the initial decision of the indemnification board,” he received a copy of the transcript
from legal counsel to the Indemnification Board. Id. According to Attorney Ferguson:
Review of the transcript reveals that in urging a reversal of the
decision on indemnification, defense counsel’s argument consisted
of his mental impressions, legal theories, and proposed legal
strategy for use at the trial of this action. As such, this document is
not discoverable and is protected from disclosure as the mental
impressions, conclusions, opinions, and legal theories of a party’s
attorney. Moreover, it is the position of Nassau County that all
proceedings before the police indemnification review board, which
under General Municipal Law § 50-l is solely a proceeding between
the police officer and the county, is not subject to disclosure by other
parties.
Id. Accordingly, Attorney Ferguson declined to disclose the transcript of the second
indemnification proceeding.
As to Plaintiff’s Sixth Demand, Attorney Ferguson reiterated that Nassau County objects
to disclosure of all documents related to disciplinary proceedings concerning P.O. DiLeonardo
“for the reasons stated in our response.” Id. According to Attorney Ferguson, the following
evidentiary items were presented at the disciplinary proceeding: (i) the testimony of
Detective/Sergeant Joan Distler (“Sgt. Distler”) concerning portions of the Internal Affairs Unit
(IAU) report and relevant portions of the Nassau County Police Department Manual (concerning
Uniforms and Equipment); (ii) an affidavit from Sgt. Distler setting forth her experience; (iii) the
curriculum vitae (CV) of Suffolk County Police Department Analyst, George Krivesta; (iv) an
4
expert report submitted by counsel for officer DiLeonardo; and (v) the Charges and
Specifications. Id.2
II.
THE FIFTH DEMAND
A.
The Parties’ Arguments
Plaintiff argues that Nassau County has improperly withheld the transcript of P.O.
DiLeonardo’s second indemnification proceeding in response to the Fifth Demand. See DE 141
at 2. In particular, Plaintiff contends that Attorney Ferguson “lacks standing to assert any
attorney work-product privilege on behalf of Mr. DiLeonardo as Nassau County does not
represent DiLeonardo.” Id. Rather, P.O. DiLeonardo is represented by the law firm of Barket,
Marion, Epstein, & Kearon. See id.; Notice of Appearances [DE 7-8, 15]. Plaintiff argues that,
“[a]t the very least, the factual issues asserted by DiLeonardo pertaining to the underlying events
are certainly discoverable.” DE 141 at 2. Accordingly, Plaintiff asks that Nassau County be
compelled to submit the transcript of the second indemnification proceeding, as well as any other
related documents, to the Court for an in camera review, along with an affidavit from an
individual with knowledge stating that the documents produced “constitute the entirety of the
respective files.” Id. Finally, Plaintiff asserts that the documents related to the indemnification
proceedings are relevant to shed light on the Indemnification Board’s determination that P.O.
DiLeonardo was acting outside the scope of his employment when he shot Plaintiff. See
Affidavit of Anthony M. Grandinette In Support of Motion to Compel (“Grandinette Aff.”) ¶¶
32-33 [DE 142].
2
Nassau County has provided an Affidavit from Lesli P. Hiller, the police attorney who
presented the disciplinary case against P.O. DiLeonardo, confirming that these were the only
evidentiary items presented at the hearing. See DE 145, Ex. D.
5
In its opposition, Nassau County argues that Plaintiffs’ Fifth Demand for all documents
and records from the police Indemnification Board “is largely moot as the records, although not
relevant and not discoverable, have already been provided by virtue of their inclusion in the
Internal Affairs Report . . . which the plaintiff has had since early in this litigation.” DE 145
at 1.3 Noting that “[t]here were two indemnification board hearings as to officer DiLeonardo,”
Nassau County states that “Plaintiff already has all the records and documents from the first
hearing, including the determinations by the board.” Id. As for the second indemnification
hearing, Nassau County asserts, “upon information and belief,” that “no new documents were
produced” at that hearing “and the only record made was a transcript of the legal arguments,
opinions and theories of DiLeonardo’s counsel, Bruce Barket.” Id. at 1-2. Nassau County
argues that this transcript “is the only record or document before the police indemnification
board which the plaintiff does not have.” Id. at 2.
Nassau County further argues that the transcript of the second proceeding is protected
from discovery pursuant to Fed. R. Civ. P. 26(b)(3)(B), which “protect[s] against disclosure of
the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other
representative concerning the litigation.” Nassau County emphasizes that it is not attempting to
assert the attorney work-product privilege on behalf of P.O. DiLeonardo, as Plaintiff argues. See
DE 145 at 3. Rather, Nassau County merely contends that “the transcript is protected from
disclosure as legal theories of a party’s attorney.” Id.4
3
Nassau County’s opposition was submitted by Attorney Ferguson.
The Court notes that counsel for P.O. DiLeonardo has not expressed any view whether or
not the transcript of the second indemnification hearing should be protected from disclosure
under Fed. R. Civ. P. 26(b)(3)(B).
4
6
B.
Analysis
Although Plaintiff’s Fifth Demand seeks documents concerning “any and all
indemnification proceedings and/or hearings” held by the Indemnification Board, the parties’
arguments focus on the transcript and documents related to P.O. DiLeonardo’s second
indemnification proceeding. As noted above, Nassau County asserts that Plaintiff has already
been provided with all records from the first indemnification hearing, including the
determinations by the Indemnification Board. DE 145 at 1. Plaintiff does not appear to dispute
this contention. Accordingly, the Court finds that Plaintiff is not entitled to further production
concerning the first indemnification proceeding.
As to the second indemnification proceeding, Plaintiff argues that the transcript and
related documents (to the extent the latter exist) are relevant to show, in essence, why the
Indemnification Board determined that P.O. DiLeonardo was acting outside the scope of his
employment when he shot Plaintiff. Grandinette Aff. ¶ 32. In particular, Plaintiff argues that
“[t]he specific determinations made by the Indemnification Board, as well as all documents,
records, and legal arguments presented to it in making its determinations, are relevant in that
[Plaintiff] does not know which acts alleged against [P.O. DiLeonardo] in the complaint, one,
some, or all, the Indemnification Board found were committed outside the scope of his
employment.” Id. ¶ 33.
The Court notes at the outset that the parties have not cited to (and the Court has been
unable to find) any case law which addresses whether indemnification hearing transcripts, or
other internal documents relating to the indemnification decision, should be disclosed to a
plaintiff in a civil rights action based on their potential relevance to the plaintiff’s claims against
the defendant police officer. Rather, the Court has found through its own research that the basis
7
for a municipality’s decision to deny representation to a police officer is generally considered
only in cases where the officer has challenged the denial. See, e.g., Barnes v. Banks, No. 10-CV4802, 2011 WL 4943972, at *5 (S.D.N.Y. Oct. 18, 2011); Jocks v. Tavernier, 97 F. Supp. 2d
303, 312–14 (E.D.N.Y. 2000), rev'd on other grounds, 316 F.3d 128 (2d Cir. 2003); cf. Behar v.
City of New York, No. 98-CV-2635, 1999 WL 212685, at *3 (S.D.N.Y. Apr. 13, 1999) (granting
motion by Corporation Counsel to withdraw as counsel to defendant police officers where the
motion was opposed by Police Benevolent Association). Notwithstanding the lack of case law
on the issue presented here, the Court concludes, based on the arguments presented by Plaintiff’s
counsel, that the transcript from the second indemnification proceeding meets the relevance
threshold under Fed. R. Civ. P. 26. See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351
(1978) (“‘Relevance” under Rule 26 ‘has been construed broadly to encompass any matter that
bears on, or that reasonably could lead to other matter that could bear on any issue that is or may
be in the case.’”).
Moreover, Fed. R. Civ. P. 26(b)(3)(B) does not protect the transcript of the second
indemnification from disclosure.5 See DE 145 at 3. Rule 26(b)(3) states, in pertinent part:
Ordinarily, a party may not discover documents and tangible things
that are prepared in anticipation of litigation or for trial by or for
another party or its representative . . . . But, subject to Rule 26(b)(4),
those materials may be discovered if: (i) they are otherwise
discoverable . . . ; and (ii) the party shows that it has substantial need
for the materials to prepare its case and cannot, without undue
hardship, obtain their substantial equivalent by other means.
....
If the court orders discovery of those materials, it must protect
against disclosure of the mental impressions, conclusions, opinions,
5
As discussed, Nassau County also raised the New York Civil Rights Law § 50-a privilege
as grounds for non-disclosure in its objections to Plaintiff’s Fifth Demand. See DE 141, Ex. C.
However, the County has not argued in its submissions on this motion that the § 50-a privilege
applies to shield the transcript of the second indemnification hearing from discovery.
Accordingly, the Court will not address this issue in its analysis.
8
or legal theories of a party's attorney or other legal representative
concerning the litigation.
Fed. R. Civ. P. 26(b)(3). It is well established that Rule 26(b)(3) is the codification of the
attorney work-product doctrine, which “provides qualified protection for materials prepared by
or at the behest of counsel in anticipation of litigation or for trial.” In re Grand Jury Subpoenas
Dated Mar. 19, 2002 & Aug. 2, 2002, 318 F.3d 379, 383 (2d Cir. 2003). Despite the County’s
contentions to the contrary, it appears to the Court that, by invoking Rule 26(b)(3), the County is
attempting to assert attorney work-product privilege to protect against the disclosure of
statements made by counsel for P.O. DiLeonardo during the second indemnification hearing.
However, Nassau County has failed to clear the “initial hurdle” of “demonstrate[ing] that it has
standing to invoke work product protection for the documents at issue” because Nassau County
did not represent P.O. DiLeonardo at the hearing. Gonzalez v. City of New York, No. 08-CV2699, 2009 WL 2253118, at *2 (E.D.N.Y. July 28, 2009) (holding that the Corporation Counsel
had no standing to assert the work-product privilege on behalf of the District Attorney (“DA”)
where Corporation Counsel did not “represent the DA in the instant matter.” (emphasis in
original)). Accordingly, the attorney work-product privilege does not apply to prevent disclosure
of the transcript of P.O. DiLeonardo’s second indemnification hearing.6
Ultimately, given the novel nature of Plaintiff’s request and Nassau County’s assertion of
privilege, the Court concludes that the best course of action is for Nassau County to submit the
transcript of the second indemnification proceeding, as well as any other related documents, to
the Court for an in camera review. The Court also finds it appropriate to have the County
The Court need not address at this time Plaintiff’s alternative argument that counsel for
P.O. DiLeonardo waived the attorney work-product privilege by disclosing the transcript to
counsel for Nassau County. See DE 141 at 2 (citing Salomon Bros. Treasury Litig. v. Steinhardt
Partners, L.P., 9 F.3d 230, 235 (2d Cir. 1993)).
6
9
provide an affidavit from an individual with first-hand knowledge confirming that the documents
produced “constitute the entirety of the respective files.” DE 141 at 2.
III.
THE SIXTH DEMAND
A.
The Parties’ Arguments
With regard to the Sixth Demand, Plaintiff argues that Nassau County has failed to meet
its “threshold” burden set forth in King v. Conde (121 F.R.D. 180 (E.D.N.Y. 1988)) to
demonstrate that the Civil Rights Law § 50-a privilege applies to prevent disclosure of the
records relating to interdepartmental disciplinary proceedings against P.O. DiLeonardo. See
DE 141 at 3-4. Even if the privilege does apply, Plaintiff contends that it does not operate as “an
absolute bar to disclosure,” as Nassau County argues. Id. at 4. Rather, the law requires,
according to Plaintiff, that personnel records be disclosed to the requesting party if the Court
determines after an in camera review that the records are relevant. Id. Plaintiff further asserts
that Sgt. Distler’s testimony at the disciplinary hearing could not be privileged because,
according to Attorney Ferguson, “the substance of her testimony concerned the Internal Affairs
Report previously disclosed to all parties in this case.” Id. Plaintiff also points out that Nassau
County has not shown what harm it would suffer by disclosing the documents presented at the
hearing, namely, Sgt. Distler’s affidavit regarding her experience with the IAU, the curriculum
vitae of the Suffolk County Police Department Crime Laboratory Analyst, and the report of P.O.
DiLeonardo’s expert. See id.
Plaintiff further asserts that he has met his burden of showing that the requested material
is relevant to his claims. See Grandinette Aff. ¶ 18. Plaintiff’s counsel points out that, although
he knows P.O. DiLeonardo was terminated from his employment with the Nassau County Police
10
Department and that, according to the statements published in Newsday, “he was terminated
because of his ‘egregious conduct,’” Plaintiff
does not know which of the eleven counts of unlawful conduct, and
which of the eight counts of violating department rules, the
disciplinary committee substantiated. For example, [Plaintiff] does
not know if the disciplinary committee substantiated the findings of
the Internal Affairs Unit Report that [P.O. DiLeonardo] was
impaired by the consumption of alcohol prior to shooting [Plaintiff],
whether he engaged in excessive use of force, whether he attempted
to arrest [Plaintiff] absent legal authority to do so, or a host of other
possibilities.
Id. ¶ 18. Regardless of which counts the disciplinary committee upheld, Plaintiff asserts that
“[e]very single count which the disciplinary committee substantiated, has a tendency to make the
corresponding cause(s) of action in the Amended Complaint more probable, as [P.O.
DiLeonardo] would not have been terminated if the disciplinary committee found that the did not
engage in the alleged acts. Id. ¶ 19. Finally, Plaintiff contends that the documents related to the
disciplinary proceedings are public records and would therefore be admissible under Fed. R.
Evid. 803(8)(c). Id. ¶¶ 23-24; DE 141 at 4.
Nassau County argues in opposition that records relating to P.O. DiLeonardo’s
interdepartmental disciplinary proceedings “are privileged under New York Civil Rights Law
§ 50-a, and are not relevant under Rule 401 to any issue in this case.” DE 145 at 2. Nassau
County claims that it need only meet the “threshold burden” established in King since the
documents Plaintiff seeks are irrelevant. See id. According to Nassau County, the
interdepartmental disciplinary proceedings at issue here “are not a public record and are not
relevant” to Plaintiff’s claims, as the only person who testified at the hearing was Sgt. Distler,
“who prepared the IAU report which plaintiff has.” Id. Sgt. Distler “is not a lawyer and was not
a witness to any of the events that occurred on February 27, 2011,” and Nassau County therefore
11
argues that “[a]ny legal conclusions or determinations she reached would not be relevant.” Id.
Although Nassau County has provided the curriculum vitae (“C.V.”) of George Krivasta, the
County has declined to provide Sgt. Distler’s affidavit “because it is not relevant to anything in
this case.” Id. at 4 n.2. Finally, Nassau County asserts that Plaintiff’s counsel is “incorrect”
when he states that the interdepartmental disciplinary proceedings would be admissible in
evidence at trial under Rule 803(8)(c), since “interdepartmental disciplinary proceedings are not
a public record, and any determination made at the disciplinary hearing cannot be used to usurp
the function of the jury as the sole finders of fact.” Id. at 4.
B.
Legal Standard Under Civil Rights Law § 50-a
Civil Rights Law § 50-a provides that:
[a]ll personnel records, used to evaluate performance toward
continued employment or promotion, under the control of any police
agency . . . shall be considered confidential and not subject to
inspection or review without the express written consent of such
police officer ... except as may be mandated by lawful court order.
In federal civil rights cases, issues of privilege are governed by federal law, not state law,
and “[u]nder federal law, there is no confidentiality privilege afforded to police records as there
is under New York Civil Rights Law § 50–a.” Smith v. Cnty. of Nassau, No. CV 10-4874, 2013
WL 3893380, at *2 (E.D.N.Y. July 24, 2013) (citing King, 121 F.R.D. at 187); see United States
v. Collier, No. 10-CR-820 2013 WL 125691, at *1 (E.D.N.Y. Jan. 9, 2013) (“Although ‘federal
common law provides for some consideration of state law privileges,’ the protections of Section
50–a ‘do not govern discovery in federal cases.’”) (quoting Mercado v. Div. of N.Y. State Police,
989 F. Supp. 521, 522 (S.D.N.Y. 1998)) (alteration omitted). “In fact, ‘in the context of a civil
rights action asserted against police officers, no federal rule prohibits discovery of police
personnel documents.’” Smith, 2013 WL 3893380, at *2 (quoting McKenna v. Inc. Vill. of
12
Northport, 06 CV 2895, 2007 WL 2071603, at *7, (E.D.N.Y. Jul. 13, 2007)). “However, ‘the
nonexistence of a federal law in this area does not give license for free and unfettered discovery
of police personnel documents.’” Dorsett v. Cnty. of Nassau, 762 F. Supp. 2d 500, 531
(E.D.N.Y.) aff'd, 800 F. Supp. 2d 453 (E.D.N.Y. 2011) aff'd sub nom. Newsday LLC v. Cnty. of
Nassau, 730 F.3d 156 (2d Cir. 2013) (quoting Cody v. N.Y.S. Div. of State Police, No. CV 07–
3735, 2008 WL 3252081, at *2 (E.D.N.Y. July 31, 2008)). Rather, a court “must balance the
interests favoring and opposing confidentiality in the discovery phase of the litigation.” King,
121 F.R.D. at 187; see Smith, 2013 WL 3893380, at *2; Dorsett, 762 F. Supp. 2d at 531.
To effectively balance these interests, courts apply the two-prong test established in King.
See, e.g., Coggins v. Cnty. of Nassau, No. 07-CV-3624, 2014 WL 495646, at *2 (E.D.N.Y. Feb.
6, 2014); Smith, 2013 WL 3893380, at *2; Dorsett, 762 F. Supp. 2d at 532. “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.” Dorsett, 762 F.
Supp. 2d at 532; see King, 121 F.R.D. at 189 (internal quotation marks omitted). “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.” Id.
(quoting King, 121 F.R.D. at 189) (internal quotations and alterations 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.” Id. (citing Cody, 2008 WL 3252081, at *3; McKenna, 2007
13
WL 2071603, at *7). “Where defendants have not satisfied their burden of justifying the
application of any privilege, the Court will not shield the requested documents and information
from disclosure based on Section 50–a or any other privilege.” Smith, 2013 WL 3893380, at *2
(internal quotation marks omitted).
“However, even where no substantial harm is shown under the first prong of the analysis,
an objection as to the relevance of the documents may prevent their disclosure.” Cody, 2008 WL
3252081, at *3 (citing Barrett v. City of New York, 237 F.R.D. 39, 42 (E.D.N.Y. 2006) (ordering
relevant requested documents to be produced despite defendants' failure to specifically identify
any harm that would result from production); Unger v. Cohen, 125 F.R.D. 67, 70 (S.D.N.Y.
1989) (holding that where defendants made no substantial threshold showing of specific harm,
the court had no choice but to order disclosure “unless defendants' objections on grounds of
relevance are sustained”). “[T]he purpose behind § 50–a is that it be used as a shield against
irrelevant and improper disclosure of documents.” Dorsett, 762 F. Supp. 2d at 531; see King,
121 F.R.D. at 192 (“The sole function of section 50–a is thus to protect irrelevant materials from
disclosure: to prevent fishing expeditions, not to safeguard privacy itself.”). “Thus, irrelevant
records will not be subject to discovery even where defendants fail to meet the requirements for
shielding the documents from disclosure under King. Conversely, if a record is deemed relevant
to a plaintiff's case, it must be disclosed by the defendant.” Cody, 2008 WL 3252081, at *3
(citing King, 121 F.R.D. at 192; Mercado, 989 F. Supp. at 523 (ordering disclosure of ten
disciplinary records of nonparty state troopers in Title VII action because “records might be
relevant to prove that similarly situated white officers were treated differently”)).
14
C.
Analysis
Nassau County argues that, although the records relating to P.O. DiLeonardo’s
interdepartmental disciplinary proceedings are privileged under Civil Rights Law § 50–a, the
County need not make the “threshold showing” under King because these records are irrelevant
to Plaintiff’s case. DE 145 at 2. This argument misunderstands the application of the § 50-a
privilege. As stated supra, for the privilege to apply, Nassau County must first make a
substantial threshold showing “that harm is likely to occur as a result of disclosure of the
requested documents.” Dorsett, 762 F. Supp. 2d at 532. No such showing has been made here.
In fact, Nassau County has “fail[ed] to specify what, if any, interests would be harmed by
disclosure” of the disputed disciplinary records. Cody, 2008 WL 3252081, at *4. Further, as
Plaintiff points out in his submissions, the County has neglected to provide a declaration or
affidavit from a responsible official who, based on his or her personal review of the documents,
has attested under oath and penalty of perjury to the particularized harm Nassau County would
suffer were the documents disclosed. As this Court stated in Dorsett, without such a “competent
declaration[],” the Court cannot conduct a meaningful balancing analysis under King. Id. Thus,
the Court finds that Nassau County has not satisfied the substantial threshold showing required
under King, which would bring the disputed documents within the confidentiality provisions of
§ 50–a. See id. at 533.
Although Nassau County has failed to satisfy the first prong of the King test, it may still
rely on “relevance objections to prevent disclosures” of the records of the disciplinary
proceedings. Cody, 2008 WL 3252081, at *4. As discussed, the parties dispute the relevance of
the records at issue here – i.e., the transcript of the disciplinary proceedings, Sgt. Distler’s
15
affidavit, and the expert report presented by P.O. DiLeonardo.7 Plaintiff asserts that these
records are relevant to show which of the 19 disciplinary charges against P.O. DiLeonardo were
substantiated by the disciplinary committee. Grandinette Aff. ¶ 18. Plaintiff asserts that, “[t]o
evaluate the trustworthiness of the disciplinary committee’s determination, [Plaintiff] must know
which specific testimony was presented to the committee,” as well as the contents of Sgt.
Distler’s affidavit and the expert report. Id. ¶¶ 25-27. The records will also likely lead to the
discovery of admissible evidence, Plaintiff argues, because “[g]iven that the investigation by the
disciplinary committee was certainly permitted by law, its findings and determinations fall under
the Federal Rule of Evidence 803(8) exception to the rule against hearsay . . . Therefore,
[Plaintiff] will be able to introduce its determinations at trial, during his case-in-chief, to prove
the truth of the matter asserted.” Id. ¶ 23. Nassau County disputes both that the records Plaintiff
seeks are relevant and that they would fall under the Rule 803(8)(c) public record exception to
the hearsay rule. See DE 145 at 2, 4.
Again, neither party has supported its position with case law addressing the relevance
and/or admissibility of the type of records at issue here, namely, records of interdepartmental
police disciplinary proceedings which relate to the incident underlying plaintiff’s § 1983 action.
The Court notes that Plaintiff has cited one case, Gentile v. Cnty. of Suffolk (129 F.R.D. 435, 447
(E.D.N.Y. 1990) aff'd, 926 F.2d 142 (2d Cir. 1991)), in support of his assertion that the
interdepartmental disciplinary records he seeks would be admissible at trial pursuant to Federal
Rule of Evidence 803(8), which permits a party to introduce “public records” containing “factual
findings from a legally authorized investigation” to prove the truth of the matter asserted.
7
Nassau County represents that it has already provided Plaintiff with the C.V. of George
Krivasta. DE 145 at 4.
16
DE 141 at 5. In particular, Plaintiff relies on Judge Weinstein’s statement in Gentile that “under
Rule 803(8)(C) investigation need only be permitted by law . . . [and] need not be required [by
law].” 129 F.R.D. at 448 (citing Fraley v. Rockwell Int'l Corp., 470 F. Supp. 1264, 1266 (S.D.
Ohio 1979)) (emphasis in original).
However, as Nassau County points out in its opposition, the circumstances in Gentile
appears distinguishable from those presented in this case. Primarily, the public record at issue in
Gentile was a 199-page report issued by the State of New York Commission of Investigation,
which was the product of the Commission’s three-year formal investigation into the Suffolk
County District Attorney’s Office and Suffolk County. See 129 F.R.D. at 440-45. As Judge
Weinstein noted in Gentile, “[d]uring the nearly three years of its investigation, the Commission
was contacted by over 200 complainants regarding County law enforcement matters . . . [and]
interviewed several hundred witnesses, [held] nearly 100 private hearings consisting of sworn
testimony, [as well as] four days of public hearings during which 42 witnesses testified; and
[reviewed] tens of thousands of pages of documents[.]” Id. at 444. At trial, selected portions of
the report were admitted into evidence because that material would have “a tendency to establish
a policy, practice or custom or usage of inadequate investigation and discipline of employees’
misconduct.” Gentile, 129 F.R.D. 435 at 442.
By contrast, here, P.O. DiLeonardo’s disciplinary hearing – which was not held publicly
– involved one witness who, according to Nassau County, had no independent knowledge of the
facts underlying the allegations against P.O. DiLeonardo. Moreover, Plaintiff points to no other
cases which indicate that the records of an internal police disciplinary hearing, such as the one
which occurred in this case, should be considered “public records” for the purposes of Rule
803(8)(C).
17
Based on the information presented to date and the fact that the Court has not seen the
documents responsive to the Sixth Demand, the Court is unable to make a determination as to the
relevance of those documents. Accordingly, the Court is directing that all responsive documents
be sent to this Court for an in camera review within ten (10) days.
IV.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion to compel is GRANTED to the extent that
Nassau County is directed to provide all documents responsive to the Plaintiff’s Fifth and Sixth
Demands to the Court for an in camera review within ten (10) days of the date of this decision.
In addition, the County is directed to provide the affidavit outlined by the Court in Section II.B
in that same timeframe.
SO ORDERED:
Dated: Central Islip, New York
September 16, 2015
/s/ A. Kathleen Tomlinson
A. KATHLEEN TOMLINSON
United States Magistrate Judge
18
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