Denis v. The County of Nassau et al

Filing 69

ORDER re 47 Motion for Contempt. For the reasons stated, Defendants' motion for contempt is DENIED; however, the Court grants alternative relief. SEE ATTACHED MEMORANDUM AND ORDER. Ordered by Magistrate Judge A. Kathleen Tomlinson on 12/31/2019. (Tomlinson, A.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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EMMANUEL DENIS,
Plaintiff,
- against THE COUNTY OF NASSAU,
PO KIERAN HEALEY, Shield No. 3755,
Individually and in his Official Capacity,
DETECTIVE RUSSELL R. BASTONE,
Individually and in his Official Capacity, and
PO LARRY A. BRUE, Individually and
in his Official Capacity,

MEMORANDUM
AND ORDER
CV 17-4732 (ADS) (AKT)

Defendants.
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I.

PRELIMINARY STATEMENT
Plaintiff commenced this civil rights action, pursuant to 42 U.S.C. § 1983, against the

County of Nassau, Police Officer Kieran Healy (“Officer Healy” or “Healy”) and John Does
1-10, alleging, inter alia, false arrest and malicious prosecution. See Compl. [DE 1]. On
February 13, 2018, Plaintiff filed an Amended Complaint – the operative pleading here –
asserting the same causes of action against the County of Nassau and Officer Healy and naming
– in place of John Does 1-10 – Police Officers Larry Brue (“Officer Brue” or “Brue”), Kevin S.
Connor (“Officer Connor” or “Connor”) and Ryan K. Hayden (“Officer Hayden” or “Hayden”)
as well as Detective Russel R. Bastone (“Detective Bastone” or “Bastone”) (together, the
“Individual Defendants”). See Am. Compl. [DE 19]. Defendants have moved for contempt
based on Plaintiff’s purportedly improper and unauthorized disclosure of confidential documents
produced by Defendants during the course of discovery, including the Individual Defendants’
personnel and disciplinary records, in violation of a binding confidentiality order. See

Defendants’ March 22, 2019 Letter Motion for Contempt (“Defs.’ Letter Mot.”) [DE 47];
Defendants’ Memorandum in Support of Motion for Contempt (“Defs.’ Mem.”) [DE 67]. 1
Plaintiff’s counsel opposes the motion, arguing primarily that sanctions are unwarranted here
because the failure to comply was neither willful nor in bad faith. See Plaintiff’s Memorandum
in Opposition (Pl.’s Opp’n) [DE 64]. For the reasons which follow, Defendants’ motion for
contempt is DENIED; however, the Court grants alternative relief.
II.

RELEVANT BACKGROUND AND EVIDENCE 2
On April 30, 2018, the parties submitted for the Court’s review and approval their

Proposed Stipulation and Order of Confidentiality (the “Confidentiality Order”) governing
discovery and disclosure of information and/or records deemed confidential. See DE 32. Upon
review, the Court “so ordered” the Confidentiality Order on May 1, 2019. See Stipulation and
Order of Confidentiality [DE 33]. The Confidentiality Order was entered into evidence during
the April 30, 2019 evidentiary hearing as Defendants’ Exhibit 4. Significantly, the parties do not
dispute the terms of the Confidentiality Order, its application to discovery in the instant lawsuit,
or the manner in which it was executed. See Fernandez Decl. ¶ 6 (citing Hr’g Tr. 34:22-36:7,

1

The Court notes that Defendants’ application was initially filed by letter motion
on March 22, 2019 (“Defendants’ Letter Motion”). In light of the nature of the requested relief,
the Court conducted an evidentiary hearing on Defendants’ Letter Motion on April 30, 2019.
See April 30, 2019 Civil Conference Minute Order [DE 56]; see also April 30, 2019 Transcript
of Hearing on Motion before Hon. A. Kathleen Tomlinson (“Hr’g Tr.”) [DE 59]. At the
conclusion of the presentation of evidence and counsel’s closing arguments, the Court set a
briefing schedule for formal post-hearing briefs. Id. The parties’ post-hearing filings, together
with Defendants’ Letter Motion, are before the Court at this time.
2

For purposes of this Memorandum and Order, the facts are derived from the
evidence adduced at the April 30, 2019 hearing, the parties’ papers – including the Declarations
of Deputy County Attorney Pablo Fernandez in Support of Defendants’ Motion (“Fernandez
Decl.”) [DE 66] and Attorney Moshe Horn in Opposition to Defendants’ Motion (“Horn Decl.”)
[DE 63] as well as any attached exhibits – and the ECF docket generally.
2

44:14-45:3). Any citations to the “Confidentiality Order” will refer equally to Defendants’
Exhibit 4 and the Stipulation and Order of Confidentiality at DE 33. As set forth in the
Confidentiality Order:
(a) Each and every page or sheet of all transcripts of depositions, exhibits,
answers to interrogatories and requests for admissions, copies thereof, other
documents and all information obtained by an inspection of files, facilities or
documents by counsel for any party pursuant to pretrial discovery in this action
that have been designated by the other party as compromising or containing its
confidential information shall be marked "CONFIDENTIAL" and shall be
retained by the receiving party's counsel and shall not be disclosed or used by
an non-designated person other than those listed below. Any material marked
"CONFIDENTIAL" shall be used for prosecuting and/or defending the within
action only, and for no other purpose. Any unauthorized disclosure in violation
of the order shall be subject to discipline by the contempt powers of the Court.
(b ) Confidential information shall not be disclosed to any person other than (i)
a party to this action and counsel for the parties to this litigation and office
personnel employed or engaged in the preparation for, or in aiding in the trial
of this action; (ii) independent outside persons (i.e. persons not employees of a
party), not to exceed three, requested by counsel to furnish technical services or
expert opinions;[] (iii) non-party witnesses called to give testimony with respect
to the subject matter at deposition or trial of this action (up to a total of ten
witnesses, inclusive of parties) as set forth in Fed. R. Civ. Pro. 30(a)(2)(A)(i);
and (iv) the Court including necessary secretarial and law clerk personnel
assisting the Court.
Confidentiality Order ¶ 6.
On May 18, 2018, Defendants served their responses to Plaintiff’s Discovery Requests.
See Fernandez Decl. ¶ 8. Included in Defendants’ May 18, 2018 production were the Individual
Defendants’ concise histories and training records (collectively, the “Confidential Records”).
See Defs.’ Letter Mot., Ex. C (May 18, 2018 Production); see also Hr’g Tr. at 46:11-15.
Significantly, each of the Individual Defendant’s concise history contained civilian complaints
lodged against him/her – to the extent any such complaints existed as of May 18, 2018 – along
with any corresponding Internal Affairs Bureau findings substantiating, rejecting, or otherwise

3

disposing of any such civilian complaints. 3 Notably, the Confidential Records were batesstamped and designated “CONFIDENTIAL” pursuant to the terms of the Confidentiality Order.
See Hr’g Tr. at 37:14-16, 45:20-25, 46:1-2; Horn Decl., Ex. D; Defs.’ Letter Mot., Ex. C. A
“CONFIDENTIAL” watermark was prominently located in the center of each page of the
Confidential Records. See Horn Decl., Ex. D. According to Attorney John Meehan (“Attorney
Meehan” or “Meehan”), one of Plaintiff’s attorneys working on this matter, the watermark made
reading the documents difficult. See Hr’g Tr. at 45:20-46:2. As such, during a telephone
conference between counsel for both parties, Attorney Meehan asked that the watermark be
moved to the bottom of each page of the Confidential Records. Id. Defendants’ counsel obliged
and a second production was sent electronically to Plaintiff’s counsel on May 21, 2018. 4 Id.
46:1-2. Upon receipt, Meehan saved this version to his law firm’s computer system as
“Discovery Reponses Better Copy.” Id. at 46:3-10. According to Meehan, the May 18, 2018
production had been previously saved to his law firm’s computer system as “Discovery
Responses Confidential.” Id.at 46:6-8.
In August 2018, Attorney Jeffrey Groder (“Attorney Groder” or “Groder”) reached out to
Plaintiff’s counsel to inquire about the instant lawsuit. See Hr’g Tr. at 7:14-8:10. At the time,
Groder was defending Wayne Grant LaPierre in a criminal action in the County Court of Nassau
County. Id. at 6:21-7:4. During the course of his representation of LaPierre, Attorney Groder
learned that Officer Hayden, an Individual Defendant in the instant case, was one of the arresting

3

The version of the Confidential Records produced on May 18, 2018 is filed
under seal as Exhibit D to Attorney Horn’s Declaration. See DE 63-4.
4

This version of the Confidential Records is filed under seal as Exhibit E to
Attorney Horn’s Declaration, see DE 63-5, and – as previously cited – Exhibit C to Attorney
Fernandez’s Declaration, see DE 48.
4

officers in LaPierre’s Nassau County criminal case. Id. at 7:8-9. Attorney Groder also learned
that Officer Hayden was being sued in federal court. Id. at 7:22-8:10. According to Groder,
upon learning that Officer Hayden was named in a pending federal lawsuit, Groder performed an
online search, discovered the instant lawsuit, and obtained the pleadings as well as the contact
information for Plaintiff’s counsel. Id. at 8:4-10.
Initially, when Attorney Groder reached out to the Norinsberg Firm, he spoke with
Attorney Meehan. Id. at 47:4-7. Groder explained that Officer Hayden was the arresting officer
in Wayne LaPierre’s Nassau County criminal case and asked if he could have any documents
from the instant lawsuit. See id. Attorney Meehan remembers speaking with Groder about the
charge in Plaintiff’s underlying criminal matter as well as the dismissal memorandum. See id. at
47:8-12; 55:16-21. The Court notes that the dismissal memorandum was first provided to
Plaintiff’s counsel on January 10, 2018 as part of Defendants’ Amended Rule 26 Disclosures.
See Horn Decl., Ex. B (Defendants’ Amended Rule 26(a) Disclosures). According to Meehan,
he agreed to facilitate delivery of these documents to Groder. Hr’g Tr. at 47:4-20. Meehan
maintains that he did not discuss any officer training or disciplinary materials with Groder at any
time. Id. at 55:22-25. Following their brief conversation, Meehan transferred Groder to Diego
Barros (“Attorney Barros” or “Barros”), a junior attorney working under Meehan on the
discovery in this case. Id. at 47:8-18. Attorney Meehan informed Barros of Groder’s needs and
directed Barros to produce the documents which Groder had requested. Id. at 40:1-4; 47:14-18.
Barros testified that he obtained Groder’s email address and advised that he would follow
up via email after conferring further with Meehan. Id. at 40:5-10. When Barros asked Meehan
whether he could send the “discovery packet” to Groder, Meehan confirmed that he could do so.
Id. at 40:11-12. Although Barros intended to send Groder purportedly non-confidential

5

documents – presumably Defendants’ January 10, 2018 Amended Rule 26(a) Disclosures –
Barros sent Groder the “wrong” PDF – namely, Defendants’ May 18, 2018 document
production, containing the Confidential Records, all of which were clearly labeled
“CONFIDENTIAL.” 5 Pl.’s Opp’n at 4; see also Hr’g Tr. at 40:13-25. Notably, Attorney
Meehan did not ask Barros to show him which documents he was planning to send to Attorney
Groder. See id. at 47:21-48:5. Nor did Attorney Barros copy Meehan or anyone else at the law
firm on his email to Groder which shared the documents from this case. See id.
Immediately upon receiving Barros’ email, Groder forwarded the documents to Wayne
LaPierre, who was incarcerated at that time in the Nassau County Correctional Center. See id. at
10:2011:7. According to Attorney Groder, although he recognized that at least some of the
documents he received from Barros were stamped, “confidential,” he “did not know that applied
to [him].” Id. at 13:8-9. Although LaPierre appeared at the April 30, 2019 hearing, he testified
that he did not recall having and/or being provided with any confidential documents or attending
any conferences in connection with his Nassau County criminal matter concerning his possession
of any such records. See id. at 15:2-23:2. Despite Lapierre’s testimony, as set forth in
Defendants’ Letter Motion, Defendants’ counsel appeared before the Honorable Teresa K.
Corrigan, Supervising Judge of the Nassau County Courts, at a conference concerning LaPierre’s
criminal matter on March 13, 2019. At that time, Deputy County Attorney Fernandez
(1) informed Judge Corrigan of the Confidentiality Order in the instant case and the fact that

5

Defendants assert that the January 10, 2018 amended disclosure contained at
least some confidential documents designated “confidential” in accordance with the claw-back
provisions of the Confidentiality Order, including the dismissal memorandum from Plaintiff’s
underlying criminal matter which had been sealed following the conclusion of the case. See
Defs.’ Mem. at 7. As such, notwithstanding Attorney Barros’ intent, Defendants maintain that a
violation of the Confidentiality Order would have nonetheless occurred. Id.
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Confidential Records were improperly disclosed to LaPierre in violation of this Court’s Order
and (2) sought to have the Confidential Records returned. See Defs.’ Letter Mot. at 4.
Apparently, Judge Corrigan conducted several hearings regarding Wayne LaPierre’s possession
of the Confidential Records, issued Orders directing LaPierre to return any and all copies of the
records and even directed the Nassau County Sheriff’s Department to enter LaPierre’s Nassau
County Correctional Center cell to collect and secure the records. See id.; see also H’rg Tr. at
15:20-19:11. 6 According to Defendants’ counsel, at one point, LaPierre even admitted to
turning the Confidential Records over to a “close friend” whom he refused to identify. See
Defs.’ Letter Mot. at 4. During the April 30, 2019 evidentiary hearing before the Court, when
asked about sharing the Confidential Records with any other inmates at the Nassau County
Correctional Center, LaPierre indicated that “[he] might have” but “didn’t remember.” See Hr’g
Tr. at 30”3-14. Ultimately, LaPierre refused to comply with Judge Corrigan’s Orders to return
the documents. See Fernandez Decl. ¶ 20.
According to Defendants’ counsel, he first learned about the unauthorized disclosure of
the confidential documents on or about March 8, 2019. See Defs.’ Letter Mot. at 2. That day,
ADA Michelle Burke of the Nassau County District Attorney’s Office contacted Defendants’
counsel seeking to obtain copies of Officers Connor and Hayden’s concise histories. See Defs.’
Letter Mot. at 2. Defendants’ counsel informed ADA Burke that these materials were the subject
of the Confidentiality Order and could not be disclosed, whereupon ADA Burke informed
Defendants’ counsel that LaPierre, whom ADA Burke was prosecuting under Indictment
#1967N-17, was in possession of these records. Id. ADA Burke said she knew this to be the

6

Judge Corrigan’s March 15, 2019 and March 26, 2019 Orders were entered into
evidence at the April 30, 2019 evidentiary hearings as Defendants’ Exhibits 2 and 3.
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case because Officer Hayden had been cross-examined regarding these records during a hearing
in LaPierre’s criminal matter. Id.
Since learning of the disclosure, Defendants have sought to retrieve the documents
through arguments brought before this Court and before Judge Corrigan in Nassau County. See
Fernandez Decl. ¶ 21. According to Plaintiff’s counsel, the Norinsberg Firm was not made
aware of the disclosure until March 22, 2019, shortly before Defendants’ Letter Motion was
filed. See Hr’g Tr. at 41:25-42:3, 48:6-15.
III.

MOTION FOR CONTEMPT
A.

The Parties’ Filings

As noted, Defendants’ application was initially filed by letter motion on March 22, 2019.
See Defs.’ Letter Mot. At the April 30, 2019 evidentiary hearing, following the presentation of
evidence and closing arguments by counsel, the Court directed the parties to submit initial briefs
within 21 days of receiving the transcript of the hearing. See April 30, 2019 Civil Conference
Minute Order. Counsel were then to submit any response to opposing counsel’s initial brief
within two weeks thereafter. Id. The Court did not authorize either party to submit a reply. Id.
Notice of filing of the official transcript was uploaded to ECF on June 5, 2019. See DE 59. On
July 5, 2019, the parties filed their opening papers. See Plaintiff’s Memorandum in Opposition
to Defs.’ Letter Mot. (“Pl.’s Mem.”) [DE 64]; Defs.’ Mem. On July 19, 2019, Defendants filed
what they characterized as a reply brief in support of Defendants’ Memorandum in Support. See
Defendants’ Reply in Support of Defs.’ Mem. (“Defs.’ Reply”) [DE 68]. The Court finds
confusing the parties’ procedure in making their post-hearing submissions. The Court granted
both parties the opportunity to file opening briefs setting forth their arguments as to why the
requested relief should be granted or denied. The Court then granted each party the opportunity

8

to oppose their adversary’s opening brief. Surprisingly, Plaintiff did not file any opposition and
Defendants filed a purported reply. Notwithstanding the manner of the parties’ filings, the Court
is construing Plaintiff’s Memorandum in Opposition and Defendants’ Memorandum in Support
as the parties’ opening briefs and Defendants’ Reply as Defendants’ opposition.
A.

Defendants’ Position

Defendants’ counsel asserts that Plaintiff’s attorneys overtly violated the clear and
unambiguous requirements of the Confidentiality Order by disclosing the Confidential Records
without authorization – acts which caused and continue to cause Defendants to unnecessarily
expend time and resources. See Defs.’ Letter Mot. at 4; Defs.’ Mem. at 6. Defendants point out
that: (1) the Confidentiality Order provides a mechanism by which the parties are to produce
material that the producing party deems confidential; (2) the “confidential” designation is to be
done at the time of production or within 30 days after production; and (3) with respect to the
Confidential Records, the “confidential” designation was made at the time of Defendants’
May 18, 2018 production and was not disputed by Plaintiff. Defs.’ Letter Mot at 6; Defs.’ Mem.
at 4. Under the terms of the Confidentiality Order, Defendants contend that: (1) once records
are deemed confidential, the records shall be “used for prosecuting and/or defending the [instant
action] only, and for no other purpose,” and (2) an “unauthorized disclosure in violation of the
order shall be subject to discipline by the contempt powers of the Court.” Defs.’ Letter Mot. at
7; Defs.’ Mem. at 4. Defendants assert that the Confidential Records were clearly and
unambiguously designated “Confidential” in bold uppercase letters per the terms of the
Confidentiality Order. Id. In addition, Defendants point out that Plaintiff’s counsel did not
notify Defendants of the disclosure of the Confidential Records and did not seek Defendants’

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consent. See Defs.’ Mem. at 4; Defs.’ Letter Mot. at 7. Defendants’ counsel emphasizes that
neither willfulness nor bad faith is a prerequisite to a finding of contempt. See Defs.’ Reply at 1.
In addition to requesting a finding of contempt, Defendants’ counsel argues that
Defendants should be compensated for the attorney time spent seeking to recover the
Confidential Records. Defs.’ Mem. at 6. Although Defendants’ counsel concedes the dearth of
authority concerning the appropriate hourly rate for municipal attorneys, counsel argues that the
rate applied by the Court to determine his fees should be similar to rates applied to courtappointed attorneys who serve on the 18B panel in the New York State Courts and the Criminal
Justice Act (“CJA”) Panel in the federal court. See id. at 6-7. In support of counsel’s application
for attorneys’ fees, Defendants have submitted contemporaneous time records which detail 12.75
hours spent working to recover the Confidential Records. See Fernandez Decl., Ex. C
(Contemporaneous Time and Billing Records).
B.

Plaintiff’s Position

Although Plaintiff’s attorneys acknowledge that there was a violation of the
Confidentiality Order, they explain that the violation was an error made in good faith and ask the
Court not to hold Plaintiff’s counsel in contempt or issue any monetary sanctions. See Plaintiffs’
Response in Opposition to Defs.’ Letter Mot. (“Pl.’s Letter Opp’n”) [DE 49]; Pl.’s Mem. at 7-10.
Plaintiff argues that
[t]he evidence adduced at the April 30, 2019 hearing is clear: There was an
unintentional violation of the Confidentiality Order due to a confluence of
unfortunate events. From Mr. Meehan’s failure to indicate which specific
documents were to be sent to Mr. Groder, to Mr. Barros emailing the wrong PDF,
and Mr. Groder failing to realize that the “confidential” watermark applied to him
before he provided the documents to his client, each one of these seemingly small
errors played a role in providing confidential documents to a party who should
never have had access to them, Mr. LaPierre. However, the evidence also shows,
overwhelmingly, that the disclosure was inadvertent, unintentional, and that any

10

sanctions or findings of contempt would not advance any of the specific reasons
Courts have upheld their usefulness under Fed. R. Civ. P. 37.
Pl.’s Mem. at 1. Plaintiff asserts that sanctions in this matter, while clearly within the Court’s
discretion, would not serve the objectives for which sanctions are typically levied since
Plaintiff’s attorneys did not benefit from the disclosure, financially or otherwise, and a deterrent
is unnecessary because the disclosure was inadvertent. See Pl.’s Letter Opp’n at 3; Pl.’s Mem. at
8-9. Further, Plaintiff’s counsel underscores that: (1) neither Attorney Meehan nor Attorney
Barros have any history of violating Court Orders; (2) Plaintiff’s attorneys were not given an
opportunity to remedy the disclosure since they were not aware of the disclosure until March 22,
2019, hours before Defendants filed their letter motion; (3) the Norinsberg Firm has already
implemented mechanisms to ensure that an inadvertent disclosure of confidential material will
not happen again; and (4) Meehan and Barros have taken full responsibility for their failures in
this matter. See Pl.’s Mem. at 10-11.
Finally, Plaintiff emphasizes that the imposition of monetary sanctions would be
“economically punishing, as well as professionally harmful” to both Barros and Meehan, both of
whom are young attorneys with promising careers. Pl.’s Letter Mot. at 4; Pl.’s Mem. at 11-12.
Indeed, Plaintiff further notes that Meehan and Barros have already been sternly admonished by
their boss and that additional sanctions would be adding “salt to the wound.” See Pl.’s Letter
Opp’n at 4.

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IV.

DISCUSSION
A.

Applicable Law

In general, “the power to punish for contempt is inherent in all courts.” 7 Bowens v.
Atlantic Maintenance Corp., 546 F. Supp. 2d 55, 63 (E.D.N.Y. 2008) (citations omitted). “The
underlying concern is ‘disobedience to the orders of the [j]udiciary,’ not ‘merely the disruption
of court proceedings.’” Id. (citing Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991)). As such,
an individual who disobeys a valid order of the court may be subject to both civil and criminal
penalties for his actions. Id. (citing United States v. Petito, 671 F.2d 68, 72 (2d Cir. 1982)).
“Criminal contempt is used to punish the contemnor or vindicate the court’s authority; civil
contempt seeks to coerce the contemnor into compliance with the court’s orders or to
compensate the complaining party for losses incurred as a result of the contemnor’s conduct.”
Id. (citing Hess v. New Jersey Transit Rail Operations, Inc., 846 F.2d 114, 115 (2d Cir. 1988)).
A party may be held in civil contempt for failure to comply with a court order if: “(1) the
order the contemnor failed to comply with is clear and unambiguous, (2) the proof of
noncompliance is clear and convincing, and (3) the contemnor has not diligently attempted to
comply in a reasonable manner.” Lynch v. Southampton Animal Shelter Found., Inc., No. CV
10-2917, 2013 WL 80178, at *5 (E.D.N.Y. Jan. 7, 2013) adhered to on reconsideration, 2013
WL 1563468 (E.D.N.Y. Apr. 12, 2013) (quoting King v. Allied Vision, Ltd., 65 F.3d 1051, 1058
7

In addition to the Court’s inherent power to punish individuals in cases where
contempt is established, Federal Rule of Civil Procedure 37(b)(2) states that a court may “treat []
as contempt . . . the failure to obey any order except an order to submit to a physical or mental
examination.” Fed. R. Civ. P. 37(b)(2); see also 18 U.S.C. § 401 (“A court of the United States
shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of
its authority . . . as—(n.) . . . (3) Disobedience or resistance to its lawful writ, process, order, rule,
decree, or command.”); see Dorsett v. Cty. of Nassau, No. CV 10-01258, 2012 WL 2076911, at
*6 (E.D.N.Y. June 7, 2012).

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(2d Cir. 1995)). Willfulness or bad faith is not a prerequisite to a contempt finding pursuant to
Rule 37. See Dorsett, 2012 WL 2076911, at *8 (“a court need not find willfulness or bad faith as
a prerequisite to a contempt finding”); Paramedics Electromedicina Comercial, Ltda. v. GE
Medical Sys. Information Tech., Inc., 369 F.3d 645, 655 (2d Cir. 2004) (“It need not be
established that the violation [of a court order] was willful.”); Ferrara v. Nordev, LLC, No. CV
10-5844, 2012 WL 1999643, at *2 (E.D.N.Y. Apr. 10, 2012). Further, the “[p]rocess of
contempt is a severe remedy, and should not be resorted to when there is fair ground of doubt as
to the wrongfulness of the defendant’s conduct.” California Artifical Paving Stone Co. v.
Molitor, 113 U.S. 609, 618 (1885); see Int’l Longshoremen’s Ass’n v. Philadelphia Marine
Trade Ass’n 389 U.S. 64, 76 (1967) (noting that the court’s contempt power constitutes a “potent
weapon”); Stein Indus., Inc. v. Jarco Indus., Inc., 33 F. Supp. 2d 163, 170 (E.DN.Y. 1999). The
moving party must establish each essential element by clear and convincing evidence. Bowens,
546 F. Supp. 2d at 63-64; see King, 65 F.3d at 1058 (finding that “[a] contempt order is
warranted only where the moving party established by clear and convincing evidence that the
alleged contemnor violated the district court’s edict.”). Further, “[t]he failure to meet the strict
requirements of an order does not necessarily subject a party to a holding of contempt.” A.V. By
Versace, Inc. v. Gianni Versace S.p.A., 446 F. Supp. 2d 252, 257 (S.D.N.Y. 2006) (quoting Dunn
v. N.Y. State Dep’t of Labor, 47 F.3d 485, 490 (2d Cir. 1995)).
The relevant statutory framework governing the contempt authority of a federal
magistrate judge is set forth in 28 U.S.C. § 636(e). Under the statute, where a magistrate judge
presides over a pre-trial matter in a case pending before a district judge,
the magistrate judge shall forthwith certify the facts to a district
judge and may serve or cause to be served, upon any person whose
behavior is brought into question under this paragraph, an order
requiring such person to appear before a district judge upon a day
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certain to show cause why that person should not be adjudged in
contempt by reason of the facts so certified. The district judge shall
thereupon hear the evidence as to the act or conduct complained of
and, if it is such as to warrant punishment, punish such person in the
same manner and to the same extent as for a contempt committed
before a district judge.
28 U.S.C. § 636(e); see Ferrara, 2012 WL 1999643, at *1. Thus, pursuant to the certification
process outlined in 28 U.S.C. § 636(e), the magistrate judge “functions only to certify the facts
and not to issue an order of contempt.” Ferrara, 2012 WL 1999643, at *1 (citing Hunter TBA,
Inc. v. Triple v. Sales, 250 F.R.D. 116, 118 (E.D.N.Y.2008)). Further, “[i]n certifying the facts
under Section 636(e), the magistrate judge’s role is ‘to determine whether the moving party can
adduce sufficient evidence to establish a prima face case of contempt.’” Hunter, 250 F.R.D. at
118 (quoting Church v. Steller, 35 F. Supp. 2d 215, 217 (N.D.N.Y. 1999)); see Trustees of
Empire State Carpenters Annuity, Apprenticeship, Labor-Mgmt. Cooperation v. Duncan & Son
Carpentry, Inc., No. 14-CV-2894, 2015 WL 3935760, at *3 (E.D.N.Y. June 26, 2015).
In accordance with the magistrate judge’s role of “determin[ing] whether the moving
party can adduce sufficient evidence to establish a prima facie case of contempt,” Ferrara, 2012
WL 1999643, at *1, the court, after reviewing the evidence, may decline to certify the case to the
district court where the court “determines that the conduct does not rise to the level of contempt”
Lynch, 2013 WL 80178, at *5. See also Bowens, 546 F. Supp. 2d at 72 (declining to certify facts
to the district court where movant failed to establish a prima facie case of contempt). In the
event the court declines to certify facts to the district court for further review, the “district court
may not proceed further on a motion for contempt where the conduct at issue occurred before a
magistrate judge.” Bowens, 546 F. Supp. 2d at 72; see Church, 35 F. Supp. 2d at 217 (citing In
re Nova Biomedical Corp. v. i-STAT Corp., 182 F.R.D. 419, 423–24 (S.D.N.Y. 1998)); see also

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In re Kitterman, 696 F. Supp. 1366, 1370 (D. Nev. 1988) (noting that magistrate’s decision not
to certify to district court “dispos[es] of the matter”).
B.

Application
1.

Contempt

The language of the Confidentiality Order to which Plaintiff’s counsel stipulated and
signed is clear and unambiguous. Pursuant to the Order, records “designated . . .
‘CONFIDENTIAL’ [] shall be retained by the receiving party’s counsel and shall not be
disclosed or used by an[y] non-designated person . . . [and] [a]ny material marked
‘CONFIDENTIAL’ shall be used for prosecuting and/or defending the [instant action] only.”
Confidentiality Order ¶ 6. Therefore, Defendants have satisfied the first prong of the test for
civil contempt under Lynch.
The Confidentiality Order and the designation of the Confidential Records were in place
and were known to Plaintiff and his attorneys at the time Attorney Barros made the improper
disclosure to Attorney Groder. The evidence of the unauthorized disclosure includes the
admissions by both Attorney Meehan and Attorney Barros that confidential documents were
disseminated by email. The explanation by Meehan and Barros that Barros sent Groder, as
attorney for LaPierre in a totally separate case, the wrong PDF file – when no file containing
such confidential information should have been sent – provides the clear and convincing proof of
noncompliance sufficient to meet the second prong of the Lynch test. Whatever the
“understanding” between Meehan and Barros, if Barros had simply opened the PDF he intended
to forward to Groder and reviewed the materials before sending them, he would have observed
their “CONFIDENTIAL” designation. Likewise, had Meehan exercised the most elementary

15

supervision of a brand new attorney such as Barros, the serious repercussions here might have
been avoided.
Yet, according to the third prong of the test for civil contempt, the Court may not hold a
party in contempt if “the alleged contemnor has been ‘reasonably diligent and energetic in
attempting to accomplish what was ordered.’” Ferrara v. Metro D Excavation & Found., Inc.,
10-CV-4215, 2012 WL 6962214, at *3 (E.D.N.Y. Nov. 30, 2012), report and recommendation
adopted, 2013 WL 357818 (E.D.N.Y. Jan. 29, 2013) (quoting Equal Emp't Opportunity Comm'n
v. Local 638, 753 F.2d 1172, 1178 (2d Cir. 1985)). Here, the Norinsberg law firm takes the
position that it was not made aware of the fact that its associates had sent confidential documents
to Groder until the firm was informed of that fact by Attorney Fernandez on March 22, 2019, only
hours before Attorney Fernandez filed the instant Motion for Contempt. Pl.’s Mem. at 5. The Court
finds that argument somewhat disingenuous in light of the fact that it was the gross negligence of the
firm which led to a first-year associate taking action which should never have been delegated to him.

Nevertheless, although the disclosure was caused in large part by the utter failure to
exercise reasonable diligence in handling the request from Attorney Groder, the Court is hard
pressed to find that Plaintiff’s lawyers were not otherwise diligent in attempting to comply with
the Confidentiality Order in general. The fact that Plaintiff’s counsel (1) saved the initial
May 18, 2018 production as “Discovery Responses Confidential” and (2) subsequently asked
Defendants to reproduce the Confidential Records with the watermark moved to the bottom of
each page, is some indication of the recognition of the confidential nature of the documents and
an intent to comply with the Confidentiality Order. Further, upon learning of the disclosure,
Plaintiff’s counsel: (1) accepted responsibility for the firm’s actions; (2) apologized to the Court,
Defendants’ counsel, and the Individual Defendants; and (3) undertook corrective measures to
ensure that such a disclosure does not happen again. Compare Powell v. Ward, 643 F.2d 924,
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933 (2d Cir. 1981) (holding superintendent of New York’s Bedford Hills Correctional Facility in
contempt of an order governing disciplinary proceedings against inmates, where – with respect to
the third prong of the contempt analysis – she was “apparent[ly] ignorant” of the [] Order for
nearly a year after she assumed office;” she determined “unilaterally and in the face of contrary
views of her predecessors and superiors” that the language and spirit of the order could be
ignored; and “she “lack[ed] concern for the actual state of compliance efforts.”).
For the foregoing reasons, the Court finds that the Defendants have not carried their
burden under the third prong of Lynch. The Court therefore declines to certify contempt to Judge
Spatt since all three prongs of the test for civil contempt have not been satisfied.
However, the issue does not end there. The lack of appropriate and reasonable oversight
and the very serious mistakes in judgment exercised here have consequences. Indeed, failure to
abide by a protective order is sanctionable under Rule 37. See Fed. R. Civ. P. 37 (advisory
committee notes to 1970 amendment) (noting that amendment broadened scope of Rule 37(b)(2)
to provide for enforcement of orders issued pursuant to Rule 26(c)); Flaherty v. Filardi, 03 CIV.
2167, 2009 WL 3762305, at *5 (S.D.N.Y. Nov. 10, 2009) (“Discovery orders such as the
Protective Order can be enforced through Rule 37(b)); Schiller v. City of N.Y., No. 04 Civ. 7921,
2007 WL 1623108, at *3 (S.D.N.Y. June 5, 2007) (“Discovery orders that can be enforced
through Rule 37(b) include protective orders issued under Federal Rule of Civil Procedure
26(c) .”). The reality here is that highly sensitive and confidential police personnel records have
been disseminated to non-parties – and remain at large – with significant consequences for these
Defendants. 8

8

So significant are police personnel documents that the state legislature has seen
fit to codify their confidential nature. See New York Civil Rights Law § 50–a (“[a]ll personnel
records, used to evaluate performance toward continued employment or promotion, under the
17

The Court is not persuaded by Plaintiff’s argument that sanctions are not warranted
because the disclosure of the Confidential Records was not willful or in bad faith. Indeed, in
Dorsett v. County of Nassau, CV 10-01258, 2012 WL 2076911, at *5-6 (E.D.N.Y. June 7, 2012),
a Section 1983 wrongful death action, Judge Spatt sanctioned Peter Schmitt, Presiding Officer of
the Nassau County Legislature, for violating a court-ordered confidentiality order where
Presiding Officer Schmitt revealed the contents of an internal affairs report during a press
interview. Id. During an evidentiary hearing concerning the improper disclosure, Schmitt
explained that he did not think that he had violated the Order at the time of the interview, but
recognized, in retrospect, having made “an error in judgment.” Id. at 6. In sanctioning Presiding
Officer Schmitt and ultimately finding him in civil contempt, Judge Spatt emphasized that “a
court need not find willfulness or bad faith as a prerequisite to a contempt.” Id. at 8. Here, as in
Dorsett, Plaintiff’s attorneys insist that the improper disclosure was unwitting, but concede that
more care should have been exercised to prevent the disclosure.

See generally Pl.’s Mem.

Although Attorneys Meehan and Barros have taken responsibility for their error, Plaintiff’s
argument that the disclosure was inadvertent is not compelling, especially given the sensitive
materials contained in the Confidential Records and the fact that they have not been recovered.
To this day, it appears that no one knows the extent to which the Confidential Records have been
circulated to other inmates and non-parties who have no entitlement to that information.

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.”). Although the protections of Section 50–a “do not govern discovery in
federal cases,” United States v. Collier, No. 10-CR-820, 2013 WL 125691, at *1 (E.D.N.Y.
Jan. 9, 2013), the Court recognizes the delicate nature of these records, especially when
disseminated for no good reason.
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Nor is the Court persuaded by Plaintiff’s contention that imposing sanctions would not
further the fundamental purposes of sanctions, including specific and general deterrence. The
Court finds it quite troubling that an attorney not connected with this case could make a random
telephone call to a staff attorney and be provided with sensitive, confidential information -- with
no questions asked. The fact that neither associate found it prudent or warranted to bring this
request to a partner or shareholder in the firm in the first instance is distressing at best. The
circumstances at issue here cause the Court to conclude that there was no reasonable supervisory
structure or oversight in place at the law firm, or alternatively that the structure in place was
woefully inadequate. The actions raise further concerns about what type of training, if any, was
provided to young attorneys. Otherwise, the reckless response to the Groder inquiry (where the
entire question of making any response should have been vetted), including the unfathomable
delegation of such an important matter to a first-year associate, would presumably have been
avoided. The Court can only hope that the imposition of sanctions here will deter future
incidents of this nature which have such serious consequences.
Although the Court does not take the relief sought lightly, sanctions are appropriate here
given the gross negligence with which the Confidential Records were handled. As the court
noted in Williams v. New York City Transit Auth., No. 10 CV 0882, 2011 WL 5024280, at *7
(E.D.N.Y. Oct. 19, 2011),
Neither negligence or gross negligence has been clearly defined in
the context of discovery misconduct . . . . These terms simply
describe a continuum. Conduct is either acceptable or unacceptable.
Once it is unacceptable the only question is how bad is the conduct.
That said, it is well established that negligence involves
unreasonable conduct in that it creates a risk of harm to others.

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Id. (internal citation, quotation marks, and alterations omitted). The risk of harm to the
Defendants here has been well-established, as a result of which the Court finds sanctions are
warranted.
2.

Attorneys’ Fees

Defendants seek attorneys’ fees based on the conduct of Plaintiff’s attorneys. With
regard to an appropriate sanction, the Court notes that the party damaged by the conduct
warranting sanctions should be made whole for the harm it has suffered. City of Almaty,
Kazakhstan v. Ablyazov, No. 115CV05345, 2018 WL 1229730, at *6 (S.D.N.Y. Mar. 5, 2018)
(citing Vuitton et Fils S.A. v. Carousel Handbags, 592 F.2d 126, 130-31 (2d Cir. 1979));
Flaherty v. Filardi, No. 03 CIV. 2167, 2009 WL 3762305, at *6 (S.D.N.Y. Nov. 10, 2009).
“Sanctions may include prohibiting the disobedient party from supporting or opposing
designated claims or defenses, or from introducing designated matters in evidence, or requiring
the ‘disobedient party, the attorney advising that party, or both to pay the reasonable expenses,
including the attorney’s fees caused by the failure . . . .’” City of Almaty, Kazakhstan, 2018 WL
1229730, at *6 (quoting Fed. R. Civ. P. 37(b)(2)(B), (C)).
It is well-settled that a party seeking attorneys' fees is required to submit
contemporaneous time and billing records specifying, for each attorney, the date, the hours
expended, and the nature of the work performed. See N.Y. State Ass'n for Retarded Children,
Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983) (“any attorney . . . who applies for courtordered compensation in this Circuit . . . must document the application with contemporaneous
time records ... specify[ing], for each attorney, the date, the hours expended, and the nature of the
work done”); Scott v. City of New York, 626 F.3d 130, 133 (2d Cir. 2010) (“Carey establishes a
strict rule from which attorneys may deviate only in the rarest of cases.”); Marion S. Mishkin

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Law Office v. Lopalo, 767 F.3d 144, 148 (2d Cir. 2014) (stating that Carey sets forth the rules
governing payment of attorneys’ fees in this Circuit). Here, Defendants are represented by the
County Attorney’s Office, by Deputy County Attorney Pablo A. Fernandez. Defendants have
submitted contemporaneous records of time expended and work performed by Deputy County
Attorney Fernandez in connection with the instant matter. See Fernandez Decl., Ex. C. The
records adequately identify (1) the attorney who performed work in connection with the instant
matter, (2) the date of the work performed, (3) the nature of the work, and (4) the hours
expended. Thus, the Court finds that the records submitted by Defendants are sufficient to
support an award of attorneys’ fees.
With respect to the reasonableness of the fee, both the Second Circuit and the Supreme
Court “have held that the lodestar method — the product of a reasonable hourly rate and the
reasonable number of hours required by the case — creates a ‘presumptively reasonable fee.’”
Millea v. Metro-North R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011) (quoting Arbor Hill
Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 522 F.3d 182, 183 (2d Cir. 2007)).
The Court should determine the “presumptively reasonable fee” by looking to “what a
reasonable client would be willing to pay.” Arbor Hill Concerned Citizens Neighborhood Ass'n
v. Cty. of Albany & Albany Cty. Bd. of Elections, 522 F.3d 182, 183-84 (2d Cir. 2008).
However, the circumstances of this case are distinguishable from the usual analysis under the
lodestar calculation. Here, the Court is dealing with work performed by a public-sector attorney,
not a lawyer in private practice. The standard analysis with respect to range of hourly billing
rates consequently does not apply here.
Here, Defendants do not seek a particular rate, instead arguing that Attorney Fernandez
should be awarded a rate similar to rates paid in state court to appointed counsel from the 18B

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Panel and to rates paid in federal court to appointed counsel who serve on the Criminal Justice
Act (“CJA”) Panel. Defendants did not provide any information as to the hourly rates of such
Panel attorneys. The Court therefore conducted its own independent research and found that
18B Panel attorneys are paid $60 per hour for work performed on misdemeanor cases and $75
per hour for work performed in all other cases, see Nassau County New York Assigned Defender
Plan, http://nassau18b.org/ (last visited December 20, 2019). CJA attorneys practicing in the
Eastern District of New York receive $148 per hour for work performed on non-capital cases,
see CJA Manual, Appendix A, Hourly Rates for Attorney Time in Non-Capital Cases and
Periods of Applicability (February 15, 2019),
http://www.ca2.uscourts.gov/clerk/attorneys/docs/CJA_Manual_apx_A.pdf. Notwithstanding
Defendants’ omission of a specific rate request for Attorney Fernandez, the Court finds the
federal CJA rate for noncapital cases, namely, $148 per hour to be reasonable in these
circumstances. Carter v. Inc. Vill. of Ocean Beach, No. 07 CV 1215, 2013 WL 816257, at *6
(E.D.N.Y. Mar. 4, 2013), aff'd, 759 F.3d 159 (2d Cir. 2014) (awarding Suffolk County
defendants attorneys’ fees at an hourly rate of $150.00 in a § 1983 civil rights lawsuit where the
County asserted that it paid $150 to many outside counsel during the relevant period).
In addition to submitting Attorney Fernandez’s time records, Defendants describe
Attorney Fernandez’s practice experience, reporting that he: (1) has been admitted to practice
law in New York since October 2002 and to the Eastern District of New York since January
2003; (2) has worked at the Nassau County Attorney’s Office since 2008 and has specialized in
civil rights litigation since being assigned to the Litigation Bureau in 2010; and
(3) worked in private practice prior to working for the Nassau County Attorneys’ Office,
litigating criminal defense and construction law matters. See Fernandez Decl. ¶ 33. The time

22

records show that Attorney Fernandez spent 12.75 hours litigating the return of the improperly
disclosed Confidential Records, including: (1) appearing before Judge Corrigan in Nassau
County; (2) interacting with the Nassau County District Attorney’s Office; (3) drafting an
affirmation in support of the application to search Wayne LaPierre’s Nassau County jail cell and;
(4) traveling to the Nassau County Correctional Center to execute the Order to search LaPierre’s
jail cell. See Fernandez Decl., Ex. C.
To determine whether the number of hours spent by Defendants’ counsel is reasonable,
the Court must “use [its] experience with the case, as well as [its] experience with the practice of
law, to assess the reasonableness of the hours spent . . . in a given case.” Fox Indus., Inc. v.
Gurovich, No. CV 03–5166, 2005 WL 2305002, at *2 (E.D.N.Y. Sept. 21, 2005) (quoting Clarke
v. Frank, 960 F.2d 1146, 1153 (2d Cir.1992)). A court should “exclude hours that were
‘excessive, redundant, or otherwise unnecessary’ to the litigation . . . .” Cho v. Koam Medical
Servs. P.C., 524 F.Supp.2d 202, 209 (E.D.N.Y. 2007) (quoting Hensley v. Eckerhart, 461 U.S.
424, 434 (1983)). A party seeking an award of attorneys' fees bears the burden to document “the
hours reasonably spent by counsel, and thus must support its request by providing
contemporaneous time records reflecting, for each attorney and legal assistant, the date, the hours
expended, and the nature of the work done.” Cho, 524 F.Supp.2d at 209 (internal citations,
quotation marks, and alteration omitted).
Having reviewed Attorney Fernandez’s contemporaneous time entries, the Court finds
that the 12.75 hours expended by Attorney Fernandez are reasonable. Further, the Court points
out that the parties appeared for an evidentiary hearing on April 30, 2019 for one hour and
twenty-eight minutes (1.47 hours). That hearing was essential to the Court’s ability to determine
exactly what happened which led up to Plaintiff’s disclosure of the Confidential Records at issue.

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The Court therefore finds it appropriate to add 1.47 hours of time to the 12.75 hours Attorney
Fernandez spent litigating the return of the Confidential Records, for a total of 14.22 hours.
Accordingly, the Court awards the Defendants attorneys’ fees totaling $2,104.56 (14.22
hours x $148). This sanction is imposed upon the Law Offices of John L. Norinsberg, PLLC and
is to be paid within 14 days of entry of this Memorandum and Order.
V.

CONCLUSION
Based on the foregoing findings, the Court: (1) declines to certify contempt to Judge

Spatt; (2) finds that the Law Office of John L. Norinsberg, PLLC and its attorneys involved in
this matter acted in a grossly negligent manner in breaching the Confidentiality Order; and (3)
awards Defendants attorneys’ fees in the amount of $2,104.56 to be paid by the Law Offices of
John L. Norinsberg, PLLC within 14 days of entry of this Memorandum and Order.
SO ORDERED.
Dated: Central Islip, New York
December 31, 2019

/s/ A. Kathleen Tomlinson
A. KATHLEEN TOMLINSON
United States Magistrate Judge

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