Burks v. Stickney et al
DECISION AND ORDER: ORDERED that plaintiff's motion for relief from the restrictions imposed by the protective order in this case with regard to the portions of the OSI file now contested (Dkt. Nos. 32 , 33 ) is GRANTED, except that plaintif f is not permitted to possess a personal copy of the OSI, and the documents at issue must be redacted as indicated herein; and it is further ORDERED that the clerk of court serve a copy of this order, as well as a copy of the challenged documents containing the court's redactions, on the parties in accordance with the local rules of practice for this court. Signed by Magistrate Judge David E. Peebles on 4/19/17. (alh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
Civil Action No.
CHAD STICKNEY, et al.,
STOLL, GLICKMAN & BELLINA LLP
475 Atlantic Avenue, Third Floor
Brooklyn, New York 11217
LEO GLICKMAN, ESQ.
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
Albany, NY 12224
DENISE P. BUCKLEY, ESQ.
Assistant Attorney General
DAVID E. PEEBLES
CHIEF U.S. MAGISTRATE JUDGE
DECISION AND ORDER
This is an action brought by plaintiff Mattieu Burks pursuant to 42 U.S.C.
§ 1983 against a number of individuals employed by the New York State
Department of Corrections and Community Supervision ("DOCCS") alleging
that they subjected him to cruel and unusual punishment while confined in a
New York State prison facility. During the course of discovery, plaintiff's
counsel was provided with an investigative file created by the DOCCS Office
of Special Investigations ("OSI") regarding the incident giving rise to plaintiff's
claims. The case file was disclosed to plaintiff's counsel pursuant to a
protective order issued by the court, on stipulation of the parties. Under that
order, while plaintiff's counsel is authorized to permit plaintiff to review the
materials disclosed, they are otherwise restricted to his counsel on an
Currently pending before the court is plaintiff's request for
declassification of portions of the OSI file under the governing protective order
and, correspondingly, for authorization to publicly disseminate those
documents. For the reasons set forth below, the request is granted in part.
Plaintiff commenced this action on June 27, 2016. Dkt. No. 1. In his
complaint, plaintiff alleges that, at the relevant times, he was confined in
the Clinton Correctional Facility ("Clinton"), a prison operated by the
DOCCS. See generally id. Generally, plaintiff claims that while at Clinton
he was harassed, assaulted, and deprived of certain basic necessities,
including water and electricity. Id. Plaintiff's complaint asserts Eighth
Amendment cruel and unusual punishment claims against several named
corrections officers, as well as additional, unidentified Doe defendants. Id.
During the course of discovery, plaintiff requested the production of
a case file created by the OSI in connection with an investigation into
plaintiff's allegation that he was assaulted by corrections officers at Clinton
on July 5, 2015. To facilitate the production of that file by defendants'
counsel, the parties entered into a stipulation providing for the entry of a
protective order pursuant to Rule 26(c) of the Federal Rules of Civil
Procedure. Dkt. No. 30. The protective order is limited in scope and
specific to the OSI case file, and acknowledges the parties' recognition of
the confidential and sensitive nature of that file and the security concerns
and other deleterious effects that could result from public disclosure of its
contents. See generally id. Paragraph eleven of the protective order
provides that, in the event the parties dispute "the application of the terms
of [the order] to any part of the Protected Records," they "reserve the right
to seek an order from the Court regarding the part of the Protected
Records in dispute." Dkt. No. 30 at 6. Following the entry of the stipulated
order, the OSI case file was produced to plaintiff's counsel on or about
January 15, 2017, redacted to remove social security numbers and
personal addresses and designated as CONFIDENTIAL ATTORNEY
VIEWING ONLY. See, e.g., Dkt. No. 33-1.
Upon receipt of the OSI file, plaintiff's counsel sent a letter to
defendants' attorney on January 19, 2017, objecting to the confidentiality
designation with regard to certain portions of the OSI file. Dkt. No. 32-3.
Assistant New York State Attorney General Denise P. Buckley responded
by letter dated February 9, 2017, stating that her office was "instructed by
the OSI that they will agree to vary the terms of the So-Ordered Stipulation
and Confidentiality Order" in part, and enclosing fifty-one pages of records
from the OSI file from which the confidential designation was removed,
subject to minor redaction. Dkt. No. 32-4.
On March 9, 2017, pursuant to paragraph eleven of the protective
order, plaintiff filed a motion with the court seeking an order releasing
certain of the remaining contents of the OSI file from protection under the
order. Dkt. No. 32. Plaintiff's motion implicates the following documents:
Bates Stamp Number
Final OSI report
Inmate witness statements
Transcript of question and answer
proceedings, held on 10/14/15, involving
defendant John Mark Cross
Plaintiff's statement to OSI
Dkt. No. 33 at 12-14. Defendants oppose plaintiff's motion. Dkt. No. 34.
Oral argument was held concerning the motion on March 31, 2017, during
a telephone conference conducted on the record, at which time decision
regarding the motion was reserved.
Conflict of Interest
In his motion, plaintiff argues that a conflict of interest exists by virtue of
the fact that the New York State Attorney General represents both the
defendants in this matter and the OSI. I disagree. The OSI is an organization
within the DOCCS, the state agency for whom the named defendants work.
The New York State Attorney General routinely represents those employed by
the DOCCS who are implicated in litigation. I have been provided no reason to
believe that the interests of defendants and OSI are in conflict, nor is there
any basis to conclude that the dual role at issue will adversely affect the
Attorney General's defense of the OSI or representation of the defendants.
Accordingly, I find no basis to conclude that a conflict of interest exists as
argued by plaintiff.
I note, in passing, that in accordance with the custom in this court, the
New York State Attorney General was asked to produce the OSI file in order
to obviate the need to obtain that file through the issuance of a non-party Rule
45 subpoena to the DOCCS. Because this procedure was followed as a
matter of convenience to plaintiff, he should not now be heard to argue that,
despite this accommodation, defendants' counsel may not advocate for
confidentiality on behalf of the OSI.1
Important to the analysis of plaintiff's motion is consideration of the
procedural posture of the case. The parties are engaged in pretrial discovery,
and no dispositive motions are currently pending in the action. At issue, then,
are documents produced by defendants to plaintiff subject to a negotiated
Rule 26(c) protective order, and whether those documents should be released
from their confidential designation and made available to the public.2
Discovery in a civil action is a private process through which parties
exchange documents that are not filed with the court, at least during the
At least one court has concluded that documents held by the DOCCS are
effectively within the custody or control of individual DOCCS employees named as
defendants in a lawsuit based upon the practical ability on the part of the New York
State Attorney General, defendants' counsel, to obtain the documents. See Gross v.
Lunduski, 304 F.R.D. 136, 142-43 (W.D.N.Y. 2014) ("Here, the record establishes
Defendant, through his attorney, an Assistant N.Y. Attorney General, provided by the
local office of the New York Attorney General, has the practical ability to acquire from
DOCCS many of the documents requested by Plaintiff.").
During the hearing in this matter, plaintiff conceded that his intention, should his
motion be granted, is to make the OSI documents "as public as possible."
discovery phase of an action.3 Accordingly, the public does not enjoy a
presumptive right of access to discovery materials. Schiller v. City of N.Y., No.
04-CV-7922, 2007 WL 136149, at *2 n.2 (S.D.N.Y. Jan. 19, 2007); In re:
Terrorists Attacks on September 11, 2001, 454 F. Supp. 2d 220, 222
(S.D.N.Y. 2006) (citing United States v. Amodeo, 71 F. 3d 1044, 1050 (2d Cir.
1995)). The public's right of access to discovery materials is triggered only
when they become judicial documents filed with the court and assume
relevance to the performance of the judicial function and usefulness in the
judicial process. See Amodeo, 71 F.3d at 1050 ("Documents that play no role
in the performance of Article III functions, such as those passed between the
parties in discovery, lie entirely beyond the . . . reach [of the public's
presumptive right of access]."); accord, In re: Terrorist Attacks on September
11, 2001, 454 F. Supp. 2d at 222. The public's right of access thus plays no
role in analysis of plaintiff's motion.4
Prior to 2000, Rule 5(d) of the Federal Rules of Civil Procedure mandated that
all discovery materials be filed with the court absent a court order excusing the
requirement. In re Agent Orange Prod. Liab. Litig., 821 F.2d 139, 146 (2d Cir. 1987).
That requirement, however, has since been eliminated from the rules.
Some courts have cited In re Agent Orange Prod. Liab. Litig. for the proposition
that the public has a right of access to materials exchanged in discovery. See, e.g.,
Cooks v. Town of Southampton, No. 13-CV-3460, 2015 WL 1476672, at *5 (E.D.N.Y.
Mar. 31, 2015). In re Agent Orange Prod. Liab. Litig., however, is readily
distinguishable because it was decided under the prior version of Rule 5(d) of the
Federal Rules of Civil Procedure, which required the filing of discovery materials.
The standard to be applied in evaluating plaintiff's motion depends
upon whether it seeks a modification of the Rule 26(c) stipulated protective
order, or, instead, by bringing the motion, plaintiff has invoked the right
reserved under paragraph eleven of the order to challenge defendants'
designation of certain portions of OSI file as confidential.5
In this case, the parties appear to agree that plaintiff is exercising a right
that is specifically reserved under paragraph eleven of the protective order,
permitting him to challenge a designation of "confidential."6 As such, the court
If the application is properly regarded as seeking a modification, it is subject to a
stringent standard. The Second Circuit has recognized the presumptive unfairness of
modifying protective orders that have been entered into to ensure "confidentiality and
upon which parties have reasonably relied" in producing sensitive materials. AT & T
Corp. v. Sprint Corp., 407 F.3d 560, 562 (2d Cir. 2005) (citing S.E.C. v. TheStreet.com,
273 F.3d 222, 230 (2d Cir. 2001)). Accordingly, "[o]nce a court enters a protective
order and the parties rely on that order, it cannot be modified 'absent a showing of
improvidence in the grant' of the order or 'some extraordinary circumstance or a
compelling need.'" AT & T Corp., 407 F.3d at 562 (quoting Martindell v. Int'l. Tel. & Tel.
Corp., 594 F.2d 291, 296 (2d Cir. 1979)); accord, Allen v. City of N.Y., 420 F. Supp. 2d
295, 300 (S.D.N.Y. 2006).
As discussed above, that paragraph provides as follows:
If a dispute arises as to the application of the terms of this
Stipulation and Confidentiality Order to any part of the
Protected Records and cannot be resolved by agreement,
the parties, in accordance with the applicable Federal and
Local Rules of Civil Procedure, reserve the right to seek an
order from the Court regarding the part of the Protected
Records in dispute. The terms of this Stipulation and
Confidentiality Order shall remain in effect pending
resolution of the dispute.
Dkt. No. 30 at 6. No standard is set forth for adjudicating such a challenge.
must examine the matter de novo, and the inquiry turns to whether the
designating party has shown good cause to support the designation.7 Schiller,
2007 WL 136149, at *4. In making that analysis, I must apply the standard
applicable to requests for protective orders under Rule 26(c) of the Federal
Rules of Civil Procedure. Id.
Rule 26(c) authorizes the issuance of protective orders "to protect a
party or person from annoyance, embarrassment, oppression, or undue
burden or expense[.]" Fed. R. Civ. P. 26(c)(1). Before a protective order is
issued, Rule 26(c)(1) requires a showing of "good cause." Id.; see also
Schiller, 2007 WL 136149, at *2. Good cause exists when the party seeking
protection demonstrates that "disclosure will result in a clearly defined, specific
and serious injury. Broad allegations of harm, unsubstantiated by specific
examples or articulated reasoning, do not satisfy the Rule 26(c) test. Moreover
the harm must be significant not a mere trifle." Schiller, 2007 WL 136149, at *5
(citations and quotation marks omitted).
In this case, defendants contest disclosure of the materials at issue in
light of alleged "legitimate security concerns[.]" Dkt. No. 34 at 3. More
specifically, defendants argue that removing the confidentiality designation of
The court is somewhat troubled by the circularity of the protective order, with
plaintiff at one point acknowledging the confidential nature of the OSI file and the harm
that could come from disclosure of its contents, and yet reserving the right to argue that
there is no good cause for shielding them from public disclosure. Dkt. No. 30.
the documents "jeopardizes the safety of . . . third parties who were
interviewed on a confidential basis, [and] also reveals how OSI conducts
witness interviews and how information is assessed by investigators for
credibility and potential motives." Id. at 6; see also id. at 7 ("Release of the
Protected Records also raises concerns about revealing to the prison
population information about the OSI's investigative methods, tactics, strategic
policies, and procedures."). Indeed, by entering into the stipulated protective
order, plaintiff seemingly acknowledged that the OSI file contents "include the
names of witnesses and other information that could impair future
investigations, implicate security concerns, and are protected from disclosure
by law enforcement privilege." Dkt. No. 30 at 1. The protective order further
acknowledges that "the OSI is concerned that its ability to conduct future
investigations will be compromised if sufficient measures are not taken to
protect the confidentiality of witnesses." Id. at 3.
"Federal courts are sensitive to . . . valid prison security issues related to
discovery in prisoner civil rights cases[.]" Gross, 304 F.R.D. at 156. In
opposing plaintiff's motion, however, defendants have only articulated broad,
overarching concerns that accompany the disclosure of virtually every report
and document generated during a prison investigation, and have not focused
upon the particular documents at issue and any specific harms that may be
caused by their release. Similarly, the protective order itself, although
stipulated to by both plaintiff and defendants, echoes only the same types of
vague concerns set forth in defendants' opposition to plaintiff's motion without
addressing the specific contents of the OSI file.
A careful review of the disputed documents reveals that, with limited
exception, they do not reveal information that will jeopardize the safety and
security of any individual or at any prison operated by the DOCCS. Though
defendants contend that the OSI file contents at issue disclose investigatory
methodologies that risk the efficacy and security of future DOCCS and OSI
investigations, this assertion is not borne out by the court's review of the
disputed materials. The OSI final investigative report does not reveal any
information regarding the underlying investigations completed by Clinton staff
that is not already public knowledge or disclosed in documents not covered by
the protective order. For example, the OSI final report discusses the
investigation undertaken by defendant Cross into plaintiff's allegation that he
was assaulted. The information generated during defendant Cross'
investigation was compiled in a memorandum to his supervisor that he
authored, which defendants voluntarily agreed to release from the protections
of the protective order. Similarly, while the OSI final report discusses the
investigation that Sergeant Peck undertook with respect to plaintiff's
allegations, his investigation was also memorialized in a memorandum that
defendants have agreed to make public.
Although certain of the documents at issue disclose the identities of
some of the non-party individuals interviewed during the investigations, those
names and/or department identification numbers can, and must, be redacted
to protect the individuals' identities.8 In addition, while defense counsel argued
at the motion hearing that the contents of the witnesses' statements could
reveal the identities of the inmates interviewed, the witnesses generally stated
that they did not know what happened in connection with plaintiff's underlying
allegation of assault or that they did not know plaintiff. Such information does
not jeopardize the safety of the inmates interviewed or risk the utility of any
future investigation. Moreover, I disagree with defense counsel that the
witnesses' handwriting renders the authors identifiable. The three statements
that actually include the witnesses' handwriting – which were taken in
connection with a disciplinary hearing – include no more than eight words; the
other three statements given by the same inmates were memorialized by the
OSI investigator, not the witnesses.
Accompanying service of this decision and order upon the parties is a copy of
the documents at issue (Bates Stamp Nos. 6-10, 42-44, 77-106, 112-14, 116-17) with
the redactions necessary to preserve the identities of the witnesses indicated.
In sum, I do not find that defendants have carried their burden of
demonstrating good cause for restricting the documents at issue from public
disclosure. In light of the well settled concern for general safety and security at
DOCCS prison facilities, however, I will direct that plaintiff, who is a New York
State prison inmate, may not obtain and/or possess a personal copy of the
documents at issue. Instead, he may view the documents only while in the
presence of his attorneys. Moreover, as was previously indicated, the court
has approved redaction of the personal information of any inmate witnesses
interviewed and contained in the documents to protect their identity.
SUMMARY AND CONCLUSION
While I remain sensitive to the safety and security considerations
present at DOCCS facilities, as well as the concerns involving disclosure
of investigatory materials and reports generated in connection with
incidents occurring within DOCCS facilities, the stipulated protective order
in this matter specifically reserved the right to challenge the confidentiality
designation by motion to the court. At oral argument, the parties were in
agreement that paragraph eleven of the protective order was properly
invoked by plaintiff in this instance, and that plaintiff was not seeking a
modification of the order. Accordingly, the burden falls upon on defendants
to demonstrate good cause for maintaining the confidentiality of the
documents at issue. Because defendants have identified only broad
security concerns and have failed to articulate any specific injury that may
result from the public disclosure of the particular documents at issue, and
thus have not established good cause for retaining the protected status of
the documents in issue, it is hereby
ORDERED that plaintiff's motion for relief from the restrictions
imposed by the protective order in this case with regard to the portions of
the OSI file now contested (Dkt. Nos. 32, 33) is GRANTED, except that
plaintiff is not permitted to possess a personal copy of the OSI, and the
documents at issue must be redacted as indicated herein; and it is further
ORDERED that the clerk of court serve a copy of this order, as well
as a copy of the challenged documents containing the court's redactions,
on the parties in accordance with the local rules of practice for this court.
April 19, 2017
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