Daniels v. City of New York et al
MEMORANDUM AND ORDER: The Use of Force Files shall be produced as to the two officers without regard to date or whether the claim is substantiated. Counsel shall meet and confer on a proposed confidentiality order to be submitted to this Court within 7 days. Upon entry of the confidentiality order, the files shall be produced to plaintiffs 14 days thereafter. (Signed by Judge P. Kevin Castel on 1/27/2014) (lmb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JOHN DANIELS, ADMINISTRATOR,
DOC #: _ _----,_---;:DATE FILED: /-d ?--/f'.
13 Civ. 6286 (PKC)
CITY OF NEW YORK, et aI.,
CASTEL, District Judge:
This action arises out of the violent death of Ronald Spear, plaintiffs son, while
in the North Infirmary Command at Rikers Island. The allegations include the assertion that the
two conectional officers used excessive force against Mr. Spear, who allegedly was in frail condition because he suffered from chronic renal insufficiency. The medical examiner is alleged to
have found that Mr. Spear's death was caused by blunt-force trauma to the head.
At a pretrial conference, this Court ordered defendants to produce files in their
possession containing allegations of use of force ("Use of Force Files") by two officers in prior
incidents subject to the limitations that (a) the officer's misconduct was found to have been substantiated or proven in a departmental or other investigation or proceedings; and (b) the incident
was within five years of the incident at issue in this action. I The Court also directed the defendants to submit unsubstantiated Use of Force Files to the COUli for in camera review, after which
the Court would determine whether they ought to be produced. Plaintiff urges the Court to reconsider its 11Iling and order the production of all Use of Force Files for two officers of the New
1 Reference to Use of Force Files alsojncludes files containing allegations of false statements or other misconduct
peliaining to a use offorce.
York City Department of Corrections without regard to date of the incident. The defendants oppose reconsideration. For reasons explained, the Court will grant plaintiff the relief sought, subject to an appropriate confidentiality order.
In this district, requests to discover unsubstantiated reports of excessive force
have been scrutinized based on case-specific factors. Compare Gibbs v. City of New York, 243
F.R.D. 95 (S.D.N.Y. 2007) (Sand, J.) (allowing discovery of unsubstantiated claims involving
allegations similar to those at issue, regardless of age, and denying in camera review) with
Thompson v. City of New York, 2006 WL 298702 (S.D.N.Y. Feb. 7,2006) (Crotty, J.) (concluding, upon prior in camera review, that no unsubstantiated claims need be produced).
Rule 26(b), Fed. R. Civ. P., permits the Court for good cause to order discovery of
any matter relevant to the action's subject matter. The infol1nation sought need not be admissible, provided that it appears reasonably calculated to lead to the discovery of admissible evidence. Rule 26(b)(2)(C)(i) requires that the Court limit discovery that is ul1l'easonably cumulative or duplicative, or may be obtained in a less burdensome or less expensive way. There has
been no showing that burden or expense are relevant considerations and, indeed, the defendants
voice no opposition to in camera review of the documents by the Court.
Rule 26(b )(2)(C)(iii) sets out a balancing test ofthe burden versus the likely benefit in allowing the discovery "considering the needs of the case, the amount in controversy, the
parties' resources, the importance of the issues at stake in the action, and the importance of the
discovery in resolving the issues." The Rule incorporates the concept of proportionality. Consideration ofthe balancing test and the factors cited in the Rule leads this Court to favor production of the Use of Force Files without regard to date and whether the charges were substantiated.
Notably, the application is limited to the two alleged participants and not a variety of collateral
actors, such as supervisors and those subsequently responding to the scene. The discovery
sought is principally for the purpose of supporting the excessive force claim and not in aid of a
vague or poorly defined pattem or practice claim. Further, the request is tailored to prior use of
force incidents and not to any and all prior disciplinary matters. This is a case resulting in a loss
of life in which the damages are likely to be substantial. The issue of whether state actors used
excessive force resulting in a loss of life is an important one.
Evidence of a prior wrongful similar act is often valnable, i.e. impOltant, to a jury
on issues of "intent ... absence of mistake, orlackofaccident." Rule 404(b), Fed. R. Evid. An
unsubstantiated allegation, depending upon sUlTounding facts, may have little or no probative
value but the contents of the file may lead to a party's ability to develop admissible evidence
with substantial probative value. This Court will determine the admissibility of any Rule 404(b)
evidence at an appropriate juncture and with the balancing ofthe factors under Rule 403, Fed. R.
Evid. Compare Berkovich v. Hicks, 922 F.2d 1018, 1022 (2d Cir. 1991) (no abuse of discretion
in denying discovery of prior "exonerated" claims of excessive force because under Rule 403,
the prior acts would not have been admissible) with Lewis v. City of Albany Police Dept., 547
F.Supp.2d 191 (N.D.N.Y. 2008) (unsubstantiated claims of excessive force found admissible,
Upon further reflection, the useful device of in camera review is not well suited to
the discovery sought. Where a recognized privilege is asselted, the Court has an established
body of privilege law to apply to a universe of documents presented to it in camera. But, here, a
review of prior disciplinary files requires a court to make predictive judgments as to how a
skilled plaintiffs lawyer might seek to use the document and then shift gears and detennine
whether the use would likely be permissible, given the age and similarity of events. No persuasive reason has been presented why such a process is necessary or useful in this case.
These files, however, may contain information relating to third parties and their
medical conditions, as well as sculTilous and unsubstantiated assertions made out of spite against
the two officers. But appropriate protection may be found in a well-crafted confidentiality order.
The Use of Force Files shall be produced as to the two officers without regard to
date or whether the claim is substantiated. Counsel shall meet and confer on a proposed confidentiality order to be submitted to this Court within 7 days. Upon entry ofthe confidentiality
order, the files shall be produced to plaintiffs 14 days thereafter.
New York, New York
United States District Judge
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