Days v. Police Department et al

Filing 143

PRIVACY ACT ORDER AND PROTECTIVE ORDER REGARDING PLAINTIFF'S REQUEST TO FEDERAL BUREAU OF INVESTIGATION...regarding procedures to be followed that shall govern the handling of confidential material..., Motions terminated: 142 CONSENT LETTER MOTION for Discovery Entry of Protective Order addressed to Magistrate Judge Andrew E. Krause from Rob Rickner dated 1/7/2021 filed by Selwyn Days. (Signed by Magistrate Judge Andrew E. Krause on 1/8/2021) (nb)

Case 7:18-cv-11538-NSR-AEK Document 143 Filed 01/08/21 Page 1 of 11

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SELWYN DAYS,
Plaintiff,
v.

18 Civ. 11538 (NSR)(AEK)
ECF Case

THE EASTCHESTER POLICE
DEPARTMENT, THE WESTCHESTER
COUNTY POLICE DEPARTMENT, THE
COUNTY OF WESTCHESTER, MARIO
ASTARITA, GEORGE BARLETTA,
MATTHEW KIERNAN, and
CHRISTOPHER CALABRESE,
Defendants.
PRIVACY ACT ORDER AND PROTECTIVE ORDER REGARDING
PLAINTIFF’S REQUEST TO FEDERAL BUREAU OF INVESTIGATION
WHEREAS, Plaintiff Selwyn Days (“Plaintiff”) brought the above-captioned action
against the Eastchester Police Department, the Westchester County Police Department, the
County of Westchester, Mario Astarita, George Barletta, Matthew Kiernan, and Christopher
Calabrese (collectively, “Defendants”);
WHEREAS, on August 4, 2020, Plaintiff served a request and subpoenas on the United
States Attorney’s Office for the Southern District of New York and the Federal Bureau of
Investigation (“FBI”) seeking documents and testimony from the FBI in connection with the
underlying criminal investigation and prosecution of Plaintiff (“the Request”);
WHEREAS, Plaintiff’s Request is governed by certain Department of Justice (“DOJ”)
regulations (“Touhy regulations”) which, inter alia, prohibit any DOJ employee from disclosing
the requested information “without prior approval of the proper Department official in
accordance with §§ 16.24 and 16.25 of this part.” 28 C.F.R. § 16.22(a); see also Touhy v. Ragen,
340 U.S. 462 (1951); 28 C.F.R. § 16.21 et seq.;

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WHEREAS, certain records Plaintiff seeks in connection with the Request may contain
information which may be protected by the Privacy Act of 1974, 5 U.S.C. § 552a (the “Privacy
Act”);
WHEREAS, pursuant to the provisions of Rule 26(c) of the Federal Rules of Civil
Procedure, the Court enters this Privacy Act Order and Protective Order, for the purposes of
facilitating the disclosure of information that otherwise would be prohibited from disclosure
under the Privacy Act, and assuring the confidentiality of information that may be disclosed by
DOJ or components thereof (the “Government”) in response to the Request. The Court, having
found that good cause exists for entry of this Privacy Act Order and Protective Order, HEREBY
ORDERS:
1.

Pursuant to 5 U.S.C. § 552a(b)(11), this Order authorizes the Government to

produce information that otherwise would be prohibited from disclosure under the Privacy Act
without presenting Privacy Act objections to this Court for a decision regarding disclosure. To
the extent the Privacy Act allows the disclosure of information pursuant to a court order, this
Order constitutes such a court order and authorizes the disclosure of that information. Nothing in
this paragraph, however, shall require production of information that is prohibited from
disclosure (even with the entry of this Order) by other applicable privileges, statutes, regulations,
or authorities. The terms of this Order shall govern the safeguarding of such information by all
individuals referenced herein.
2.

As used in this Order, the term “Protected Information” constitutes any and all

documents or records, and information contained therein, that contain any confidential,
proprietary, personal, or similar information, including but not limited to privileged law
enforcement information and information protected from disclosure by the Privacy Act.

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3.

Information that the Government deems Protected Information shall be designated

as such by stamping the phrase “Confidential - Subject to Protective Order” on any document or
record containing Protected Information prior to the production of such document or record.
4.

Any party who contests the designation of a document or record as Protected Information

shall provide the Government written notice of its challenge. If the parties cannot resolve this dispute,
they shall follow the Federal Rules of Civil Procedure, the Local Civil Rules for the United States
District Courts for the Southern and Eastern Districts of New York, the individual practices of the Court,
and/or any court orders for addressing discovery disputes. Failure to challenge a designation
immediately shall not waive a party’s ability to bring a later challenge.
Except as provided in this Order, all Protected Information produced or exchanged

5.

pursuant to this Order shall be used solely for the purposes of this action and for no other purpose
whatsoever, and shall not be published to the general public in any form, or otherwise disclosed,
disseminated, or transmitted to any person, entity, or organization, except in accordance with the terms
of this Order.
6.

Any document or record designated as Protected Information by the Government may

be disclosed only to the following Qualified Persons:
i.

Plaintiff, attorneys for Plaintiff, and any support staff or other employees of

Plaintiff or attorneys of record of Plaintiff who are assisting in the maintenance of this action;
ii.

Defendants, attorneys for Defendants, and any support staff or other employees

of Defendants or attorneys of record of Defendants who are assisting in the maintenance of this action;
iii.

Witnesses who are deposed in this action, to the extent the witnesses’ testimony

may relate to documents designated as Protected Information;
iv.

Experts or consultants retained for this action by counsel to a party to this

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action, and any support staff or other employees for such experts or consultants who are assisting in
the expert’s work for this action;
v.

Court reporters or stenographers engaged to record deposition testimony,

and their employees who are assisting in the preparation of transcripts of such deposition
testimony;
vi.

The Court and Court personnel; and

vii.

Such other persons as hereafter may be authorized by the Court upon

motion of any party.
7.

A copy of this Order shall be delivered to each Qualified Person to whom a

disclosure of Protected Information is made, at or before the time of disclosure, by the party
making the disclosure or by its counsel. The provisions of this Order shall be binding upon each
such person to whom disclosure is made.
8.

All Qualified Persons, including the parties and their respective counsel, to whom

Protected Information is disclosed, are hereby prohibited from disclosing information designated
as Protected Information to any unauthorized person, except as provided in this Order.
9.

Any deposition questions intended to elicit testimony regarding Protected

Information shall be conducted only in the presence of persons authorized to review the
Protected Information. Any portions of deposition transcripts containing such questions and
testimony shall be automatically subject to the same protections and precautions as the Protected
Information.
10.

If any party seeks to publicly file with the Court any Protected Information, or

portions of pleadings, motions, or other papers that disclose such Protected Information, the

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Protected Information shall be filed under seal in accordance with the Court’s local rules
governing the filing of sealed documents and thereby be protected from public disclosure.
11.

Nothing in this Order shall preclude any disclosure of Protected Information to

any judge, magistrate, or employee of the Court for purposes of this action.
12.

Nothing in this Order shall prejudice or alter the right of a party to properly offer

and introduce Protected Information as evidence at trial, to use or refer to Protected Information
in open court, or in written submissions to the Court, or on appeal. The Parties shall confer with
the Government in good faith to determine a method to be used during trial or other proceedings
in open court for preventing the disclosure of Protected Information to persons who are not
Qualified Persons identified in paragraph 6.
13.

If counsel for any party is required by law or court order to disclose, disseminate,

or transmit Protected Information produced under this Order to any person or entity not
identified herein as a Qualified Person, the name of that person or entity and the reason access is
required shall be provided to the producing party no less than 14 days prior to disclosure,
dissemination, or transmittal so as to provide the producing party sufficient time to object and
seek a protective order as necessary. There shall be no disclosure after an objection has been
made until the objection has been resolved unless disclosure, dissemination, or transmission is
required sooner by law or court order. If Protected Information produced under this Order is
required by law or court order to be disclosed to a person or entity not identified herein as a
Qualified Person, the person or entity receiving the Protected Information shall, before receiving
the Protected Information, be provided with a copy of this Order and shall acknowledge their
agreement to comply with this Order by signing a copy of the attached acknowledgement form.

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A copy of each such acknowledgement form must be provided promptly after its execution to
counsel of record for the producing party.
14.

Within thirty days after the final disposition of this action, including any and all

appeals, all Protected Information and copies thereof in the possession of any Qualified Persons,
other than counsel for the parties, shall be returned to the Government or destroyed. If the
Protected Information is destroyed, the party that has destroyed the Protected Information shall
certify in writing to the Government that the Protected Information in its possession has been
destroyed.
15.

If the Government inadvertently fails to designate material as Protected

Information at the time of production, this shall not in itself be deemed a waiver of any claim of
confidentiality as to that Protected Information. The Government may correct its failure to
designate an item as Protected Information by taking reasonable steps to notify all receiving
persons of its failure, and by promptly supplying all receiving persons with new copies of any
documents bearing corrected designations. Within five business days of receiving copies of any
documents bearing corrected designations pursuant to this paragraph, the receiving persons shall
return or destroy the improperly designated materials, and certify in writing to the producing
party that such materials have been returned or destroyed.
16.

This Order does not constitute any ruling on the question of whether any

particular document or category of information is properly discoverable, and does not constitute
any ruling on any potential objection to the discoverability, relevance, or admissibility of any
document or information.

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17.

Nothing in this Order shall be construed as a waiver of any defense, right,

objection, or claim by any party or the Government, including any objection to the production of
documents and any claim of privilege or other protection from disclosure.
18.

Nothing in this Order shall affect the right ofthe Government to seek additional

protection against the disclosure of any documents or materials, or of the parties to seek
additional disclosures.

19.

Nothing in this Order shall prevent the disclosure of Protected Information to

governmental authorities for purposes of enforcement of criminal laws or in furtherance of civil
enforcement or regulatory proceedings.

20.

Nothing in this Order shall prevent any disclosure of Protected Information by the

party or entity that designated the information as such.

SO STIPULATED AND AGREED TO BY:

Dated: January 5, 2021
New York, New York

By:
Glenn A. Garber

GLENN A. GARBER,P.O.

The Woolworth Building
233 Broadway, Suite 2370
New York, New York 10279
[phone]

By:

^
Rob Rickner

RICKNER PLLC

14 Wall Street, Suiter 1603
New York, New York 10005

[phone]

Case 7:18-cv-11538-NSR-AEK Document 143 Filed 01/08/21 Page 8 of 11

,
Dated: January q- 2021
New York, New York
AUDREY STRAUSS
Acting United States Att?rney for the
Southern District of N York

T.-

By:
DANIE E . LEVINE
Assistant United States Attorney
86 Chambers Street, 3rd Floor
New York, New York 10007
Tel.: [phone]
E-mail: [e-mail]
SO ORDERED:

HON. ANDREW E. KRAUSE
United States Magistrate Judge
Dated: January8, 2021
White Plains, New York

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SELWYN DAYS,
Plaintiff,

18 Civ. 11538 (NSR) (AEK)

v.
THE EASTCHESTER POLICE DEPARTMENT, THE
WESTCHESTER COUNTY POLICE DEPARTMENT,
THE COUNTY OF WESTCHESTER, MARIO
ASTARITA, GEORGE BARLETTA, MATTHEW
KIERNAN, and CHRISTOPHER CALABRESE,
Defendants.

ACKNOWLEDGEMENT
I have read and I understand the Privacy Act Order and Protective Order entered by the
Court in the case Days v. Eastchester Police Department, et al., No. 18 Civ. 11538 (NSR)(AEK),
and I agree to be bound by its terms.
Date:

___________________________

Name (printed):

___________________________

Signature:

__________________________

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