Levy v. Harrington et al

Filing 30

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTTORDER re 26 MOTION to Compel filed by Justin L. LevyDefendants shall produce to this Court for in camera inspection defendants' personnel and d isciplinary records otherwise responsive to plaintiff's demands and shall do so thirty (30) days from entry of this Order; due by 11/30/2011. Court will determine whether they are relevant and should be produced to plaintiff.So Ordered. Signed by Hon. Hugh B. Scott on 10/31/2011. (DRH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_________________________________________
JUSTIN L. LEVY,
Plaintiff,

Hon. Hugh B. Scott

09CV720A
v.
Order

RAYMOND HARRINGTON,
CITY OF BUFFALO,
Defendants.
_________________________________________
Before the Court is plaintiff’s motion to compel (Docket No. 261). Responses to this
motion were due by October 14, 2011, any reply was due by October 21, 2011, and the motion
was then deemed submitted (without oral argument) (Docket No. 31).
BACKGROUND
This is a removed civil rights action alleging excessive force, false arrest, false
imprisonment, malicious prosecution, unreasonable seizure, deprivation of liberty without due
process (Docket No. 1, Notice of Removal, Ex. A, State Compl.). Plaintiff alleges that defendant
City of Buffalo Police officer Harrington arrested him without probable cause. In the state court
action, plaintiff asserts that he was falsely arrested, maliciously prosecuted, and that Harrington

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In support of this motion, plaintiff submits his Memorandum of Law, his attorney’s
declaration, with exhibits, Docket No. 26; and his attorney’s reply declaration, Docket No. 29.
Defendants respond with their attorney’s affidavits, Docket No. 28.

violated his civil rights. (Id.) Defendants removed this action on August 18, 2009 (Docket
No. 1), and answered on the next day (Docket No. 3).
After motion practice surrounding initial disclosures, the revised schedule for this action,
and plaintiff's motion (deemed to be to compel production) (see Docket No. 20, Report &
Recommendation, adopted, Docket No. 21, Order of July 19, 2011; Docket No. 162), discovery
was to be completed in this case by August 5, 2011, with dispositive motions filed by
November 3, 2011 (Docket No. 20, Report & Recommendation of June 27, 2011, at 12).
Plaintiff then moved for an extension of time to complete discovery (Docket No. 22), which was
granted in part to order a final extension, with discovery to be completed by November 3, 2011,
and motions by February 1, 2012 (Docket No. 25). Familiarity with this Order and the Report &
Recommendation are presumed.
Plaintiff’s Motion to Compel
Plaintiff now moves to compel complete answers to his Interrogatories and document
demands from defendant Officer Harrington (Docket No. 26, Pl. Atty. Decl. ¶¶ 5-8). Plaintiff
seeks Harrington’s disciplinary records involving allegations of excessive use of force (id. ¶¶ 8,
10, Exs. A, C). Defendants invoked New York State Civil Rights Law § 50-a as precluding
disclosure (id. ¶¶ 9, 11-12, Exs. B, D, E). Defendants denied knowing the existence of such
records but, if such did, they claimed privilege under § 50-a (id. ¶ 9). Plaintiff then asked in his
Interrogatories for instances when Harrington’s actions were found to be justified and defendants

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Plaintiff actually sought to preclude defendants from using evidence not produced as
well as to extend the discovery schedule, Docket No. 16. This Court recommended denying
preclusion of evidence but deemed the motion as seeking to compel and granting that relief,
Docket No. 20.
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responded that such materials would have come from internal investigations that they deem
privileged under § 50-a (id. ¶¶ 13, 14-15, Exs. C, D, E), and defendants repeated this answer
when plaintiff asked for any investigations conducted in response to this incident (id. ¶¶ 16, 1718, Exs. C, D, E). At Harrington’s deposition, he was advised not to answer these questions due
to the assertion of Civil Rights Law § 50-a (id. ¶ 19). Plaintiff argues that inquiry in this area is
relevant because of their claims of excessive force used against him by Harrington and the
pattern of excessive use of force tolerated by the City of Buffalo (id. ¶¶ 21-22). He argues that
New York Civil Rights Law § 50-a does not bar production in federal cases, the materials are
admissible, and, at most, provides a mechanism for production if ordered by this Court (id. ¶ 24;
Docket No. 26, Pls. Memo. of Law at 2-4, 5).
Defendants claim that the materials sought here are deemed confidential pursuant to New
York Civil Rights Law § 50-a, asserting a “confidentiality privilege” under that law (Docket
No. 28, Defs. Atty. Aff. ¶¶ 4-6). Defendants recognize that the statute allows, after a sufficient
showing by plaintiffs, that this Court could review the sought records in camera before determine
whether (or to what extent) these records may be produced (id. ¶¶ 7, 8, 9,10). Otherwise,
defendants “adamantly oppose” their production (id. ¶ 9).
In reply, plaintiff notes that they are aware of at least one use of force incident involving
Harrington and instances when he was observed applying excessive force, concluding that
information about this and similar incidents is material and relevant to their claims (Docket
No. 29, Pls. Atty. Reply Decl. ¶¶ 6-8). He denies that New York Civil Rights Law § 50-a bars
discovery here, although this Court may use that statute’s procedures in considering whether to
order discovery (id. ¶ 10) and they deny that this statute creates a privilege (id. ¶ 11).
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This motion is similar to the one raised in another case pending before this Court,
Paulding v. City of Buffalo, et al., No. 10CV712, Docket No. 28, in which (by the same counsel
appearing in this case) the almost identical arguments are raised.
DISCUSSION
At issue here is the apparent ban under New York State law of producing a police
officer’s personnel or disciplinary records. The New York Civil Rights Law requires either the
“express written consent” of the officer involved or a Court Order before these confidential
records can be released, N.Y. Civ. Rts. Law § 50-a(1). Under that state statute, “prior to issuing
such court order the judge must review all such requests and give interested parties the
opportunity to be heard. No such order shall issue without a clear showing of facts sufficient to
warrant the judge to request records for review,” id. § 50-a(2); Mercado v. Division of N.Y. State
Police, 989 F. Supp. 521, 522 (S.D.N.Y. 1998). If a sufficient basis is found, these records are
turned over to the Court under seal for in camera review and the Court will decide which of
“those parts of the record found to be relevant and material [are to be made] available to the
persons so requesting,” N.Y. Civ. Rts. Law § 50-a(3). Plaintiff thus needs to show the
materiality and relevance of the individual defendants’ personnel and disciplinary records to
warrant this Court’s in camera review before production to plaintiff, see Pierce v. Ottaway,
No. 06CV644, 2009 U.S. Dist. LEXIS 21866, at *9-11 (W.D.N.Y. Mar. 18, 2009) (Curtin, J.);
see also Martin v. Lamb, 122 F.R.D. 143, 147 (W.D.N.Y. 1988) (Fisher, Mag. J.).
But that statute does not create a privilege recognized by federal courts. No federal rule
prohibits discovery of police personnel or disciplinary files, King v. Conde, 121 F.R.D. 180, 187
(E.D.N.Y. 1988) (Weinstein, Ch. J.); Pierce, supra, 2009 U.S. Dist. LEXIS 21866, at *10. If
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considered privileged, this statute is only qualified in federal courts; this Court must balance
plaintiff’s the need for the information against the public’s interest in disclosure or
nondisclosure, Aguilar v. Immigration & Customs Enforcement, 259 F.R.D. 51, 56 (S.D.N.Y.
2009) (Maas, Mag. J.); Mercado v. Division of N.Y.S. Police, 989 F. Supp. 521, 522-23
(S.D.N.Y. 1998) (Grubin, Mag. J.) (production of disciplinary records in Title VII action where
Hispanic officers allege disparate treatment from other officers, subject to entry into a
confidentiality agreement if defendants desired). The relevance of these documents also needs to
be determined prior to any production “even if the defendant has not made a substantial showing
of harm,” Pierce, supra, 2009 U.S. Dist. LEXIS 21866, at *10; see Barrett v. City of N.Y.,
237 F.R.D. 39, 41-42 (E.D.N.Y. 2006).
Here, plaintiff has met the initial burden of showing materiality and relevance for his
inquiry. Plaintiff’s Interrogatories and document demands go to his excessive force and
supervisory liability claims.
Before deciding the relevance and balancing the interest in keeping these records
confidential, this Court must review the personnel records in question in camera, Pierce, supra,
2009 U.S. Dist. LEXIS 21866, at *2, 9-10; Martin, supra, 122 F.R.D. at 147, 148. In Pierce,
Judge Curtin found after in camera inspection that there was nothing “remotely relevant” to
plaintiff’s claims in the officers’ personnel records, Pierce, supra, 2009 U.S. Dist. LEXIS 21866,
at *10-11. Therefore, to determine relevance here (and whether plaintiff is to see these records),
this Court requires in camera review of defendants’ personnel records responsive to
plaintiff’s demands.

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CONCLUSION
For the reasons stated above, regarding so much of plaintiff’s motion to compel (Docket
No. 26) seeking production of the individual defendant’s personnel or disciplinary records,
defendants shall produce to the Court for in camera review defendants’ personnel and
disciplinary records otherwise responsive to plaintiff’s demands. Defendants shall furnish
these to the Chambers of the undersigned within thirty (30) days of entry of this Order.
Following inspection of these documents, this Court will determine whether they are relevant to
this action and should be produced to plaintiff.
So Ordered.

/s/ Hugh B. Scott
Hon. Hugh B. Scott
United States Magistrate Judge
Buffalo, New York
October 31, 2011

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