Ortiz v. Case et al

Filing 36

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTTORDER granting in part and denying in part 32 Motion for DisclosurePlaintiff's Motion for Disclosure (Docket No. 32) is denied.Following this Cour t's in camera reveiw in Wagstaff of Buffalo Police Department records and presuming defendants' files in this case contain similar materials, defendants are to produce such documents from their files as identified in the Wa gstaff Order, Ortiz v. Wagstaff, No. 16cv321, Docket No. 30, at 15-16.This Court declines to alter Judge Arcara's Orders surrounding disclosure of federal Grand Jury materials.So Ordered. Signed by Hon. Hugh B. Scott on 6/23/2017. (DRH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JOSUE ORTIZ,
Plaintiff,
Hon. Hugh B. Scott
16CV322V
v.
Order

KENNETH F. CASE, et al.,
Defendants.

Before the Court is plaintiff’s motion to compel production (Docket No. 321), essentially
based upon the Order of Erie County Judge Thomas Franczyk unsealing certain otherwise
confidential prosecution documents from the investigation of the murders of Nelson and Miguel
and Camacho (id., Ex. C). An identical motion was filed in Ortiz v. Wagstaff, et al., Case
No. 16CV321 (Wagstaff, Docket No. 26). These motions were briefed and argued together, with
defendants’ respective responses due by May 31, 2017, and argument held on June 7, 2017
(Docket Nos. 30, 31, 33). Defendants duly filed their respective responses in this case (Docket
No. 34). Following argument of these motions in both cases decision was reserved (Docket
No. 35). But, as noted by defense counsel in Wagstaff during oral argument, the cases are
separate and defendants in each case are in different postures; hence, this Court enters separate
Orders in each case for the respective motions.
1

Citation merely to a Docket Number only refers to filings in this case; it also may be cited herein as “Case
Docket No. __.” This is to distinguish citations to filings in Ortiz v. Wagstaff, Case No. 16CV321, referred to
“Wagstaff Docket No. __.”

BACKGROUND
This is the action against officials2 in the Erie County District Attorney’s office for the
prosecution of plaintiff for the murders of Nelson and Miguel Camacho. Both this case and
Wagstaff arise from plaintiff’s conviction and subsequent exoneration from the Camacho
murders, with plaintiff alleging wrongful conviction and imprisonment, as well as state law
claims for malicious prosecution. In November 2004, plaintiff was arrested, tried and convicted
of the murders of the Camacho brothers. Plaintiff in Wagstaff alleges that defendants failed and
refused to accept proof that exonerated plaintiff (Wagstaff, Docket No. 1, Compl. ¶ 51), that they
were negligent in failing to investigate all leads (id. ¶ 53). Similarly, in Case, plaintiff alleges
that the then-District Attorney Frank Sedita, III, failed to accept proof that plaintiff was
wrongfully convicted. Plaintiff argues that this willful refusal led plaintiff to be incarcerated for
ten years (e.g., Case, Docket No. 1, Compl. ¶ 54), including the period from November 2012
(after the commencement of the federal prosecution described below) until his exoneration in
May 2015.
Around November 2012, the Federal Bureau of Investigation and the U.S. Attorney’s
office conducted an investigation of the 10th and 7th Street gangs, learning that three other men
were responsible for the Camacho murders, see United States v. Montalvo, et al., No. 11CR366
(hereinafter “Montalvo”), Docket No. 68, Superseding Indict. In Montalvo, defendants Misael
Montalvo, Efrain Hidalgo, and Brandon Jonas eventually were charged with discharging a
firearm causing the deaths of Nelson and Miguel Camacho, Montalvo, supra, Docket No. 68,
Superseding Indict., Counts 2, 3, Special Findings. Montalvo (Montalvo, Docket No. 249),
2

Named defendants include former District Attorneys Frank Clark and (now Justice) Frank Sedita, III;
former Assistant District Attorney (now Erie County Court Judge) Kenneth Case; as well as the Erie County District
Attorney’s Office itself. Docket No. 1, Compl.

2

Hidalgo (Montalvo, Docket No. 239), and Jonas (Montalvo, Docket No. 244) each later entered
guilty pleas, with Hidalgo (Montalvo, minute entry, Feb. 26, 2015) and Jonas (Montalvo, minute
entry Mar. 11, 2015) pleading guilty to Count 2 of the Superseding Indictment (Montalvo,
Docket No. 68) admitting to discharging a firearm causing death, with a special finding that the
victims were the Camacho brothers (id.). One of these three defendants has been sentenced
(Montalvo, Docket No. 327, Judgment as to Efrain Hidalgo) and the remaining defendants await
decisions relative to their respective sentencing (Montalvo, Docket Nos. 264-66, 277, 300, 329).
Pursuant to Judge Richard Arcara’s Orders, In re May 2011 Grand Jury Impaneled
May 6, 2011, Misc. No. 13MR17, Order of Nov. 8, 2012; id., Order of Mar. 7, 2013, the
Government provided information first to the Erie County District Attorney and then to
plaintiff’s criminal counsel (the late John Nunchereno) of plaintiff’s innocence due to the
involvement of the Montalvo defendants by allowing release of federal Grand Jury minutes and
materials. The second Order released a copy of the Grand Jury materials to plaintiff’s criminal
defense counsel, Mr. Nunchereno, In re May 2011 Grand Jury Impaneled May 6, 2011, Misc.
No. 13MR17, Order of Mar. 7, 2013. A motion in state court to dismiss plaintiff’s Indictment
was granted in May 2015 (despite the Case defendants’ initial opposition) and plaintiff
commenced in this Court Case and Wagstaff the next year.
In Camera
The parties in both cases obtained an Order from Erie County Judge Thomas Franczyk
unsealing the prosecution and police department files surrounding the Camacho brothers’
murders for release to defense counsel in these two cases. Counsel then was to identify to this
Court objections and privileges for in camera review.
3

After a series of status conferences regarding production of the confidential information
from the defendants (Docket Nos. 20, 24, 27, 30), this Court reviewed in camera the materials
produced by the police defendants in Wagstaff. Presuming that the prosecution files in Case
would be similar and that plaintiff’s motion to compel is identical in both cases, this Court
considered together production in both cases. The defendants in Wagstaff produced a privilege
log of the in camera documents, asserting privileges that the documents contained sensitive law
enforcement information that may create safety risks regarding confidential informants and
witnesses; documents that may reveal police tactics and strategies for investigations; some may
have been obtained from or describing confidential proffers; at least one document possibly
containing attorney work product. The privilege log also asserted that some of the items were
not relevant to plaintiff’s claims. Defendants contend, but did not specifically identify, that at
least some of these materials were obtained from the Grand Jury (pursuant to Judge Arcara’s
Orders) and that Judge Arcara’s Orders limited disclosure of these items, In re May 2011 Grand
Jury Impaneled May 6, 2011, Misc. No. 13MR17, Order of Nov. 8, 2012; see Case, Docket
No. 26. Those Orders disclosed Grand Jury documents and transcripts to the Erie County
District Attorney and to in the investigation that led to the Indictment in Montalvo.
Defendants in Case, however, declined to produce their records for in camera inspection
or production to plaintiff and awaited guidance either from the United States or this Court on
releasing federal Grand Jury materials. They insisted upon some form of clearance to produce
their files given the federal Grand Jury material they contained.
This Court had invited input from the United States Attorney (including possible limited
intervention in these cases) because of the unknowns in the in camera material (Docket No. 25),
4

see Fed. R. Civ. P. 24; 6-24 Moore’s Federal Practice—Civil § 24.23 (2017). Given these
concerns, this Court will avoid inadvertent disclosure of material that should remain confidential.
The in camera materials from Wagstaff, however, were not clearly delineated to show that they
were federal Grand Jury materials or not.
From the privilege log and the Wagstaff in camera items, most of the police investigative
file post-date plaintiff’s 2004 arrest and his 2006 guilty plea (see Case, Docket No. 1, Compl.
¶ 22; Wagstaff, Docket No. 1, Compl. ¶ 22). One document in the Wagstaff in camera materials
is a synopsis of the police homicide investigation. According to this summary (hereinafter cited
as “[summary]” and page number cited), in November 2004, the police interviewed a witness
who revealed the whereabouts of Hidalgo at the time of the murders [summary at 10]. In 2005,
an informant told a detective that two other men murdered the Camachos, but the police in 2008
could not identify the incident referenced because the Camacho murders were cleared according
to their records [summary at 11-12], but that informant recanted the statement in 2011 [summary
at 14]. The summary notes a 2008 proffer made to the United States Attorney that alleged that
someone other than plaintiff committed these murders [summary at 12]. In September 2009, a
federal task force was established (including the Buffalo Police Department) to investigate gang
activity in the Lower West Side, with Hidalgo becoming known to the task force [id.]. In June
2011, two officers met an informant who said they had information regarding Hidalgo’s role in
the murders [id.]. The summary also makes references to correspondence received by the United
States Attorney’s office relative to the investigation.
On July 11, 2012, plaintiff was interviewed by officers, but he generally declined to
answer questions [summary at 21]. In August 2012, another source was interviewed and said
5

that plaintiff’s apartment was being monitored and that on the night of the murder did not show
anyone leaving the house [statement at 23]. Proffer materials and interviews identified as
confidential sources or work product included in the in camera have internal redactions (but not
consistently).
A cursory review of the Wagstaff in camera materials reveals a continuing investigation
of the Camacho murders that occurred following plaintiff’s conviction, following up leads first
raised during the initial investigation of the Camacho murders and the overlapping investigation
of the West Side gang interdiction. Many of the documents concern the gang interdiction
investigation(s) and lead to evidence for the prosecution of Montalvo, Hidalgo, and Jonas.
At the status conference of April 19, 2017 (Docket No. 27), parties (with an Assistant
U.S. Attorney appearing as special friend of the Court) were instructed to work out the disputes
from production of in camera materials and determine the confidential or highly sensitive
materials involved, and whether plaintiff’s present civil counsel somehow obtained the materials
sought through plaintiff’s now deceased criminal counsel. On May 10, 2017, the parties
received a redacted version of the Government’s transmittal letter of the federal Grand Jury
materials to the Erie County District Attorney and to plaintiff’s late criminal attorney (Docket
No. 30). After further discussion about production of the sought materials, this Court gave
plaintiff until May 24, 2017 (id.; see Docket No. 31), to formally move to compel. Plaintiff then
filed the present motion to compel (Docket No. 32).
Plaintiff’s Motion to Compel
In plaintiff’s motion (filed simultaneously in both cases, cf. Wagstaff, Docket No. 26),
plaintiff noted that the records in the state criminal action were sealed pursuant to state law
6

(Docket No. 32, Pl. Atty. Affirm. ¶ 4) and plaintiff through counsel sought to unseal them,
obtaining the Order from Judge Franczyk to unseal (id. ¶¶ 5-6, 7-8, 9). This procedure is the
means for a federal civil rights litigant to obtain otherwise confidential prosecution files by first
applying for unsealing in state court (Docket No. 32, Pl. Memo. at first, second unnumbered
pages), see Townes v. New York City, No. CV-94-2595, 1996 U.S. Dist. LEXIS 20220, at *29
(E.D.N.Y. Apr. 1, 1996), and therefore Judge Franczyk’s Order is enforceable in this Court (id.
at second unnumbered page). Following the January 19, 2017, status conference (Docket
No. 20; see Docket No. 32, Pl. Atty. Affirm. ¶ 10, Ex. E), plaintiff wrote to have defendants
either produce the unsealed confidential materials or provide them to this Court for in camera
inspection (Docket No. 32, Pl. Atty. Affirm. ¶ 11, Ex. E), but (without objection) no such
production or provision of the documents for in camera inspection occurred (id. ¶ 12). A further
status conference occurred (Docket Nos. 22, 24, 27, 30; 32, Pl. Atty. Affirm. ¶ 13, Ex. G) but the
defendants in this case still had not produced. Plaintiff argues that the Case defendants had no
basis for not producing the non-Grand Jury portions of the prosecution’s file and are in contempt
of Judge Franczyk’s Order (Docket No. 32, Pl. Atty. Affirm. ¶ 16).
Plaintiff contends that the Case defendants’ only objection to production is relying upon
Judge Arcara’s Orders releasing the federal Grand Jury materials to limited parties and for
limited purposes (id. ¶ 17, Ex. J). Plaintiff, however, believes that Judge Arcara’s Orders are
being misconstrued and Case’s counsel had agreed to produce regardless of those Orders (id.
¶ 18). He argues that defendants failed to raise a legally sufficient basis for their failure to
comply with Judge Franczyk’s Order (id. ¶ 22). He concludes that “fundamental fairness and
judicial integrity require that” defendants produce the files in this case (and in Wagstaff), for
7

without such disclosure plaintiff would be prejudiced in any anticipated summary judgment
motions filed in these cases (id. ¶ 29).
Plaintiff next argues that this Court has the discretion and authority to order the unsealing
of federal Grand Jury materials, asserting that he has established need for the materials
overwhelming the norms of confidentiality (Docket No. 32, Pl. Memo. at third to fifth
unnumbered pages). But plaintiff does not address the authority of one Judge (here a Magistrate
Judge) to alter the Order of another Judge (here a District Judge) which granted a limited release
of Grand Jury materials.
Alternatively, plaintiff urges in camera inspection of the Grand Jury materials (id. at sixth
unnumbered page).
The Case defendants argue that plaintiff failed to file Judge Franczyk’s state court Order
(Docket No. 34, Defs. Atty. Decl. ¶ 6), rendering it a nullity (see id. ¶ 13 (this Court in effect
setting aside that Order)). They also contend that plaintiff’s civil counsel in this action probably
has the federal Grand Jury materials provided to plaintiff’s late criminal defense counsel (id.
¶ 16). They note that plaintiff failed to file copies of their discovery demands and defendants’
responses with this motion to compel (id. ¶ 10, cf. id. ¶¶ 8-9, Exs. B, C), plaintiff fails to argue
the insufficiency of defendants’ responses (id. ¶ 10), or certify his good faith attempts to resolve
this matter short of the present motion (id.).
To the extent that plaintiff moves for relief from Judge Arcara’s Orders (id. ¶ 15, Ex. E,
which defendants deem bar release of the federal Grand Jury materials), the Case defendants join
in that request, urging this Court to alter those Orders (id. ¶¶ 15, 19). Neither side, however,

8

argues the authority, jurisdiction, or basis for this Court to alter the Orders issued by an
Article III judge, a judge not assigned to this case (or to Wagstaff).
DISCUSSION
I.

Applicable Standard
Discovery under the Federal Rules is intended to reveal relevant documents and

testimony, but this process is supposed to occur with a minimum of judicial intervention. See
8A Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure
§ 2288, at 655-65 (Civil 2d ed. 1994). “Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense–including the existence,
description, nature, custody, condition, and location of any documents or other tangible things
and the identity and location of persons having knowledge of any discoverable matter.” Fed. R.
Civ. P. 26(b)(1) (effective Dec. 1, 2007).
Federal Rule 26(b)(2)(i) allows this Court to limit the scope and means for discovery if
“the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some
other source that is more convenient, less burdensome, or less expensive.” Under Rule 26(c),
this Court may issue a protective order to protect a party “from annoyance, embarrassment,
oppression, or undue burden or expense” by not having a proposed disclosure or discovery
device, or conditioning the time and manner of that discovery, as well as upholding evidentiary
privileges for confidential information. Fed. R. Civ. P. 26(c)(1), (1)(B)-(C), (G); see id.
R. 26(c)(1)(D) (limit the scope or the matters inquired into).
Federal Rule of Civil Procedure 37(a) allows a party to apply to the Court for an Order
compelling discovery, with that motion including a certification that the movant in good faith
9

conferred or attempted to confer with the party not making the disclosure to secure that
disclosure without court intervention. Fed. R. Civ. P. 37(a)(2)(A). Similarly, under Rule 26(c),
prior to obtaining a protective order the movants must certify that they have in good faith
conferred or attempted to confer with the other affected parties in an effort to resolve the dispute
without court intervention, Fed. R. Civ. P. 26(c). Under Rule 26(c), the Court has power to
protect against abuses in discovery. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34 (1984).
The appropriateness of a protective Order is a balance of the litigation needs of the requesting
party and the protectable interests of the party from whom discovery is sought. Mitchell v.
Fishbein, 227 F.R.D. 239, 245 (S.D.N.Y. 2005). This Court has broad discretion in issuing such
a protective order. Seattle Times, supra, 467 U.S. at 36.
II.

Plaintiff’s Cause of Action—Wrongful Conviction
This Court first considers plaintiff’s claims to determine the scope of discovery.
For plaintiff’s claims of wrongful conviction in violation of the Fourth and Fourteenth

Amendments he must show a violation of his rights under those Amendments and the elements
of a wrongful conviction claim, see Manganiello v. City of N.Y., 612 F.3d 149, 160-61 (2d Cir.
2010). The Supreme Court in Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), set forth at least
one element for an unconstitutional conviction or imprisonment claim; a § 1983 plaintiff needs to
prove that his conviction was reversed, expunged, declared invalid, or called into question by a
grant of habeas relief in order to seek damages. The cases under Heck have dealt with plaintiffs
who failed to allege a reversal or expungement of the offending conviction, e.g., Okongwu v.
County of Erie, No. 14CV832, 2016 U.S. Dist. LEXIS 120807 (W.D.N.Y. Sept. 7, 2016)

10

(Skretny, J.), or considered when the claim accrues, see, e.g., Heck, supra, 512 U.S. at 481-82,
and thus have not dealt with other elements for a wrongful conviction claim.
In Murphy v. Lynn, 118 F.3d 938 (2d Cir. 1997), cert. denied, 522 U.S. 1115 (1998), the
Second Circuit affirmed a judgment against defendants for violating plaintiff’s Fourth
Amendment rights against unreasonable seizure (there, restriction of his travel following
arraignment) in his § 1983 malicious prosecution claims, id. at 941, 944. The district court had
instructed the jury for plaintiff’s § 1983 malicious prosecution claim that plaintiff was required
to prove commencement or continuance of a criminal proceeding by defendants against plaintiff;
termination of that proceeding in plaintiff’s favor; the absence of probable cause; actual malice
on defendants’ part; and a post-arraignment deprivation of liberty (again, the travel restriction),
id. at 943; see id. at 945-46. Applying the various decisions in Albright v. Oliver, 510 U.S. 266
(1994), the Second Circuit found no due process violation occurred but instead an unreasonable
seizure of plaintiff’s person in violation of the Fourth Amendment, Murphy, supra, 118 F.3d at
944. The elements of plaintiff’s § 1983 malicious prosecution claim for that seizure is
establishing seizure by a state actor; the seizure resulted from initiation or pendency of judicial
proceedings, id., with the reasonableness of the seizure overlapping a state common law
malicious prosecution element of probable cause, id. at 946.
The wrongful conviction tort is analogous to malicious prosecution, Heck, supra,
512 U.S. at 484; see also Pierce v. Gilchrist, 359 F.3d 1279, 1289, 1286 n.3 (10th Cir. 2004)
(constitutional violation under § 1983 following wrongful conviction applied analogous common
law tort of malicious prosecution, with claim predicated on federal constitutional violation).
Courts have adopted elements of state common law tort of malicious prosecution that “are
11

consistent with enforcement of a constitutional right” and “those that are not are rejected,”
Castellano v. Fragozo, 352 F.3d 939, 951 (5th Cir. 2003) (en banc). The en banc Fifth Circuit
noted that “the Fourth Amendment of the United States Constitution cannot be circumscribed by
state tort law,” id. at 955. As a § 1983 claim, plaintiff needs to prove the deprivation of a federal
constitutional right by persons acting under color of law, 42 U.S.C. § 1983; West v. Atkins,
487 U.S. 42, 48 (1988); e.g., Sanders v. Walmart Stores, Inc., No. 3:16-cv-312-DJH, 2016 U.S.
Dist. LEXIS 146565, at *6 (W.D. Ky. Oct. 24, 2016). Singer v. Fulton County Sheriff, 63 F.3d
110, 116 (2d Cir. 1995), held that plaintiff had sufficiently alleged that defendants had violated
his “Fourth Amendment right to be free from unreasonable seizure of his person,” to state “a
§ 1983 claim for malicious prosecution,” id. Once plaintiff presents this claim “the court must
engage in two inquiries: whether the defendant’s conduct was tortious; and whether the
plaintiff’s injuries were caused by the deprivation of liberty guaranteed by the Fourth
Amendment,” id.; see also Murphy, supra, 118 F.3d at 944; Castellano, supra, 352 F.3d at 950, in
the context of plaintiff being charged but later having the charges dismissed, Singer, supra,
63 F.3d at 112.
Malicious prosecution under New York common law, see Manganiello, supra, 612 F.3d
at 160-61, is that the defendants initiated a prosecution against him, without probable cause to
believe the proceeding could succeed, the proceedings were begun with malice, and that the
matter terminated in plaintiff’s favor, Rentas v. Ruffin, 816 F.3d 214, 220 (2d Cir. 2016);
Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997); Cameron v. City of N.Y.,
598 F.3d 50, 63 (2d Cir. 2010). The favorable termination element of malicious prosecution has
not been extended to a wrongful conviction claim, Poventud v. City of N.Y., 750 F.3d 121, 13012

32, 136 (2d Cir. 2014) (in banc). Plaintiff in both cases alleges that his 2004 Indictment was
dismissed (Case, Docket No. 1, Compl. ¶ 38; see Wagstaff, Docket No. 1, Compl. ¶ 38).
Thus, for this discovery dispute (yet to be reduced to a motion to compel or for a
protective Order), the issue becomes whether the contents of these in camera records are relevant
to that claim, Fed. R. Civ. P. 26(b)(1). But the general scope of discovery allows parties to
obtain “nonprivileged matter” relevant to a claim or defense, id. Applying malicious prosecution
elements, at issue for that claim is whether probable cause for charging plaintiff existed and
whether defendants in both cases acted with malice in pursuing the claims against him.
Discovery also embraces discovery of nonprivileged matter relevant to a defense; defendants
cannot rely upon documents in the in camera material to prove their defense without producing it
to plaintiff.
If the malicious prosecution elements (save favorable termination) are applied to these
claims of wrongful conviction in violation of the Fourth Amendment and under § 1983, the issue
of probable cause here arises well after plaintiff’s Indictment and conviction. The in camera file
reviewed here consists mostly of the post-indictment investigation leading to the federal charges
in Montalvo. Probable cause “can cease to exist if some fact later surfaces to exonerate the
accused,” Coleman v. City of N.Y., 49 Fed. App’x 342 (2d Cir. 2002) (Summary Order); see
Lowth v. Town of Cheektowaga, 82 F.3d 563, 571 (2d Cir. 1996). “In order for probable cause
to dissipate, the groundless nature of the charges must be made apparent by the discovery of
some intervening fact,” Lowth, supra, 82 F.3d at 571. Police officers and prosecutors, however,
“are not obliged to exonerate [a] plaintiff or uncover exculpatory evidence, but the ‘failure to
make a further inquiry when a reasonable person would have done so may be evidence of lack of
13

probable cause,’” Lawrence v. City Cadillac, No. 10CV3324, 2010 U.S. Dist. LEXIS 132761, at
*20 (S.D.N.Y. Dec. 9, 2010) (quoting Lowth, supra, 82 F.3d at 571). The in camera file here is
proof of the intervening fact, the Montalvo investigation and prosecution.
But the entirety of that file is not necessary to establish plaintiff’s claim or defend against
it. Concerns remain about privileged items contained therein, such as portions (if not the
entirety) of the file that were Grand Jury materials; disclosure of proffers and proffering subjects;
disclosure of other confidential sources; and disclosure of confidential subjects in pending
investigations. One reasons for reaching out to the Government here was to identify the
existence of these in order to restrict production of sensitive items to plaintiff. Otherwise,
decision of whether, and to what extent, to disclose the in camera file is in a vacuum.
III.

Motion to Compel
As a motion to compel, ostensibly it should fail. As defense notes (Docket No. 34, Defs.

Atty. Decl. ¶¶ 10-11), plaintiff fails to present discovery demands or a defense response or the
deficiencies in those responses or plaintiff’s objections to defendants’ stated objections and
asserted privileges. Plaintiff also failed to outline his efforts at resolving this discovery dispute
in good faith short of this motion (id. ¶ 10).
But this Court and the parties have discussed these issues in various status conferences
(Docket Nos. 20, 22, 24, 27, 30) plaintiff’s desire to obtain and review the unsealed police and
prosecution files. Coupled with efforts suggested by this Court for the parties to try to work out
their difference at or between conferences, the good faith resolution requirement was met albeit
absent the formal certification.

14

As for failing to present his demands and defense responses to this motion to compel, this
Court is aware that what plaintiff seeks is the otherwise confidential state prosecution and
investigative files, unsealed by Judge Franczyk’s Order. What is troubling, however, while the
parties and this Court are well familiar with this Order, technically it was never served or entered
as required under New York procedure to make it effective, cf. N.Y. CPLR 2219(a); N.Y. Unif.
R. 202.8(g); David D. Siegel, New York Practice § 250, at 439 (5th ed. 2011), (assuming that this
Court is the proper jurisdiction to enforce a state Court Order). But absent formal objection to
what defendants have produced and the objections to production they raised, plaintiff’s motion to
compel is denied. But given the partial foray into the otherwise confidential materials at issue
that led to this motion, this Court next considers whether plaintiff is entitled to some amount of
disclosure from the materials ordered unsealed by Judge Franczyk.
IV.

Scope of Production
This Court has not seen in camera the prosecutor’s file to determine what of that file

could be produced. Also, the Case defendants produced with their response the discovery
demands (Docket No. 34, Defs. Atty. Decl., Ex. C) and their responses (id., Ex. D), wherein they
asserted privileges against disclosure (attorney-client, attorney work product, materials prepared
in anticipation of litigation, id., Ex. D, at 1).
But after conducting an in camera review of the police investigative file from the
Wagstaff defendants, this Court can make a rough determination of what can and cannot be
produced from the Case defendants’ files outside of federal Grand Jury materials. What
remained unclear to this Court was what portion of those files consisted of federal materials and
what portion did not. Absent identification by the federal Government, this Court would only be
15

guessing what items were federal Grand Jury materials and what, for example, identified
confidential sources.
In light of the in camera inspection of the production in Wagstaff, this Court presumes an
overlap of material contained in the Buffalo Police Department investigation files and the
prosecution files. Analysis of the scope of production in Wagstaff thus informs the scope of the
Case defendants’ production in this case. In Wagstaff, this Court ordered the defense there to
produce the police file synopsis of the contents of the file and plaintiff’s statements that were
part of the investigative file (Wagstaff, Docket No. 30, Order at 15-16). In Case, similar
materials can be produced to plaintiff from the prosecution files; the other items identified in
Wagstaff as being privileged, confidential, or not relevant to plaintiff’s present claims need not
be produced. As in Wagstaff, if a summary is contained in the prosecution file, a redacted
version of that summary could be produced (or a privilege log) in order for plaintiff to identify
such documents that are not produced initially for him to then move specifically to compel
production and resist the privilege asserted for non-production. What remains is that part of
those files that were federal Grand Jury materials governed by Judge Arcara’s Orders, discussed
next.
V.

Federal Grand Jury and Judge Arcara’s Orders
All parties in Case urge this Court to alter Judge Arcara’s Orders to allow release of the

federal Grand Jury materials produced to defendants and to plaintiff’s late criminal defense
attorney (see Docket No. 32, Pl. Memo. at third to fifth unnumbered pages; Docket No. 34, Defs.
Atty. Decl. ¶¶ 15, 19). No one argues the authority or jurisdiction of this Court (or assigned
Judge Lawrence Vilardo) to alter Judge Arcara’s Orders to expressly allow release of the Grand
16

Jury materials to plaintiff’s counsel in this civil case. Plaintiff in his papers and oral argument
did not confirm or deny that he had obtained the federal Grand Jury materials from his late
criminal defense counsel.
The in camera materials reviewed by this Court from the Wagstaff defendants, however,
did not indicate that they were provided to the Grand Jury and thus were encompassed in
Judge Arcara’s Orders. That concern led to the hesitance of the Case defendants to produce the
Erie County District Attorney’s file which includes (at least in part) Grand Jury materials
provided pursuant to Judge Arcara’s Orders.
Generally outside of an appeal (which Magistrate Judges cannot conduct over Orders of
District Judges), only the judge who issued an Order can revise or grant relief from it in that
judge’s discretion. Magistrate Judges lack the authority to revise or alter a District Judge’s
Orders. An added complication here is that these civil cases were not assigned to Judge Arcara;
while Judge Arcara was assigned the Montalvo case and the Grand Jury materials release
proceeding, Judge Vilardo was assigned Case and Wagstaff.
Out of abundance of caution, plaintiff or defendants could seek leave from Judge Arcara
to amend those Orders to allow plaintiff access and use of the Grand Jury materials in this case
as well, but Judge Arcara either would have to enter Orders in cases not assigned to him (absent
seeking reassignment of these cases) or he could have such an Order filed in the proceeding
releasing these materials in the first place, In re May 2011 Grand Jury Impaneled May 6, 2011,
Misc. No. 13MR17, but plaintiff and some of the Case defendants are not parties to that
proceeding.

17

Nevertheless, amending or extending Judge Arcara’s Orders to expressly order release of
the Grand Jury materials to plaintiff and his civil counsel is beyond this Court’s jurisdiction and
authority and is denied.
There may be two possible sources of relief to adjust Judge Arcara’s Orders: an
application to Judge Arcara to amend the Orders in the In re May 11 Grand Jury proceeding or
an application to Chief Judge Geraci (with notice to Judges Vilardo and Arcara) requesting
reassignment of one (Case, for example) or both civil cases to Judge Arcara for disposition of the
Grand Jury matter following reassignment.
CONCLUSION
For the reasons stated above, plaintiff’s motion (Docket No. 32) to compel is denied.
Following this Court’s in camera review of the Buffalo Police Department files from the
Wagstaff defendants and presuming similar materials contained in the prosecution files under
control of the Case defendants, defendants here shall produce such documents from their file as
identified in this Order and more specifically described in the Wagstaff Order (Wagstaff, Docket
No. 30, Order at 15-16). This Court declines to alter Judge Arcara’s Orders surrounding
disclosure of federal Grand Jury materials.
So Ordered.

/s/ Hugh B. Scott
Hon. Hugh B. Scott
United States Magistrate Judge

Dated: Buffalo, New York
June 23, 2017

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