A. KATHLEEN TOMLINSON, United States Magistrate Judge.
This civil rights action arises out of the March 2009 tragic death of Jo'Anna Bird, a young mother, at the hands of her former boyfriend and father of her child, Leonardo Valdez-Cruz, who is a defendant in this case. Jo'Anna Bird had obtained several orders of protection against Valdez-Cruz on her own behalf as well as on behalf of her children. Valdez-Cruz was tried and convicted for the murder of Jo'Anna Bird and is currently serving his sentence. In the current case, Plaintiff Sharon Dorsett, the mother of Jo'Anna Bird, both individually and as the Administratrix of her daughter's estate, has brought a series of claims asserting, among other things, Section 1983 violations against the individual Nassau County defendants, municipal liability against Nassau County pursuant to Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), a Section 1983 conspiracy claim against Leonardo Valdez-Cruz and the Nassau County defendants, as well as claims asserting negligence, abuse of process and wrongful death.
Before the Court at this time is a motion by the County of Nassau, the Nassau County Police Department ("NCPD"), the Office of the Nassau County District Attorney, Detective Robert Ariola, Police Officers and/or Detectives John and Jane Does 1-10, and District Attorney John and Jane Does 1-10 (collectively, the "Nassau County Defendants") for an injunction and/or protective order prohibiting the disclosure, dissemination, release or revelation of the contents of Internal Affairs Unit Report 14-2009 ("IAU Report") which documents the Nassau County Police Department's internal investigation into the death of Jo'Anna Bird. The motion was prompted by a press release issued by Plaintiffs' counsel on November 30, 2010 announcing a press conference to be held at 11 a.m. on December 1, 2010 at the offices of Plaintiffs' counsel, at which time, Plaintiffs' counsel intended to release the IAU Report to the press and public. Defendant Valdez-Cruz, although having been served with the summons and complaint on April 1, 2010 (see DE 8), has not appeared in this action.
Counsel for the County Defendants contacted the Court at approximately 2 p.m. on November 30, 2010 seeking an emergency hearing based on the information contained in the press release prepared by the Plaintiffs' law firm. At that time, Defendants' counsel was directed to contact Plaintiffs' counsel to arrange a conference call with the Court at 5 p.m. when the Court concluded its calendar of cases for the day. Defendants' counsel was also informed that both sides could submit in the interim any cases which they wished to have the Court consider and counsel was directed to convey that information to Plaintiffs' counsel as well.
Immediately prior to and during the 5 p.m. conference call, the Court received, via facsimile, various cases from Defendants' counsel. During that telephone call, the Court heard preliminary argument from both sides regarding the County Defendants' oral application for an injunction and temporary restraining order ("TRO"). The Court made clear to counsel that it
Following up on that telephone conference, Defendants have submitted their motion papers seeking the following relief: (1) an injunction pursuant to Rule 65; (2) a protective order pursuant to Rule 26(c); and/or (3) the issuance of an order of confidentiality, all pertaining to the proposed disclosure by Plaintiff of the contents of the IAU Report. See DE 50.
In addition, on December 6, 2010, Newsday LLC and News 12 Networks LLC (collectively, "Press Applicants") filed a motion seeking to intervene in this action for the limited purpose of: (1) opposing defendants' motion to enjoin plaintiffs, plaintiffs' counsel and plaintiffs' relatives from disclosing the contents of a redacted Internal Affairs Unit Report produced in this litigation and to seal all court records and proceedings relating to that motion; (2) vacate any on-going injunction barring disclosure of the redacted IAU Report or its contents; unseal all motion papers and transcripts and open all subsequent hearings in this matter; (3) request reconsideration under Fed.R.Civ.P. 59(e); Local Civil Rule 6.3, of the Court's denial of modification of its December 1, 2010 order sealing the parties' motion papers. See DE 28. The Press Applicants' motion seeking to intervene was granted on December 7, 2010. See DE 31. This Memorandum and Order addresses only the Press Applicants' arguments relating to Defendants' motion. A separate order will follow on the relief sought by the Press Applicants.
On March 19, 2010, Plaintiffs filed a Complaint against the Defendants alleging violations of 42 U.S.C. § 1983 as well as various state law claims. See DE 1. The
Id. After the Court inquired whether Defendants were objecting to production of the IAU Report, Defendants' counsel stated that it was her belief that the Report was not complete but that she would look into it. Id. at 11. Based on the response of Defendants' counsel, the Court advised that
Id. at 12-13.
Also during that same conference, the Court asked the parties whether there was any information to be exchanged which warranted a confidentiality agreement. See id. at 25. In response, Plaintiffs' counsel argued that "[w]e don't think so, and we don't see how there could even be a need for a Protective Order. . . . given the public nature of much of what has taken place" and "[a]t this point, that's been a big issue because the lack of disclosure we believe has created real public concern." Id. The Court responded:
Id. These discussions were memorialized in the Court's August 5, 2010 Civil Conference Minute Order. See DE 13, ¶ 3 ("Defendants may be seeking a protective order with regard to the report. If they intend to proceed in this direction, I have given defendants a deadline of September 3, 2010 to file a letter motion for a protective order, including the legal support for their position."); ¶ 7 ("Counsel for the parties will discuss whether a Stipulation and Order of Confidentiality is necessary in this case based upon the nature of some of the records to be produced.").
On August 6, 2010, Defendants' counsel wrote to the Court and advised that the IAU Report was complete, with the exception of the disciplinary review phase. See DE 15. Defendants' counsel further noted that they were in the process of reviewing the IAU Report and reserved their right "to move for a protective order, a stipulation of confidentiality or, alternatively, a request for in camera inspection, by September 3, the date designated by the Court." Id. On September 9, 2010, Plaintiffs'
In response to the Court, counsel for the Nassau County Defendants filed a letter dated September 15, 2010 stating that "[t]he delay has been occasioned by the necessity to review and redact certain information from the voluminous report as well as the necessity to request the reproduction of the police officers' memo-book pages contained in the report." DE 18. The letter further advised that the Report would be furnished that week. Id. In light of that response, the Court deemed the issues raised in Plaintiffs' letter [DE 16] moot.
On October 12, 2010, Plaintiffs' counsel wrote to the Court seeking full disclosure of the IAU Report after advising that certain pages were withheld and made part of a privilege log and that substantial redactions had been made of various portions of the Report as produced. See DE 20. Plaintiffs' counsel argued that
Id. That same day, counsel for the County Defendants filed a letter opposing production of an unredacted copy of the IAU Report. See DE 21. After reviewing the submissions of both sides, the Court directed Defendants' counsel on October 13, 2010 to submit the redacted and unredacted IAU Report for an in camera inspection. On October 29, 2010, the Court granted in part and denied in part Plaintiffs' application and specifically identified portions of the IAU Report which were to be produced without redactions. See DE 22. With regard to two pages which were part of the County Defendants' privilege log, the Court found that
Id. at 5. The County Defendants were given a week to review the documents from which the Court ordered the redactions to be removed and to notify the Court by November 5, 2010 of any matter involving the safety or security of any third-party which Defendants' counsel had not previously identified to the Court. Otherwise, the newly unredacted documents were to be produced to the Plaintiffs by November 10, 2010. Id. at 4. The
Less than one month later, on November 30, 2010, counsel for the County Defendants contacted the Court to request an emergency hearing after learning indirectly that Plaintiffs' counsel had issued a press release earlier that day stating the following:
See Declaration of Deputy County Attorney Liora M. Ben-Sorek, Ex. C. Based upon an e-mail header and the letterhead of the Law Offices of Frederick K. Brewington which are found physically above the press release, it appears that the press release was being sent by an employee or representative of the Brewington Law Firm to approximately 14 media outlets as well as various individuals. Id.
Because of the imminence of the press conference the next morning, the Court agreed to hear from the parties by telephone at 5 p.m. on November 30 in light of the other commitments of counsel and the short notice of the telephone conference. Specifically, and as noted above, Defendants' counsel made an application during the phone conference to enjoin Plaintiffs' counsel from publicly disclosing the IAU Report. Plaintiffs' counsel opposed and advised the Court that he had filed a letter on ECF prior to the phone conference. The Court retrieved that letter [DE 24] and considered its contents as well.
After hearing from both sides during the telephone conference, this Court ruled that
As an alternative to injunctive relief, the County Defendants assert that they are entitled to a protective order for the IAU Report on a showing of good cause pursuant to Fed.R.Civ.P. 26(c). Defs.' Mem. at 21-22. The County Defendants argue that on balancing the need for the information against the injury which might result from compelled disclosure, the Court should find that the scales tip in favor of the Defendants. Id. at 22 (citing In re Zyprexa Injunction, 474 F.Supp.2d 385, 415 (E.D.N.Y.2007)). On the other hand, Plaintiffs maintain that the County Defendants are not entitled to a protective order because: (1) the County's disclosure of the existence of an IAU Report has waived any privilege; (2) the County failed to file a timely motion for a protective order; (3) the IAU Report was not listed on Defendants' privilege log; and (4) Defendants voluntarily disclosed the IAU Report to the Plaintiffs, thereby waiving any privilege. Pls.' Mem. at 7-11.
It is well established that courts have an inherent equitable power to grant confidentiality orders. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 35-36, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984). Under Rule 26(c), "a court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Fed. R.Civ.P. 26(c). This equitable power includes prohibiting the disclosure of certain materials. See Fed.R.Civ.P. 26(c)(A). "The unique character of the discovery process requires that the trial court have substantial latitude to fashion protective orders." Seattle Times Co. v. Rhinehart, 467 U.S. at 26, 104 S.Ct. 2199; see also In re Zyprexa Injunction, 474 F.Supp.2d at 415 ("Much of the material produced in discovery is neither incorporated in motions made to the court nor admissible at trial. In order to mitigate the substantial risk of litigants' privacy and other rights posed by the expansive scope of pretrial discovery, courts are given broad discretion in Rule 26(c) to craft sealing orders"). Since protective orders can implicate the public's First Amendment and common law right of access to the courts, however, Rule 26(c) requires the party seeking the order to demonstrate good cause. See In re Agent Orange Prod. Liab. Litig., 821 F.2d 139, 145 (2d Cir.1987); In re Terrorist Attacks on Sept. 11, 2001, 454 F.Supp.2d 220, 221 (S.D.N.Y.2006).
In determining whether good cause has been shown, courts must weigh the private interests advanced against the public's interest in the information contained in the documents. Cumberland Packing Corp. v. Monsanto Co., 184 F.R.D. 504, 505 (E.D.N.Y.1999); see also In re Zyprexa Injunction, 474 F.Supp.2d
Defendants argue that the public at large has no right to review documents exchanged during the discovery process. See Defs.' Mem. at 11-13. Plaintiffs contend however that absent a protective order, materials produced in discovery may be disclosed by the receiving party to the public. See Pls.' Mem. at 12. Plaintiffs rely upon Schiller v. City of New York, No. 04 Civ. 7922, 2007 WL 136149 (E.D.N.Y. Jan. 19, 2007). However, the circumstances surrounding Schiller are distinguishable from the present action. Schiller involved the arrest of various persons conducting a protest in connection with the 2004 Republican National Convention. Id. at *1. There, the parties had already entered into a negotiated protective order which enabled any party to designate discovery materials as "Confidential" and subject to the terms of the order. Id. Some time after the agreement in Schiller was "so ordered," the defendant City of New York notified plaintiffs' counsel that it was designating as "Confidential" all of the materials previously produced to the plaintiffs. After plaintiffs succeeded in getting the defendants to remove the designation from a small number of documents, the defendant moved for a protective order to cover the remaining documents. Id. at *2. The court directed that the motion papers and supporting declarations be filed initially under seal. Id. Upon considering the arguments of both sides, the court found that "[i]n the absence of such a protective order, `parties to a law suit may disseminate materials obtained during discovery as they see fit.'" Id. (quoting Jepson, Inc. v. Makita Elec. Works, Ltd., 30 F.3d 854, 858 (7th Cir.1994)). However, the court in Schiller also went on to note that "[w]hile materials produced in discovery may be disclosed by the receiving party in the absence of a protective order, the public does not have a right of access to those materials." Schiller, 2007 WL 136149, at *2 n.2. The court ultimately held that because the City had voluntarily produced privileged documents, the City had waived the privilege.
In arguing further, Plaintiffs also maintain that Defendants fail to make particular and specific demonstrations of fact showing that disclosure would result in an injury sufficiently serious to warrant protection and instead rely on broad allegations of unsubstantiated harm. Pls.' Mem. at 13. Plaintiffs emphasize that the burden to make such a showing was and remains with the Defendants as the movants here. In this regard, Plaintiffs claim that the cases cited by Defendants do not shift that burden to the Plaintiffs to demonstrate a legitimate interest to prevent a sealing order, but as affirmed in Byrnes v. Blue Cross Blue Shield, No. 98 Civ. 8520, 2000 WL 60221, at *1 (S.D.N.Y. Jan. 25, 2000), that burden remains with the producing party to establish "good cause" to prevent public access. Id. at 13-14. The
The existence of a common law right of public access to judicial documents is clear. See Nixon v. Warner Comm'ns, Inc., 435 U.S. 589, 597-98, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978) ("[T]he courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents."); Gambale v. Deutsche Bank, 377 F.3d 133, 140 (2d Cir.2004) (public has a common law presumptive right of access to judicial documents). However, that right of access is not absolute. The Second Circuit established a framework in Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir.2006) for court to utilize in determining when the public has a right of access to particular documents. Lugosch involved the attempts of several news organizations to intervene to obtain access to documents filed under seal in conjunction with a motion for summary judgment. Id. at 112. The Court of Appeals held that "[b]efore any such common law right can attach, however, a court must first conclude that the documents at issue are indeed `judicial documents.'" Lugosch, 435 F.3d at 119. "Once the court has determined that the documents are judicial documents and that therefore a common law presumption of access attaches, it must determine the weight of that presumption." Id. "Finally, after determining the weight of the presumption of access, the court must `balance competing considerations against it.'" Id. at 120. Utilizing this framework, the Court now turns to its assessment of the IAU Report in this context. The first question raised, then, is what constitutes a judicial document?
Judicial documents have been defined as "items filed with the court that are relevant to the performance of the judicial function and useful in the judicial process." See In re Terrorist Attacks on Sept. 11, 2001, 454 F.Supp.2d 220, 222 (S.D.N.Y. 2006) (quoting SEC v. TheStreet.com, 273 F.3d 222, 231 (2d Cir.2001) (internal quotation marks omitted)). Significantly, however, the Second Circuit has also stated that "an abundance of statements and documents generated in federal litigation actually have little or no bearing on the exercise of Article III judicial power. . . . Unlimited access to every item turned up in the course of litigation would be unthinkable." In re Terrorist Attacks, 454 F.Supp.2d at 222-23.
Consequently, courts have held that unfiled documents do not qualify as judicial. See Standard Inv., 621 F.Supp.2d at 63 ("Because the unfiled documents did not in any way figure into the Court's performance of its Article III functions, the documents do not qualify as judicial"). Further, "the mere filing of a paper or document with the court is insufficient to render that paper a judicial document subject to the right of public access. . . . the item must be relevant to the performance of the judicial function and useful in the judicial process." United States v. Amodeo, 44 F.3d 141, 145 (2d Cir.1995) ("Amodeo I"); see also United States v. Sattar, 471 F.Supp.2d 380, 385 (S.D.N.Y.2006) (determining that for a document to be judicial, "[i]t is sufficient that the document was submitted to the Court for purposes of seeking or opposing an adjudication").
The Second Circuit has enumerated the steps that a district court must take when deciding whether to issue a protective order, the first of which is determining whether the documents(s) at issue is a judicial document" Standard
The IAU Report in the instant case was not filed with the Court. In addition, the mere fact that this Court had previously reviewed the document in camera before directing its production to the Plaintiffs does not transform the Report into a judicial document. See SEC v. TheStreet.Com, 273 F.3d at 233 (rejecting argument that "the very exercise by the District Court of its power to enter a protective order and to seal the Confidential Testimony transformed the Confidential Testimony into a `judicial document' presumptively open to the public"); United States v. Wolfson, 55 F.3d 58, 61 (2d Cir.1995) ("We are not aware, however, of any common-law principle that documents submitted to a court in camera for the sole purpose of confirming that the refusal to disclose them to another party was proper, are to be deemed judicial records open to the public."). In light of the fact that the IAU Report was not filed with the Court and did not play any role in the performance of Article III functions, this Court finds that the Report is not a judicial document in accordance with the applicable case law.
Even if the Court had determined that the IAU Report is a judicial document, the debate would not end there. Such a finding would require the Court to proceed with the second step of the Lugosch analysis to determine the weight of the presumption of access to the judicial document at issue. Even judicial documents can be restricted under certain circumstances. See Nixon, 435 U.S. at 598, 98 S.Ct. 1306 (determining that "the right to inspect and copy judicial records is not absolute" as "every court has supervisory power over its own records and files"). The presumption created "is based on the need for federal courts, although independent. . . to have a measure of accountability and for the public to have confidence in the administration of justice" and such public monitoring "is not possible without access to testimony and documents that are used in the performance of Article III functions."
Id. at 1049; see also Cumberland Packing Corp., 184 F.R.D. at 505 (finding that the strength of the presumption "will vary with its role in the adjudicatory process"). Therefore, the presumption in favor of public access to judicial documents will be given the strongest weight possible where the documents played a role in determining the litigants' substantive rights, and, as the documents role becomes more attenuated from the exercise of Article III judicial power, the weight of the presumption declines. See, e.g., Gambale, 377 F.3d at 140 (holding that presumptive right is "at its apogee" when the documents at issue were used by parties moving for or opposing summary judgment); Cumberland Packing Corp., 184 F.R.D. at 505 (finding "a document submitted as the principal basis for a dispositive motion is given a strong presumption"); Nycomed v. Glenmark Generics, Inc., No. 08-CV-5023, 2010 WL 889799 (E.D.N.Y. Mar. 8, 2010) (holding that letter briefs in support of motions to amend "do relate to motions, that, if denied, might be dispositive of at least some of the parties' claims and defenses" and thus "fall on the side of the common law continuum strongly favoring public access").
The foregoing cases which strongly favor public access stand in direct contrast to those cited previously in Amodeo II where the Second Circuit held that documents passed between the parties during discovery lie beyond the reach of the presumption favoring public access. Amodeo II, 71 F.3d at 1050; see also Joy v. North, 692 F.2d 880, 893 (2d Cir.1982) ("Discovery involves the use of compulsory process to facilitate orderly preparation for trial, not to educate or titillate the public."); In re Zyprexa Injunction, 474 F.Supp.2d at 413 ("The entry of a protective order for documents produced in discovery does not affect the assumption of non-access which attached to those documents."); In re Terrorist Attacks, 454 F.Supp.2d at 222 (determining that a public interest does not equate to a public right of access to discovery materials); compare Gambale, 377 F.3d at 143 (no established presumption of access to settlement documents which are not themselves part of the court record); Standard Investment, 621 F.Supp.2d at 66 (documents submitted in connection with a Rule 12(b)(6) motion cannot qualify as judicial).
Because the Court has determined that the IAU Report is not a judicial document,
Once a court determines the weight of the presumption of access, it is to apply the third Lugosch factor, namely, balancing the competing considerations against the presumption. Amodeo II, 71 F.3d at 1050; Standard Investments, 621 F.Supp.2d at 62-63. Although a non-judicial document passed in discovery is not afforded a presumption of accessibility, the party seeking non-disclosure must still demonstrate good cause. See Byrnes v. Empire Blue Cross Blue Shield, No. 98 Civ. 8250, 2000 WL 60221, at *1 (S.D.N.Y. Jan. 25, 2000) (determining that the "public interest in access to discovery materials is recognized as generally of a limited order, although most courts have held that the producing party still has the burden of demonstrating good cause for preventing public access to discovery materials"). That good cause determination, however, requires the movant when dealing with a non-judicial document to make only a "baseline showing of good cause in order to justify the imposition of a protective order." Standard Investment, 621 F.Supp.2d at 62. Therefore, with regard to the IAU Report, "there is no presumption against sealing, and thus even a minimal showing of possible harm from disclosure should trigger a sealing order unless an interested party, whether litigant or non-litigant can demonstrate a legitimate interest in preventing such sealing." Byrnes, 2000 WL 60221, at *6.
One competing consideration this Circuit recognizes as "worthy of protection" is the law enforcement privilege. See Amodeo I, 44 F.3d at 147. In fact, the Second Circuit just recently reaffirmed its recognition of the law enforcement privilege. See In re City of New York, 607 F.3d 923,
If the privilege applies, there is a "strong presumption" against lifting the privilege. That presumption can only be rebutted by the party seeking disclosure showing (1) that the suit is non-frivolous and brought in good faith; (2) the information sought is not available through other discovery or from other sources; and (3) there is a compelling need for the privileged information. See In re City of New York, 607 F.3d at 948. If the presumption against disclosure is successfully rebutted, only then will the court weigh the interest in non-disclosure against the need for access to the privileged information. Id. Lastly, the Second Circuit noted that "[t]o access both the applicability of the privilege and the need for the documents, the district court must ordinarily review the documents in question." Id. It should be noted at the outset here that the guidelines promulgated by the Second Circuit for distilling the law enforcement privilege in In re City of New York dealt with a motion to compel information between the actual parties to the litigation. In the instant case, Plaintiffs are already in possession of the information at issue but are seeking full public disclosure. Notwithstanding that fact, the Court finds the Circuit's reasoning helpful in analyzing the current circumstances.
Plaintiffs argue that the Defendants have failed to meet their burden of demonstrating that the law enforcement privilege applies. See Pls.' Mem. at 28. For these purposes, the Court refers to the Affidavit of Thomas C. Krumpter, Deputy Chief of the Nassau County Police Department, submitted in support of the County Defendants' motion for a protective order regarding the IAU Report ("Krumpter Aff."). Deputy Chief Krumpter states that the Internal Affairs Unit conducts both criminal and administrative investigations and that a "final investigation
In their opposition, Plaintiffs argue that there is no reference at all in Defendants' papers as to what procedure or technique it is that Defendants claim is covered by this privilege. See Pis.' Mem. at 27. However, the Court directs attention to the following excerpt from the Krumpter affidavit:
In light of this information, Krumpter maintains that "public disclosure would therefore negatively impact the ability of the officers assigned to this unit to conduct investigations in the future using techniques which would now be publicly revealed." Id. According to Krumpter, permitting public disclosure would effectively be forcing the NCPD to change the manner in which investigations are conducted. Id. ¶ 9. Based upon this Court's previous examination of the IAU Report, as well as the information and arguments submitted by the Defendants and the applicable case law, the Court finds that the law enforcement privilege applies to the IAU Report. See In re City of New York, 607 F.3d at 944 (where the information "clearly relates to `law enforcement techniques and procedures," the information is covered by the law enforcement privilege, a privilege that is qualified and not absolute) (quoting In re Dep't of Investigation of the City of New York, 856 F.2d 481, 484 (2d Cir. 1988)).
In addition, the privacy interests of third parties carry great weight in the balancing of interests.
The Court finds that the Defendants have made the necessary minimal showing of possible harm. See Byrnes, 2000 WL 60221, at *6 (noting that "defendant offers a very thin and speculative basis for sealing, but, absent any presumption against sealing, it should suffice for the limited purpose of protecting discovery materials as such."). Because the Court finds the law enforcement privilege applicable here, the burden shifts to the Plaintiffs to rebut the strong presumption against disclosure by showing a compelling need for public disclosure of the IAU Report.
Plaintiffs claim that they have no burden to show a legitimate interest in the public disclosure of the IAU Report. See Pls.' Mem. at 14. However, Plaintiffs do assert in conclusory fashion that the purpose of disseminating and publicizing the IAU Report "is to inform the community and public of the factual findings of the internal investigation, and to correct certain misleading statements by the County." Pls.' Mem. at 5. Plaintiffs do not identify any of the allegedly misleading statements. To further their argument concerning the asserted need to inform the community, Plaintiffs attach several declarations from non-parties to the Declaration of Plaintiffs' counsel.
NYSCADV also claims that "our experience is that when more information is available to victims and they can hold police accountable, there is a heightened expectation that the response will improve and thus confidence in making the complaint to police is increased." Id. ¶ 22. The Court notes that no empirical evidence is submitted as part of the McKeon Declaration to support that general conclusion. CEO McKeon goes on to state the following:
Id. ¶ 14. Contrary to the foregoing presumption, the victim has not been excluded from the process here because her attorneys have been provided with the information contained in both the public record relating to the death of Jo'Anna Bird as well as the internal police investigation into the underlying incidents. Plaintiffs' counsel has and will continue to have every opportunity to explore the facts and circumstances leading up to and culminating in the tragic death of Jo'Anna Bird as discovery progresses, depositions are taken, and this case is given a full airing at trial in open court. Precluding the public dissemination of the IAU Report at this juncture does nothing to alter that fact and the public will be privy to that information by other available means.
Plaintiffs lastly submit the Declaration of Eric Josey, a retired New York City police officer and co-founder of 100 BLACKS IN LAW ENFORCEMENT WHO CARE.
Based on the supporting information submitted by both sides here, the Court finds that the competing considerations regarding the presumption of access weigh in favor of the Defendants who have established the limited baseline showing of "good cause" to warrant a protective order restricting access to the IAU Report to the parties in this litigation—a showing that the Plaintiffs have not overcome.
One of the Plaintiffs' primary arguments against restricting access to the IAU Report is that such restriction is a prior restraint on speech that violates the First Amendment. See Pls.' Mem. at 14-22. Likewise, the Press Applicants, whose motion to intervene was granted by this Court (see DE 31), argue that Defendants cannot establish the high threshold to restrain "extrajudicial speech" and to obtain an injunction. See Press Applicants' Mem. at 5-12. A prior restraint on speech "is a law, regulation or judicial order that suppresses speech—or provides for its suppression at the discretion of government officials—on the basis of the speech's content and in advance of its actual expression." United States v. Quattrone, 402 F.3d 304, 308 (2005). It is also settled law that the public and press have a "qualified First Amendment right to attend judicial proceedings and to access certain judicial documents." Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 91 (2d Cir.2004).
Although the Supreme Court has previously acknowledged "that most information obtained in civil discovery would rarely fall into the classes of speech unprotected by the First Amendment, such as obscenity, defamatory statements, threats, and the like.... [I]t `does not necessarily follow, however, that a litigant has an unrestrained right to disseminate information that has been obtained through pretrial discovery.'" In re Zyprexa, 474 F.Supp.2d at 417 (quoting Seattle Times Co. v. Rhinehart, 467 U.S. 20, 31, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984)) (internal citations omitted). Indeed, in a case cited frequently by Plaintiffs, the Supreme Court reasoned that in a situation where a litigant gained access to the information solely by virtue of the court's discovery process, "[a] litigant has no First Amendment right of access to information made available only for purpose of trying his suit." Seattle Times, 467 U.S. at 32, 104 S.Ct. 2199; see also Zemel v. Rusk, 381 U.S. 1, 16-17, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965) ("The right to speak and publish does not carry with it the unrestrained right to gather information."). Accordingly, and in contrast to Plaintiff's position, [p]rotective orders prohibiting dissemination of materials discovered before trial "are not the kind of classic prior restraint that require[ ] exacting First Amendment scrutiny." In re Zyprexa, 474 F.Supp.2d. at 417 (quoting Seattle Times, 467 U.S. at 31, 104 S.Ct. 2199).
In addition, and similar to the common law right of access, "upon a showing of `good cause' the public access to discovery materials may be limited." In re Agent Orange Prod. Liab. Litig., 104 F.R.D. 559, 566 (E.D.N.Y.1985). Although the First Amendment and common law right of access substantially overlap, "[t]he First Amendment demands broader disclosure than the common law." In re NBC Universal, 426 F.Supp.2d 49, 56 (E.D.N.Y. 2006). Like the common law presumption in favor of public access, a similar presumption also stems from the First Amendment. See Standard Inv. Chartered, 621 F.Supp.2d at 71. In fact, "the First Amendment presumption gives rise to a higher burden on the party seeking to prevent disclosure than does the common law presumption of access."
Although waiver was primarily argued by Plaintiffs in response to Defendants' assertion of privilege regarding the IAU Report, the Court concludes that Plaintiffs' waiver arguments are equally applicable here and worthy of discussion.
Plaintiffs first contend that the Defendants' own disclosure of the existence of the IAU Report and their statements to the media relating to the contents of the Report have waived any protection afforded to the Report. See Pls.' Mem. at 7-8. Specifically, Plaintiffs identify the following statements made by Nassau County Police Commissioner Lawrence Mulvey to the media, and broadcast by local news channels, as conduct constituting a waiver: (1) "I wish we did provide better service to the family on the 15th and 17th. In that sense we failed;" (2) "Our domestic policy requires that we attempt to identify the affected parties and we attempt to get the facts. What was the argument about—what was the nature of it—is there an order of protection that kind of thing. Those kinds of things did not occur;"
The Court finds that the above statements made by the Police Commissioner do not rise to the level of conduct which would constitute a waiver by the Defendants. The IAU Report consists of 700 + pages. None of the above statements directly mention the IAU Report or refer to its specific contents. In fact, the references are an array of general statements regarding department policy, questions being mulled over by the Police Commissioner, an opinion that a better response could have been made, an expression of generalized displeasure with the officers' actions, and speculation whether the outcome would have been different. Further, the various assertions made by the media in those reports regarding the internal investigation, without more, do not equate to statements made by the Defendants which would lend support to a waiver argument. Lastly, Plaintiffs' conclusory argument that the various media outlets reported that the Police Commissioner provided them with detailed information related to the investigation is unavailing. Without any proof of what purported information was provided by the Defendants to the media, the Court finds no grounds to declare a waiver by the Defendants on this basis.
According to the Plaintiffs, the Defendants waived their right to seek a protective order since they failed to file a motion within the time frame stated by the Court during the parties' appearance for a conference. See Pls.' Mem. at 9. Plaintiffs are correct that on August 5, 2010, the Court issued a Civil Conference Minute Order summarizing the rulings made at the Initial Conference, which included a September 3, 2010 deadline for Defendants to either produce documents to the Plaintiffs or to file a protective order. See DE 13, ¶ 3. However, at the time of the Initial Conference, the issue before the Court was Defendants' reluctance to produce the IAU Report to the Plaintiffs. See DE 37, at 9-10. Indeed, Plaintiffs' counsel argued for production of the Report since it would be "crucial to our ability to evaluate and name the individuals." Id. At no point during the discussion of the protective order did Plaintiffs' counsel voice his intention to disseminate the IAU Report to anyone, including the media and general public. The thrust of the representations to the Court was the need/desire to get the IAU Report into the hands of Plaintiffs' counsel so that the Complaint could be properly amended. At a point later in the conference, the Court raised the issue of whether a confidentiality agreement was needed. Id. at 25. In response, Plaintiffs' counsel stated that he did not see how there could be a need for a protective order given the public nature of this matter. However, the Court notes that this discussion occurred subsequent to and distinct from the September 3, 2010 deadline for turning over documents to Plaintiffs' counsel or alternatively filing a motion for a protective order. In fact, the Court did not set a deadline for a confidentiality agreement.
Plaintiffs' remaining waiver arguments regarding Defendants' alleged failure to satisfy Rule 26 and the "voluntary" disclosure of the Report are unpersuasive.
In addition, Plaintiffs' argue that Defendants' waived any privilege with respect to the IAU Report since it was knowingly produced to Plaintiffs. See Pls.' Mem. at 10-11. To support this contention, Plaintiffs cite the four factor analysis in Lois Sportswear, U.S.A. v. Levi Strauss & Co., 104 F.R.D. 103 (S.D.N.Y.1985). The four elements include: the reasonableness of the precautions to prevent inadvertent disclosure, the time taken to rectify the error, the scope of the discovery and the extent of the disclosure. See Lois Sportswear, 104 F.R.D. at 105. According to the Plaintiffs, Defendants readily agree that they did not take any precautions to prevent the disclosure of the IAU Report. Given the fact that the IAU Report was disclosed by Defendants intentionally, and not inadvertently, Plaintiffs contend that "no further evaluation" under Lois Sportswear was needed. Pls.' Mem. at 10-11. However, in Lois Sportswear, to resolve a dispute among the parties, the court applied the four factors to determine "whether or not the release of the documents was a knowing waiver or simply a mistake." Lois Sportswear, 104 F.R.D. at 105. Here, Defendants have never argued that they mistakenly or inadvertently produced the IAU Report to the Plaintiffs. Therefore, the analysis in Lois Sportswear is irrelevant here. Likewise, the Court is hard pressed to categorize the conduct here as a "voluntary disclosure" when Defendants declined to turn over the IAU Report in response to Plaintiffs' FOIL requests (see Brewington Decl., Exs. F, G, H), and only did so when the Court directed production to the party Plaintiffs. Consequently,
Defendants first argue that because internal affairs reports are used to evaluate the performance of officers, they are considered to be part of a personnel file pursuant to New York State Civil Rights Law § 50-a, and, as such, enjoy statutory protections against inspection and review. See Defs.' Mem. of law in Supp. of County Defs.' Mot. ("Defs.' Mot.") at 9. Although acknowledging that state law does not control in federal court, Defendants argue that federal courts "need not ignore state privacy rules" (quoting King v. Conde, 121 F.R.D. 180, 187 (E.D.N.Y.1988)), and that "[s]imply because Plaintiff's counsel came into possession of the subject report as part of the discovery process ... does not vitiate the applicability of § 50-a when he then seeks to release the documents to non-parties." Id. at 10. Furthermore, Defendants assert that in these circumstances, § 50-a applies as a bar against Plaintiffs' revelation of the IAU Report. Noting that Plaintiffs' counsel is a seasoned civil rights practitioner, Defendants state that counsel is also well aware that internal affairs investigation reports are exempt from disclosure when a FOIL request is received. Id. at 11.
Plaintiffs counter that pursuant to the New York State Public Officer's Law § 87, police records are presumptively open for public inspection unless the record falls under one of the narrowly construed exemptions set forth in § 87(2). See Pls.' Mem. at 3-4. Plaintiffs argue that the IAU Report is not a personnel record since it is not used to evaluate performance.
New York State Civil Rights Law § 50-a provides that
N.Y. Civil Rights Law § 50-a(1). Under New York State Public Officer's Law § 87, where agency records are presumptively available for public inspection and disclosure under FOIL,
Although "personnel records" are not specifically defined under § 50-a (other than requiring that they be under the control of the police agency and used to evaluate performance), the New York Court of Appeals has determined that the definition includes documents "containing personal, employment-related information about a public employee ... received, processed and maintained as part of a [public employer's] operations" and "are clearly relied upon in evaluating the employee's performance." Prisoners' Legal Servs. v. New York Dep't of Corr. Servs., 73 N.Y.2d 26, 31, 538 N.Y.S.2d 190, 535 N.E.2d 243 (1988). Thus, "whether a document qualifies as a personnel record under Civil Rights Law § 50-a(1) depends upon its nature and use in evaluating an officer's performance." Id. at 32, 538 N.Y.S.2d 190, 535 N.E.2d 243.
The Defendants argue that internal affairs investigations are initiated to inquire into conduct by law enforcement officials and the findings not only lead to potential administrative actions but also are used to evaluate performance toward continued employment. See Defs.' Reply Mem. at 2. As one New York court put it, "[t]he purpose of an internal investigation is to gather all pertinent information relating to possible police misconduct to enable the police department to evaluate the conduct of the officer and to determine appropriate disciplinary action." Wunsch v. City of Rochester, 108 Misc.2d 854, 438 N.Y.S.2d 896, 899 (Sup.Ct. Monroe Cty. 1981). The Defendants are correct in pointing out that the IAU Report identifies deficiencies, and, as a result, officers are subject to upcoming disciplinary proceedings. Accordingly, taking into account the guidelines provided in defining a personnel record by the New York State Court of Appeals, this Court finds that some portions of the IAU Report fall within that definition. See Matter of Capital Newspapers Div. of Hearst Corp. v. City of Albany, 63 A.D.3d 1336, 1338, 881 N.Y.S.2d 214, 217 (3d Dep't 2009) ("Documents pertaining to an officer's misconduct are the type of records specifically intended to be kept confidential under the statute, mainly to prevent use of the records in litigation to harass, embarrass, degrade or impeach an officer's integrity.").
Despite the existence of state statutes, "state law does not govern discoverability
Although Defendants correctly identify the issue before the Court as one unrelated to a discovery dispute between parties to this action, the Court rejects their position that § 50-a should therefore apply as a direct bar against Plaintiff's disclosure of the IAU Report to the public. See King, 121 F.R.D. at 187 (holding that "simple direct application of the state rule would be undesirable and improper"). Indeed, even in state court where § 50-a is directly applied, police personnel records are not afforded absolute protection from disclosure as argued by the Defendants. See N.Y. Civil Rights Law § 50-a(2)-(3) (setting up a legal process whereby the confidentiality of police personnel records can be lifted by a court upon a clear showing of facts establishing that the records are relevant and material to the requested party and an in camera inspection of the documents). As the court in King reasoned:
King, 121 F.R.D. at 192 (internal quotations omitted). Thus, the purpose behind § 50-a is that it be used as a shield against irrelevant and improper disclosure of documents and not as a sword to strike down any and all discovery requests as argued here.
A police defendant asserting a claim of privilege against disclosure of police materials under § 50-a "must do more than alert the court to the state privilege law or the generalized policies which support it." See King, 121 F.R.D. at 189. To properly balance the interests, courts find guidance in the two-prong test established in King v. Conde. See, e.g., Cody, 2008 WL 3252081, at *3; McKenna v. Village of Northport, No. CV 06-2895, 2007 WL 2071603, at *7 (E.D.N.Y. July 13, 2007). Under the first prong of the King test, "the police bear the burden of making a `substantial threshold showing' that harm is likely to occur as a result of disclosure of the requested documents." Cody, 2008 WL 3252081, at *3 (quoting King, 121 F.R.D. at 189). "Unless the government, through competent declarations, shows the court what interests [of law enforcement or privacy] would be harmed, how disclosure under a protective order would cause the harm, and how much harm there would be, the court cannot conduct a meaningful balancing analysis." King, 121 F.R.D. at 189 (internal quotations omitted) (emphasis in original). The declaration or affidavit submitted must (1) be under oath and penalty of perjury; (2) from a responsible official within the agency who has personal knowledge of the principal matters to be attested to; and (3) upon personal review of the documents. Id. Only upon satisfying this initial threshold showing will a Court turn to the next prong and weigh the factors in favor of and against disclosure. See Cody, 2008 WL 3252081, at *3; McKenna, 2007 WL 2071603, at *7.
Although the potential discoverability of police personnel records, including internal investigations, under § 50-a, have been analyzed by courts in the limited purview of actual parties to a litigation, the New York State Court of Appeals has determined that the
Daily Gazette Co. v. City of Schenectady, 93 N.Y.2d 145, 154-5, 688 N.Y.S.2d 472, 710 N.E.2d 1072 (1999). Furthermore, the court in King declared that its procedure and test "govern[s] all discovery disputes over police records in federal civil rights actions in this district, regardless of the label used to refer to the privilege." See King, 121 F.R.D. at 188. Accordingly, the Court finds no reason why it should not apply this established two-prong analysis to the instant circumstances where the parties are disputing whether the IAU Report—a significant portion of which this Court has now found to constitute "personnel records"—can be turned over to a non-party (in this case, various media outlets).
As noted earlier in this decision, the Defendants have submitted the Affidavit of Thomas C. Krumpter, Deputy Chief of the Nassau County Police Department. Deputy Chief Krumpter states that he is "familiar with this action" and that dissemination of the IAU Report is "unlawful pursuant to State statutes" and "will result in irreparable harm to the involved Officers
Although the Defendants have arguably presented identifiable procedural and substantive elements to establish a threshold showing (i.e. a showing of what interests would be harmed and how much harm there would be through the affidavit under oath from a responsible official within the agency who has personal knowledge of the principal matter), others have not been met. For example, under the King analysis, the affiant must make his representations upon personal review of the documents at issue. Here, there is no representation in his affidavit that Deputy Chief Krumpter personally reviewed the entire IAU Report. The Court is left to infer that such is the case. More significant, however, is the absence of information specifically identifying how disclosure under a protective order would nevertheless cause the harms identified by the Defendants. Thus, the Court finds that Defendants have not satisfied the substantial threshold showing required under King which would bring the IAU Report within the confidentiality provisions of § 50-a.
Defendants next argue that they are entitled to an injunction prohibiting the dissemination of the IAU Report or its contents by the Plaintiffs. See Defs.' Mem. at 14-15. Federal Rule 65 governs the issuance of a preliminary injunction. See Fed.R.Civ.P. 65(a). The decision whether to grant or deny a preliminary injunction rests with the Court's sound discretion. Weight Watchers Int'l Inc. v. Luigino's, Inc., 423 F.3d 137, 141 (2d Cir. 2005); Sierra Club v. United States Army Corps of Engineers, 732 F.2d 253, 256 (2d Cir.1984). To obtain a preliminary injunction, the movant is traditionally required to show (1) irreparable harm and (2) either (a) that it is likely to succeed on the merits or (b) sufficiently serious questions regarding the merits of the claim to make them fairly litigable, with the balance of hardships tipping decidedly in the movant's favor.
"A showing of irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction." See Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir.2009) (internal quotations omitted). "The threat of irreparable harm must not be merely speculative, but `actual and imminent, and one that cannot be remedied if a court waits until the end of trial to resolve the harm.'" City of Newburgh, 690 F.Supp.2d 136, 164 (quoting Faiveley, 559 F.3d at 118) (internal quotations omitted); see also Mountain Info. Mgmt., Inc. v. Taddeo, 455 F.Supp.2d 124, 132 (E.D.N.Y. 2006) ("The law in this circuit requires a showing that irreparable damages are likely, not merely possible.").
Based upon the submitted documents, the alleged irreparable harm Defendants claim would result if Plaintiffs disclosed the IAU Report to the media and public falls within five categories: (1) tainting the jury pool; (2) incomplete, false and inaccurate accounts; (3) prejudicial impact on arbitrators at police officer disciplinary hearings; (4) undermining police investigatory techniques and procedures; and (5) reluctance of domestic violence victims to cooperate with district attorney offices. See Defs.' Mem. at 16-20. Plaintiffs counter that Defendants' conclusory arguments fail to make a clear showing that they will suffer imminent irreparable harm. See Pls.' Mot. at 23.
Defendants allege if the IAU Report were disclosed to the media, "there is a strong probability of tainting the jury pool." See Defs.' Mem. at 16. Although acknowledging that discovery has just begun, Defendants maintain that if Plaintiffs' news conference were to go forward and the Report was disclosed, "there is no guarantee that, in the event this matter proceeds to trial, the media will not replay its coverage of the Plaintiff's news conference" or "prevent the media outlets from having links to prior coverage of this case on their online editions so potential jurors can log in." Id. Further, Defendants argue that disclosure of the IAU Report would result in skewed media coverage in favor of Plaintiffs as the County would be prohibited from addressing the IAU Report based on constraints imposed on the County by Civil Rights Law § 50-a. Id. at 17.
In light of the evidence presented by Defendants, the Court fails to find irreparable harm resulting from potential jury contamination. Plaintiffs are correct in pointing out that Defendants fail to provide any legal support for their blanket assertions of jury contamination. In fact, the Court could not locate a single case from this Circuit where jury contamination was the basis for a preliminary injunction. Instead, jury taint has been argued to rebut the presumption in favor of public access when deciding whether a protective
Defendants maintain that if the news media were permitted to broadcast Plaintiffs' planned new conference in which Plaintiffs intend to disclose the IAU Report, the result would not provide a complete, true and accurate account of the events in this case. See Defs.' Mem. at 16. Only the most egregious aspects of the detailed Report would be screened to the public, according to Defendants, resulting in sound bytes and snippets which create a sketchy, distorted rendition of the facts. Id. Further, Defendants argue that any media coverage would be skewed in Plaintiffs' favor because the County will not be able to address the IAU Report since doing so would violate § 50-a. However, as already discussed supra, the Court declines to adopt the absolute protection from disclosure sought by Defendants pursuant to § 50-a since the IAU Report is not subject to the protections afforded by § 50-a. Therefore, all else being equal, § 50-a would not restrain Defendants from addressing whatever they believed was incomplete or inaccurate in Plaintiffs' disclosure of the IAU Report. As such, the Court finds that Defendants have not established actual or imminent harm based upon a purported incomplete and inaccurate account of the events at issue here.
Defendants also argue that the neutrality of arbitrators who may be appointed in connection with the disciplinary hearings of certain police officers mentioned in the IAU Report would be affected if the Report were disclosed. See Defs.' Mem. at 17. Following the completion of the IAU Report, charges and specifications were served upon those officers who were found by the Nassau County Police Department to have violated applicable rules and regulations. However, Defendants state that such disciplinary proceedings have not yet commenced. Id. Therefore, Defendants claim that "there exists a realistic concern and risk of affecting the impartiality of potential arbitrators" resulting in police officers not receiving fair and impartial hearings. Id.
The Court does not agree with Defendants' contention that arbitrators, sitting in a quasi-judicial capacity, will be tainted by the release of the IAU Report. It seems very likely to this Court that the arbitrators will inevitably be exposed to the contents of the Report if such disciplinary arbitrations occur. Likewise, the Court agrees with Plaintiffs that this alleged harm is based on speculation since the argument is grounded in "un-named, unknown, and as of yet undetermined arbitrators who may be appointed." Pls.' Mem. at 26. In fact, Defendants' own contentions are filled with language evidencing the lack of actual and imminent
Another example of irreparable harm advanced by the Defendants involves disclosure of the Internal Affairs investigative techniques and procedures. See Defs.' Mem. at 17-18. Defendants argue that as courts recognize a law enforcement privilege, which prevents the disclosure of law enforcement techniques and procedures, irreparable harm would result if public disclosure of an ongoing investigation or specific investigative steps undertaken were to occur. Id. at 18-19. Specifically, Defendants maintain that disclosure would force the police department "to change the manner in which investigations are conducted, thus potentially undermining the effectiveness of the Internal Affairs Unit" and "there would be a chilling effect on civilians who may be less inclined to initiate a complaint with the IAU when they feel it is warranted as they may fear that the investigation into that complaint may one day be the subject of a press conference." Id. at 19.
However, Defendants' reliance on the law enforcement privilege is misplaced with regard to a preliminary injunction. Indeed, Defendants fail to identify a single case where this privilege served as the basis for injunctive relief. Although this Court has found that the law enforcement privilege is applicable in evaluating whether to grant a protective order, the Court does not find that the materials submitted by the Defendants meet the threshold showing of actual and imminent harm to the investigative techniques and procedures of future internal affairs investigations.
As to their final assertion of irreparable harm, Defendants point to the fact that the Nassau County District Attorney's office "expressed concern" that "victims of domestic violence were reluctant to cooperate with their office after Bird's murder and the subsequent criminal trial." See Defs.' Mem. at 20. Consequently, it is Defendants' belief that disclosure of the IAU Report "could prevent a victim from coming forward and seeking assistance." Id. However, Defendants' argument is permeated with conditional words such as could prevent, expressed concern, and reluctant—confirming that any imminent and irreparable harm is suppositional at this juncture. Although the Court appreciates the sensitivity involving victims' reluctance to cooperate with the District Attorney's office, the Court finds that Defendants have failed to make the requisite showing of irreparable harm which would warrant imposition of an injunction precluding disclosure.
In light of the fact that the Court finds no irreparable harm here, there is no need o address whether Defendants have established a likelihood of success on the merits.
Defendants' remaining contentions are premature at this juncture.
Lugosch, 435 F.3d at 123 (determining that "consideration of the Newspapers' ultimate interest in the case should not affect the weight of the presumption"). Therefore, Defendants' contentions regarding the possible motivation of the media is not a consideration for this Court. See Defs.' Mem. at 16.
