Edwards v. Destefano

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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RAHEEM EDWARDS,

Plaintiff, MEMORANDUM DECISION

AND ORDER

13-CV-4345 (JS) (JMW)

-against-

NASSAU COUNTY CORRECTIONAL CENTER,

NASSAU COUNTY SHERIFF’S DEPARTMENT,

OFFICER DESTAFANO, SERGEANT MCNAMARA,

SERGEANT O’BRIEN, OFFICER CAPRIO,

CORPORAL ANDERSON, OFFICER PICOLLI,

Defendants.

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APPEARANCES:

Raheem Edwards, Appearing Pro Se

Sing Sing Correctional Facility

354 Hunter Street

Ossining, New York 10562

Ian Bergstrom, Esq.

Deputy County Attorney

Office of County Attorney

County of Nassau

One West Street

Mineola, New York 11501

Attorney for Defendants

WICKS, Magistrate Judge:

Pro se Plaintiff commenced this action pursuant to 42 U.S.C. § 1983 and the 8th Amendment,

alleging that during his incarceration, without any provocation, Defendants used excessive force against

him, denied him medical treatment, denied him basic hygiene, and stole/destroyed his personal property.

(DE 1.) Before the Court is Defendants’ motion for a protective order, which is based on various

objections to producing the Internal Affairs Bureau investigation and report related to the Defendants’

alleged use of excessive force. (DE 68.)

BACKGROUND

On October 2, 2014, Plaintiff served document demands on Defendants, including documents that

constitute an Internal Affairs Bureau investigation of the subject incident (“IAU Report”).1 (DE 32 at 3-

4). On January 30, 2015, Defendants submitted a status report to the Honorable A. Kathleen Tomlinson,

asserting multiple objections to producing the IAU report. (DE 36.) On February 10, 2015, the parties

appeared for a Conference before Judge Tomlinson at which Defendants confirmed that an investigation

was undertaken and completed by the Internal Affairs Bureau and that an Internal Affairs Report was

prepared. (DE 37.) Judge Tomlinson ordered Defendants “to provide the Court with a copy of the IAB

Report within one week for an in camera inspection, at which time the Court will make a determination

of what information, if any, from the IAB Report should be provided to the plaintiff.” (Id.) The IAU

Report was subsequently disclosed to the Court for an in camera review to assess Defendants’ objections

to production, and this case was recently reassigned to the undersigned prior to Judge Tomlinson’s

completion of the review. (Electronic Order dated November 20, 2021.) Since the time the motion was

made and the referral to the undersigned, the law changed. Accordingly, on December 3, 2021, the

parties appeared for a status conference at which the undersigned directed Defendants to file a

supplemental letter as to their objections for disclosing the IAU report.2 (DE 62.) On December 10,

2021, Defendants filed a letter motion seeking a protective order to avoid production of the IAU report.

(DE 68.) Alternatively, Defendants request that the Court “impose safeguards to prevent review of the

departmental documentation at issue for public review and other inmates incarcerated” with Plaintiff.

(Id.)

1 Defendants refer to the Internal Affairs Bureau investigation and report as an “IAU” Report. The

Honorable A. Kathleen Tomlinson previously referred to the Internal Affairs Bureau investigation and

report as an “IAB” Report.

2 On February 10, 2015, Judge Tomlinson noted that once the Court has reviewed and made a

determination regarding the IAU report, the Court will set a schedule for summary judgment (i.e., notice

to pro se litigant under Local Rule 56.2. (DE 37.) At the December 3, 2021 Conference, this Court set a

deadline of February 1, 2022, as the final date by which parties shall take the first step in summary

judgment motion practice. (DE 62.)

For the reasons that follow, Defendants’ motion for a protective order is granted in part and

denied in part, and accordingly, Defendants are hereby ordered to produce the IAU report, with limited

redactions and pursuant to a confidentiality stipulation, as fully set forth below.

STANDARD

Rule 26(c) affords protections for abusive or embarrassing discovery, providing that “[a] party or

any person from whom discovery is sought may move for a protective order in the court where the action

is pending . . . The 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)(1); see Gordon v.

Target Corp., 318 F.R.D. 242, 246 (E.D.N.Y. 2016) (“[T]he touchstone for determining whether to issue

a protective order under Rule 26(c) lies, in the first instance, on a party’s ability to establish good cause”).

The burden is on the party seeking issuance of the order to show “good cause” through “particular and

specific facts” as opposed to “conclusory assertions.” Rofail v. United States, 227 F.R.D. 53, 54–55

(E.D.N.Y. 2005). “If the movant establishes good cause for protection, the court may balance the

countervailing interests to determine whether to exercise discretion and grant the order.” Id. at 55.

“Because of the interest in broad discovery, the party opposing the discovery of relevant

information, whether through a privilege or protective order, bears the burden of showing that based on

the balance of interests the information should not be disclosed.” Fowler-Washington v. City of New

York, No. 19-CV-6590(KAM)(JO), 2020 WL 5893817, at *3 (E.D.N.Y. Oct. 5, 2020) (internal quotation

and citation omitted).

DISCUSSION

Defendants withdrew their prior objection based on deliberative process privilege and now assert

objections based upon the following three grounds: (1) the legislative intent regarding the repeal of New

York Civil Rights Law § 50-a and Federal Rule of Civil Procedure 26(b)(1); (2) law enforcement

privilege; and, (3) New York Public Officers Law § 87. (DE 68 at 2.)

i. The Legislative Intent Regarding the Repeal of

New York Civil Rights Law § 50-a, and Fed. R. Civ. P. 26(b)(1)

Historically, New York Civil Rights Law § 50-a prohibited public access to police officers’,

corrections officers’, firefighters’, firefighters/paramedics’, and certain peace officers’ personnel records

that are used to evaluate job performance regarding continued employment or promotion. N.Y. Civ.

Rights Law § 50-a (McKinney 2019), repealed by L 2020, ch 96, § 1. Such records were permitted for

inspection or review only with express written consent of the subject individual or as mandated by a court

order. Id. A document constitutes a personnel record under New York Civil Rights Law if the document

is significant to a superior when considering continued employment or promotion. 92 N.Y. Jur. 2d

Records and Recording § 33 (2021) (citing Patrolmen’s Benevolent Assoc. of City of N.Y. v. De Blasio,

171 A.D.3d 636, 636-37, 101 N.Y.S.3d 280, 281 (1st Dep’t 2019); Hughes Hubbard & Reed LLP v.

Civilian Complaint Review Bd., 53 Misc. 3d 947, 954, 41 N.Y.S. 3d 369, 376 (Sup. Ct. Kings Cnty. 2016)

(holding that personnel records include documents with personal and employment-related information

that are clearly relied on to evaluate performance)).

The law was initially adopted in 1976 to prevent criminal defense lawyers from using such

records in cross examination of police witnesses. Mem. in Support, S8496, L 2020 N.Y. Sess. Laws ch

96. However, lawmakers found that the evolution of § 50-a, which essentially expanded to a point of

withholding any record with information about an officer’s performance, offset the Freedom of

Information Law’s (“FOIL”) goal of government transparency to the public. Id. The Legislature

recognized that FOIL already provides those protected under § 50-a all of the necessary protections

against unwarranted invasions of privacy, and that if § 50-a were repealed, courts could effectively

determine whether police records are admissible at trial. Id.

Defendants acknowledge that the previous protections afforded by Civil Rights Law § 50-a have

waned since the law was repealed on June 12, 2020. (DE 68.) However, Defendants argue that because

the investigation found that the Defendants did not engage in “misconduct,” production of the IAU report

is not in line with the reason why section 50-a was repealed. (Id.) Specifically, Defendants assert that

disclosure of correction officer-related disciplinary records herein would not further the legislative intent

of rectifying “misconduct,” thus, the documents lack evidentiary value for the purpose of acquiring

discoverable material necessary to this case. (Id.)

On its face, Defendants’ argument appears to be a matter of relevancy as opposed to privilege.

Pursuant to Fed. R. Civ. P. 26:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any

party's claim or defense and proportional to the needs of the case, considering the

importance of the issues at stake in the action, the amount in controversy, the parties’

relative access to relevant information, the parties' resources, the importance of the

discovery in resolving the issues, and whether the burden or expense of the proposed

discovery outweighs its likely benefit.

Fed. R. Civ. P. 26(b)(1).

Information “is relevant if: ‘(a) it has any tendency to make a fact more or less probable than it

would be without the evidence; and (b) the fact is of consequence in determining the action.’” Vaigasi v.

Solow Mgmt. Corp., 11 Civ. 5088, 2016 WL 616386 (RMB)(HBP), at *11 (S.D.N.Y. Feb. 16, 2016)

(quoting Fed. R. Evid. 401). This standard is applied more liberally during discovery than at trial. Id.

Proportionality goes “hand-in hand” with relevance. New Falls Corp. v. Soni, CV 16-6805 (ADS)

(AKT), 2020 WL 2836787, at *2 (E.D.N.Y. May 29, 2020). That is, the more relevant the information

sought is, the less likely the Court will find the subject discovery disproportionate. Id. (citation omitted).

“The party seeking discovery must make a prima facie showing that the discovery sought is more than

merely a fishing expedition.” Barbara v. MarineMax, Inc., No. 12-CV-368 (ARR)(RER), 2013 WL

1952308, at *2 (E.D.N.Y. May 10, 2013) (quotation omitted).

Here, the report entails the investigation of the exact incident that is the subject of this lawsuit and

is therefore, proportional and relevant to Plaintiff’s claims. “Disciplinary records involving complaints of

a similar nature, whether substantiated or unsubstantiated, could lead to evidence that would be

admissible at trial and thus, are discoverable.” Frails v. City of New York, 236 F.R.D. 116, 117 (E.D.N.Y.

2006). Defendants are entitled to object to the records on relevancy or admissibility grounds at a later

time, but Plaintiff is clearly entitled to the discovery at this juncture.

Defendants also argue that the repeal of § 50-a has no bearing on the subject discovery issue

because § 50-a did not govern discovery in federal cases. (DE 68 at 4-5.) While Defendants are correct,

this argument actually cuts against their position because the federal discovery rules are broader.

“New York state law does not govern discoverability and confidentiality in federal civil rights

actions.” King v. Conde, 121 F.R.D. 180, 187 (E.D.N.Y. 1988). Issues of privilege in federal civil rights

cases are analyzed pursuant to federal law, and the state rule is one factor to consider by the court in

resolving a discovery dispute. Id. at 187-88. Thus, the repeal of § 50-a, a state law, does not govern the

Court’s analysis in this federal civil rights action. Rather, Rule 26(b)(1) governs discoverability of the

subject IAU report. See Saaverdra v. City of N.Y, 19 Civ. 7491 (JPC), 2021 WL 104057, at *2 (S.D.N.Y.

Jan. 12, 2021) (holding that plaintiff was entitled to portions of officers’ disciplinary histories that

involved allegations similar to those in complaint based on Rule 26(b)(1), and finding that repeal of § 50-

a, a state law, did not affect such determination); see also Fowler-Washington v. City of N.Y., No. 19-CV-

6590(KAM)(RER), 2020 WL 7237683, at *3 (E.D.N.Y. Dec. 9, 2020) (acknowledging that New York’s

repeal of section 50-a allows the public to access certain NYPD records in the context of a Freedom of

Information Law request that they were not previously entitled to access, but noting Rule 26 permits

plaintiff “access to more documents than he would as a member of the public, even after the repeal of

Section 50-a”). Thus, Plaintiff here is entitled to the IAU report regarding the alleged excessive force

investigation regardless of § 50-a’s repeal.

ii. Law Enforcement Privilege

The law enforcement privilege “is designed not only to facilitate investigations, but also to

protect individuals whose reputation may be damaged by disclosure of investigative leads or statements

from witnesses developed during the investigation.” In re Dep’t of Investigation of City of N.Y., 856 F.2d

481, 486 (2d Cir. 1988). The party asserting law enforcement privilege bears the burden of showing that

the privilege applies to the subject documents. Moroughan v. Cnty. of Suffolk, CV 12-512 (JFB) (AKT),

2018 U.S. Dist. LEXIS 242359, at *14 (E.D.N.Y. Feb 5, 2018) (citing In re City of N.Y., 607 F.3d 923,

948 (2d Cir. 2010). “A threshold showing of privilege must explain the reasons for nondisclosure with

particularity, so that the court can make an intelligent and informed choice as to each requested piece of

information,” which is done by showing “that the documents contain information that the privilege is

intended to protect.” Id. (internal quotations and citations omitted). The law enforcement privilege

includes: (1) information pertaining to law enforcement techniques and procedures; (2) information that

undermines the confidentiality sources; (3) information that would endanger witnesses and law

enforcement personnel; (4) information that would undermine the privacy of individuals involved in an

investigation; or, (5) information that would seriously impair the ability of law enforcement agencies to

conduct future investigations. Id. at 14.

If established, the law enforcement privilege is a “qualified” privilege, and the court must weigh

the public interest in nondisclosure against the need of a particular litigant for access to the privileged

information. Conte v. Cnty. of Nassau, No. CV 06-4746(JFB)(ETB)., 2009 WL 1362784, at *7

(E.D.N.Y. May 15, 2009) (citation omitted). “To lift the privilege, the party seeking the information must

show: (1) that the suit is non-frivolous and brought in good faith; (2) that the information sought is not

available through other discovery or from other sources; and (3) that the party has a compelling need for

the privileged information.” Moroughan, 2018 U.S. Dist. LEXIS 242359, at *15 (citation omitted).

Here, Defendants merely recite cases that discuss the purpose behind the privilege without

specifically showing the harm that is likely to be encountered if disclosure is permitted. (DE 68.)

Defendants blankly assert that, “After review of the documentation at issue, the paperwork lucidly

evidences the “techniques and procedures” as to which the Department of the Nassau County Sheriff and

IAU perform the departmental investigations to determine whether wrongdoing occurred.” (Id.)

Defendants do not point to a single specific page to establish why or how the law enforcement privilege

applies. (Id.) To “sustain the privilege, a party must make a clear and specific evidentiary showing of the

nature and extent of the harm that is likely to be encountered if disclosure is permitted, and they may not

rely simply on generalized reiterations of the policies underlying the privilege.” MacNamara v. City of

N.Y., No. 04 Civ. 9216(KMK)(JCF)., 2007 WL 1169204, at *5 (S.D.N.Y. Apr. 20, 2007) (internal

quotation and citation omitted). Here, based on the generalized reiterations of the policies underlying

privilege, Defendants fail to meet their burden. See Conte, 2009 WL 1362784, at *8 (ordering purported

privileged documents to be produced because Defendants put forth “nothing more than a recitation of the

law enforcement privilege” without any specifics “as to how and why disclosing these documents would

jeopardize or interfere with current or future investigations and prosecutions”).

Notwithstanding Defendants’ failure to establish that the IAU report falls under the law

enforcement privilege, the Court’s in camera review of the IAU report revealed that the following Bates

stamped pages shall be omitted or redacted as they contain other inmates’ names and cell identification

information: 000090-000091.

iii. New York Public Officers Law

Defendants reference, without argument, New York Public Officers Law §§ 89(2)(a) and 89

(2)(c)(i), which permits deleting identifying details from disclosed records to avoid unwarranted invasion

of privacy. See N.Y. Pub. Off. Law § 89 (McKinney through L.2021). The Court finds that it is

appropriate here to redact officers’ private information found within the IAU report. Even under Rule

26’s broad discovery obligations, there is no right to private information such as social security numbers,

home addresses, and names of family members “that is not otherwise relevant to an officer’s performance

on the job.” Fowler-Washington v. City of New York, No. 19-CV-6590(KAM)(JO), 2020 WL 5893817,

at *4 (E.D.N.Y. Oct. 5, 2020). “The recent repeal of Section 50-a does not alter this.” Id. Accordingly,

pursuant to N.Y. Pub. Off. Law §89(2-b), Defendants shall redact all officers’ social security numbers,

home addresses, personal telephone numbers, personal email addresses, and medical histories within the

subject IAU report.3

3 The undersigned notes that the IAU Report contains records specific to Officer DeStafano’s purported

injuries resulting from the subject incident, and that this ruling is in line with Judge Tomlinson’s February

10, 2015 Order, wherein she directed Defendants “to turn over the medical records specifically directed to

the alleged injury suffered by Officer DeStefano as a result of the incidents underlying the claims in this

case. However, those records are to be redacted to exclude any information regarding date of birth, social

security number, prior medical history, etc.” (DE 37.)

The late-Honorable Jack B. Weinstein set forth clear guidelines regarding confidentiality of such

documents in federal civil rights actions, noting that parties are expected to stipulate to appropriate

protective orders that limit disclosure of the discovery to counsel or counsel and client. King, 121 F.R.D.

180, 198. Even since the repeal of § 50-a, courts in this district have held that such records are subject to

confidentiality orders, although the scope of those confidentiality orders has differed. Compare Miehle-

Kellog v. Cnty. of Suffolk, CV 19-4943(DRH)(SIL), DE 17 (E.D.N.Y. Feb. 9, 2021) (court so-ordered

confidentiality stipulation encompassing any document identified as Suffolk County Police Department

Personnel files, Internal Affairs Reports, Autopsy Reports, Medical Records of plaintiff and any Suffolk

County Police Officer, unless the Court determined such documents were not entitled to confidentiality)

with Fowler-Washington v. City of N.Y., 19-CV-6590(KAM)(RER), 2020 WL 7237683, at *5 (E.D.N.Y.

Dec. 9, 2020) (holding that protective ordered entered into was appropriately limited because the order

“provides that materials available to the public are not confidential, [and] Plaintiff is required to keep

confidential the documents and records that are not otherwise available to the public under New York

law, and personal information of third parties (though both categories of information can be shared with

those who are preparing Plaintiff’s case, or witnesses at depositions)”) and Walls v. City of N.Y., 19 Civ.

337 (RPK) (VMS), 502 F. Supp. 3d 686, 690 (E.D.N.Y. 2020) (referencing confidentiality stipulation

court previously entered (ECF No. 29) wherein Internal Affairs Bureau documents among other

disciplinary and investigative documents and medical records were deemed not confidential “to the

extent, and only to the extent, that they are: (a) obtained by Plaintiffs from sources other than Defendants,

or (b) are otherwise publicly available.”).4 Here, the Court finds that the latter approach is appropriate in

light of the repeal of § 50-a and based on the within findings that Defendants have failed to establish that

the IAU is otherwise privileged.

4 The Miehle-Kellog v. County of Suffolk matter (19-CV-494) was re-assigned to the undersigned on May 13, 2021.

(Electronic Order dated May 13, 2021.)

CONCLUSION

Based upon the foregoing, the motion for a protective order is granted in part and denied in part

as follows: Defendants are hereby directed to produce the IAU report -- redacted consistent with this

order regarding other inmates’ identifying information and the enumerated identifying details of the

corrections’ officers -- to pro se Plaintiff and to file proof of service on ECF on or before February 11,

2022. The parties are hereby directed to execute and file an appropriately tailored confidentiality

stipulation for this Court’s approval on or before January 31, 2022.

Dated: Central Islip, New York

January 3, 2022

S O O R D E R E D:

James M. Wicks

/S/

JAMES M. WICKS

United States Magistrate Judge