Black Love Resists v. City of Buffalo

UNITED STATES DISTRICT COURT

FOR THE

WESTERN DISTRICT OF NEW YORK

BLACK LOVE RESISTS IN )

THE RUST, by and through its )

Co-Directors Natasha Soto and )

Shaketa Redden and on behalf of )

its members; DORETHEA FRANKLIN, }

TANIQUA SIMMONS, ) Case No. 1:18-cv-719

HALL, and JANE DOE, )

individually and on behalf of a class )

of all others similarly situated, )

)

Plaintiffs, )

)

V. )

)

CITY OF BUFFALO, N.Y.; BYRON _ )

B. BROWN, Mayor of the City of )

Buffalo, in his individual and official —)

capacities; BYRON C, LOCKWOOD, | )

Commissioner of the Buffalo Police )

Department, in his individual and )

official capacities; DANIEL DERENDA,)

former Commissioner of the Buffalo )

Police Department, in his individual )

capacity; AARON YOUNG, KEVIN _ )

BRINK WORTH, PHILIP SERAFINI, _ )

ROBBIN THOMAS, UNKNOWN )

SUPERVISORY PERSONNEL 1-10, )

UNKNOWN OFFICERS 1-20, )

each officers of the Buffalo Police )

Department, in their individual )

capacities, )

)

Defendants. )

OPINION AND ORDER

GRANTING IN PART AND DENYING IN PART PLAINTIFFS’

MOTIONS TO COMPEL

(Docs. 34 and 42)

In June 2018, Black Love Resists In the Rust and four individuals brought this suit

on behalf of the organization, its members, and a purported class of similarly situated

individuals (collectively, “Plaintiffs”) against the City of Buffalo (the “City”); Buffalo

Mayor Byron Brown; current Buffalo Police Department (“BPD”) Commissioner Byron

Lockwood, individually and in his official capacity; former BPD Commissioner Daniel

Derenda, individually; and named and unnamed BPD officers and supervisors

(collectively, “Defendants”). Before the court are two motions to compel (Docs. 34 and

42) filed by Plaintiffs seeking the production of documents by the City and the BPD

related to BPD traffic checkpoints; racial profiling, bias, and discrimination by the BPD;

and BPD traffic stops, traffic ticketing, and other traffic enforcement practices.

Plaintiffs are represented by Andrea C. Ezie, Esq., Baher Azmy, Esq., Britney R.

Wilson, Esq., Claudia Wilner, Esq., Darius Charney, Esq., Edward Krugman, Esq,,

Joseph A. Kelemen, Esq., Keisha A. Williams, Esq., Marc Cohan, Esq., and Travis W.

England, Esq. Defendants are represented by Robert E. Quinn, Esq.

L Factual and Procedural Background.

A. The Complaint’s Allegations.

The Complaint alleges that Defendants violated Plaintiffs’ rights under the Fourth

and Fourteenth Amendments of the United States Constitution and discriminated against

them on the basis of their race or ethnicity. Plaintiffs allege that for the past

approximately seven years, the City and the BPD conducted vehicle checkpoints at which

members of the BPD “Strike Force” stopped and searched drivers “without any

individualized suspicion of wrongdoing.” (Doc. 1 at 2,43.) The Complaint includes

statistics purporting to demonstrate that most of the checkpoints were located in areas of

the City with a majority of Black and Latino residents. Plaintiffs further allege the Strike

Force worked in conjunction with the BPD Housing Unit to conduct checkpoints near

certain public housing complexes with predominantly Black and Latino residents.

Plaintiffs contend that the checkpoint program, along with citywide traffic

enforcement practices, led to the disproportionate and sometimes pretextual issuance of

traffic tickets to Black and Latino City residents. In 2012, the year the checkpoint

program commenced, Plaintiffs allege that the number of traffic violations ticketed in the

City increased dramatically and that one of the objectives of increased enforcement was

to generate revenue for the City.! The checkpoint program also allegedly resulted in an

increase in the number of vehicles towed, with a corresponding increase in impound-lot

revenue. Plaintiffs allege that the BPD’s ticketing and towing practices compound racial

and economic inequality, forcing Black and Latino residents who are ticketed at

disproportionate rates to choose between paying “frequently substantial fines[,|” id. at 4,

7, or having their driver’s licenses suspended, which in turn prevents them from

traveling for work or education. According to Plaintiffs, statistical analysis suggests that

the checkpoints were not located or conducted to promote traffic safety.

Plaintiffs allege the checkpoint program has been publicly discussed in the City

for the last several years, including in the 2017 Democratic mayoral primary race, In

July 2017, the City’s Common Council? passed a resolution expressing concern about the

checkpoint program and requesting related BPD data. The State’s Attorney General

opened an investigation into the checkpoint program in December 2017. In February

2018, the Strike Force was disbanded. However, Plaintiffs allege that the checkpoint

program continued through at least April 2018.

Plaintiffs bring individual claims and seek to bring class action claims on behalf of

three putative classes. The first putative class is “[a]!I individuals who have been or will

be subjected by BPD to ‘traffic safety’ vehicle Checkpoints[,|” with a proposed subclass

consisting of all non-White individuals within the broader class. /d. at 39, 9] 230-231,

The second putative class is “[a]ll non-White individuals who have received or will

receive traffic tickets issued by the BPD.” Jd. at 41, 237. The third putative class is

“Talll individuals who within the last three years have received a ticket, been arrested, or

'In 2014, the City also reached an agreement with the State of New York (the “State”) that

permitted the City to retain certain traffic ticket revenues previously collected by the State,

* The Buffalo Common Council is the City’s legislative body, comprised of nine council

members elected from nine council districts by popular vote.

had their cars towed and/or impounded at a BPD ‘traffic safety’ vehicle Checkpoint{,}”

including a proposed subclass of all Black or Latin individuals, /d.

The Complaint alleges that Defendants violated the individual Plaintiffs’ and the

putative class members’ rights under the Fourth Amendment by conducting unreasonable

searches and seizures (First Claim for Relief); to equal protection under the Fourteenth

Amendment (Second Claim for Relief); to substantive due process of law under the

Fourteenth Amendment (Third Claim for Relief); and to freedom from discrimination

based on race, color, or national origin in programs receiving federal assistance under

Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000(d) (Fourth Claim for Relief).

Plaintiffs seek class certification, a declaratory judgment that Defendants have

violated Plaintiffs’ and class members’ constitutional rights, preliminary and permanent

injunctions prohibiting the checkpoint program, compensatory damages, and attorney’s

fees and costs pursuant to 42 U.S.C. §§ 1920 and 1988.

B. BPD Discovery and Electronically Stored Information (“ESI”).

On May 30, 2019, the court held a status conference to address a dispute regarding

the scope of discovery. Pursuant to the court’s instructions, on June 5, 2019, Plaintiffs

provided Defendants with a list of twenty custodians and twenty search terms to prioritize

in ESI discovery. Based on Defendants’ representation that they had retained an ESI

vendor that uses the Relativity platform, Plaintiffs chose search terms with standard

Boolean operators and standard truncation symbols. Defendants did not produce any

responsive ESI documents but instead objected on the grounds that Plaintiffs’ search

terms were “confusing” (Doc. 34-1 at 7) and could not be utilized on the BPD email

system.

On July 24, 2019 Plaintiffs moved to compel discovery. (Doc. 34.) In their ESI

and BPD motion, Plaintiffs requested a court order requiring Defendants to: (1) produce

ESI discovery from all Defendants, including the BPD; (2) produce monthly and daily

reports from BPD’s Housing, Strike Force, and Traffic Units (the “Reports”); and (3)

supplement its response to Plaintiffs’ Interrogatory 1 by providing the dates of BPD

officers’ employment in the Strike Force and Housing Units. Plaintiffs seek information

in databases and computer files as PDF files with metadata and emails in native (.msg)

format.

With regard to the Reports, the parties have been unable to agree on acceptable

redactions. In response to Plaintiffs’ motion, Defendants object to production of the

Reports on the basis that the request is overbroad, unduly burdensome, not reasonably

calculated to lead to discoverable materials, and may contain confidential information

regarding criminal complainants, suspects, and police procedures. Defendants further

assert that the information in the Reports is either redundant or cumulative of information

already obtained by Plaintiffs, Defendants asked the court to consider cost-shifting if it

orders the production of the ESI sought by Plaintiffs.

As for Interrogatory 1, Defendants initially represented that they were unable to

provide additional employment history information for the officers because the BPD does

not record when an officer transfers out of a particular unit. However, Defendants

produced certain documents reflecting officer transfers on August 20, 2019, See Doc. 41

at 9, Plaintiffs are reviewing Defendants’ August 20, 2019 production and “will advise

whether any further dispute remains.” Jd.

C. Internal Affairs Division (“IAD”) Discovery.

Plaintiffs maintain that the BPD’s IAD files reflecting citizen complaints

concerning BPD practices are relevant to their claim that the BPD had notice of its

officers’ allegedly unconstitutional behavior. In accordance with the court’s instructions

at the May 30, 2019 status conference, on June 27, 2019, Plaintiffs provided Defendants

with ten initial search terms for IAD records followed by amended search terms on July

12,2019. Based on a review of summary information provided as a result of the search

terms, on July 24, 2019, Plaintiffs requested that Defendants produce 168 IAD files in

full. On July 29, 2019, Defendants objected to producing the files because some records

were beyond the scope of the Complaint while others concerned misconduct complaints

that were “not sustained” after investigation, (Doc. 42-10 at 3.) Defendants further

claimed that New York Civil Rights Law § 50-a (“Section 50-a”) prohibited disclosure of

some of the records’ contents. On August 30, 2019, Plaintiffs moved to compel

production of the IAD records, asking the court to order production of all 168 files or, in

the alternative, to review the files iz camera and direct the production of relevant

materials. (Doc, 42.)

I. Conclusions of Law and Analysis.

In civil litigation, parties are entitled to “obtain discovery regarding any

nonprivileged matter that is relevant to any party’s claim or defense.” S.Z.C. v.

Rajaratnam, 622 F.3d 159, 181 (2d Cir. 2010) (quoting Fed. R. Civ, P. 26(b)(1)).

Relevant information “need not be admissible in evidence to be discoverable.” Fed. R.

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

“TA]s in all matters relating to discovery, the district court has broad discretion to

limit discovery in a prudential and proportionate way.” EM Ltd, v. Republic of

Argentina, 695 F.3d 201, 207 (2d Cir. 2012). “Discovery rules are to be accorded a

broad and liberal treatment . . . to effectuate their purpose that civil trials in the federal

courts no longer need be carried on in the dark.” Ratliff v. Davis Polk & Wardwell, 354

F.3d 165, 170 (2d Cir. 2003) (internal quotation marks omitted). “Moreover, the rules

generally do not place any initial burden on parties to justify their... discovery

requests.” Jn re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 69 (2d Cir. 2003).

Nonetheless,

[A] district court [may] limit [t]he frequency or extent of use of the

discovery methods otherwise permitted under [the federal] rules if it

determines that (1) the discovery sought is unreasonably cumulative or

duplicative, or more readily obtainable from another source; (2) the party

seeking discovery already has had ample opportunity to obtain the

information sought; or (3) the burden or expense of the proposed discovery

outweighs its likely benefit.

Id. (citing Fed. R. Civ. P. 26(b)(2)) (interna! quotation marks omitted). In addition, □□□□□□

party seeking discovery bears the initial burden of proving the discovery is relevant, and

then the party withholding discovery on the grounds of burden [or] expense . . . bears the

burden of proving the discovery is in fact... unduly burdensome and/or expensive.”

Citizens Union of New York v. Attorney General of New York, 269 F. Supp. 3d 124, 139

(S.D.N.Y. 2017),

A, Whether Defendants Must Produce the Requested ESI.

Defendants object that the email ESI Plaintiffs seek is not reasonably accessible

because it would require custodians to manually search their accounts and print

responsive documents. They note that the BPD has approximately 850 employees which

apparently demonstrates the burden of conducting ESI searches. (See Doc. 40 at 6, {] 32.)

However, Plaintiffs provided Defendants with a list of twenty priority custodians

pursuant to the court’s May 30, 2019 instructions, and the total number of BPD

employees is not relevant to the burden of completing a narrow initial EST production.

Defendants further represent that their email systems (LotusNotes for the BPD and

Microsoft Exchange for the City) cannot accommodate search terms more complex than

“one word or a phrase in parenthes[e]s.” Jd. at 5,29. According to Defendants,

preliminary estimated costs for the services of an e-discovery vendor to assist with the

search of data for twenty custodians are between $8,175.00 and $10,075.00, subject to

potential additional expenses for processing, hosting, and storage.

Defendants further assert that Plaintiffs have not shown good cause to require the

production of metadata in accordance with Local Civil Rule 26(e)(4), which provides that

“le]xcept as otherwise provided, metadata, especially substantive metadata,’ need not be

routinely produced, except upon agreement of the requesting and producing litigants, or

upon a showing of good cause in a motion filed by the requesting party.” Plaintiffs

counter that they require system metadata for ESI to conduct their own searches

effectively. Plaintiffs further assert that Defendants are obligated by Fed. R. Civ. P.

34(b)(2)(E) to produce ESI “as [it is] kept in the usual course of business[,]” “in a

3 “Substantive metadata .. . is created as a function of the application software used to create the

document or file and reflects substantive changes made by the user. This category of metadata

reflects modifications to a document, such as prior edits or editorial comments[.]” Aguilar v.

Immigration & Customs Enforcement Div. of U.S. Dep't of Homeland Sec., 255 F.R.D, 350, 354

(S.D.N.Y. 2008) (internal quotation marks and citation omitted), System metadata “include(s|

data concerning the author, date and time of creation, and the date a document was modified. ...

This type of metadata also makes electronic documents more functional because it significantly

improves a party’s ability to access, search, and sort large numbers of documents efficiently” Id.

(internal quotation marks and citation omitted), Plaintiffs appear to request system metadata

“such as ‘to, from, date sent, and date received].]’” (Doc. 34-1 at 13.)

form ... in which it is ordinarily maintained or in a reasonably usable form{,]” which,

they argue, would include metadata.

Generally, a party is not required to produce ESI from sources “‘that the party

identifies as not reasonably accessible because of undue burden or cost.’” Star Direct

Telecom, Inc. y. Glob. Crossing Bandwidth, Inc., 272 F.R.D. 350, 358 (W.D.N.Y, 2011)

(quoting Fed. R, Civ. P. 26(b)(2)(B)). The Federal Rules of Civil Procedure further

specify that:

On motion to compel discovery ... the party from whom discovery is

sought must show that the information is not reasonably accessible because

of undue burden or cost. If that showing is made, the court may

nonetheless order discovery from such sources if the requesting party

shows good cause, considering the limitations of Rule 26(b)(2)(C).

Fed, R. Civ. P. 26(b)(2)(B); see Stinson v. City of New York, 2015 WL 4610422, at *4

(S.D.N.Y. July 23, 2015) (“When determining a motion to compel the production of ESI,

a district court conducts a two-stage inquiry: first, has the party resisting discovery shown

that the information in question is not reasonably accessible because of undue cost, and

second, has the party requesting discovery nonetheless shown good cause to obtain it?”)

(emphasis in original). To determine if the requesting party has shown good cause, the

court must consider

whether (i) the discovery sought is unreasonably cumulative or duplicative,

or can be obtained from some other source that is more convenient, less

burdensome, or less expensive; (ii) the party seeking discovery has had

ample opportunity to obtain the information by discovery in the action; or

(iii) the burden or expense of the proposed discovery outweighs its likely

benefit, considering the needs of the case, the amount in controversy, the

parties’ resources, the importance of the issues at stake in the action, and

the importance of the discovery in resolving the issues.

Capitol Records, Inc. v. MP3tunes, LLC, 261 F.R.D. 44, 51 (S.D.N.Y. 2009) (internal

quotation marks omitted) (citing Fed. R. Civ. P. 26(b)(2)).

As Plaintiffs point out, at least some of the information they seek appears to reside

on Defendants’ active email systems and is therefore presumably accessible. See

Zubulake v. UBS Warburg LLC, 217 F.R.D, 309, 318-19 (S.D.N.Y. 2003) (holding that

“active, online data” is a category of ESI that is “typically identified as accessible”); see □

§

also Chen-Oster y. Goldman, Sachs & Co., 285 F.R.D, 294, 302 (S.D.N.Y. 2012)

(“Reasonabl[y] accessible sources generally include . . . files available on or from a

computer user’s desktop, or on a company’s network, in the ordinary course of

operation.”) (citation omitted), Although Defendants assert that it would be unduly

burdensome for them to produce ESI because Plaintiffs’ proposed search terms are

incompatible with Defendants’ email systems, they have not quantified that burden in

terms of the number of documents subject to collection and review or “the amount of

time and manpower that would be reasonably required” to comply with the requests.

Gross v. Lunduski, 304 F.R.D, 136, 152 (W.D.N.Y. 2014) (rejecting burdensomeness

objection where supporting affidavit was “too generalized and thus insufficient”).

Moreover, Defendant’s assertions of undue burden and expense must be weighed

against Plaintiffs’ need for the ESI discovery and “the importance of the discovery in

resolving the issues[.]” Fed. R. Civ. P. 26(b)(1); see also Tucker v. Am. Int'l Group.,

281 F.R.D. 85, 98 (D. Conn. 2012) (“[ Whether to require a responding party to

search for and produce information that is not reasonably accessible depends not only on

the burdens and costs of doing so, but also on whether those burdens and costs can be

justified in the circumstances of the case.”) (footnote omitted). The operation of the

checkpoint program, as well as the BPD’s and City officials’ knowledge of its alleged

targeting of minorities, are relevant to Plaintiffs’ claim that Defendants engaged in

intentional discrimination and violations of Plaintiffs’ and the putative class members’

constitutional rights. Because it is likely that emails and other ESI will contain

information that is probative of those issues, balancing this against Defendants’

unspecified burden in producing it weighs in favor of finding that Plaintiffs are entitled to

ESI discovery.

As for Plaintiffs’ request that ESI be produced with metadata, Local Rule of Civil

Procedure 26(e)(4) creates a presumption that “metadata .. . need not be routinely

produced” absent agreement of the parties or a showing of good cause by the requesting

party. Plaintiffs assert that metadata will permit them to search Defendants’ production

and is therefore necessary to satisfy the requirement that the ESI be provided ina

“reasonably usable form,” Fed. R. Civ. P. 34(b)(2)(E)Gi). However, Plaintiffs have not

established that the facilitation of searches by the requesting party is, on its own, “good

cause” to require the production of metadata under the Local Rules, Courts in the Second

Circuit have denied requests for metadata, even where the metadata itself might have

some probative value, where that potential value is “outweighed by the cost and burden

of production.” Wiley v. Paulson, 2007 WL 7059722, at *2 (E.D.N.Y. Sept. 26, 2007)

(finding plaintiffs’ speculative theory as to who drafted relevant emails did not show

good cause to compel production of metadata), see also Hui Qin Wang v. Jian Ping Yao,

2013 WL 2304180, at *2 (E.D.N.Y. May 17, 2013) (finding no good cause to require

production of metadata where it would not be probative ofa fact in dispute); Aguilar v.

Immigration & Customs Enforcement Div. of U.S. Dep’t of Homeland Sec., 255 F.R.D.

350, 360 (S.D.N.Y. 2008) (declining to order production of metadata where requesting

party failed to show that metadata would “yield useful information beyond that which the

Plaintiffs already have”). Against this backdrop, the court declines to order metadata for

all responsive ESI.

However, because the advisory committee notes to Rule 34 provide that ESI that is

“searchable by electronic means . . . should not be produced in a form that removes or

significantly degrades th[at] feature[,}” Fed. R. Civ, P. 34, advisory committee’s notes to

2006 amendments to subsection (b), Defendants must preserve the searchability of ES!

records by producing data in a text-searchable format. Plaintiffs are therefore entitled to

data documenting the date and time at which emails were sent and received, the sender,

and all recipients (including any copied and blind-copied recipients), See In re Payment

Card Interchange Fee & Merchant Discount, 2007 WL 121426, at *4 (E.D.N.Y, Jan, 12,

2007) (denying request for protective order that plaintiffs need not produce native files

and observing that plaintiffs’ claim of undue burden was weakened where no production

had been made and they had notice that defendants sought metadata).

Defendants request that the court consider cost-shifting if it orders production of

ESL while Plaintiffs respond that there is no basis for cost-shifting here. [n most

instances, “the party responding to discovery requests bears all costs associated with

10

production[,|” including of ESI. North Shore-Long Island Jewish Health Systems, Inc. v.

MultiPlan, Inc., 325 F.R.D. 36, 52 (E.D.N.Y. 2018) (citations omitted). However, when

the court orders production notwithstanding undue burden or expense for the responding

party, it should “consider cost-shifting of such production expenses to the requesting

party.” Jd, at 53 (internal quotation marks omitted). Local Rule of Civil Procedure

26(e)(2) provides that the party seeking discovery of ESI “may be required to pay all or a

portion of the costs of search, retrieval, review, and production of the information, upon

application to the Court.” To determine whether cost-shifting is warranted on a motion to

compel, the court considers:

1, The extent to which the request is specifically tailored to discover

relevant information;

2. The availability of such information from other sources;

3, The total cost of production, compared to the amount in controversy;

4, The total cost of production, compared to the resources available to each

party;

5, The relative ability of each party to control costs and its incentive to do

SO}

6. The importance of the issues at stake in the litigation; and

7. The relative benefits to the parties of obtaining the information.

Zubulake, 217 F.R.D. at 322; see also Hallmark v. Cohen & Slamowitz, LLP, 2016 WL

1128494, at *4 (W.D.N.Y. Mar. 23, 2016) (applying Zubwlake factors and concluding

cost-shifting not warranted).

In this case, Plaintiffs have narrowed their requests in accordance with a court

order. They have no access to Defendants’ email and other electronic files and have

requested ESI that is likely to contain relevant information. There is no evidence that the

equivalent information is available from other sources. To the extent that Defendants

claim they have already produced the requested information, they bear the burden of

demonstrating the accuracy of that claim, Although the amount in controversy has not

yet been specifically determined, in light of the serious nature of the claims presented, the

discovery sought is “proportional to the needs of the case[.]” Fed, R. Civ. P. 26(b)(1).

11

Defendants have not quantified their prospective discovery expenses beyond providing

quotes from an e-discovery vendor, but Defendants have some ability to control costs as

they have “sole control over the access to the relevant files.” Hallmark, 2016 WL

1128494, at *4. For the foregoing reasons, cost-shifting is not warranted.

Plaintiffs’ motion to compel the production of ESI is GRANTED IN PART,

subject to the following conditions: Plaintiffs must provide Defendants with a list of

twenty (20) priority search terms that are compatible with Defendants’ email systems,

Defendants must use those search terms to collect ESI for the twenty (20) priority

custodians previously identified by Plaintiffs. Defendants must produce responsive

documents in a text-searchable format on a rolling basis, with an initial production to be

made no later than twenty (20) days from the date on which Plaintiffs provide a revised

list of search terms. If Defendants choose to produce emails in a format that does include

metadata reflecting the date and time at which emails were sent and received, the sender,

and all recipients (including any copied and blind-copied recipients), they must

contemporaneously provide Plaintiffs with this information in some other form.

Defendants shall bear the costs of their ESI production.

B. Whether Defendants Must Produce BPD Unit Reports.

Plaintiffs seek production of the Reports, arguing that the quantitative data

contained therein will permit them to search for statistical evidence of improper

incentives for traffic ticketing while the narrative information contained in the Reports

may “provide information about where and why officers engage in [ticketing and other

traffic enforcement] activities, both of which are factual questions central to Plaintiffs’

Fourth Amendment, Equal Protection, and Due Process/revenue harvesting claims.”

(Doc. 34-1 at 19.) Defendants respond that Plaintiffs’ request is overbroad and unduly

burdensome and that the Reports contain certain categories of confidential information

that require redaction.

In Floyd v. City of New York, the court relied on monthly forms tracking officer

activity to support its conclusion that the New York City Police Department pressured

officers to increase the number of stops made without emphasizing that all such stops

12

must be lawful. See 959 F, Supp. 2d 540, 600-02 (S.D.N.Y. 2013). The court held that

“imposing numerical performance goals for enforcement activities, without providing

effective safeguards to ensure the activities are legally justified, could result in an officer

taking enforcement action for the purpose of meeting a performance goa! rather than

because a violation of the law has occurred.” Jd. at 602 (internal quotation marks,

footnote, and alteration omitted). In this case, the quantitative information in the Reports

may allow Plaintiffs to compare the activity of the Housing and Strike Force Units with

that of the Traffic Unit to demonstrate that the primary objective of the checkpoint

program was not to promote traffic safety but, rather, to generate and collect revenue for

the City.’

As for the narrative portions of the Reports, Plaintiffs argue they will “provide

information about where and why officers engage in [traffic enforcement] activities”

(Doc, 34-1 at 19). However, the examples produced by the Defendants do not provide

information regarding why locations were selected or the motivation for any enforcement

activity at checkpoints. See, e.g., Doc. 40-10 at 9 (“Check point at Isabelle/Laird Ave.”);

Doc, 40-11 at 4 (“Conducted checkpoints at Busti/Pennsylvania, Massachusetts/W

Utica/1 5th, Massachusetts/Shields, Auburn/Hoyt & Maryland/7th.”), 5 (“Conducted

checkpoints at Hampshire/Grant, Parkdale/Berkshire & Grant/Forest), 10 (Checkpoints:

Fillmore/Rodney,[]Walden/Sycamore,| ]Olympic/33,[|Midway/Comstock,

[|Peace/Doat”).> Similarly, references to “traffic,” “stop,” and related terms in the

‘ Plaintiffs also assert that the quantitative data in the Reports “could provide evidence of

potential quotas or other forms of pressure or incentives imposed by BPD or City leadership on

BPD officers to increase the quantity of their traffic enforcement activities,” which they contend

would support their “Due Process/revenue harvesting claim” based on Floyd v. City of New York,

959 F. Supp. 2d 540, 600-01 (S.D.N.Y. 2013), (Doc. 34-1 at 18.) In Floyd, the court found that

police department policies setting quotas for enforcement activities and requiring that officers be

evaluated based on their “activity levels” were evidence of deliberate indifference to

unconstitutional stops. The court found that police officer performance evaluation forms

reflected this “emphasis on enforcement activity numbers” consistent with an explicit written

policy. /d. at 601, It did not, as Plaintiffs propose to do, rely on the contents of the forms to

deduce the existence of a policy.

> The Strike Force Daily Reports contain one reference to intelligence developed at a checkpoint.

(See Doc. 40-11 at 6) (“Developed intel[ligence] at a checkpoint about [redacted] fraud[ulent]ly

13

exhibits document police activities without recording the rationale or motivation for those

activities. Based on these examples, Plaintiffs have not demonstrated that the narratives

in the Reports will be relevant to their claims.

Defendants have also raised significant proportionality concerns as Plaintiffs’

request for daily and monthly Reports for three units for an approximately six-year period

would require production of over 6,700 Reports. In addition, Defendants assert that some

of the information in the Reports is protected by the law enforcement privilege, the

purpose of which is “to prevent disclosure of law enforcement techniques and

procedures, to preserve the confidentiality of sources, to protect witness and law

enforcement personnel, to safeguard the privacy of individuals involved in an

investigation, and otherwise to prevent interference with an investigation.” Jn re Dep’t of

Investigation of City of New York, 856 F.2d 481, 484 (2d Cir. 1988); In re City of New

York, 607 F.3d 923, 941 (2d Cir. 2010). The privilege’s purpose is “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.” Nat’! Cong. for Puerto Rican Rights ex. rel. Perez vy. City of New York,

194 F.R.D. 88, 93 (S.D.N.Y. 2000) (internal quotation marks omitted) (citing /n re Dep't

of Investigation of City of New York, 856 F.2d at 486).

Plaintiffs contend that the law enforcement privilege is traditionally applied to

“undercover, internal governmental agency investigation[s], and other non-public-facing

law enforcement activities[,]” (Doc. 34-1 at 21), but the case law is not so limited. See

Arroyo vy, City of Buffalo, 2018 WL 4376798, at *6 (W.D.N.Y. Sept. 13, 2018) (finding

privilege applied to a request that defendants identify BPD policies and procedures); see

also In re City of New York, 607 F.3d at 944 (finding privilege applied to field reports

detailing undercover police operations); In re Dep’t of Investigation of City of New York,

856 F.2d at 485 (finding law enforcement privilege applied to Mayor’s letter appointing

allowing individuals with unregistered [and] uninspected motor vehicles to ““rent’ dealer plates.

Took the plates to the DMV office on Dingens St[reet and] met with their investigators.”). This

narrative does not explain why the checkpoint was conducted.

14

special counsel for investigation); Nat’! Cong. for Puerto Rican Rights, 194 F.R.D, at 97

(ordering disclosure of limited summary information from officer disciplinary records

subject to law enforcement privilege).

“Once a court has determined that the law enforcement privilege applies, ... there

ought to be a... strong presumption against lifting the privilege.” Jn re City of New

York, 607 F.3d at 945 (internal quotation marks omitted), The requesting party may

overcome the presumption by showing “(1) that its 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 information sought is important to the party’s case.”

Id. (internal quotation marks and brackets omitted). Even if the requesting party can

make such a showing, a court must still weigh “the public interest in

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

information” before ordering disclosure. /d. at 948 (internal quotation marks omitted).

The court cannot evaluate the applicability of the law enforcement privilege

without a privilege log and an in camera inspection of the Reports. However, because

the sample Reports provided by Defendants do not support Plaintiffs’ theory of

relevance, a time-consuming and in-depth review would not be proportional to the needs

of the case. See Citizens Union of City of New York v, Attorney General of N.Y., 269 F.

Supp. 3d 124, 165 (S.D.N.Y. 2017) (declining to order production of documents for in

camera review “because [plaintiffs have failed to establish how they are relevant and

proportional to the needs of this case”). The court therefore DENIES Plaintiffs’ motion

to compel the production of the Reports without prejudice to renew with a more

particularized request.

C, Whether Defendants Must Produce the IAD Files.

Plaintiffs provided Defendants with a list of ten search terms for use in querying

Defendants’ IAD database of citizen complaints. Defendants ran the search terms and

provided Plaintiffs with summary spreadsheets identifying information about the

responsive complaints, including the date of the complaint, the general topic (“use of

force,” “conduct,” etc.), and a brief narrative description. (See Doc. 42-9 at 2-27.)

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Plaintiffs reviewed this summary and requested that Defendants disclose the full files for

168 complaints which they believe support their claim that Defendants had notice of BPD

officers’ allegedly unconstitutional conduct. Defendants oppose this request on the

grounds that it is overly broad, unduly burdensome, not reasonably calculated to lead to

admissible evidence, and seeks discovery of information that may be protected from

disclosure by Section 50-a, Ifthe court orders Defendants to produce the IAD files,

Defendants request “an in camera review of anything ordered produced, an order

addressing .. . [Section] 50-a, and a protective order specifying that [] any documents

produced shall! be kept confidential, used only for the purposes of this case, and that the

disclosure shall be restricted to [P]laintiffs’ attorney’s eyes only in this case,” (Doc. 45 at

2-3, 99.)

Where a plaintiff brings a claim against a municipality under 42 U.S.C, § 1983,

the plaintiff must show that the need for more or better supervision to

protect against constitutional violations was obvious. An obvious need

may be demonstrated through proof of repeated complaints of civil rights

violations; deliberate indifference may be inferred if the complaints are

followed by no meaningful attempt on the part of the municipality to

investigate or to forestall further incidents.

Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir, 1995) (citation omitted). In a case

alleging deliberate indifference, “prior complaints made against the defendants, whether

substantiated or not, are discoverable .. . so long as the complaints are similar to the

constitutional violations alleged in the complaint[.]” Sowed/ v. Chappius, 2010 WL

1404004, at *1 (W.D.N.Y. Mar. 31, 2010); see also Fiacco v, City of Rensselaer, N.Y.,

783 F.2d 319, 328 (2d. Cir. 1986) (“Whether or not the claims had validity, the very

assertion of a number of such claims put the City on notice that there was a possibility

that its police officers had used excessive force.”). [AD files recording complaints and

investigations of claims against the BPD related to racial profiling and discrimination,

traffic enforcement, and traffic checkpoints are well within the scope of discovery

authorized by Federal Rule of Civil Procedure 26(b)(1). See Dobson v. Dougherty, 2018

WL 6321390, at *4 (W.D.N.Y. Dec, 4, 2018) (ordering disclosure of complaint against

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sheriff’s deputy to plaintiffs if it “involve[d] conduct similar in nature to the behavior

alleged in [plaintiffs’ § 1983] lawsuit”).

To support their claim of undue burden, Defendants “must submit an affidavit or

other evidence revealing the nature of the burden.” Gross, 304 F.R.D, at 151.

Defendants’ counsel affirmed in his declaration that the IAD files at issue are stored in

multiple locations such that “if a search was to be performed, it would require either an

Officer or some other City employee to suspend other daily duties to physically pull each

file[.]” (Doc. 45 at 5, 21.) As only 168 files are at issue, this burden is hardly

insurmountable. In any event, “the burden that results from disorganized record-keeping

does not excuse a party from producing relevant documents.” Brooks v. Macy’s, Inc.,

2011 WL 1793345, at *4 (S.D.N.Y. May 6, 2011) (citation omitted); see also Kozlowski

v. Sears, Roebuck & Co., 73 F.R.D. 73, 76 (D. Mass. 1976) (“To allow a defendant

whose business generates massive records to frustrate discovery by creating an

inadequate filing system, and then claiming undue burden, would defeat the purposes of

the discovery rules.”).

As for Defendants’ objection that Plaintiffs’ request is overbroad, courts in this

District have generally limited an overbreadth challenge to requests for all grievances and

complaints filed against defendants. See, e.g., Melendez v, Falls, 2010 WL 811337, at *4

(W.D.N.Y. Mar. 3, 2010) (finding request for “any and all grievances filed by inmates”

for a four-year period was overbroad); Ashford v. Goord, 2009 WL 2086838, at *4

(W.D.N.Y. July 10, 2009) (finding request for “all grievances and complaints filed

against defendants , , . since June 1, 2002” was overbroad). Here, by contrast, Plaintiffs

have narrowed their request to only those IAD files that are likely to be relevant to their

claims. In addition, because evidence of the sufficiency of internal investigations may be

probative of deliberate indifference, the entirety of the IAD file is discoverable. See

Fiacco, 783 F.2d at 331 (finding a rational juror could conclude the city demonstrated

deliberate indifference to constitutional violations based on an “uninterested and

superficial” response to complaints); Jenkins v. City of New York, 2019 WL 2367060, at

*9 (E.D.N.Y. June 5, 2019) (“[A] reasonable juror could conclude that the persistent

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inadequacies in the . . . investigations demonstrate that City officials ... were indeed

indifferent to whether or not excessive force was used.”) (internal quotation marks

omitted), Because Plaintiffs have limited their request to those IAD files that pertain to

the issues raised in their Complaint, it is not overbroad.

Defendants also assert that the IAD files may not be produced without a court

order pursuant to Section 50-a, which provides that “[a]l1 [police] personnel records used

to evaluate performance toward continued employment or promotion . . , shall be

considered confidential and not subject to inspection or review without the express

written consent of [the employee] ... except as may be mandated by lawful court order.”

Section 50-a specifies the procedure for the production of covered records as follows:

Prior to issuing such court order [requiring production] the judge must

review all such requests and give interested parties the opportunity to be

heard... . If, after such hearing, the judge concludes there is a sufficient

basis he shall sign an order requiring that the personnel records in question

be sealed and sent directly to him, He shall then review the file and make a

determination as to whether the records are relevant and material in the

action before him. Upon such a finding the court shall make those parts of

the record found to be relevant and material available to the persons so

requesting.

Nonetheless, Section 50-a “‘is not really a privilege in the sense that it could justify

complete refusal to disclose relevant evidence.’” Martin v. Lamb, 122 F.R.D. 143, 146

(W.D.N.Y, 1988) (quoting King v. Conde, 121 F.R.D, 180, 191-92 (E.D.N.Y. 1988)) and

“it is undisputed that under federal law ... [S]ection 50-a does not prohibit discovery of

police personnel documents.” Worthy v. City of Buffalo, 2014 WL 4640884, at *3

(W.D.N.Y. Sept. 16, 2014), As a result, “federal courts consider the legislative intent

prompting enactment of... [Section] 50-a and effectuate that intent to the extent that it

does not impede federal interests.” Mitchell v. Whitenight, 2013 WL 5936978, at *1

(W.D.N.Y. Nov. 4, 2013) (citing King, 121 F.R.D. at 187).

The desire to “prevent time consuming and perhaps vexatious investigation into

irrelevant collateral matters... and... avoid embarrassment and harassment of

testifying officers by cross-examination concerning unsubstantiated and irrelevant

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matters in their personnel files” is sufficient to justify an in camera review. Evans vy.

Murphy, 2013 WL 2250709, at *4 (W.D.N.Y. May 22, 2013) (internal quotation marks

omitted). However, other measures, such as attorneys’ eyes only production, may

alleviate the judicial burden if the records in question are voluminous. See Rashada v.

City of Buffalo, 2013 WL 474751, at *5 (W.D.N.Y. Feb. 6, 2013) (ordering production of

BPD personnel files without in camera review subject to attorneys’ eyes only

designation); Smith v. Goord, 222 F.R.D, 238, 241, 243 (N.D.N_Y. 2004) (finding that

“adoption of a practice of routinely conducting an in camera inspection whenever the

specter of .. . [Section] 50-a is raised would potentially cast a considerable burden on the

court” and ordering production of Department of Correctional Services personnel records

subject to a protective order “restricting the dissemination of such information to counsel

and counsel’s agents, to the exclusion of the plaintiff’).

Notwithstanding Plaintiffs’ objection that restricting access to the LAD files to

attorneys’ eyes only would impede their ability to strategize with counsel, that restriction

is one way in which the court can “effectuate” the intent of Section 50-a without

impeding] federal interests.” Mitchell, 2013 WL 5936978, at *1. Plaintiffs may elect

between the submission of the relevant files for an in camera review or production of the

files subject to a protective order limiting disclosure of the files to attorneys’ eyes only.

Upon Plaintiffs’ election, Defendants shall have thirty (30) days to produce the relevant

files. For the reasons stated above, Plaintiffs’ motion to compel the 168 IAD files in their

entirety is GRANTED.

D. Attorney’s Fees,

Plaintiffs request attorney’s fees and costs if the court grants their motion to

compel the production of ESI and the Reports.® (Doc. 34 at 1.) Pursuant to Fed. R. Civ.

P, 37(a)(S){A),

If the motion [to compel] is granted... the court must, after giving an

opportunity to be heard, require the party ... whose conduct necessitated

6 Plaintiffs did not request an award of costs in their motion to compel the production of the IAD

files. (Doc. 42.) Thus, only the request in Plaintiffs’ first motion to compel (Doc, 34) is before

the court.

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the motion, the party or attorney advising that conduct, or both to pay the

movant’s reasonable expenses incurred in making the motion, including

attorney’s fees, But the court must not order this payment ift (i) the

movant filed the motion before attempting in good faith to obtain the

disclosure or discovery without court action; (ii) the opposing party’s

nondisclosure, response, or objection was substantially justified; or (11)

other circumstances make an award of expenses unjust.

Ifa motion to compel is granted in part and denied in part, “the court may issue any

protective order authorized under Rule 26(c) and may, after giving an opportunity to be

heard, apportion the reasonable expenses for the motion.” Fed. R. Civ. P. 37(a)(5)(C).

“(T]he test for avoiding the imposition of attorney’s fees for resisting discovery in

district court is whether the resistance was substantially justified, ... or if reasonable

people could differ as to the appropriateness of the contested action[.|” Pierce v.

Underwood, 487 U.S. 552, 565 (1988) (internal quotation marks and alteration omitted).

In this case, the parties had a genuine, good faith dispute with regard to what must be

produced, with each party advocating a reasonable position, Plaintiffs’ request for an

award of attorney’s fees and costs in connection with their motion to compel (Doc. 34) is

therefore DENIED.

CONCLUSION

For the foregoing reasons, Plaintiffs’ motion to compel the production of ESI and

the Reports (Doc, 34) is GRANTED IN PART and DENIED IN PART without prejudice

as to the request for production of the Reports, Plaintiffs’ request for attorney’s fees and

costs is DENIED. Their motion to compel the production of the IAD files (Doc. 42) is

GRANTED IN PART. The parties are further ORDERED as follows:

(1) Plaintiffs must provide Defendants with a list of twenty (20) priority search

terms that are compatible with Defendants’ email systems. Defendants must

use those search terms to collect ESI for the twenty (20) priority custodians

previously identified by Plaintiffs. Defendants must produce responsive

documents in a text-searchable format on a rolling basis, with an initial

production to be made no later than twenty (20) days from the date on which

Plaintiffs provide a revised list of search terms. If Defendants choose to

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produce emails in a format that does not include metadata, they must

contemporancously provide Plaintiffs with the date and time at which emails

were sent and received, the sender, and all recipients (including any copied and

blind-copied recipients). Defendants shall bear the costs of their ESI

production.

(2) Plaintiffs must notify the court of their choice between an in camera review of

the 168 IAD files or production of the files subject to attorneys’ eyes only

restriction. If Plaintiffs elect for production for attorneys’ eyes only, the

parties should submit to the court a proposed protective order limiting

disclosure of the IAD files to counsel and counsel’s agents. Defendants shall

have thirty (30) days from the date of Plaintiffs’ election to provide the

relevant files.

“To the extent that Defendants redact or withhold in full any material that they

assert is protected from discovery by privilege, they are hereby ORDERED to provide

Plaintiffs with a privilege log containing the information specified in Fed. R. Civ, P.

26(b)(5)(A).

SO ORDERED.

Dated this aa ‘day of December, 2019, □□

Christina Reiss, District Judge

United States District Court

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