Casaccia v. City of Rochester

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

_________________________________________________

MICHAEL CASACCIA and

MARYBETH CASACCIA, DECISION AND ORDER

vs. 17-CV-6323 MAT/MJP

CITY OF ROCHESTER, et al.,

________________________________________________

Pedersen, M.J. Before the Court are Plaintiffs’ motion to compel production

of documents, to compel City defendants1 to designate a Rule 30(b)(6) witness, to

sanction City Defendants for discovery misconduct, and to modify the scheduling

order. (Notice of Motion to Compel, Aug. 26, 2019, ECF No. 45.) Also pending is an

application by certain defendants represented by Spencer L. Ash, Esq., to sever

Monell2 discovery. (Notice of Motion, Aug. 29, 2019, ECF No. 47.) The Court heard

oral argument on the motions on February 13, 2020, and now issues its decision. The

Court must first decide the defense motion to sever the Monell discovery, as that will

impact on Plaintiffs’ motion to compel.3

1 In his Decision and Order of January 8, 2018 (ECF No. 17), the Hon. Michael A.

Telesca grouped the following defendants together under the heading of the City Defendants:

The City of Rochester, the Rochester Police Department, Rochester Police Sergeant Kevin

Leckinger, and Rochester Police Officers Audrey DiPoala, Gary Wegman, Matthew

Cushman, Joshua Hall, and Amy Bauer. The Rochester Police Department was terminated

as a named defendant. The Court will employ the same heading for the City defendants here.

2 Monell v. Dep’t of Soc. Svcs. of City of New York, 436 U.S. 658 (1978).

3 The Rural Metro defendants (consisting of Rural/Metro Corporation, Robert Young,

and John Doe) have stated they are not impacted by the motion to compel and those

defendants have taken no position on that application. They do support the motion to

bifurcate. (Naylon Aff. ¶ 3, Aug. 30, 2019, ECF No. 48.) The Rural Metro defendants,

however, pose no objection to Plaintiff’s counsel’s proposal to extend the discovery deadlines

PROCEDURAL BACKGROUND

This matter is before the Court on City Defendants’ motion to bifurcate (ECF

No. 47) and Plaintiffs’ Second Motion to Compel (ECF. 45.) The parties appeared

before this Court for oral argument on February 13, 2020.

By way of background, this matter was originally referred to the Hon.

Jonathan W. Feldman and then was referred to the undersigned upon Judge

Feldman’s retirement in November 2019. The City of Rochester filed a motion to

dismiss (ECF No. 11) which was granted and denied in part by United States District

Judge Michael A. Telesca. Judge Telesca granted the motion to dismiss with respect

to all of Plaintiffs’ claims against the Rochester Police Department and dismissed

Plaintiffs’ claims against the City of Rochester that were based on a theory of

supervisory liability as well as Plaintiffs’ state law claims for intentional and

negligent infliction of emotional distress.

Judge Feldman issued a scheduling order (ECF No. 22) after he held a

scheduling conference on July 25, 2018. Plaintiffs’ counsel, Elliott Shields, Esq., filed

a motion for extension of discovery deadlines as well as a motion to opt out of the

mediation program. (ECF No. 26.) Shortly thereafter, he filed an amended complaint

(ECF No. 29).

City Defendants then filed a motion to dismiss on April 15, 2019 (ECF No. 30),

the same day that an unsuccessful mediation was held before Steven V. Modica, Esq.

(ECF No. 31.) Shortly thereafter, Plaintiff filed a motion to strike City Defendants’

and implied that two of Plaintiff’s witnesses were uncooperative with a process server. (Id.

¶ 11.)

answer as well as a motion for sanctions, a modification of the scheduling order, and

seeking attorney’s fees. (ECF No. 32.) On May 16, 2019, Spencer Ash, Esq., filed

objections to the Plaintiffs’ motions via his letter to the Court (ECF No. 38), and filed

a separate response on the same day. Judge Telesca issued his decision and order

(ECF No. 43) on August 15, 2019, in which he denied City Defendants’ motion to

dismiss the amended complaint as moot and denied Plaintiffs’ request to amend their

complaint. Additionally, Judge Telesca granted Plaintiffs’ motion to strike City

Defendants’ answer and granted them leave to re-file their answer. Judge Telesca

also denied Plaintiffs’ motion for sanctions. Of note, Judge Telesca in his decision and

order stated,

very little progress has been made to move the case towards a resolution

or trial. The parties are on notice that failure to move the case forward

in compliance with the above-mentioned deadlines may result in the

Court’s issuance of an Order to Show Cause as to why the case should

not be dismissed for failure to prosecute.

(Id. at 39.)

On August 26, 2019, Plaintiff filed a second motion to compel discovery (ECF

No. 45) and a motion to expedite the hearing of their second motion to compel (ECF

No. 46). Subsequently, City Defendants filed a Motion to Bifurcate (ECF No. 47). On

September 6, 2019, Judge Feldman held a status conference with the parties and

issued an order (ECF No. 52), in which he denied Plaintiffs’ motion to expedite and

directed the parties to review his previous decisions with regard to motions to compel

personnel records. Judge Feldman stated in his decision that “the Court’s position

generally is that if the records pertain to similar conduct as is set forth in the

complaint or are relevant to the defendant’s truth or veracity, they must be provided.”

(Id. at 2.) Judge Feldman further directed that City Defendants’ Motion to Bifurcate

would be heard before Judge Telesca. The parties briefed the motion to bifurcate and

shortly thereafter, City Defendants filed a motion for summary judgment on October

29, 2019 (ECF No. 58), to which Plaintiff emailed the Court a letter requesting that

Plaintiff not be required to respond to the motion for summary judgment and that

the Court impose discovery sanctions. Notwithstanding the improper method of

requesting leave of the Court, Judge Telesca denied Plaintiffs’ requests (ECF No. 59)

and advised Plaintiffs’ counsel that if he “disregards the Court’s scheduling order, it

is at his and his clients’ peril.” (Id.)

City Defendants filed a status report on November 19, 2019, with the Court

(ECF No. 62) in which they contended that “it is the City Defendants’ position that

pending an order from the Court ordering Monell discovery, all relevant discovery

has been completed and there is sufficient proof in the record to decide the summary

judgment motion.” (Id.) On December 12, 2019, the motion for summary judgment

was submitted to the Court without oral argument.

On January 24, 2020, Judge Telesca directed by text order (ECF No. 69), that

the motion to bifurcate (ECF No. 47) and the second motion to compel City

Defendants to provide discovery (ECF No. 45) would both be referred to the

undersigned for adjudication.

MOTION TO BIFURCATE THE MONELL DISCOVERY

The Court may grant a motion to bifurcate discovery “‘[f]or convenience, to

avoid prejudice, or to expedite and economize.’” Charvat v. Plymouth Rock Energy,

LLC, No. 15-CV-4106 (JMA) (SIL), 2016 WL 207677, *1 (E.D.N.Y. Jan. 12, 2016)

(quoting Koch v. Pechota, No. 10 Civ. 9152, 2012 WL 2402577, at *6 (S.D.N.Y.

June 26, 2012)). Generally, it is presumed that all claims will be resolved at a single

trial:

In actions at law the general practice is to try all the issues in a case at

one time; and it is only in exceptional instances where there are special

and persuasive reasons for departing from this practice that distinct

causes of action asserted in the same case may be made the subjects of

separate trials. Whether this reasonably may be done in any particular

instance rests largely in the court’s discretion.

Miller v. Am. Bonding Co, 257 U.S. 304, 308 (1921); accord Altman v. New Rochelle

Pub. School Dist., 2017 WL 66326 (S.D.N.Y. Jan. 6, 2017) (citing Miller in denying

bifurcation). In determining whether to bifurcate, a court may consider,

(1) whether the issues are significantly different from one another;

(2) whether the issues are to be tried before a jury or to the court;

(3) whether the posture of discovery on the issues favors a single trial or

bifurcation; (4) whether the documentary and testimonial evidence on

the issues overlap; and (5) whether the party opposing bifurcation will

be prejudiced if it is granted.

Dallas v. Goldberg, 143 F. Supp. 2d 312, 315 (S.D.N.Y. 2001), opinion modified on

denial of reconsideration, No. 95 CIV. 9076 (LTS) (RL, 2002 WL 1013291 (S.D.N.Y.

May 20, 2002).

City Defendants’ motion argues that “[t]his case is frivolous, and before the

City of Rochester is tied up in lengthy and burdensome Monell discovery, the Court

should first decide whether there is sufficient evidence on summary judgment to

proceed against the individual officers.” (City Def.s’ Mem. of Law 2, Aug. 29, 2019,

ECF No. 47-8.) In contrast, Plaintiff argues that Monell liability here is not dependent

on a finding that individual officers violated Plaintiffs’ rights. The Second Circuit has

held on this issue that:

It does not follow, however, that the plaintiff must obtain a judgment

against the individual tortfeasors in order to establish the liability of the

municipality. It suffices to plead and prove against the municipality that

municipal actors committed the tort against the plaintiff and that the

tort resulted from a policy or custom of the municipality. In fact, the

plaintiff need not sue the individual tortfeasors at all, but may proceed

solely against the municipality.

Askins v. Doe No. 1, 727 F.3d 248, 253 (2d Cir. 2013). The complaint sufficiently

alleges that one or more of the municipal actors committed a constitutional tort

against Plaintiff. Further, in his Decision and Order of January 8, 2018, (ECF No.

17), Judge Telesca determined that Plaintiffs’ complaint,

alleges sufficient factual matter, accepted as true, to state a claim

against the City under Monell. In particular, Plaintiffs’ allegations that

(1) the City had a policy and custom of failing to investigate police

misconduct complaints or to refer such complaints to the Rochester

Civilian Review Board (the “RCRB”) ; (2) the City improperly permitted

the RPD to control and influence the processing of police misconduct

cases, rather than allowing the RCRB to function independently; and

(3) the City’s policy and custom of failing to properly investigate or

process police misconduct complaints amounts to deliberate indifference

are specific factual allegations that, if proven to be true, could

potentially support the imposition of liability on the City. See, e.g., Iqbal,

556 U.S. at 678. Accordingly, to the extent that the City Defendants’

seek dismissal of Plaintiffs’ fourth cause of action in its entirety, that

request is denied [and] . . . the City Defendants’ argument that

Plaintiffs’ federal claims against the City must be dismissed as a matter

of law to the extent they are based on allegedly negligent hiring,

training, and supervision is without merit.

(Decision and Order at 11–12 & 14, ECF No. 17 (footnote omitted).)

The Court disagrees with City Defendants’ argument that the case is frivolous,

or that Plaintiff must obtain a judgment establishing individual liability before his

Monell claim would be viable. City Defendants have not made a showing that

bifurcation would meet any of the factors mentioned above. The issues under Monell

are not significantly different from the issues concerning the individual actions of the

municipal actors. The issues will be tried before a jury. Plaintiff has already expended

time on producing discovery pertinent to his Monell claim and has alleged that

granting the motion to bifurcate discovery would be prejudicial to him. Finally, the

documentary and testimonial evidence is likely to overlap. Accordingly, the Court

denies City defendants’ motion to bifurcate.

MOTION TO COMPEL PRODUCTION OF DOCUMENTS

City Defendants oppose Plaintiffs’ motion to compel arguing that,

There is nothing about the facts and circumstances of this case that

warrant a fishing expedition into the City’s personnel, training and

policy documents. Plaintiffs’ counsel should not be permitted to collect

and warehouse sensitive municipal documents on a case this thin.

Despite Plaintiffs’ arguments to the contrary, there can be no municipal

liability where no individual liability is found.

(Reply, Oct. 3, 2019, ECF No. 54.) Plaintiff seeks several types of documentary

evidence. At oral argument, defense counsel maintained that he had provided the

General Orders which echoed the training documents Plaintiff requested (and

contended that Plaintiffs’ counsel had a library of general orders gathered from prior

cases). However, defense counsel responded that he was not permitted to use any

discovery from prior cases pursuant to a protective order the parties entered into in

those prior cases. City Defendants have not moved for a Court protective order, but

the parties have signed a stipulated protective order. (Stipulated Protective Order,

Aug. 26, 2019, ECF No. 45-19.) The Court will address Plaintiffs’ demands

individually.

Officer Disciplinary and Personnel Records

Federal Rule of Civil Procedure 26(b) limits discovery to,

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, and

whether the burden or expense of the proposed discovery outweighs its

likely benefit. Information within this scope of discovery need not be

admissible in evidence to be discoverable.

The Court finds that the records of discipline and training of the officers involved in

the allegedly unconstitutional conduct here are relevant and should be produced. Not

only are those records relevant to Plaintiffs’ Monell claims, but they relate to City

Defendants’ affirmative defenses, particularly the second (“Defendants acted in the

reasonable and good faith belief that their actions were lawful and constitutional”),

the sixth (“[t]he official actions of the City of Rochester, its employees, agents or

representatives, jointly and severally, constituted a good faith exercise of discretion

and judgment, for which the City of Rochester and its employees, agents or

representatives are immune from common-law liability”), and seventh (“Defendants’

actions were reasonable and they are entitled to qualified immunity”). (City

defendants’ Re-Filed Answer, Aug. 20, 2019, ECF No. 44.) The Court has already

determined that the case is not frivolous, and the records sought by counsel are within

City Defendants’ control and City Defendants have not argued that their production

would be a significant expense. As to City Defendants’ concern about privacy, and

avoiding the warehousing of information about officers, the Court will repeat the

language from the Honorable Jonathan W. Feldman’s Order of September 12, 2019

(ECF No. 52):

2. The parties are directed to review [Judge Feldman’s] prior decisions

on motions to compel personnel records. See, e.g., Redd v. City of

Rochester, No. 15-cv-6049, 2016 WL 4702831, at *2 (W.D.N.Y. Sept. 7,

2016); Venable v. Morabito, No. 10-CV-6624, 2012 WL 4120397, at *l

(W.D.N.Y. Sept. 19, 2012); Simcoe v. Gray, No. 10-CV-6531, 2012 WL

1044505, at *3 (W.D.N.Y. Mar. 28, 2012); Edwards v. Skelly, No. 07-CV-

6343, 2012 WL 1029492, at *l (W.D.N.Y. Mar. 26, 2012); Cox v.

McClellan, 174 F.R.D. 32, 34-35 (W.D.N.Y. 1997). The Court’s position

generally is that if the records pertain to similar conduct as is set forth

in the complaint or are relevant to the defendant’s truth or veracity, they

must be provided.

3. Defendants shall have until [March 23, 2020]to provide plaintiffs

with any records not objected to. Any other records to which the defense

has an objection are to be provided to the Court for in camera review.

(Order ¶¶2–3, Sept. 12, 2019, ECF No. 52.) Accordingly, to the extent not already

done, City Defendants are directed to produce no later than March 23, 2020, the

following:

8. All documents concerning the use of force incidents and unusual

incidents, including, without limitation, any Civilian Review Board and

Professional Standards Section files, and use of force and/or unusual

incident packages, where one or more of the Officer Defendants either

(a) prepared, either as participants or witnesses, the document(s) or

(b) were identified as having been present or involved in the incident.

Responsive documents shall include incidents that occurred from the

beginning of the Officer Defendants’ employment with RPD to the

present.

9. The personnel files and institutional files of each of the Officer

Defendants, including the pre-employment psychological screening tests

and evaluations.

10. All documents concerning or reflecting interviews of the Officer

Defendants by supervisors or members of the Professional Standards

Section in connection with the Officer Defendants’ participation in use

of force incidents.

12. Copies of all Notices of Claim filed with the City of Rochester

involving incidents where any of the Officer Defendants were accused

of: false arrest, assault, battery, excessive force, malicious prosecution,

falsification of evidence, dishonest or false written or oral statements or

testimony.

14. All documents reflecting the filing and disposition of any disciplinary

charges that were lodged against any and all Officer Defendants

regarding allegations of false arrest, assault, battery, excessive force,

malicious prosecution, falsification of evidence, dishonest or false

written or oral statements or testimony.

15. Every Subject Resistance Report (a) prepared by an Officer

Defendant or (b) identifying an Officer Defendant as having been

present during or involved in any use of force incident, where the

arrestee(s) were charged with one or more of the following offenses:

Resisting Arrest, Disorderly Conduct, Obstruction of Governmental

Administration, Assault on a Police Officer. Responsive documents shall

include incidents that occurred from the date of each Officer Defendant’s

16. Produce the complete Professional Standards Section file for each

Officer Defendant. Responsive documents shall include incidents that

occurred from the beginning of the Officer Defendants’ employment with

RPD to the present.

17. Produce the complete Professional Development Section file for each

Officer Defendant. Responsive documents shall include incidents that

occurred from the beginning of the Officer Defendants’ employment with

RPD to the present.

18. Produce all records regarding whether any of the Officer Defendants

have ever been placed on Force Monitoring.

19. Produce the complete Professional Standards Section file for every

RPD Substantiated Force Incident, including but not limited to the

following incident numbers: 13-1274, 14-0101, 15-0299, 14-0762, 14-

0243, 15-0132, 15-0132, 15-0132, 15-0132, 17-0504, 16-0628, 16-0679. In

responding to this request, you may limit your responses to RPD

Substantiated Force Incidents from January 1, 2002 to present.

20. Produce the complete Professional Standards Section fine and CRB

file for every CRB Substantiated Force Incident, including but not

limited to the following incident numbers: 13-0172; 13-0385; 13-1274;

14-0101; 14-0101; 14-0101; 14-0101; 13-1140; 15-0299; 14-0404; 14-

0762; 14-0762; 14-0787; 17-0027; 16-0327; 14-0243; 15-0132; 15-0132;

15-0132; 15-0132; 16-0817; 16-0817; 16-0817; 16-0817; 16-0817; 16-

0817; 17-0504; 16-0628; 16-0628; 16-0679; 16-0679; 16-0679. In

responding to this request, you may limit your response complaints the

CRB sustained between January 1, 2002 and the present.

26. Produce each incident report and Subject Resistance Report created

in connection with any arrest and/or use of force incident involving any

Officer Defendant from May 23, 2010 to present, where the arrest

charges included at least one of the following: Resisting Arrest,

Disorderly Conduct, Obstruction of Governmental Administration,

Assault on a Police Officer.

Should the Court find that City Defendants have objected to the disclosure of

a voluminous amount of the above-demanded documentation, such that it would be

required to conduct an in camera review of an impractically large amount of

documentation, the Court will consider the appointment of a Discovery Master per

Federal Rule of Civil Procedure 53, allocating the costs equitably between the parties,

taking into consideration “the extent to which any party is more responsible than the

other parties for the reference to a master.” Fed. R. Civ. P. 53(g)(3). See, e.g., Winfield

v. City of New York, No. 15-CV-5236 (LTS) (KHP), 2018 WL 2148435 (S.D.N.Y.

May 10, 2018) (magistrate judge’s decision to appoint special master for discovery).

Based on the congenial nature of counsel’s interactions at the oral argument of this

motion, however, the Court contemplates that counsel will confer and only require

the Court’s intervention for serious disputes regarding disclosure.

Claim of Privilege Regarding Training Materials

City Defendants’ objection to providing responses to Plaintiffs’ document

demands numbers 7, 21, 22, and 25, on the basis of privilege, are overruled. In order

to claim a privilege, City Defendants would have had to produce a privilege log listing

the document and the privilege claimed. Fed. R. Civ. P. 26(b)(5)(A)(ii). City

Defendants have not done so, nor have they provided a basis for the Court to evaluate

any privileges that might apply.4 Therefore, to the extent not already done, City

Defendants will produce the following documents by March 23, 2020 to Plaintiff:

7. All documents issued, created, distributed and/or circulated by RPD

to officers and employees between May 23, 2010 and May 23, 2016

(regardless of when the documents were issued, created, distributed

and/or circulated) setting forth agency policy and procedures with

respect to the use of force and the reporting of force. These documents

include but are not limited to training materials provided to recruit

officers at the Police Academy (before their initial patrol assignments)

and to uniformed staff members who receive “on the job training” at the

Academy and in the field; operation orders; directives; institutional

orders; memoranda or other writings.

21. Produce copies of all manuals and training materials outlining the

duties and responsibilities of the RPD’s Research & Evaluation Section.

22. Produce copies of all “performance assessment manuals” that lay out

the guidelines to be used by evaluating supervisors. (See GO 207 V. E.

2.).

25. Produce all RPD policy and training materials regarding the legal

requirements to arrest an individual for the following crimes: resisting

arrest, assault on a police officer, harassment, disorderly conduct,

obstruction of governmental administration, and trespass. You may

limit your response to training materials used by the RPD between

January 1, 2002 and the present.

City Defendants are directed to disclose by March 23, 2020, records relevant

to document demand 26 under the same conditions as were laid out in Judge

Feldman’s September 12, 2019, Order. (Order ¶¶2–3, Sept. 12, 2019, ECF No. 52.)

4 For example, in response to document demand 22, the City defendants stated:

“Objection. Defendants object to any disclosure of information related to internal policies and

procedures regarding criminal investigations or RPD means and methods as same are

privileged.” (Def.s’ Resp. to Pl.’s First Set of Interrogs and Req. for Produc. of Docs. at 14,

Aug. 26, 2019, ECF No. 45-14.)

RPD Training Records Regarding Obstruction of Governmental

Administration, Resisting Arrest, Disorderly Conduct and/or Assault on a

Police Officer, and Arrest and Use-of-Force Records from Other Incidents

Involving Those Charges.

Plaintiffs’ document request 26 seeks the following:

26. Produce each incident report and Subject Resistance Report created

in connection with any arrest and/or use of force incident involving any

Officer Defendant from May 23, 2010 to present, where the arrest

charges included at least one of the following: Resisting Arrest,

Disorderly Conduct, Obstruction of Governmental Administration,

Assault on a Police Officer.

(ECF No. 45-4.) City Defendants object to this request on the grounds that the records

pertain to confidential personnel matters, citing New York Civil Rights Law section

50-a, and that any disclosure would require an in camera inspection by the Court

before release. Additionally, City Defendants object that these records are irrelevant.

(ECF 45-14.) The Court finds that the records are relevant to Plaintiffs’ claims

against City Defendants and proportional to the needs of the case. Fed. R. Civ. P.

26(b). Further, the City Defendants’ privacy concerns are not the type safeguarded

by the statute on which they rely.

Most information requested by civil rights plaintiffs in these lawsuits

deals with professional personnel records, such as prior involvement in

disciplinary proceedings or citizen complaints filed against the officers.

The privacy interest in this kind of professional record is not substantial,

because it is not the kind of “highly personal” information warranting

constitutional safeguard.

King v. Conde, 121 F.R.D. 180, 191 (E.D.N.Y. 1988). As this Court observed in 1988:

There is substantial evidence that the New York Legislature did not,

when it enacted § 50–a, intend to create an evidentiary privilege in the

conventional sense of a “protect[ion] from forced disclosure on the

witness stand.” Black’s Law Dictionary 1078 (5th ed. 1979).

Martin v. Lamb, 122 F.R.D. 143, 146 (W.D.N.Y. 1988). “It is undisputed that under

federal law, New York Civil Rights Law § 50-a does not prohibit discovery of police

personnel documents.” Adamson v. City of Buffalo, No. 11CV663A, 2013 U.S. Dist.

LEXIS 31849, at *3 (W.D.N.Y. Mar. 5, 2013). Moreover, the New York Court of

Appeals has not held that section 50-a prohibits disclosure, only that, “if the court

then determines that the records contain matter that is relevant and material in the

action, such portions may be disclosed to the person who has made the request (Civil

Rights Law, s 50-a, subds. 2, 3).” People v. Gissendanner, 48 N.Y.2d 543, 551, 399

N.E.2d 924, 929 (1979).

Consequently, City Defendants are directed to disclose by March 23, 2020,

records relevant to document demand 26 under the same conditions as were laid out

in Judge Feldman’s September 12, 2019, Order. (Order ¶¶2–3, Sept. 12, 2019, ECF

No. 52.)

Records Related to the RPD’s Performance Evaluation and Tracking Systems

Document demands 17, 18, 21, 22, 23, and 24, seek the following:

17. Produce the complete Professional Development Section file for each

Officer Defendant. Responsive documents shall include incidents that

occurred from the beginning of the Officer Defendants’ employment with

RPD to the present.

18. Produce all records regarding whether any of the Officer Defendants

have ever been placed on Force Monitoring.

21. Produce copies of all manuals and training materials outlining the

duties and responsibilities of the RPD’s Research & Evaluation Section.

22. Produce copies of all “performance assessment manuals” that lay out

the guidelines to be used by evaluating supervisors. (See GO 207 V. E.

2.).

23. Produce all documents that outline the RPD’s policies regarding “de-

escalation.”

24. Produce all records related to any “force monitoring” systems

implemented or utilized by the RPD for the purpose of monitoring or

tracking of officers involved in use-of-force incidents and/or who have

been repeatedly accused of using unnecessary or excessive force.

(ECF No. 45-4.)

City Defendants object to production of these document in part because

“complaints regarding third parties are not relevant to the particular act or omission

of the case at bar.” (ECF No. 45-14.) City Defendants cite Crenshaw v. Herbert, 409

Fed. App’x 428 (2d Cir. 2011) in support of this contention. The Second Circuit’s

holding in Crenshaw was simply that, “the district court did not abuse its discretion

by denying Crenshaw's motion to compel production of Bartkowiak’s personnel file.

The district court properly relied on defense counsel’s affirmation that Bartkowiak’s

file contained no relevant disciplinary records.” Crenshaw v. Herbert, 409 F. App'x at

430. City Defendants have made a similar claim here: “In the present case, none of

the named Defendants have any substantiated claims of excessive force in their

personnel history.” (ECF No. 47-8 at 3 (emphasis added).)

In a similar case, the Eastern District held: “except for reasonable redactions

of names and addresses to protect privacy or informer sources, plaintiffs in federal

civil rights actions are presumptively entitled to recollections as well as documents

on prior complaints and police history.” King v. Conde, 121 F.R.D. 180, 198 (E.D.N.Y.

1988); accord Benitez v. Lopez, 372 F. Supp. 3d 84, 87–88 (E.D.N.Y. 2018) (“the

officers’ conduct need not be subject to a Monell claim for the disciplinary files to be

discoverable”). In Adamson v. City of Buffalo, No. 11CV663A, 2013 U.S. Dist. LEXIS

31849, at *4 (W.D.N.Y. Mar. 5, 2013), Judge Scott determine that it was “unlikely

that documents relating to unsubstantiated claims of excessive force would lead to

admissible evidence.” However, in this case, Plaintiff supplied a study which showed

that in Chicago, “between 1 and 5 percent of all police officers are involved in most of

the city’s misconduct cases.” (Casaccia 1067–1133, Rozema, K., and M.

Schanzenbach, Forthcoming, Good cop, bad cop: Using civilian allegations to predict

police misconduct, American Economic Journal: Economic Policy (August 2018)

(“Rozema”) attached as Ex. KK, ECF No. 45-38.) Regarding the issue of substantiated

versus unsubstantiated complaint, the study concluded, “just over half of all civil

allegations in Chicago were dismissed for failing to have a sworn affidavit from the

accuser. Schanzenbach and Rozema find that allegations without affidavits are as

strong a predictor of misconduct as those with affidavits, suggesting the affidavit

requirement should be dropped.” (Id.) That study involved a review of 50,000 civilian

allegations of police misconduct and found that civilian misconduct allegations were

an accurate predictor of whether a police officer would repeatedly commit serious

misconduct in the future. It concluded: “The worst 1 percent of officers, as measured

by civilian allegations, generate almost five times the number of payouts and four

times the total damage payouts in civil rights litigation.” (Rozema at 1073, attached

as Ex. LL, ECF No. 45-39.)

The Court finds that the material sought is within the scope of Fed. R. Civ. P.

26(b), and directs its disclosure by March 23, 2020, subject to the same provisions as

contained in Judge Feldman’s September 12, 2019, Order. (Order ¶¶2–3, Sept. 12,

2019, ECF No. 52.)

RULE 30(B)(6) WITNESS

Plaintiff seeks an Order compelling the City Defendants to designate a Fed. R.

Civ. P. 30(b)(6) witness. That Rule states:

(6) Notice or Subpoena Directed to an Organization. In its notice

or subpoena, a party may name as the deponent a public or private

corporation, a partnership, an association, a governmental agency, or

other entity and must describe with reasonable particularity the

matters for examination. The named organization must then designate

one or more officers, directors, or managing agents, or designate other

persons who consent to testify on its behalf; and it may set out the

matters on which each person designated will testify. A subpoena must

advise a nonparty organization of its duty to make this designation. The

persons designated must testify about information known or reasonably

available to the organization. This paragraph (6) does not preclude a

deposition by any other procedure allowed by these rules.

Fed. R. Civ. P. 30(b)(6). Plaintiff contends that the City Defendants “have not

acknowledged the Rule 30(b)(6) deposition notice or responded to Plaintiffs’ numerous

communications requesting that the City designate a 30(b)(6) witness and schedule

the deposition.” (ECF No. 45-2 at 25.)

The Court has searched the documents filed in opposition to Plaintiffs’ pending

motions (ECF No. 47-8 and 54) and found no discussion of Rule 30(b)(6).

Consequently, the Court directs the City to comply with Fed. R. Civ. P. 30(b)(6) by

March 9, 2020.

MOTION TO IMPOSE SANCTIONS

In his Decision and Order denying in part City Defendants’ motion to dismiss

the complaint, the Honorable Michael A. Telesca wrote:

To the extent any discovery remains outstanding, the parties shall

exchange said discovery, in compliance with the Federal Rules of Civil

Procedure. If any discovery disputes arise, the parties should direct any

motion practice to Judge Feldman. . . . All discovery must be completed

by September 30, 2019. After the close of discovery, the Court will

entertain dispositive motions, which must be filed by October 31, 2019.

(Decision and Order, Aug. 14, 2019, ECF No. 43.) Plaintiff asks the Court to strike

City Defendants’ affirmative defenses as sanctions for their failure to comply with

Rule 26(a) and their “refusal to produce clearly relevant materials demanded by

Plaintiff.” (ECF No. 45-2 at 26.) As outlined above, City Defendants refused to provide

any discovery they deemed relevant only to a Monell claim until the Court intervened.

Plaintiffs’ counsel lays out the history of exchanges between the parties starting in

March 2019, and continuing until almost the present time. Without seeking a

protective order from the Court, counsel for the City Defendants informed Plaintiffs’

counsel, “I’ve said multiple times I will not turn over the discovery you’ve requested

without first providing same to the Court for review.” (ECF No. 45-33.) As stated

above, City Defendants never provided a privilege log despite claiming that much of

the material sought was privileged.

The relief sought by Plaintiff, striking City Defendants’ affirmative defenses,

is drastic. Although defense counsel has not been forthcoming and has not strictly

complied with discovery requirements, he has not evaded, but has maintained that

the material was not relevant, or was privileged. Plaintiff properly filed a motion to

compel and the Court has ordered disclosure. The Court believes the proper sanction

is to direct payment of the costs of bringing the motion to compel and engaging in two

appearances in relation to it. Accordingly, Plaintiffs’ counsel is directed to file a

motion for costs, including reasonable attorney’s fees, associated with his motion to

compel and preparation of the motion for fees.

MODIFICATION OF THE SCHEDULING ORDER

This portion of Plaintiffs’ motion is now moot. In an apparent spirit of

cooperation, the parties jointly agreed to extend fact discovery to March 31, 2020, and

expert discovery to May 15, 2020. (ECF No. 68.) In view of the Court’s directive that

further discovery be produced by March 23, 2020, the Court will entertain a further

extension of discovery deadlines upon application of either party.

IT IS SO ORDERED,

DATED: March 3, 2020

Rochester, New York

/s/ Mark W. Pedersen

MARK W. PEDERSEN

United States Magistrate Judge