# Casaccia v. City of Rochester

> District Court, W.D. New York · March 4, 2020

URL: https://www.frixlaw.com/law-library/cases/10361842

## Case

- **Court:** District Court, W.D. New York
- **Decided:** March 4, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10361842. Public record. Not legal advice.