Wilson v. Town of Cheektowaga

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

DOMINIQUE N. WILSON, DECISION

and

Plaintiff, ORDER

v.

TOWN OF CHEEKTOWAGA,

TOWN OF CHEEKTOWAGA POLICE DEPARTMENT, 18-CV-1255W(F)

TIMOTHY TURNBULL, Police Officer,

Defendants.

APPEARANCES: GREGORY D. ABRAM, ESQ.

Attorney for Plaintiff

249-12 Jericho Turnpike

Suite 230

Floral Park, New York 11001

COLUCCI & GALLAHER, P.C.

Attorneys for Defendants

MARYLOU K. ROSHIA, of Counsel

2000 Liberty Building

424 Main Street

Buffalo, New York 14202-3695

In this § 1983 action Plaintiff alleges Defendants subjected Plaintiff to false

arrest, false imprisonment, assault and battery, defamation of character, and malicious

prosecution in violation of Plaintiff’s constitutional rights under the Fourth, Fifth, and

Fourteenth Amendments. Plaintiff’s action arises from a domestic incident on

November 9, 2015, in the Town of Cheektowaga, New York, during which Plaintiff

allegedly waived a firearm at her fiancé with whom she resided resulting in her arrest by

Defendant Turnbull on state law menacing charges which were later dismissed. Before

the court are Plaintiff’s motion to compel for sanctions, filed October 28, 2021 (Dkt. 38)

(“Plaintiff’s motion”), and Defendants’ cross-motion for costs incurred in connection with

Defendants’ opposition to Plaintiff’s motion filed November 13, 2020 (Dkt. 43)

(“Defendants’ motion”). Oral argument scheduled for December 1, 2020 was adjourned

by the court (Dkt. 46). Upon the court’s review of the respective motions, the court finds

oral argument to be unnecessary and as such the oral argument previously scheduled

is cancelled.

Plaintiff’s motion is directed to Defendants’ answers to several of Plaintiff’s

Interrogatories and Plaintiff’s Request for Production of Documents served May 6, 2019

(Dkts. 12 and 13). Defendants’ Answers to Plaintiff’s Interrogatories were served on

June 12, 2019; Defendants’ document production responses were served July 19, 2019.

Plaintiff served an Amended Second Document Production demand on October 1, 2020

(Dkt. 38-2). On October 16, 2020, Defendants served Defendants’ response to

Plaintiff’s amended request for production (Dkt. 48-3) (Defendants produced

Cheektowaga Police Department General Order A-10-1 re: Performance Evaluations,

General Order A-7-5 re: Records Management, General Order O-7-1 re: Criminal

Investigations and General Order A-25-1 re: Professional Standards Policy).

Defendants assert Defendants’ costs should be awarded as Plaintiff’s motion is

premature or baseless (Dkt. 43-1 ¶ 9). In Plaintiff’s Reply, filed November 17, 2020

(Dkt. 44) (“Plaintiff’s Reply”), Plaintiff contends Defendants’ objection to Plaintiff’s

Document Request No. 1 requesting documents pertaining to Plaintiff’s arrest and

prosecution, including related court proceedings, as not being within Defendants’

possession, custody or control, is without merit (Dkt. 44 at 2-3) and that Defendants’

assertion that Defendants’ production of the Town of Cheektowaga Police Department’s

police report regarding the November 9, 2015 incident which resulted in Plaintiff’s arrest

was sufficient is not consistent with Defendants’ obligation to produce relevant

documents following a reasonable inquiry. Dkt. 44 at 3. Plaintiff also submits that

Plaintiff provided Defendants in August 2019, the executed authorization Defendants

had represented as required to enable Defendants to produce copies of judicial

proceedings in Cheektowaga Town Court within the scope of Plaintiff’s document

request but that no supplemental production of these documents has been provided by

Defendants. It is unclear as to why Plaintiff failed to serve Defendants with a

supplemental demand regarding production of these documents, however, although

Defendants assert Defendants have provided supplemental production of several Town

of Cheektowaga Police Department policies, Dkt. 43-3, Defendants do not dispute

Defendants have not provided copies of responsive documents related to Plaintiff’s

authorization as Defendants’ requested. See Dkt. 43 (passim).

As to Plaintiff’s Document Request No. 6 which requested documents related

to any employment disciplinary actions against Defendant Turnbull for providing false

statements or reporting in connection with his duties as a police officer, Dkt. 44 at 5.

Defendants objected to this request relying on N.Y. Civil Rights Law § 50-a (“§ 50-a”)

which in substance restricts access to police personnel records. Dkt. 44 at 5. Plaintiff’s

Request No. 7 requests information regarding complaints against Defendant Turnbull

relating to his actions as a police officer. Id. at 6. Defendants’ objection is also based

on § 50-a. Id. In reply, Plaintiff contends § 50-a has since been repealed by action of

the N.Y. Legislature and Governor on June 12, 2020. Id. Defendants do not further

respond to Plaintiff’s contentions with regarding to Plaintiff’s Requests Nos. 6 and 7.

Plaintiff’s motion also contends Defendants’ answers to Plaintiff’s

Interrogatories 1, 3(d)-(e), 5, 6, 7, 8, 9, 10, 12, 15, 16, 18, 19, 20, 21, 23, 24 and 25 are

insufficient. Dkt. 38 at 3. Defendants objected to Plaintiff’s interrogatories based on

privilege, relevance, vagueness, overbreadth, and undue burdensomeness. Dkt. 43-2

at 3. Specifically, Plaintiff argues Defendants’ Answer to Interrogatory No. 1, requesting

the identity of the persons who prepared responses to Plaintiff’s interrogatories was

insufficient as it identified only Defendants’ law firm and Defendant Town of

Cheektowaga Police Department. Dkt. 38 at 2. Defendants’ original answer to

Interrogatory No. 3(d)-(e), which requested what Plaintiff was told when arrested, and

the identity of the persons who charged Plaintiff, asserted such information could be

gleaned from the deposition testimony to be taken in the matter; however, Defendants

have recently served, on November 13, 2020, Supplemental Responses to Plaintiff’s

First Set of Interrogatories (Dkt. 43-2) in which Defendants have now provided the

requested information. See Dkt. 43-2 at 5. In Plaintiff’s Reply, Plaintiff does not further

contend Defendants’ Supplement Answers are insufficient. Dkt. 44 (passim). Plaintiff

also contended that the Defendants’ answers to Plaintiff’s interrogatories as referenced

above were inadequate for failure to provide specific details, instead asserting Plaintiff

could obtain the requested information from the police report regarding the November 9,

2015 incident. Dkt. 38-3. However, as with Plaintiff’s Interrogatories No. 3(d)-(e),

Defendants’ Supplemental Answer now provides detailed responses with no assertion

that Plaintiff consult the police report for the information sought by Plaintiff in the

interrogatories at issue on Plaintiff’s motion. For example, Interrogatory No. 5

requested Defendants’ identify persons with knowledge of the incident resulting in

Plaintiff’s arrest. Defendants’ Supplemental Responses now includes the names of

three Cheektowaga Police Department officers including Defendant Turnbull responsive

to Plaintiff’s interrogatory. See Dkt. 43-2 at 6. Similarly, Defendants responded to

Plaintiff’s Interrogatory No. 6 seeking the identity of witnesses by identifying the

responding officers but declined to identify other potential witnesses citing confidentiality

requirements. Dkt. 43-2 at 6. Based on the court’s review of Defendants’ Supplemental

Responses in response to the remaining interrogatories which Plaintiff’s motion

asserted had not been sufficiently answered by Defendants, it appears that Defendants

have corrected some of the deficiencies Plaintiff had identified in Plaintiff’s motion. In

response to Interrogatories Nos. 10, 18, 19, 20, 21, and 23, requesting details regarding

the basis, decision to arrest, procedures and to effect Plaintiff’s arrest, Defendants

directed Plaintiff to the police report filed in connection with Plaintiff’s arrest. Dkt. 43-2

at 7, 10, and 11. However, Plaintiff has not further disputed Defendants’ reliance upon

the police report to answer these interrogatories which cover subjects presumably

addressed in the police report, a copy of which was not included in the record.

Specifically, Plaintiff’s Reply while referencing Defendants’ Supplemental Responses in

regard to Plaintiff’s Interrogatories, reiterates only Plaintiff’s contentions with respect to

Defendants’ failure to identify the person responsible for preparing Defendants’ answers

and that such answers as requested by Interrogatory No. 1, including Defendants’

Supplemental Responses, are not sworn to or signed by the Defendants as required by

Fed.R.Civ.P. 33(b)(3) (answers to interrogatories to be separately answered and signed

by the responding party under oath). Dkt. 44 at 2. The court’s finding is also consistent

with Plaintiff’s Memorandum of Law filed in support of Plaintiff’s motion, Dkt. 44-1, which

limits its discussion to the issues of the identity of the person preparing the answers and

the required oath pursuant to Rule 33. The court therefore determined that other than

as to these latter two issues, Plaintiff’s contentions in support of Plaintiff’s motion based

on the asserted inadequacy of Defendants’ answers to Plaintiff’s interrogatories is,

despite Defendants’ reliance on the police report regarding the incident as to several of

Plaintiff’s interrogatories, now moot. See In re Savitt/Adler Litigation, 176 F.R.D. 44, 49

(N.D.N.Y. 1997) (Fed.R.Civ.P. 33(d) permits reference to “business records” in

responding to interrogatory where the requested information is located in the documents

and the burden of extracting the requested information is substantially the same for

either party); see also Smith v. City of New York, 2016 WL 5793410, at *3 (S.D.N.Y.

Sept. 30, 2016) (considering police reports to be business records for purposes of the

business records exception to the hearsay rule, Fed.R.Evid. 803(6)); aff’d, 697

Fed.Appx. 88 (2d Cir. 2017).

Further, in view of Defendants’ failure to provide a privilege log required to

support Defendants’ general objection based on privilege and work-product, the court

finds Defendants’ objection waived. See Robbins & Myers, Inc. v. J.M. Huber Corp.,

274 F.R.D. 63, 99 (W.D.N.Y. 2011) (failure to timely serve privilege log, required by

Rule 26(b)(5)(A) (requiring a description of a withheld material as privileged or

“protection as trial-preparation material” sufficient to enable other parties to “assess the

claim”), waives asserted privilege or other protection against disclosure) (citing

caselaw). Additionally, Defendants fail to provide an affidavit by a person with

knowledge of Defendants’ records sufficient to support that the requested production is

unduly burdensome. See Brown v. McKinley Mall, LLC, 2017 WL 2332330, at *3

(W.D.N.Y. May 30, 2017) (“Absent an affidavit from a person with personal knowledge

of the factual nature of an alleged undue burden arising from a discovery request

pursuant to the Federal Rules of Civil Procedure, such generalized assertions that a

discovery request is unduly burdensome will be overruled.” (citing Strom v. Nat'l

Enterprise Systems, Inc., 2010 WL 1533383, at *4 (W.D.N.Y. Apr. 15, 2010) )).

Defendants shall therefore serve an amended answer responsive to Plaintiff’s

Interrogatory No. 1 indicating with particularity the person(s) responding to Plaintiff’s

interrogatories, see Aljarah v. Citigroup Global Market, Inc., 2018 WL 4838538, at * 10

(W.D.N.Y. Oct. 4, 2018) (granting plaintiff’s motion to compel defendants identify the law

firm’s specific employees who responded to each of the plaintiff’s interrogatories), under

oath within 20 days. The court turns to Plaintiff’s Document Requests Nos. 1, 6 and 7.

Specifically, Plaintiff’s Request No. 1, as noted, requested documents relating

to Plaintiff’s arrest and criminal proceeding, the basis of Plaintiff’s malicious prosecution

claim, Defendants’ objection is based on Fed.R.Civ.P. 34(a)(1) which requires

production of a broad range of documents if within a responding party’s “possession,

custody, or control.” Dkt. 44 at 2. However, despite Defendants’ asserted lack of such

possession, custody or control of the requested documents pertaining to Plaintiff’s court

proceedings, Defendants requested Plaintiff execute and return an authorization which

“would permit us to obtain” these requested documents. Dkt. 44 at 3 (underlining

added). According to Plaintiff, although Plaintiff executed the authorization and returned

it to Defendants in August 2019, no production of the requested court documents

responsive to Plaintiff’s Request No. 1 was or has been received from Defendants. Id.

Although Defendants’ opposition to Plaintiff’s motion, Defendants assert Defendants

“have diligently responded to all document requests from plaintiff,” on July 19, 2019,

Dkt. 43-1 at 2 (underlining added). Defendants do not specify that such prior production

included the requested court records available to Defendants following receipt of

Plaintiff’s authorization which authorization Plaintiff represents was provided to

Defendants in August 2019 (Dkt. 44 at 3). Thus, it appears that either Defendants

overlooked or failed to act upon Plaintiff’s authorization, or Plaintiff is mistaken in

asserting the authorization was in fact provided as Plaintiff now represented. In any

event, it is apparent that by requesting the authorization, a request Defendants do not

dispute making of Plaintiff, Defendants concede Defendants have the ability to produce

the documents responsive to Plaintiff’s Interrogatory No. 1. See Hallmark v. Cohen &

Slamowitz, Midland Funding LLC, 302 F.R.D. 295, 299 (W.D.N.Y. 2014) (where party

has practical ability to produce requested documents production will be required under

Rule 34(a)). Therefore, Defendants shall provide a new authorization form to Plaintiff

within 10 days and upon receipt of the form such executed by Plaintiff obtain and

produce documents fully responsive to Plaintiff’s Request No. 1.

Plaintiff also disputes whether Defendants have made a diligent search for all

documents in Defendants’ possession other than the police report of the November 9,

2015 incident which is the only document Defendants have so produced responsive to

Request No. 1. See Gainer v. United Automobile Aerospace Agricultural Implement

Workers, (UAW), 2016 WL 9455264, at * 6 (W.D.N.Y. Mar. 17, 2016) (under Rule 34(a)

responding party has duty to conduct a reasonable and diligent search for responsive

documents). Here, although Defendants assert Defendants have “diligently” responded

to Plaintiff’s request, Dkt. 43-1 at 2, it is unclear whether such diligence extends to

Plaintiff’s request for “witness statements,” “investigative reports” and “interviews with

the plaintiff,” specifically requested by Request No. 1 beyond production of the “police

report” which Defendants did produce. The court also notes Defendants’ opposition to

Plaintiff’s motion is a pleading, not an affidavit, submitted by Defendants’ attorney and

fails to particularize that other than the police report which Defendants produced no

other documents within the scope of Request No. 1 exist. Accordingly, as such material

is relevant to Plaintiff’s claims and Defendants have failed thus far to demonstrate that

obtaining such documents would in fact be unduly burdensome, Defendants shall

conduct a further search of Defendants’ records and produce any other responsive

documents or provide counsel’s affidavit describing with reasonable particularity as to

records searched by Defendants that despite Defendants’ search of Defendants’

records for such responsive documents, no other responsive documents could be

located. See In re Terrorist Attacks on September 11, 2001, 2018 WL 3387494, at * 6

(S.D.N.Y. July 11, 2018) (court has authority to compel responding party to conduct

additional search of party’s records to assure complete production of responsive

documents). Defendants’ additional search and production if any, and the required

affidavit by counsel, shall be provided within 20 days of this Decision and Order.

Plaintiff’s Document Requests No. 6 and 7 requests records relating to

Defendant Turnbull’s employment as a Cheektowaga Police Officer. Request No. 6

seeks records of any action taken against Defendant Turnbull for making any form of

“false statements,” Dkt. 44 at 5; Request No. 7 seeks documents covering any

complaint against Turnbull during his employment in connection with performance of his

duties with the Cheektowaga Police Department. Defendants’ objection to both

requests asserts the requests are overly broad, burdensome, and beyond the scope of

discovery permitted by N.Y. Civil Rights Law § 50-a which generally prohibits disclosure

public disclosure of personnel records “used to evaluate performance toward continued

employment or promotion’ of police officers, firefighters, and correction officers . . . .”

Plaintiff’s Reply, however, as noted, argues § 50-a has been repealed in June 2020.

Dkt. 44 at 6. While, again, Defendants’ opposition to Plaintiff’s motion filed November

13, 2020, asserts Defendants have “diligently responded to all document requests from

Plaintiff,” Dkt. 43-1, Defendants’ opposition fails to address the issue of the effect of §

50-a’s repeal on Plaintiff’s motion. The court takes judicial notice that § 50-a was

repealed on June 12, 2020. See 2020 N.Y. Sess. Laws, Ch. 96, Sec. 1 (McKinney).

Nevertheless, in federal § 1983 actions, courts have not held § 50-a constrains the

scope of discovery provided that the records at issue provide information relevant to the

plaintiff’s claims or defenses. See King v. Conde, 121 F.R.D. 180, 194-95 (E.D.N.Y.

1988) (construing the “limited purpose” of § 50-a to be preventing a fishing expedition

through use of in camera inspection of personnel files procedure to determine whether

to block release of relevant material). Records, including complaints against defendant

police officers, have been required to be disclosed where the conduct is substantially

similar to the plaintiff’s claim, and have been sufficiently substantiated. Id. See also

Gross v. Lunduski, 304 F.R.D. 136, 140-41 (W.D.N.Y. 2014). The court also has

discretion to examine a defendant’s personnel file to make this determination and

require disclosure subject to redaction to protect a defendant’s valid privacy interests.

See Gross, 304 F.R.D. at 156 (citing Inmates of Unit 14, 102 F.R.D. 122, 128–29

(N.D.N.Y.1984) (permitting inmate plaintiff's attorneys to conduct an eyes only

inspection of defendants' personnel files subject to redaction and limited sharing of

information with inmate plaintiffs)). Thus, that § 50-a has been repealed does not

necessarily mandate disclosure of Turnbull’s records responsive to Plaintiff’s Requests.

See Saaverda v. City of New York, 2021 WL 104057, at * 2 (S.D.N.Y. Jan. 12, 2021)

(even with repeal of § 50-a, under Fed.R.Civ.P. 26(a) a plaintiff is only entitled to those

portions of a defendant police officer’s disciplinary history involving conduct similar in

nature to conducting serving as a basis of the plaintiff’s claims). Defendants, as noted,

have failed, see, supra, at 6, to sustain Defendants’ objection based on excessive

burdensomeness. However, to assure Plaintiff obtains Defendants’ production

responsive to Request Nos. 6 and 7, Defendants shall provide to the court within 10

days, a copy of any of Turnbull’s personnel records maintained by the Cheektowaga

Police Department and in which accusations of making false statements or any

complaints filed against Turnbull, in the conduct of his official duties, lodged during the

period of 2010 to the present, would be kept in the ordinary course of Defendant Police

Department’s business, or are, in fact maintained, for an in camera review.

CONCLUSION

Based on the foregoing, Plaintiff’s motion (Dkt. 38) is GRANTED in part, and

DISMISSED as moot in part; Defendants’ cross-motion (Dkt. 43) is DENIED. For the

reasons discussed, the court finds Plaintiff’s motion had a colorable basis and

Defendants shall therefore within 20 days show cause why Plaintiff’s expenses pursuant

to Fed.R.Civ.P. 37(a)(5)(A) (expenses of motion to be paid by party resisting discovery

or attorney advising such conduct or both) should not be granted including whether

such expenses should be awarded against and apportioned between Defendants and

Defendants’ attorneys. Plaintiff’s response shall be filed within 10 days thereafter;

Defendants’ reply, if any, shall be filed within five days; oral argument shall be at the

court’s discretion.

SO ORDERED.

/s/ Leslie G. Foschio

_________________________________

LESLIE G. FOSCHIO

UNITED STATES MAGISTRATE JUDGE

Dates: January 20, 2021

Buffalo, New York