Opinion

Kosowski

Court: District Court, E.D. New York
Filed: Nov 3, 2025
Cited by: 0 cases
Authority: More cited than 36.6%

limiting fees to those accrued in litigating contempt proceeding, as opposed to all litigation activity

How later courts described this case

limiting fees to those accrued in litigating contempt proceeding, as opposed to all litigation activity
“The district court . . . may award appropriate attorney fees and costs to a victim of contempt.”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

Richard Kosowski,

Plaintiff,

2:24-cv-1669

-v- (NJC) (AYS)

Nassau County, Nassau County Police Department,

Patrick J. Ryder, Michael Marzocca, Christopher Varga,

Phillip Cuiffo, Ryan Gale, and Walter Palm,

Defendants.

MEMORANDUM OPINION AND ORDER

NUSRAT J. CHOUDHURY, United States District Judge:

In this action, Plaintiff Richard Kosowski brings claims for false arrest and malicious

prosecution as well as claims under 42 U.S.C. § 1983 to enforce rights afforded by the First

Amendment to the U.S. Constitution against Nassau County, the Nassau County Police

Department (“NCPD”), Nassau County Police Chief Patrick J. Ryder, and Nassau County Police

Officers Michael Marzocca, Christopher Varga, Phillip Cuiffo, Ryan Gale, and Walter Palm

(collectively, “Defendants”).

Before the Court is Kosowski’s motion for a court order finding that Defendants are in

civil contempt for failing to adhere to the Court’s discovery orders and, as a remedy, to strike

Defendants’ Answer, reinstitute Defendants’ default in this action, have the Court appoint a

monitor to oversee that NCPD does not unlawfully target speech or conduct protected under the

First Amendment, and impose monetary sanctions in order to make Kosowski whole.

The record is clear: Defendants are in civil contempt for failure to abide by two clear and

unambiguous court orders. Despite their failure to produce the requested documents and privilege

log for more than ten months, on the day of the hearing before this Court on Kosowski’s motion,

Defendants indicated—for the first time—that they would produce the requested documents after

the Court’s hearing. Following the hearing, Defendants produced at least some of the long-

awaited discovery, but it remains unclear whether their production provides all of the information

requested and fully complies with the Federal Rules of Civil Procedure. In any event, Defendants

have failed to provide any explanation as to why they refused to produce the requested discovery

for more than ten months. Accordingly, this Court finds Defendants in civil contempt for violating

two clear and unambiguous court orders.

Kosowski’s requests that the Court strike Defendants’ Answer and reinstitute Defendants’

previously vacated default in this case are not justified in light of Defendants’ recent, albeit

extremely belated, production of certain records. Accordingly, this Court orders Defendants to

produce an affidavit regarding the contents of the October 8, 2025 production, a privilege log

identifying any withheld documents, and an inquest into the attorneys’ fees and costs incurred by

Kosowksi as a result of Defendants’ violations, including but not limited to expenses incurred in

bringing the motion for civil contempt sanctions and in reviewing the October 8, 2025 production

to determine whether it includes all information responsive to Plaintiffs’ discovery requests, in

order to determine the amount of a monetary sanction that will make Kosowski whole.

BACKGROUND AND PROCEDURAL HISTORY

Kosowski is a citizen-journalist in Nassau County who records and documents the

conduct of public officials and police officers and publishes his encounters online. (Compl. at

¶¶ 11–15, ECF No. 1.) He does this “to show his viewers various police practices, to exercise his

right to record government agents engaged in government conduct, and to protect the rights of

others to record public officials.” (Id. ¶ 16.) Kosowski claims that on September 9, 2022,

Defendants Marzocca and Varga arrested and brought charges against him because of his prior

activity video recording Nassau County police officers performing their lawful duties. (Id. at

¶¶ 29–76.) Kosowski contends that this arrest was made pursuant to an allegedly unconstitutional

“no recording” policy in Nassau County, under which Nassau County residents are arrested for

video recording police officers and other county employees. (Id. at ¶¶ 99–100.) The charges were

later dismissed. (Id. at ¶ 85.)

Kosowski filed this action on March 6, 2024, and Defendants’ Answered the Complaint

on June 19, 2024. (ECF Nos. 1, 12.) On July 15, 2024, Magistrate Judge Anne Y. Shields held an

initial conference, setting forth discovery deadlines. (Electronic Order (“Elec. Order”), July 15,

2024.) She ordered all Tier I discovery to be completed by August 15, 2024, and ordered

Defendants to produce any files, communications, documents, and videos referencing Mr.

Kosowski on a hard drive by overnight mail. (Id.) The August 15, 2024 Order also required

Defendants to produce any documents with respect to New York’s Right to Record Act by

August 15, 2024, and for the parties to provide a joint status letter by August 20, 2024 that would

include a jointly proposed Tier II discovery schedule for the Court’s review. (Id.)

On August 21, 2024, the parties filed a joint motion for an extension of time to file the

jointly proposed Tier II discovery schedule. (ECF No. 17.) The following day, on August 22,

2024, Magistrate Judge Shields granted the request and extended the parties’ deadline to

September 30, 2024. (Elec. Order, Aug. 22, 2024.) The parties then filed their jointly proposed

Tier II discovery schedule on September 30, 2024 (ECF No. 18), which Magistrate Judge Shields

subsequently adopted and ordered. (Elec. Order, Oct. 1, 2024.) Under the Tier II discovery

schedule, all fact discovery was to be completed by February 28, 2025. (ECF No. 18.)

However, in an October 30, 2024 joint status letter (ECF No. 19), Kosowski raised

concerns that Defendants had failed to provide requested documents—specifically, any

Intelligence Bulletins “which involve individuals who may have recorded the activities of

Nassau County Police Officers.” (ECF No. 19 at 1.) Kosowski noted that he had a copy of an

Intelligence Bulletin concerning himself, and he requested copies of all Intelligence Bulletins

that involve individuals who may have recorded the activities of Nassau County police officers.

(Id.) Defendants argued that such documents were protected from disclosure by the law

enforcement privilege,

a qualified privilege which establishes a presumption against disclosure for information

(1) pertaining to law enforcement techniques and procedures, (2) that would undermine

the confidentiality of sources, (3) that would endanger witnesses and law enforcement

personnel, (4) that would undermine the privacy of individuals involved in an

investigation, or (5) that would seriously impair the ability of a law enforcement agency

to conduct future investigations.

(Id. at 3) (citing Morales v. United States, No. 18-cv-4247, 2020 WL 6799681, at *2 (E.D.N.Y.

Nov. 19, 2020) (quoting In re The City of New York, 607 F.3d 923, 948 (2d Cir. 2010) (same)).

In the joint status report, Kosowski responded that Defendant could address any concerns over

privilege with proper redactions. (Id. at 2.)

On November 18, 2024, the parties appeared for a status conference before Magistrate

Judge Shields. (See Elec. Order, Nov. 18, 2024.) As memorialized in a November 18, 2024

Order, at the conference, Magistrate Judge Shields directed Defendants to provide a sworn

statement by December 2, 2024 indicating whether the requested Intelligence Bulletins existed.

(Id.) She further directed that if such bulletins did exist, Defendants were to provide the

Intelligence Bulletins within a three-year period of Kosowski’s arrest by December 9, 2024, with

proper redactions to withhold the names of private individuals, or to produce a privilege log. (Id.)

On December 3, 2024, Kosowski filed a letter requesting a conference in anticipation of

filing a motion to sanction Defendants for failing to comply with their discovery obligations and

the Court’s order. (ECF No. 22.) Specifically, Kosowski argued that Defendants had failed to

produce any of the Intelligence Bulletins that the November 18, 2024 Order required them to

produce, failed to respond to any of Kosowski’s deposition requests, and “indicate[d] that they

do not intend” to comply with the November 18, 2024 Order. (Id. at 1–2.)

On December 11, 2024, Kosowski filed a separate motion seeking to strike Defendants’

Answer from the record for failure to comply with discovery obligations and court orders, under

Rules 37(b)(2)(A)(iii) and (iv) of the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”), which

grant courts the ability to strike pleadings in whole or in part due to a party’s failure to obey an

order to provide or permit discovery. (ECF No. 23 at 2 (citing Fed. R. Civ. P. 37).) On December

16, Defendants filed a motion seeking an extension of time to December 27, 2024 to respond to

the motions, which the Court granted. (ECF No. 24; Elec. Order, Dec. 18, 2024.)

On January 6, 2025, Magistrate Judge Shields granted Kosowski’s request and scheduled

a conference with the parties for January 21, 2025. (Elec. Order, Jan. 6, 2025.) At the January 21,

2025 conference, Magistrate Judge Shields denied Kosowski’s request to strike Defendants’

Answer and, instead, set a briefing schedule regarding Defendants’ motion for a protective order

against Kosowski’s request for Intelligence Bulletins based on Defendants’ invocation of the law

enforcement privilege. (Elec. Order, Jan. 21, 2025.) Defendants’ motion was due on January 28,

2025, and Plaintiff’s response was due on February 7, 2025. (Id.) On January 29, 2025, one day

after their motion for a protective order was due, Defendants filed a motion for an extension of

time to file the motion for a protective order due to pending deadlines in other matters, which

Defendants indicated that Defendants’ counsel needed to prioritize. (ECF No. 29.) On February

2, 2025, Kosowski opposed Defendants’ motion for an extension, and on the following day,

February 3, 2025, Magistrate Judge Shields denied the requested extension, stating:

While the Court appreciates that the County Attorney’s office is currently understaffed,

that does not excuse the County’s lack of compliance with their discovery obligations,

nor their non-compliance with this Court's orders. As the time to move for a protective

order has expired, any claim of privilege regarding the discovery at issue is waived.

Defendants are directed to produce the requested discovery by close of business on

February 5, 2025.

(Elec. Order, Feb. 3, 2025.)

Shortly thereafter, on February 6, 2025, Kosowski filed an interim motion to strike the

Defendants’ Answer and an emergency motion for a preliminary injunction and appointment of a

monitor due to Defendants’ failure to comply with their discovery obligations. (ECF No. 32.) In

his emergency motion, Kosowski noted that “[w]hile fact discovery ends in three (3) weeks,

Defendants refuse to cooperate with record production, discovery and deposition demands,”

despite a series of Court orders and meet-and-confers between the parties. (Id. at 1.) On February

11, 2025, Kosowski filed an additional motion for an order finding Defendants in contempt of

court orders due to their failure to comply with discovery obligations and to, accordingly,

reinstate Defendants’ certificate of default which had been filed on April 16, 2024. (ECF No.

34.) On February 12, 2025, Magistrate Judge Shields issued a scheduling order directing

Kosowski’s counsel to submit a letter indicating which path Kosowski wished to pursue, noting

that “continued separate filings for relief based upon the same behavior may result in sanctions.”

(Elec. Order, Feb. 12, 2025.) Later that day, Kosowski filed a letter (ECF No. 35), which

clarified that he is seeking a ruling on his previously filed motion for contempt (see ECF No.

34), and an order from Magistrate Judge Shields certifying facts concerning Defendants’

contempt of Court orders and reinstating the certificate of Defendants’ default. Kosowski’s letter

noted that discovery was scheduled to close in three weeks, but Defendants had yet to comply

with Plaintiff’s discovery requests. (Id.)

On April 8, 2025, this Court issued an Order finding that Kosowski’s interim motion

strike Defendants’ Answer and emergency motion for a preliminary injunction were dismissed as

moot in light of Plaintiff’s filing of a revised motion for contempt. (See ECF No. 35; Elec. Order,

Apr. 8, 2025.)

On May 19, 2025, Magistrate Judge Shields issued a Report and Recommendation

(“R&R”), in which she certified facts to this Court pursuant to 28 USC § 636(e) and

recommended that Defendants be held in contempt for failure to produce documents requested

by Kosowski by the close of business on February 5, 2025. (ECF No. 36.) Magistrate Judge

Shields’ R&R, however, did not include any recommendations as to the specific relief for such

contempt.

After the issuance of the R&R, Kosowski filed a letter on May 29, 2025, requesting (1) a

contempt hearing, (2) an order striking the Defendants’ Answer, (see ECF No. 12), and (3) an

inquest to determine the amount of damages to be awarded Kosowski and the amount of

reasonable attorneys’ fees awarded to counsel for pursuing contempt sanctions concerning

Defendants’ failure to produce documents and participate in discovery. (ECF No. 38.) On June 2,

2025, Nicholas Zotto of the Nassau County Attorney’s Office filed a reply in opposition to the

motion for contempt sanctions and request for a contempt hearing. (ECF No 39.) Specifically,

Mr. Zotto noted that “[t]he delay [was] attributable to the departure of the previous handling

attorney,” and that “his files are undergoing reassignment to ensure a thorough review and

prompt remediation of any deficiencies.” (Id. at 39.)

On September 2, 2025, this Court scheduled a contempt hearing to take place on October

7, 2025. (Elec. Order, Sept. 2, 2025.) In the September 2, 2025 Order, the Court noted that

although three months had elapsed since Mr. Zotto’s letter stating that Defendants’ delay was

attributable to the departure of the prior handling attorney, whose files were “undergoing

reassignment,” no attorney had yet entered a notice of appearance for Defendants. (Id.) However,

later that day, John Carnevale filed a notice of appearance on behalf of Defendants. (ECF No.

40.)

In the month between the September 2, 2025 Order scheduling the contempt hearing and

the hearing itself, the Court did not receive any further submissions from the parties to this

action: no correspondence from Defendants’ indicating that they had cured—or even attempted

to cure—their failure to produce the requested discovery, nor any additional submissions from

Plaintiff regarding the motion or the requested relief. On the morning of the hearing, at

approximately 3:00 AM, Kosowski’s counsel emailed a memorandum of law in support of his

motion for contempt sanctions. However, as stated on the record during the hearing, that

submission was not considered by the Court, as it ran afoul of the Court’s Individual Rules

requiring all submissions to be filed on the docket, meaning that email is not an appropriate

method to file documents with the Court. See Individual Rule 1.1 for Civil and Criminal Cases,

Judge Nusrat J. Choudhury (Sept. 29, 2025).

On October 7, 2025, the Court held a hearing concerning Kosowski’s motion for the

imposition of civil contempt sanctions on Defendants for failure to produce the requested

documents and to adhere to this Court’s discovery orders. Following the hearing, on October 8,

2025, Defendants filed a letter notifying the Court that they “produced all responsive and

outstanding documents to Plaintiff via a secure OneDrive link.” (ECF No. 42.) Defendants also

stated that they “identified D/Sgt. Frank DiConza and D.Sgt. Tom Kananowicz as the County’s

Rule 30(b)(6) designees, with the specific witness to be set based on the deposition date.” (Id.)

On October 13, 2025, in a letter filed with the Court, Kosowski disputed the representations

Defendants made in their October 8, 2025 letter. (ECF No. 43 at 1.) According to Kosowski,

Defendants had not sufficiently cured their contempt because their production did not include an

affidavit regarding the contents of the production, a privilege log, or any other documents

detailing what may have been withheld or excluded from the production. (Id.) Kosowski also

noted that Defendants’ transmission of documents via OneDrive and “dumping a load of paper

records and other materials on counsel” failed to comply “with the spirit and intent of the federal

discovery rules,” (Id. at 1–2), not to mention this Court’s Order to produce the materials on a

hard drive (Elec. Order, July 15, 2024).

DISCUSSION

A. Legal Standards

“[I]t is firmly established that [t]he power to punish for contempts is inherent in all

courts.” Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (internal quotation marks omitted). A

court may hold a party in civil contempt for failure to comply with a court order if “(1) the order

the party failed to comply with is clear and unambiguous, (2) the proof of noncompliance is clear

and convincing, and (3) the party has not diligently attempted to comply in a reasonable

manner.” CBS Broadcasting Inc. v. FilmOn.com, Inc., 814 F.3d 91, 98 (2d Cir. 2016). The court

is not required to find that the party’s violation of its orders was willful. Paramedics

Electromedicina Comercial Ltda v. GE Medical Systems, Information Technology Incorporated,

369 F.3d 645, 655 (2d Cir. 2004). Indeed, “the fact that the prohibited act was done inadvertently

or in good faith . . . does not preclude a citation for civil contempt, for the sanction is remedial in

nature.” Vuitton et Fils S.A. v. Carousel Handbags, 592 F.2d 126, 128 n.2 (2d Cir. 1979).

Upon finding that a party is in civil contempt, courts then consider what sanctions are

appropriate. “The imposition of civil contempt sanctions may serve dual purposes: to secure

future compliance with court orders and to compensate the party that has been wronged.”

Paramedics, 369 F.3d at 657; see also Al Hirschfeld Found. v. Margo Feiden Galleries Ltd., 438

F. Supp. 3d 203, 207 (S.D.N.Y. 2020) (Civil contempt sanctions “may be coercive, to secure

compliance with court orders, or they may be compensatory.”). In this way, civil contempt

differs from criminal contempt, as “civil contempt proceedings must be remedial and

compensatory, and not punitive.” Al Hirschfeld Found., 438 F. Supp. 3d at 207. The

compensatory purpose of civil contempt is accomplished by awarding to the injured party any

proven damages in order to repair the injured party and restore the parties to the position they

would have held had the order been obeyed. Id. It is well established that district courts have the

“authority to award attorney’s fees for . . . willful violation of its order[s].” Herman v. Davis

Acoustical Corp., 196 F.3d 354, 357 (2d Cir. 1999). “The court may, however, serve either

goal—the coercive or the compensatory—by awarding attorneys’ fees and costs to a contempt

victim.” Al Hirschfeld Found., 438 F. Supp. 3d at 208 (citation omitted); see also Yurman

Design Inc. v. Chaindom Enters. Inc., No. 99-cv-9307, 2003 WL 22047843, at *2–3 (S.D.N.Y.

Aug. 29, 2003) (awarding compensatory fees for plaintiff’s investigation of defendant’s failure to

comply with injunction); but c.f. Fendi Adele S.R.L. v. Burlington Coat Factory Warehouse

Corp., 642 F. Supp. 2d 276, 299 (S.D.N.Y. 2009) (limiting fees to those accrued in litigating

contempt proceeding, as opposed to all litigation activity).

Rule 37(b)(2)(A) of the Federal Rules of Civil Procedure addresses the court’s authority

to sanction a party for failure to comply with a discovery order as well as remedies for such

violations. The Rule provides that “[i]f a party or a party’s officer, director, or managing agent

[among others] fails to obey an order to provide or permit discovery, including an order under

Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders.” Fed.

R. Civ. P. 37(b)(2)(A). The Rule specifies that “further just orders” may include:

(i) directing that the matters embraced in the order or other designated facts be taken as

established for purposes of the action, as the prevailing party claims; (ii) prohibiting the

disobedient party from supporting or opposing designated claims or defenses, or from

introducing designated matters in evidence; (iii) striking pleadings in whole or in part;

(iv) staying further proceedings until the order is obeyed; (v) dismissing the action or

proceeding in whole or in part; (vi) rendering a default judgment against the disobedient

party; or (vii) treating as contempt of court the failure to obey any order except an order

to submit to a physical or mental examination.

Fed. R. Civ. P. 37(b)(2)(A).

A magistrate judge presiding over a pre-trial matter in a case pending before a district

judge may issue a Report and Recommendation certifying facts for civil contempt under 28

U.S.C. § 636(e). The magistrate judge “functions only to certify the facts and not to issue an

order of contempt.” Fed. Nat'l Mortg. Ass’n v. C.Y. Gold LLC, No. 24-cv-1314, 2025 WL

2888054, at *2 (E.D.N.Y. July 7, 2025) (internal quotation marks omitted) (citations omitted).

The district court must make an independent determination of the facts certified. City of Almaty,

Kazakhstan v. Ablyazov, No. 15-CV-5345, 2023 WL 2787933, at *1 (S.D.N.Y. Apr. 4, 2023);