Opinion
3:96 CV 92 (JBA).
November 17, 1999.
Bradford S. Babbitt, Jeffrey Clyde Kestenband, Robinson Cole, Hartford, Ct., for Keith Laws.
Keith Laws, Corrigan Correctional Institution, Uncasville, Ct., pro se.
Ann E. Lynch, Attorney General's Office, Hartford, Ct., for Captian Cleaver, Lt. Knotts, Cormier, Glover, Correctional Ofcr. Fountain, Malfas, and S. Paskins.
RULING ON DEFENDANTS' MOTION FOR PROTECTIVE ORDER
On January 18, 1996, plaintiff Keith Laws, pro se and in forma pauperis, commenced this lawsuit against Michael Cleaver and other corrections officers and personnel. (Dkt. #2). On June 7, 1999, plaintiff filed a second amended complaint pursuant to 42 U.S.C. § 1983, alleging that defendants used excessive force when they confined him to his bed with four point restraints on November 20, 1995, thereby preventing him from attending a disciplinary hearing in violation of his due process and constitutional rights. (Dkt. #32 at 3-4). Plaintiff seeks damages of $100,000 for his physical injuries. (Id. at 3-4). Plaintiff has been represented by pro bono counsel since July 28, 1999. (Dkt. #36).
On October 14, 1999, defendants filed the pending Motion for Protective Order, and brief and affidavit in support (Dkt. ##56-58), which U.S. District Judge Janet Bond Arterton referred to this Magistrate Judge six days later. (Dkt. #65). In this motion, defendants seek to prevent plaintiff from inquiring into certain areas during their depositions. On November 2, 1999, plaintiff filed a brief in opposition (Dkt. #64).
Attached to counsel's affidavit (Dkt. #58) as Attachment C was a copy of an unpublished decision, Gillis v. Benson, Civ. No. N85-93 (PCD) (D. Conn. Jan. 15, 1986).
I. DISCUSSION
Under the Federal Rules of Civil Procedure, the scope of discovery extends to "any matter not privileged which is relevant to the subject matter in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party . . ." FED. R. Civ. P. 26(b)(1). The phrase "'relevant to the subject matter involved in the pending action' has been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (citation omitted). The party receiving a request must not only produce information which is admissible as evidence, but also information which "appears reasonably calculated to lead to the discovery of admissible evidence." Martin v. Valley National Bank of Arizona, 140 F.R.D. 291, 300 (S.D.N Y 1991) (citations omitted). "Reasonably calculated" in Rule 26 means any possibility that the information sought may be relevant to the subject matter of the action." Morse/Diesel, Inc. v. Fidelity Deposit Co. of Maryland, 122 F.R.D. 447, 449 (S.D.N Y 1988) (citations internal quotation marks omitted).
"Counsel must be prepared to provide full and meaningful disclosure and discovery at the times required by the rules of procedure and the pretrial scheduling order." Sullivan v. Clock, Inc., 175 F.R.D. 497, 506 (D. Md. 1997). However, discovery is not without limitations. FED. R. Civ. P. 26(b)(2). The Court has a duty to ensure that discovery requests are reasonable. In re: Sur. Ass'n of Am., 388 F.2d 412, 414-15 (2d Cir. 1967).
A. Inquiries regarding defendants' former employment
The first issue is whether plaintiff's counsel should be permitted to inquire about defendants' former employment and whether plaintiff's counsel is permitted to disclose that information to plaintiff. Defendants claims that such inquiries are not reasonably calculated to lead to the discovery, of admissible evidence, are unduly burdensome, and present a security risk to defendants' and their families. (Dkt. #57 at 2-3). Although defendants do not cite any case law, they claim that as correctional officers they have a right to protect personal information and cite CONN. GEN. STAT § 14-10(e) in support. (Id. at 3).
In opposition, plaintiff argues that defendants' motion lacks merit because of the general principals favoring broad discovery and because defendants failed to provide a specific basis for their safety concerns. (Dkt. #64 at 2-4). Additionally, plaintiff argues that his counsel is obligated to share information with him so that he may fully participate in the litigation process. (Id. at 4-5).
CONN. GEN. STAT. § 14-10(e) provides:
In the event (1) a federal court judge, federal court magistrate or judge of the Superior Court, Appellate Court or Supreme Court of the state, (2) a member of a municipal police department or a member of the Division of State Police within the Department of Public Safety, (3) an employee of the Department of Correction. (4) an attorney-at-law who represents or has represented the state in a criminal prosecution, or (5) a member or employee of the Board of Parole submits a written request and furnishes his business address to the commissioner, such business address only shall be disclosed or available for public inspection to the extent authorized by this section.
Title 14, as plaintiff notes, governs motor vehicles, highways and gasoline. Section 14-10 regulates disclosure of home addresses from Department of Motor Vehicles records. It does not restrict the discovery process and has no application to the present case.
Furthermore, Rule 26(c) provides in relevant part:
Upon motion by a party or by the person from whom discovery is sought, accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense . . .
Defendants have not adequately demonstrated the harm they will suffer if plaintiff is informed of defendants' prior employment histories. Defendants must offer "information sufficient to meet their burden of persuasion pursuant to Fed.R.Ci.v.P. 26(c)." Yancey v. Hooten, 180 F.R.D. 203, 215 (D. Conn. 1998) (numerous citations omitted). See also Havens v. Metropolitan Life Insurance Co., No. 94-CV-1402, 1995 WL 234710, at *10 (S.D.N.Y. April 20, 1995) (the party seeking protection is required to establish good cause by a "particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements"). Therefore, if plaintiff's counsel so inquires at their depositions, defendants Cormier and Glover are directed to provide the requested information regarding their prior employers within the past ten years. B. Inquiries regarding prior disciplinary and administrative actions or litigation
This finding is without prejudice to defendants moving for a protective order if plaintiff seeks discovery from such prior employers, which information could include personal information, such as defendants' home addresses, etc.
Defendants seek to preclude plaintiff from inquiring about prior disciplinary and administrative actions. (Dkt. #57 at 4-5). Defendants have represented that they have "never been subjected to disciplinary action by the [DOC] for using excessive [force] or otherwise mistreating an inmate." (Id. at 4). Defendants also request that inquiries about litigation be limited "to actions which went to trial in which defendants were parties and in which defendants were accused of using excessive force with an inmate." (Id.). Defendants rely on Gillis v. Benson, Civ. No. N85-93 (PCD) (D. Conn. Jan. 15, 1986) in support of their argument that the requested restriction is warranted.
In opposition, plaintiff contends that the federal rules allow for broad discovery and that defendants' "prior conduct is relevant and may lead to admissible evidence." (Dkt. #64 at 5). Plaintiff argues that defendants bear a heavy burden to prove that departure from the standards of liberal discovery is warranted, citing Yancey, supra at 207. (Id. at 6).
In Gillis, Judge Peter C. Dorsey faced this same issue regarding the discovery of prior actions and lawsuits. In analyzing prior cases, he recognized that the decisions could be "interpreted as standing for the proposition that absent a 'Monell' count for negligent supervision," prior actions and lawsuits against a police officer defendant are not discoverable. Id. at 4. However, Judge Dorsey declined to adopt a bright line rule and concluded that "each case must be assessed on its own facts in light of the specific allegations and the intended use of the information sought to be discovered." Id. Judge Dorsey ordered that "defendants will be compelled to provide a list of those complaints involving only allegations of excessive force or unlawful arrest against the police officers who are parties to this action." Id.
There remains a split of opinion among the courts in this circuit regarding the discovery of prior actions and lawsuits by other prisoners in excessive force cases. See Cox v. McClellan, 174 F.R.D. 32, 34-35 (W.D.N.Y. June 11, 1997) (permitting discovery of prior similar complaints, although recognizing that such evidence may not be admissible under FED. R. EVID. 403 404(b)); and Hurley v. Keenan, No. 79 Civ. 4772 (RJW), 1984 WL 358, at *3 (S.D.N.Y. May 8, 1984) (permitting discovery of prior similar administrative, civil and criminal actions as relevant and acknowledging that such instances may be admissible to demonstrate defendants' intent and credibility, and supervisory knowledge of any misconduct); cf. Mingues v. Bezio, No. 96 CIV. 5396JSRHBP, 1999 WL 637228, at *1 (S.D.N.Y. Aug. 19, 1999) (barring discovery of defendants prior actions and judgments as immaterial where there is no claim of supervisory wrongdoing). See also Renshaw v. Ravert, 82 F.R.D. 361, 363 (E.D. Pa. 1979) (permitting discovery of prior suits and disciplinary proceedings, but reserving judgment as to their admissibility).
Applying the reasoning of these cases and the rules favoring liberal discovery, the Court will permit discovery of defendants' prior disciplinary hearings, administrative actions and any prior lawsuits, but only to the extent that allegations were made for excessive force or mistreating an inmate.
Admissibility of such evidence at trial is another matter, however. This finding is without prejudice to defendants later filing a motion in limine to preclude admission of any such evidence.
II. CONCLUSION
Therefore, for the reasons stated above, the Court denies in large Part defendants' motion for protective order. (Dkt. #56).This is not a Recommended Ruling but a Ruling on discovery, the standard of review of which is specified in 28 U.S.C. § 636; FED. R. CIV. P. 6(a), 6(e) 72, and Rule 2 of the Local Rules for United States Magistrate Judges. As such, it is an order of the Court unless reversed or modified by the District Judge upon timely made objection.
See 28 U.S.C. § 636(b) (written objections to ruling must be filed within ten days after service of same); FED. R. Civ. P. 6(a), 6(e) 72; Rule 2 of the Local Rules for United States Magistrate Judges, United States District Court for the District of Connecticut; Small v. Secretary, H HS, 892 F.2d 15, 16 (2d Cir. 1989) (failure to file timely objection to Magistrate Judge's recommended ruling may preclude further appeal to Second Circuit).
Dated at New Haven, Connecticut, this 17th day of November, 1999.
Joan Glazer Margolis United States Magistrate Judge