Opinion
02-CV-132F (consent).
March 31, 2004
JOSE ORTIZ, Pro Se, Auburn, New York.
ELIOT L. SPITZER, Attorney General, State of New York, Attorneys for Defendants, KIM S. MURPHY, Assistant Attorney General, of Counsel, Buffalo, New York.
DECISION and ORDER
JURISDICTION
The parties to this action consented to proceed before the undersigned on April 29, 2003. The matter is presently before the court on Plaintiff's motion to compel (Doc. No. 28), filed on June 4, 2003, and Defendants' motion for a protective order (Doc. No. 32), filed on June 19, 2003.
BACKGROUND and FACTS
The fact statement is taken from the pleadings and motion papers filed in this action.
On July 19, 2002, Plaintiff served Defendants with interrogatories ("the Interrogatories") and a request for production of documents ("the Document Requests") (together, "Plaintiff's Discovery Requests"). On June 4, 2003, Plaintiff filed the instant motion to compel Defendants to respond to Plaintiffs' Discovery Requests. The motion is accompanied by Plaintiff's attached Affidavit in Support of Motion to Compel ("Plaintiffs' Affidavit") and exhibits consisting of copies of the Interrogatories (Exhibit A), and the Document Requests (Exhibit B). Plaintiff maintains that when more than 30 days had passed without receiving Defendants' responses to Plaintiff's Discovery Requests, Plaintiff attempted in good faith to resolve the issue with Defendants, and Defendants responded that Defendants were unaware that Plaintiff had served Discovery Requests and, in any event, preferred to delay responding to Plaintiff's Discovery Requests until Defendants' motion to file an amended answer (Doc. No. 18), which was then pending before the court, was resolved. Plaintiff's Affidavit ¶¶ 3-4. By Order filed on June 6, 2003 (Doc. No. 29) Defendants were given until June 20, 2003 to file a response to Plaintiff's motion to compel and Plaintiff was given until July 3, 2003 to file any reply.
By another Order filed on June 6, 2003 (Doc. No. 31), Defendants' motion for leave to file an amended answer was granted and, on June 19, 2003, Defendants filed the amended answer (Doc. No. 34). Defendant also filed on July 19, 2003, a motion for summary judgment and for a protective order with regard to Plaintiffs' Discovery Requests (Doc. No. 32), accompanied by a Memorandum of Law (Doc. No. 33) ("Defendants' Memorandum"), the Declaration of Assistant Attorney General Kim. S. Murphy (Doc. No. 37) ("Murphy Declaration"), and other papers which pertain only to the summary judgment aspect of Defendants' motion. On October 2, 2003, Plaintiff filed a Brief in Opposition to Defendants' Summary Judgment Motion (Doc. No. 41) ("Plaintiff's Response"). On January 30, 2004, Defendants filed the Declaration of Assistant Attorney General Kim S. Murphy (Doc. No. 53) in which Ms. Murphy reiterates Defendants' request for a protective order. By letter to the court filed on March 3, 2004 (Doc. No. 55), Defendants withdrew the motion insofar as it requested summary judgment, but did not withdraw Defendants' request for a protective order.
Based on the following, Plaintiff's motion to compel (Doc. No. 28) is DENIED in part, GRANTED in part, and DISMISSED as moot in part; Defendants' motion for a protective order (Doc. No. 32) is GRANTED in part and DENIED in part.
DISCUSSION
Federal Rule of Civil Procedure 26(b)(1) authorizes "discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party. . . ." It is the obligation of a requested party to provide discovery that is relevant to the case. Fed.R.Civ.P. 26(b)(1). Information is relevant so long as it is reasonably calculated to lead to the discovery of admissible evidence. Daval Steel Products v. M/V Fakredine, 951 F.2d 1357, 1367 (2d Cir. 1991). Further, the "discovery regime set out by the Federal Rules of Civil Procedure is an extremely permissive one to which courts have long `accorded a broad and liberal treatment to effectuate their purpose that civil trials in federal courts [need not] be carried on in the dark.'" In re Subpoena Issued to Dennis Friedman, Esq., 350 F.3d 65, 69 (2d Cir. 2003) (quoting Schlagenhauf v. Holder, 379 U.S. 104, 114-15 (1964) (bracketed text in original)).Fed.R.Civ.P. 37(a) provides that "[a] party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling disclosure or discovery. . . . In contrast, if a requested party believes any discovery request served upon it to be irrelevant or unduly burdensome or oppressive, the requested party may seek a protective order upon good cause shown. Fed.R.Civ.P. 26(c). Rule 37(c) requires that a motion to compel discovery "must include a certification that the movant has in good faith conferred or attempted to confer with the party not making the disclosure in an effort to secure the disclosure without court action." Fed.R.Civ.P. 37(c). See also Local Rule 37.1. Similarly, Fed.R.Civ.P. 26(c) requires that a motion for a protective order be "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. . . ." Fed.R.Civ.P. 26(c).
In the instant case, Plaintiff asserts in support of the motion to compel that Plaintiff, by letter to Defendants' attorney dated March 11, 2003, made a good faith effort to obtain Defendants' responses to the Discovery Requests. Plaintiff's Affidavit ¶ 4. However, Defendants, by letter dated April 16, 2003, advised that Defendants preferred to await the court's decision on Defendants' motion to file an amended answer before providing Plaintiff with responses to Plaintiff's Discovery Requests. Id.
In support of Defendants' motion for a protective order and in opposition to Plaintiff's motion to compel, Ms. Murphy explains that Defendants's failure to respond to Plaintiff's Discovery Requests is not indicative of a lack of good faith in attempting to resolve the dispute but, rather, resulted in part from a change in Defendants' legal counsel with Ms. Murphy assuming responsibility for the case on April 15, 2003. Murphy Declaration ¶ 3. According to Murphy, not only were Plaintiff's Discovery Requests not in the file as of April 15, 2003, but Plaintiff did not file copies of Plaintiffs' Discovery Requests, in violation of Local Rule of Civil Procedure 7.1(a)(1), requiring that "all discovery materials in pro se cases shall be filed with the Court," and Plaintiff also failed to serve Defendants with the motion to compel such that Defendants were not aware of the motion to compel until they received the court's June 6, 2003 order directing Defendants to respond to the motion to compel. Murphy Declaration ¶¶ 4, 7. Defendants further maintain that prior to receiving notice of Plaintiff's motion to compel, Defendants were of the understanding that Plaintiff had agreed to Defendants' suggestion, in a letter from Ms. Murphy dated April 16, 2003, that discovery be stayed pending resolution of Defendants' motion to file an amended answer. Murphy Declaration ¶ 7. Finally, Defendants advise the court that Defendants have provided Plaintiff with documents responsive to four of Plaintiff's six Document Requests. Murphy Declaration ¶ 12.
On this record, the court finds that both Plaintiff and Defendants have made good faith attempts to resolve the discovery dispute. Accordingly, neither Plaintiff's motion to compel, nor Defendants' motion for a protective order shall be denied for failing to act in good faith. The court, therefore, considers whether Defendants must respond to Plaintiff's outstanding Discovery Requests.
Most of the Interrogatories served on Defendants seek information that is personal to Defendants, irrelevant to any claim or defense before the court and not likely to lead to information that is relevant to any such claim or defense. The first seven Interrogatories request information as to whether Defendants own their own homes or businesses, the ages of any children of Defendants, the marital status of each Defendant, Defendants' clubs, social organizations and hobbies and what magazines Defendants regularly read. Interrogatories Nos. 1-7. Interrogatory No. 10 pertains to each Defendant's military service, if any. Interrogatories Nos. 11, 12 and 13 inquires as to whether any Defendant or his family members have ever been the victim of a crime or held any law enforcement position and whether each Defendant knows anyone who has worked in a county jail, correctional facility or worked as a parole or probation officer. Plaintiff also inquires as to each Defendant's personal opinion regarding whether "prisoners are treated too lightly," Interrogatory No. 14, "are afforded too many privileges," Interrogatory No. 15, or "lose any rights when he or she is sent to prison." Interrogatory No. 16. Interrogatory No. 17 asks each Defendant to state "the purpose of prison." Interrogatory No. 18 asks whether and how each Defendant believes an inmate should be punished upon disobeying an order, while Interrogatories Nos. 19 and 20 ask under what circumstances Defendants believe capital punishment, or use of physical force and restraints is appropriate. Interrogatories Nos. 21 and 22 pertain to Defendants' beliefs regarding the humane treatment of prisoners, and Interrogatories Nos. 23 and 24 inquire as to Defendants' thoughts about legal actions brought by prison inmates seeking redress for harm inflicted by prison officials and what consequences such prison officials should face. Interrogatories Nos. 25, 26 and 27 seek to elicit from Defendants any ethnic prejudices. Interrogatory No. 28 asks whether any Defendant knows anyone who has been in prison. Interrogatories Nos. 29, 30, 31, 32 and 33 pertain to Defendants' beliefs as to the truthfulness of prison inmates as compared to the truthfulness of correctional facilities' employees. Interrogatory No. 34 asks whether any Defendant would ever hire a person with a criminal record. None of the information responsive to any of these Interrogatories is relevant to any claim or defense before the court in the instant case, specifically, whether Defendants' actions on April 24, 2000, amount to an unlawful use of excessive force in violation of Plaintiff's Eighth Amendment right to be free from cruel and unusual punishment. As such, Defendants need not respond to Interrogatories Nos. 1, 2, 3, 4, 5, 6, 7, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33 and 34. Interrogatories Nos. 8, 9, 35, 36, 38, 39, 40, 41 and 42, however, request information relevant to Plaintiff's claim for relief.
The court notes that there is no "Interrogatory No. 37."
In particular, Interrogatories Nos. 9 and 10 inquire as to Defendants' formal education and instruction as a corrections officer, information relevant to Defendants' asserted qualified immunity defense. Interrogatories Nos. 35 and 38 inquire as to whether any Defendant has ever been arrested or written up for use of excess force or racial misconduct. Responses to these interrogatories may demonstrate a pattern of behavior similar to that of which Defendants are accused in the present action. Defendants do not specifically object to Interrogatory No 36 which asks the age of each Defendant. Interrogatory No. 39 asks whether Defendants were present when Ortiz was assaulted. Interrogatory No. 40 asks each Defendant whether such Defendant delivered any of the blows that cause Plaintiff's injuries. Interrogatory No. 41 asks that if a Defendant did not deliver any of the injury-producing blows to Plaintiff, why such Defendant did not intervene to prevent Plaintiff's injuries. Finally, Interrogatory No. 42 asks whether any person has filed any criminal complaints or legal actions against each Defendant. Defendants' responses to these Interrogatories are relevant to the claims and defenses at issue in the instant action, or could lead to such relevant information, including impeachment evidence under Fed.R.Evid. 609. Significantly, Defendants do not explain the basis for their objections to Interrogatories Nos. 8, 9, 35, 36, 38, 39, 40, 41 and 42. Accordingly, as to Interrogatories Nos. 8, 9, 35, 36, 38, 39, 40, 41 and 42, Plaintiff's motion to compel is GRANTED and Defendants' motion for a protective order is DENIED.
Defendants thus shall answer Interrogatories Nos. 8, 9, 35, 36, 38, 39, 40, 41 and 42. Defendants, however, need not respond to the remaining Interrogatories as such Interrogatories are neither relevant to any claim or defense at issue in this action, nor likely to lead to evidence relevant to such claim or defense.
As to the Document Requests, Defendants maintain that they have already provided Plaintiff with documents in response to Document Requests Nos. 1, 2, 4 and 5 and Plaintiff does not argue otherwise. Accordingly, Plaintiff's motion to compel is DISMISSED as moot as to Document Requests Nos. 1, 2, 4 and 5. Defendants, however, oppose Plaintiff's Document Request No. 3, seeking disciplinary and psychological evaluations of each Defendant, as such personnel records are exempt from disclosure pursuant to New York Civil Rights Law ("N.Y. Civ. Rights Law") § 50-a (McKinney 1992). Murphy Declaration ¶ 18. Defendants also object to Document Request No. 6 seeking personnel documents concerning other complaints against Defendants on the basis that it "would be virtually impossible to produce" such documents which are filed chronologically, rather than by the name of the correction officer involved. Murphy Declaration ¶ 18.
References to N.Y. Civ. Rights Law are to McKinney 1992 unless otherwise specified.
N.Y. Civ. Rights Law § 50-a provides that a correction officer's personnel file shall be considered confidential and not subject to inspection or review, unless mandated by a lawful court order. N.Y. Civ. Rights Law § 50-a is intended "to protect irrelevant materials from disclosure: to prevent fishing expeditions, not to safeguard privacy itself." King v. Conde, 121 F.R.D. 180, 192 (S.D.N.Y. 1988) (citing Matter of Capital Newspapers v. Burns, 67 N.Y.2d 562, 505 N.Y.S.2d 576, 496 N.E.2d 665 (1986)). Although this New York statute does not govern discovery in federal cases, and there is no analogue in federal law to this provision, federal common law provides for some consideration of state law privileges, since a "`strong policy of comity between state and federal sovereignties impels federal courts to recognize state privileges where this can be accomplished at no substantial cost to federal substantive and procedural policies.'" Mercado v. Division of New York State Police, 989 F. Supp. 521 (S.D.N.Y. 1998) (quoting Lora v. Board of Education, 74 F.R.D. 565, 576 (E.D.N.Y. 1977)). "To resolve discovery disputes of this kind, a federal court must balance the plaintiff's interests in disclosure against the state's legitimate concern of protecting the confidentiality of the officers' personnel files from unnecessary intrusions." Mercado, supra, at 522 (citing Unger v. Cohen, 125 F.R.D. 67, 69 (S.D.N.Y. 1989); and King, supra, at 190-91).
Defendants have legitimate concerns regarding the disclosure of personal information relating to correction officers. N.Y. Civ. Rights Law § 50-a(2) provides that "[p]rior to issuing such court order the judge must review all such requests and give interested parties the opportunity to be heard. No such order shall issue without a clear showing of facts sufficient to warrant the judge to request records for review." Furthermore, N.Y. Civ. Rights Law § 50-a(3) provides that if, upon such a "clear showing of facts," the court shall conduct an in camera review of the requested personnel records to determine whether such records are, in fact, relevant to the case pending before the court and, "[u]pon such a finding the court shall make those parts of the record found to be relevant and material available to the persons so requesting." N.Y. Civ. Rights Law § 50-a(3).
In the instant case, Plaintiff has failed to demonstrate sufficient facts warranting the disclosure of Defendants' personnel records. Accordingly, there is no basis upon which the court can order an in camera review of such records to determine whether such records are relevant and, thus, discoverable. Plaintiff's Document Request No. 3 is, therefore, DENIED.
Defendants oppose Plaintiff's Document Request No. 6 on the ground that producing such information, i.e., personnel documents regarding other complaints filed against Defendants, would be unduly burdensome given that such documents are filed chronologically, rather than by the name of the correction officer involved in any specific incident and, as such, "a search of literally thousands of files would be necessary." Murphy Declaration ¶ 18. Plaintiff does not argue otherwise. Accordingly, the court finds Defendants have established that production of documents responsive to Document Request No. 6 would be unduly burdensome and such documents need not be produced.
Plaintiff's motion to compel is DISMISSED as moot as to Documents Request Nos. 1, 2, 4 and 5, and DENIED as to Documents Request Nos. 3 and 6. Defendants' motion for a protective order is GRANTED as to Documents Requests Nos. 3 and 6.
CONCLUSION
Based on the foregoing, Plaintiff's motion to compel (Doc. No. 28) is DENIED in part, GRANTED in part and DISMISSED as moot in part; Defendants' motion for a protective order (Doc. No. 32) is GRANTED in part and DENIED in part. Defendants shall provide Plaintiff with the discovery as directed by this Decision and Order within 30 days.SO ORDERED.