Opinion
Civil Action No. 9:16-CV-0759 (FJS/DEP)
04-19-2017
MATTIEU BURKS, Plaintiff, v. CHAD STICKNEY, et al., Defendants.
APPEARANCES: FOR PLAINTIFF: STOLL, GLICKMAN & BELLINA LLP 475 Atlantic Avenue, Third Floor Brooklyn, New York 11217 FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN New York State Attorney General The Capitol Albany, NY 12224 OF COUNSEL: LEO GLICKMAN, ESQ. DENISE P. BUCKLEY, ESQ. Assistant Attorney General
APPEARANCES: FOR PLAINTIFF: STOLL, GLICKMAN & BELLINA LLP
475 Atlantic Avenue, Third Floor
Brooklyn, New York 11217 FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, NY 12224 OF COUNSEL: LEO GLICKMAN, ESQ. DENISE P. BUCKLEY, ESQ.
Assistant Attorney General DAVID E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE
DECISION AND ORDER
This is an action brought by plaintiff Mattieu Burks pursuant to 42 U.S.C. § 1983 against a number of individuals employed by the New York State Department of Corrections and Community Supervision ("DOCCS") alleging that they subjected him to cruel and unusual punishment while confined in a New York State prison facility. During the course of discovery, plaintiff's counsel was provided with an investigative file created by the DOCCS Office of Special Investigations ("OSI") regarding the incident giving rise to plaintiff's claims. The case file was disclosed to plaintiff's counsel pursuant to a protective order issued by the court, on stipulation of the parties. Under that order, while plaintiff's counsel is authorized to permit plaintiff to review the materials disclosed, they are otherwise restricted to his counsel on an attorney's-eyes-only basis.
Currently pending before the court is plaintiff's request for declassification of portions of the OSI file under the governing protective order and, correspondingly, for authorization to publicly disseminate those documents. For the reasons set forth below, the request is granted in part.
I. BACKGROUND
Plaintiff commenced this action on June 27, 2016. Dkt. No. 1. In his complaint, plaintiff alleges that, at the relevant times, he was confined in the Clinton Correctional Facility ("Clinton"), a prison operated by the DOCCS. See generally id. Generally, plaintiff claims that while at Clinton he was harassed, assaulted, and deprived of certain basic necessities, including water and electricity. Id. Plaintiff's complaint asserts Eighth Amendment cruel and unusual punishment claims against several named corrections officers, as well as additional, unidentified Doe defendants. Id.
During the course of discovery, plaintiff requested the production of a case file created by the OSI in connection with an investigation into plaintiff's allegation that he was assaulted by corrections officers at Clinton on July 5, 2015. To facilitate the production of that file by defendants' counsel, the parties entered into a stipulation providing for the entry of a protective order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure. Dkt. No. 30. The protective order is limited in scope and specific to the OSI case file, and acknowledges the parties' recognition of the confidential and sensitive nature of that file and the security concerns and other deleterious effects that could result from public disclosure of its contents. See generally id. Paragraph eleven of the protective order provides that, in the event the parties dispute "the application of the terms of [the order] to any part of the Protected Records," they "reserve the right to seek an order from the Court regarding the part of the Protected Records in dispute." Dkt. No. 30 at 6. Following the entry of the stipulated order, the OSI case file was produced to plaintiff's counsel on or about January 15, 2017, redacted to remove social security numbers and personal addresses and designated as CONFIDENTIAL ATTORNEY VIEWING ONLY. See, e.g., Dkt. No. 33-1.
Upon receipt of the OSI file, plaintiff's counsel sent a letter to defendants' attorney on January 19, 2017, objecting to the confidentiality designation with regard to certain portions of the OSI file. Dkt. No. 32-3. Assistant New York State Attorney General Denise P. Buckley responded by letter dated February 9, 2017, stating that her office was "instructed by the OSI that they will agree to vary the terms of the So-Ordered Stipulation and Confidentiality Order" in part, and enclosing fifty-one pages of records from the OSI file from which the confidential designation was removed, subject to minor redaction. Dkt. No. 32-4.
On March 9, 2017, pursuant to paragraph eleven of the protective order, plaintiff filed a motion with the court seeking an order releasing certain of the remaining contents of the OSI file from protection under the order. Dkt. No. 32. Plaintiff's motion implicates the following documents:
| Bates Stamp Number | Description |
|---|---|
| 6-10 | Final OSI report |
| 42-44, 112-114 | Inmate witness statements |
| 77-106 | Transcript of question and answerproceedings, held on 10/14/15, involvingdefendant John Mark Cross |
| 116-117 | Plaintiff's statement to OSI |
II. DISCUSSION
A. Conflict of Interest
In his motion, plaintiff argues that a conflict of interest exists by virtue of the fact that the New York State Attorney General represents both the defendants in this matter and the OSI. I disagree. The OSI is an organization within the DOCCS, the state agency for whom the named defendants work. The New York State Attorney General routinely represents those employed by the DOCCS who are implicated in litigation. I have been provided no reason to believe that the interests of defendants and OSI are in conflict, nor is there any basis to conclude that the dual role at issue will adversely affect the Attorney General's defense of the OSI or representation of the defendants. Accordingly, I find no basis to conclude that a conflict of interest exists as argued by plaintiff.
I note, in passing, that in accordance with the custom in this court, the New York State Attorney General was asked to produce the OSI file in order to obviate the need to obtain that file through the issuance of a non-party Rule 45 subpoena to the DOCCS. Because this procedure was followed as a matter of convenience to plaintiff, he should not now be heard to argue that, despite this accommodation, defendants' counsel may not advocate for confidentiality on behalf of the OSI.
At least one court has concluded that documents held by the DOCCS are effectively within the custody or control of individual DOCCS employees named as defendants in a lawsuit based upon the practical ability on the part of the New York State Attorney General, defendants' counsel, to obtain the documents. See Gross v. Lunduski, 304 F.R.D. 136, 142-43 (W.D.N.Y. 2014) ("Here, the record establishes Defendant, through his attorney, an Assistant N.Y. Attorney General, provided by the local office of the New York Attorney General, has the practical ability to acquire from DOCCS many of the documents requested by Plaintiff.").
B. Merits
Important to the analysis of plaintiff's motion is consideration of the procedural posture of the case. The parties are engaged in pretrial discovery, and no dispositive motions are currently pending in the action. At issue, then, are documents produced by defendants to plaintiff subject to a negotiated Rule 26(c) protective order, and whether those documents should be released from their confidential designation and made available to the public.
During the hearing in this matter, plaintiff conceded that his intention, should his motion be granted, is to make the OSI documents "as public as possible."
Discovery in a civil action is a private process through which parties exchange documents that are not filed with the court, at least during the discovery phase of an action. Accordingly, the public does not enjoy a presumptive right of access to discovery materials. Schiller v. City of N.Y., No. 04-CV-7922, 2007 WL 136149, at *2 n.2 (S.D.N.Y. Jan. 19, 2007); In re: Terrorists Attacks on September 11, 2001, 454 F. Supp. 2d 220, 222 (S.D.N.Y. 2006) (citing United States v. Amodeo, 71 F. 3d 1044, 1050 (2d Cir. 1995)). The public's right of access to discovery materials is triggered only when they become judicial documents filed with the court and assume relevance to the performance of the judicial function and usefulness in the judicial process. See Amodeo, 71 F.3d at 1050 ("Documents that play no role in the performance of Article III functions, such as those passed between the parties in discovery, lie entirely beyond the . . . reach [of the public's presumptive right of access]."); accord, In re: Terrorist Attacks on September 11, 2001 , 454 F. Supp. 2d at 222. The public's right of access thus plays no role in analysis of plaintiff's motion.
Prior to 2000, Rule 5(d) of the Federal Rules of Civil Procedure mandated that all discovery materials be filed with the court absent a court order excusing the requirement. In re Agent Orange Prod. Liab. Litig., 821 F.2d 139, 146 (2d Cir. 1987). That requirement, however, has since been eliminated from the rules.
Some courts have cited In re Agent Orange Prod. Liab. Litig. for the proposition that the public has a right of access to materials exchanged in discovery. See, e.g., Cooks v. Town of Southampton, No. 13-CV-3460, 2015 WL 1476672, at *5 (E.D.N.Y. Mar. 31, 2015). In re Agent Orange Prod. Liab. Litig., however, is readily distinguishable because it was decided under the prior version of Rule 5(d) of the Federal Rules of Civil Procedure, which required the filing of discovery materials.
The standard to be applied in evaluating plaintiff's motion depends upon whether it seeks a modification of the Rule 26(c) stipulated protective order, or, instead, by bringing the motion, plaintiff has invoked the right reserved under paragraph eleven of the order to challenge defendants' designation of certain portions of OSI file as confidential.
If the application is properly regarded as seeking a modification, it is subject to a stringent standard. The Second Circuit has recognized the presumptive unfairness of modifying protective orders that have been entered into to ensure "confidentiality and upon which parties have reasonably relied" in producing sensitive materials. AT & T Corp. v. Sprint Corp., 407 F.3d 560, 562 (2d Cir. 2005) (citing S.E.C. v. TheStreet.com, 273 F.3d 222, 230 (2d Cir. 2001)). Accordingly, "[o]nce a court enters a protective order and the parties rely on that order, it cannot be modified 'absent a showing of improvidence in the grant' of the order or 'some extraordinary circumstance or a compelling need.'" AT & T Corp., 407 F.3d at 562 (quoting Martindell v. Int'l. Tel. & Tel. Corp., 594 F.2d 291, 296 (2d Cir. 1979)); accord, Allen v. City of N.Y., 420 F. Supp. 2d 295, 300 (S.D.N.Y. 2006).
In this case, the parties appear to agree that plaintiff is exercising a right that is specifically reserved under paragraph eleven of the protective order, permitting him to challenge a designation of "confidential." As such, the court must examine the matter de novo, and the inquiry turns to whether the designating party has shown good cause to support the designation. Schiller, 2007 WL 136149, at *4. In making that analysis, I must apply the standard applicable to requests for protective orders under Rule 26(c) of the Federal Rules of Civil Procedure. Id.
As discussed above, that paragraph provides as follows:
If a dispute arises as to the application of the terms of this Stipulation and Confidentiality Order to any part of the Protected Records and cannot be resolved by agreement, the parties, in accordance with the applicable Federal and Local Rules of Civil Procedure, reserve the right to seek an order from the Court regarding the part of the Protected Records in dispute. The terms of this Stipulation and Confidentiality Order shall remain in effect pending resolution of the dispute.Dkt. No. 30 at 6. No standard is set forth for adjudicating such a challenge.
The court is somewhat troubled by the circularity of the protective order, with plaintiff at one point acknowledging the confidential nature of the OSI file and the harm that could come from disclosure of its contents, and yet reserving the right to argue that there is no good cause for shielding them from public disclosure. Dkt. No. 30.
Rule 26(c) authorizes the issuance of protective orders "to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense[.]" Fed. R. Civ. P. 26(c)(1). Before a protective order is issued, Rule 26(c)(1) requires a showing of "good cause." Id.; see also Schiller, 2007 WL 136149, at *2. Good cause exists when the party seeking protection demonstrates that "disclosure will result in a clearly defined, specific and serious injury. Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test. Moreover the harm must be significant not a mere trifle." Schiller, 2007 WL 136149, at *5 (citations and quotation marks omitted).
In this case, defendants contest disclosure of the materials at issue in light of alleged "legitimate security concerns[.]" Dkt. No. 34 at 3. More specifically, defendants argue that removing the confidentiality designation of the documents "jeopardizes the safety of . . . third parties who were interviewed on a confidential basis, [and] also reveals how OSI conducts witness interviews and how information is assessed by investigators for credibility and potential motives." Id. at 6; see also id. at 7 ("Release of the Protected Records also raises concerns about revealing to the prison population information about the OSI's investigative methods, tactics, strategic policies, and procedures."). Indeed, by entering into the stipulated protective order, plaintiff seemingly acknowledged that the OSI file contents "include the names of witnesses and other information that could impair future investigations, implicate security concerns, and are protected from disclosure by law enforcement privilege." Dkt. No. 30 at 1. The protective order further acknowledges that "the OSI is concerned that its ability to conduct future investigations will be compromised if sufficient measures are not taken to protect the confidentiality of witnesses." Id. at 3.
"Federal courts are sensitive to . . . valid prison security issues related to discovery in prisoner civil rights cases[.]" Gross, 304 F.R.D. at 156. In opposing plaintiff's motion, however, defendants have only articulated broad, overarching concerns that accompany the disclosure of virtually every report and document generated during a prison investigation, and have not focused upon the particular documents at issue and any specific harms that may be caused by their release. Similarly, the protective order itself, although stipulated to by both plaintiff and defendants, echoes only the same types of vague concerns set forth in defendants' opposition to plaintiff's motion without addressing the specific contents of the OSI file.
A careful review of the disputed documents reveals that, with limited exception, they do not reveal information that will jeopardize the safety and security of any individual or at any prison operated by the DOCCS. Though defendants contend that the OSI file contents at issue disclose investigatory methodologies that risk the efficacy and security of future DOCCS and OSI investigations, this assertion is not borne out by the court's review of the disputed materials. The OSI final investigative report does not reveal any information regarding the underlying investigations completed by Clinton staff that is not already public knowledge or disclosed in documents not covered by the protective order. For example, the OSI final report discusses the investigation undertaken by defendant Cross into plaintiff's allegation that he was assaulted. The information generated during defendant Cross' investigation was compiled in a memorandum to his supervisor that he authored, which defendants voluntarily agreed to release from the protections of the protective order. Similarly, while the OSI final report discusses the investigation that Sergeant Peck undertook with respect to plaintiff's allegations, his investigation was also memorialized in a memorandum that defendants have agreed to make public.
Although certain of the documents at issue disclose the identities of some of the non-party individuals interviewed during the investigations, those names and/or department identification numbers can, and must, be redacted to protect the individuals' identities. In addition, while defense counsel argued at the motion hearing that the contents of the witnesses' statements could reveal the identities of the inmates interviewed, the witnesses generally stated that they did not know what happened in connection with plaintiff's underlying allegation of assault or that they did not know plaintiff. Such information does not jeopardize the safety of the inmates interviewed or risk the utility of any future investigation. Moreover, I disagree with defense counsel that the witnesses' handwriting renders the authors identifiable. The three statements that actually include the witnesses' handwriting - which were taken in connection with a disciplinary hearing - include no more than eight words; the other three statements given by the same inmates were memorialized by the OSI investigator, not the witnesses.
Accompanying service of this decision and order upon the parties is a copy of the documents at issue (Bates Stamp Nos. 6-10, 42-44, 77-106, 112-14, 116-17) with the redactions necessary to preserve the identities of the witnesses indicated. --------
In sum, I do not find that defendants have carried their burden of demonstrating good cause for restricting the documents at issue from public disclosure. In light of the well settled concern for general safety and security at DOCCS prison facilities, however, I will direct that plaintiff, who is a New York State prison inmate, may not obtain and/or possess a personal copy of the documents at issue. Instead, he may view the documents only while in the presence of his attorneys. Moreover, as was previously indicated, the court has approved redaction of the personal information of any inmate witnesses interviewed and contained in the documents to protect their identity.
III. SUMMARY AND CONCLUSION
While I remain sensitive to the safety and security considerations present at DOCCS facilities, as well as the concerns involving disclosure of investigatory materials and reports generated in connection with incidents occurring within DOCCS facilities, the stipulated protective order in this matter specifically reserved the right to challenge the confidentiality designation by motion to the court. At oral argument, the parties were in agreement that paragraph eleven of the protective order was properly invoked by plaintiff in this instance, and that plaintiff was not seeking a modification of the order. Accordingly, the burden falls upon on defendants to demonstrate good cause for maintaining the confidentiality of the documents at issue. Because defendants have identified only broad security concerns and have failed to articulate any specific injury that may result from the public disclosure of the particular documents at issue, and thus have not established good cause for retaining the protected status of the documents in issue, it is hereby
ORDERED that plaintiff's motion for relief from the restrictions imposed by the protective order in this case with regard to the portions of the OSI file now contested (Dkt. Nos. 32, 33) is GRANTED, except that plaintiff is not permitted to possess a personal copy of the OSI, and the documents at issue must be redacted as indicated herein; and it is further
ORDERED that the clerk of court serve a copy of this order, as well as a copy of the challenged documents containing the court's redactions, on the parties in accordance with the local rules of practice for this court. Dated: April 19, 2017
Syracuse, NY
/s/_________
David E. Peebles
U.S. Magistrate Judge
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