Brush v. Old Navy LLC

• Court: District Court, D. Vermont
• Decided: April 8, 2022
• Docket: 2:21-cv-00155
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT US.DISTRICT COURT TRICT OF VERB FOR THE Serna en! DISTRICT OF VERMONT . sae □□ AARON BRUSH, ) ENE ) Plaintiff, ) BY ; ) BEPUTY CLERK V. ) Case No. 2:21-cv-155 ) OLD NAVY LLC, SCOTT GRAHAM, ) TIMOTHY OLIVER, AND TOWN OF ) WILLISTON, ) ) Defendants. ) ENTRY ORDER RE: IN CAMERA REVIEW GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO COMPEL PRODUCTION (Doc. 58) This matter came before the court on a motion to compel the Vermont Criminal Justice Council’s (the “VCJC”) compliance with a subpoena filed by Plaintiff Aaron Brush. In order to determine whether the VCJC’s documents were properly withheld, the court examined them in camera to determine whether the court should order them to be produced. 20 V.S.A. § 2409 governs the “[a]ccessibility and confidentiality” of the records that VCJC gathers in its work. The section provides: It is the purpose of this section both to protect the reputation of law enforcement officers from public disclosure of unwarranted complaints against them and to fulfill the public’s right to know of any action taken against a law enforcement officer when that action is based on a determination of unprofessional conduct. 20 V.S.A. § 2409(a). “[W]ith respect to any complaint,” the VCJC is directed to provide only “(A) the date and the nature of the complaint, but not including the identity of the law enforcement officer; and (B) a summary of the completed investigation[.]” Jd. at § 2409(c)(1). The VCJC is directed to keep all other information confidential: The Council, its hearing officer, and Council staff shall keep confidential any other information regarding unprofessional conduct complaints, investigations, proceedings, and related records except the information required or permitted to be released under this section.

Id. at § 2409(d). Similarly, Vermont law exempts these records from public inspection and copying. 1 V.S.A. § 317(c)(1). Although the statute does not prevent disclosure “pursuant to an order from a court of competent jurisdiction, or to a State or federal law enforcement agency in the course of its investigation,” the recipients of such information are directed to “maintain the confidentiality of the information as provided in subsection (d) of this section.” 20 V.S.A. § 2409(f). The statute provides no basis for waiving confidentiality. Rule 45 provides in relevant part “[o]n timely motion, the court for the district where compliance is required must quash or modify a subpoena that[] . . . requires disclosure of privileged or other protected matter, if no exception or waiver applies[.]” Fed. R. Civ. P. 45(d)(3)(A)(iii). Although a party generally does not have standing to challenge a subpoena issued to a third party, “[t]his general rule does not apply where the person contesting the subpoena can assert a privilege[,]” or the subpoena “impinges on his or her personal rights.” O’Brien v. Barrows, 2010 WL 4180752, *1 (D. Vt. Oct. 19, 2010). Based on its in camera review, the court hereby ORDERS VCIC to produce the following documents, which are relevant and material to the issue of the credibility ofa defendant in this case and which are either already a matter of public record or contain information that is within the broad scope of discovery. These records are disclosed to the parties’ attorneys subject to the Confidentiality Order the parties have signed. I. Documents to be Produced. A. Defendant Oliver. 0001 0067-0071 0008-0010 0076-0078 0012-0020 0082-0086 0041-0049 0099-0100 0056-0058 0141-0142 0063-0065

B. Defendant Graham. 0001 I. Documents Properly Withheld. The court agrees that the remaining documents are properly described in VCJC’s privilege log and reflect internal communications and deliberations that are not relevant to the issue of credibility and outside the scope of discovery. CONCLUSION For the reasons stated above, Plaintiffs motion to compel compliance with the subpoena is GRANTED IN PART AND DENIED IN PART. (Doc. 58.) SO ORDERED. wh Dated at Burlington, in the District of Vermont, this ae day of April, 2022.

United States District Court