G-69 v. Degnan

130 F.R.D. 326, 1990 U.S. Dist. LEXIS 4172, 1990 WL 43077
CourtDistrict Court, D. New Jersey
DecidedJanuary 22, 1990
DocketCiv. No. 86-3282(SSB)
StatusPublished
Cited by9 cases

This text of 130 F.R.D. 326 (G-69 v. Degnan) is published on Counsel Stack Legal Research, covering District Court, D. New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
G-69 v. Degnan, 130 F.R.D. 326, 1990 U.S. Dist. LEXIS 4172, 1990 WL 43077 (D.N.J. 1990).

Opinion

OPINION

JEROME B. SIMANDLE, United States Magistrate:

This matter is before the court upon motion of the State of New Jersey, as intervenor,1 for a protective order that 63 documents not be disclosed, pursuant to Rule 26(c), Fed.R.Civ.P., claiming a criminal investigative privilege.

I. Factual Background and Procedural History

This action is brought under 42 U.S.C. § 1983 and pendent state causes of action by an individual, code-named plaintiff G-69, who allegedly acted as a paid informant for the State of New Jersey in its investigation of criminal activities in the casino gaming industry in Atlantic City, particularly with [328]*328respect to organized crime. Plaintiff claims that the defendants, who are present and former officials of the New Jersey State Police and the New Jersey Attorney General’s Office,2 breached an agreement to compensate him for his employment as an informant and to provide him with certain benefits if his status as an informant were revealed. He alleges that his status as an informant against members of organized crime became known and that he was required to relocate, with his wife, with no new identity or protective cover, at a distant place, and he seeks damages in this lawsuit. His claims include violation of 42 U.S.C. § 1983 through deprivation of the right to travel, and for breach of contract and misrepresentation arising under New Jersey law.

On July 23, 1987, prior defense counsel responded to plaintiffs’ request for production of documents by producing several hundred pages of reports and memos from defendants’ files regarding plaintiff’s informant status and activities. Additionally, defense counsel identified 63 documents which were withheld from production on his assertion of “a claim of privilege based on the fact that they contain the names, addresses and relevant facts pertaining to other criminal investigations and informant activities involving organized crime in the State of New Jersey,” [Letters of Deputy Attorney General Williams, dated July 23, 1987.] These documents are in two groupings, Section A (which are allegedly memoranda/reports concerning interviews with G-69), and Section D (which are allegedly writings regarding the use of G-69 as an informant). Protection was originally sought for the following documents: Section A: A-l through A-54; Section D: D-10, 11, 209, 210, 213, 216, 220, 222 and 223. For each protected document which is the subject of this motion, prior defense counsel disclosed an index of privileged documents, reciting the author, recipient, date and page length, but not describing contents or subject matter other than as a report, memorandum or letter.

Although compelled to do so by court orders, prior defense counsel took no action to move for a protective order as to the withheld documents, claiming that a conflict of interest in representation of these two groups of defendants had surfaced. Eventually, pursuant to this court’s Order filed November 13, 1987, prior counsel was compelled to withdraw and new counsel were separately substituted on behalf of the “State Police Defendants” and the “Attorney General Defendants” groupings,3 in a manner so as to ameliorate any perceived conflict of interest in joint representations.

The November 13 Order also directed that all claims of privilege as to these withheld documents would be deemed waived unless a motion for protective order was promptly sought. The Order also directed that when the motion is filed, “redacted copies of such documents shall be furnished to plaintiffs’ counsel to the extent that such redactions of privileged information are feasible.”

The movant, State of New Jersey, subsequently filed the present motion but initially made no redactions or disclosures of portions of the allegedly privileged documents. An Order filed February 23,1988, required the movant to disclose whether anyone on behalf of the State had reviewed the documents for redaction prior to filing the motion, and to explain why it did not appear feasible to serve edited copies of the documents upon plaintiffs’ counsel, and to re-examine the documents to provide such redacted copies to plaintiffs’ counsel in connection with this motion.

Again, in response, the State took no further steps to sever privileged and non-privileged portions of documents. The Affidavit of Deputy Attorney General Williams, dated February 29, 1988, states his view, on behalf of the State, that redaction was not feasible, stated in ¶1¶ 3 and 4:

[329]*329... I did review [the 63 documents] in order to assess the feasibility of removing privileged information. The documents in question are investigative reports which mention plaintiffs name or a name being used by him at the time. Each investigative report contains literally dozens and dozens of names, addresses, undercover operations, and locations of State Police investigative efforts. If one were to remove or block out the information which my client wanted kept confidential, the remainder of each document would be incomprehensible.
... I recognize that redaction is appropriate under certain conditions. These documents contain too much material of a confidential nature to he of any use following redaction.

In support of its motion, the State submitted the documents for in camera inspection, together with a short “letter brief” asserting an “executive privilege” in confidential law enforcement materials. No affidavit was received asserting the factual basis for the claim of executive privilege as to each document or group of documents, nor did the movant’s former counsel, Deputy Attorney General Scheindlin, appear at the original oral argument in this motion, when all other counsel appeared and argued.

The State Police Defendants have argued that the court should permit discovery of certain nonprivileged factual information contained in twelve of the documents, namely: A-34, A-35, A-47, A-48, A-49, A-50, A-51, D-ll, D-209, D-210, D-220 and D-222, as these defendants themselves hope to use information in these enumerated documents. Of these enumerated documents, . subsequent disclosures by the State have been made of documents A-34, A-35, A-47, A-50, and A-51 resulting in narrowing to seven documents the subset for which the State Police Defendants seek disclosure, as discussed below.

Subsequently, former Assistant Attorney General Eugene J. Sullivan entered his appearance on behalf of the State as intervenor. As a result of discussions and further review in early 1989, the State at last furnished partially redacted copies of some of the documents in issue, so as to moot in part, or at least to narrow, the issues before the court. See Sullivan Letter dated April 4, 1989. The State then provided redacted copies of the following documents, which have also been submitted to the court [hereinafter the “redacted documents”]:

A-l
A-6
A-9 through A-12
A-15 through A-144
A-46 through A-48
A-50 through A-53
and
D-213

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Cite This Page — Counsel Stack

Bluebook (online)
130 F.R.D. 326, 1990 U.S. Dist. LEXIS 4172, 1990 WL 43077, Counsel Stack Legal Research, https://law.counselstack.com/opinion/g-69-v-degnan-njd-1990.