G-69 v. Degnan

130 F.R.D. 339, 16 Fed. R. Serv. 3d 591, 1990 U.S. Dist. LEXIS 4162, 1990 WL 43079
District Court, D. New Jersey·Decided February 28, 1990·No. Civ. No. 86-3282(SSB)·Published·Cited by 1 cases

Opinion

OPINION

JEROME B. SIMANDLE, United States Magistrate:

This matter is before the court upon motions of the Custodian of Records, Department of Law and Public Safety. The first motion seeks a protective order pursuant to Rule 26(c), Fed.R.Civ.P., as to eleven (11) documents (and later two other documents) which the State intervenor, through former Assistant Attorney General Eugene Sullivan, has claimed to be protected from discovery either as irrelevant to plaintiffs’ case or under the governmental privilege for law enforcement materials; the State also claims that one of those eleven documents was inadvertently produced and the State seeks an Order compelling plaintiffs’ counsel to return it.

In the second motion, the State seeks a protective order barring production of criminal investigation files of nonparties about whom plaintiff G-69 gave information. Both motions are now decided.1

I. Factual Background and Procedural History

Plaintiff G-69, a pseudonym, was a paid confidential informant for the New Jersey State Police during the early 1980’s. His work involved various undercover capacities in casino and bar settings in Atlantic City, where he provided information to law enforcement authorities concerning various matters, stemming from organized crime violence to suspicious activities of others. Some information played a role in ongoing investigations, other information did not.

There came a time when his role as an informant was discovered by a previous criminal acquaintance who recognized G-69 in an undercover capacity. G-69, allegedly in fear of his life, relocated elsewhere and sought to enforce promises made to him by various representatives and employees of the State.

This action, arising under 42 U.S.C. § 1983 and pendent state claims, alleges that the defendants breached their contract with G-69 in a manner interfering with his constitutional right of travel by denying him and his wife emergency relocation payments, redocumentation of new identities, health insurance, and weekly payments of cash as necessary to provide for financial well-being.

Much of the procedural history is set forth in the Opinion of January 22, 1990, [341]*341which decided the motion of the State of New Jersey, as Intervenor, for a protective order as to a group of assertedly confidential documents which were withheld in whole or in part. 130 F.R.D. 326. That group of documents had originally been identified as confidential under the governmental privilege for prosecutorial files; the claims of privilege as to the original group of 63 documents were narrowed and various documents were produced in redacted form on May 5, 1989, which were thereafter reviewed in camera, as discussed in the above Opinion, pursuant to which the State’s claims of privilege were upheld in part and overruled in part.

The State now seeks to withhold two groups of documents. The first is a group of eleven documents for which the State Police Defendants2 have withheld from a court-ordered production of various personnel files. At a hearing on April 21, 1989, this court had ordered the State Police Defendants to produce certain file documents to the plaintiffs, or to claim a particularized privilege as to any withheld document, by May 5,1989, subsequently extended to May 8, 1989.

An attorney for the State Police Defendants, John C. Connell, Esquire, reviewed the documents to be produced on May 8, 1989, which consisted of almost 400 documents totaling approximately 1,200 pages. (Connell Certification, dated June 22, 1989, at ¶ 4.) Former Assistant Attorney General Sullivan, on behalf of the State as Intervenor herein, reviewed the documents on behalf of the Attorney General’s Office, and on May 4, 1989, he directed Mr. Connell to withhold the eleven documents from production in the 400-document batch, because the State was claiming the privilege. (Letter of Sullivan to Connell, dated May 4, 1989, hereafter “Sullivan Letter,” copy attached to Connell Certification.)

The State’s basis for withholding each of the eleven documents was set forth in the Sullivan Letter on a document-by-document basis following Sullivan’s review assisted by the State Police Intelligence Unit. Mr. Connell arranged for delivery of the non-privileged documents to plaintiffs’ counsel on May 8. Among the disclosed documents was one that was inadvertently disclosed to plaintiffs’ counsel, entitled “Winters Document No. 101.” Mr. Connell discovered the mistaken disclosure on the morning of May 9, and he called plaintiffs’ counsel that same day to request its return. Plaintiffs’ counsel, Pamela Higgins, Esquire, refused to return Winters Document No. 101 to Mr. Connell, claiming that “[i]nadvertent disclosure constitutes a waiver of any claim of privilege. Moreover, my review of the document discloses that no privilege could properly attach to the document and it is clearly discoverable.” Higgins Letter to Connell, dated May 17, 1989.

When at a June 15, 1989 conference it appeared that neither the State nor the State Police Defendants had filed a motion for a protective order to support their claim of privilege, I directed counsel for the State to file an appropriate motion for a protective order and to submit the withheld documents (including redacted documents) to me for inspection in camera by June 26, 1989. The State’s motion thus seeks to compel Ms. Higgins to return the Winters Document No. 101, and the State has submitted each of the documents for in camera review in support of a protective order approving nondisclosure.

The specific documents for which a protective order is sought is itself a matter in some dispute, because the State’s present motion was underinclusive. While the State claimed privilege for eleven documents,3 Mr. Connell, on behalf of the [342]*342State Police Defendants, also failed to disclose several others. Mr. Connell’s supplemental withholding came to light through Ms. Higgins’ comparison of disclosed documents to Mr. Connell’s correlation index. The additional documents withheld by Mr. Connell, were: Dintino 7, Dintino 8, and Winters 85,109,110,124 and 133. Four of those documents (Winters 109,110,124 and 133) were already submitted to the court pursuant to the State’s motion for protective order, and their discoverability was determined in the Opinion of January 22, 1990 and will not be further considered.4 The State then also disclosed and waived its privilege as to Winters 85.5 The net result is that only two additional withheld documents—Dintino 7 and Dintino 8—have been identified, and plaintiffs’ position on these additional documents has been supplementally briefed, and the court will consider these as part of the motion,6 which will be discussed further below.

The State’s second discovery motion had its origin in the Discovery Conference of June 15, 1989. At that Conference, plaintiffs’ counsel, Ms.

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G-69 v. Degnan, 130 F.R.D. 339, 16 Fed. R. Serv. 3d 591, 1990 U.S. Dist. LEXIS 4162, 1990 WL 43079 (D.N.J. 1990).

130 F.R.D. 339 (G-69 v. Degnan) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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