Mercy v. County of Suffolk

93 F.R.D. 520, 34 Fed. R. Serv. 2d 594, 10 Fed. R. Serv. 1127, 1982 U.S. Dist. LEXIS 10686
CourtDistrict Court, E.D. New York
DecidedFebruary 12, 1982
DocketNo. CV 81-1754
StatusPublished
Cited by24 cases

This text of 93 F.R.D. 520 (Mercy v. County of Suffolk) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mercy v. County of Suffolk, 93 F.R.D. 520, 34 Fed. R. Serv. 2d 594, 10 Fed. R. Serv. 1127, 1982 U.S. Dist. LEXIS 10686 (E.D.N.Y. 1982).

Opinion

MEMORANDUM AND ORDER

GEORGE C. PRATT, District Judge:

In this action brought pursuant to 42 U.S.C. § 1983, plaintiffs allege that the defendant police officers assembled at their home in “mob fashion” and, without a warrant, falsely arrested four of the plaintiffs, assaulted and battered all of the plaintiffs, and destroyed their property. Defendants deny these allegations and state that the altercation was initiated by plaintiffs when defendants attempted to arrest several of the plaintiffs on a charge of assaulting the manager and a customer of a local store.

At a status conference held early in this litigation, parties received a copy of the standard discovery order which the court issues in § 1983 cases involving charges of police brutality (See appendix). By motion returnable February 3, 1982, defendants move for a protective order to prevent plaintiffs from obtaining two types of documents they were ordered to turn over in f 2 of the discovery order, namely, the narrative report of the internal affairs section and the statements of individual police officers given to the internal affairs section during that section’s investigation of plaintiffs’ administrative complaint against defendants. Defendants have provided these documents to the court for in camera inspection.

After the incident which is the subject of this litigation, plaintiff Richard Mercy filed with the Suffolk County Police Department a complaint against the police officer’s conduct, and an investigation was initiated by the internal affairs section of the department.1 As in most such investigations by the internal affairs section, statements were taken from the individual police officers involved, setting forth each officer’s version of the incident. At the end of the investigation, the officer in charge prepared a “narrative report” consisting of 10 pages in which he summarized the facts and made several observations.

Defendants argue that there are three grounds for the protective order they seek: (1) executive privilege; (2) the work product privilege; and (3) the attorney-client privilege. First, they contend that in this case the material at issue should be protected by executive privilege because disclosure of the information would frustrate the public policy served by the activities of the internal affairs section. They claim that the court’s requirement that the documents at issue be released to plaintiffs in § 1983 actions will chill intradepartmental investigations because police officers will not be candid in their individual reports or in the [522]*522narrative report made at the end of the investigation.

If defendants are saying that police officers are more likely to be untruthful if they know potential plaintiffs might receive their reports than they ordinarily are when they are faced with possible departmental disciplinary action, the court does not accept their argument. The court recognizes that police department self-evaluation and remedial action do serve an important public policy, but such policy will not be hindered by the disclosure ordered here. On the contrary, limited disclosure can only further this policy. These investigations are conducted, at taxpayer expense, to determine whether the procedures of the department or individual police officers were responsible for the complained-of incident, and whether disciplinary or other remedial action is necessary to prevent the recurrence of similar incidents. No legitimate purpose is served by conducting the investigations under a veil of near-total secrecy. Rather, knowledge that a limited number of persons, as well as a state or federal court, may examine the file in the event of civil litigation may serve to insure that these investigations are carried out in an evenhanded fashion, that the statements are carefully and accurately taken, and that the true facts come to light, whether they reflect favorably or unfavorably on the individual police officers involved or on the department as a whole. The claim of executive privilege is therefore rejected.

Defendants’ second argument is that the material at issue falls within the work product privilege. FRCP 26(b)(3). The court fails to see how these reports can be termed work product: they were prepared pursuant to the normal police practices of conducting such investigations after a complaint is filed. The “mere possibility” of litigation is insufficient to prevent disclosure. In addition, the materials are primarily factual accounts of the events at issue in this case, and facts are not protected by the attorney’s work product privilege. Moreover, the materials contain no evidence of counsel’s legal analysis, theories of the case, or anticipated strategy should litigation ensue. The court concludes that these documents and reports were prepared in the ordinary course of business pursuant to the internal affairs section’s duty to investigate plaintiff’s complaint, and as such are not shielded from discovery as work product. See, e.g., Diamond v. City of Mobile, 86 F.R.D. 324, 328, 329 (S.D.Ala.1978); Dos Santos v. O’Neill, 62 F.R.D. 448, 451 (E.D. Pa.1974); Wood v. Breier, 54 F.R.D. 7, 11-13 (E.D.Wis.1972).

Similarly, defendants’ argument that these materials fall within the attorney-client privilege is without merit. Of course, the underlying facts involved in these communications are not privileged, and a party cannot refuse to testify to facts merely because he has later communicated them to his lawyer. Upjohn Co. v. United States, 449 U.S. 383, 101 S.Ct. 677, 686, 66 L.Ed.2d 584 (1981). As to the communication of those facts, such communications are protected by the privilege only when they are between attorneys and their clients. At the time of the investigation, none of the participants had any communications with his attorney. The central purpose of internal affairs’ investigation was to determine within the administrative procedures of the police department whether any disciplinary action should be taken against certain police officers as a result of the incident complained of. The “communications” in each instance were not between attorney and client, but between one police officer and another who was carrying out an investigative function. None of the policies underlying the attorney-client privilege would be served by preventing disclosure here. Therefore, neither the individual police officers’ reports nor the narrative report of the investigating officer falls within the attorney-client privilege.

The overriding issue in this case and others involving claims of police brutality is one of fairness in the litigation process. The court developed its standard discovery order because of the repetitive nature of this type of litigation, and the similarity of the claims made and the defenses raised. [523]*523In an overwhelming number of these cases, plaintiffs are from the lower economic strata of society and very often have a history of being in trouble with the police. The attitude of the defendants in these cases usually falls far short of the cooperative search for the truth that litigation ideally should be.

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Bluebook (online)
93 F.R.D. 520, 34 Fed. R. Serv. 2d 594, 10 Fed. R. Serv. 1127, 1982 U.S. Dist. LEXIS 10686, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mercy-v-county-of-suffolk-nyed-1982.