UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK _____________________
No 18-cv-4247 (CBA) (RER) _____________________
JUAN MORALES,
Plaintiff,
VERSUS
UNITED STATES OF AMERICA, ET AL.,
Defendants. _________________________
Memorandum & Order
NOT FOR PUBLICATION _________________________
RAMON E. REYES, JR., U.S.M.J.: declarations and the parties’ written submissions, Morales motion is granted in Before the Court is plaintiff Juan part and denied in part.1 Morales’s (“Morales”) motion to (1) compel defendants to produce certain documents in Defendants designated as confidential unredacted form, (2) strip those documents and produced in redacted form certain of their designation as “confidential” under documents they claim are covered by the the stipulated protective order so they can be law enforcement privilege (“LEP”). The used in a related state court action, and (3) redactions are relatively modest, and include for the Court to conduct an in camera (1) email addresses, office addresses, and review of all documents defendants have telephone numbers of the law enforcement withheld on the basis of privilege. (Dkt. No. officers involved in this case, (2) document 34, Sealed). The motion was previously identification numbers, and record and granted to the extent of ordering defendants program codes on documents contained in to produce “a declaration specifying reasons various law enforcement databases, (3) the relevant documents are subject to the information concerning the investigation of law enforcement privilege as well as individuals unrelated to this case, and (4) redacted and unredacted copies of the substantive information regarding law relevant documents” for in camera review.
(Minute Entry dated 5/19/2020). 1 Familiarity with the parties’ claims and defenses, pleadings and motion papers is presumed. (Dkt. Nos. Having now conducted that in camera 15, 16, 33-36). review, and having considered the enforcement policies and procedures. Along Second Circuit has held that a “compelling with their papers in opposition to Morales’s need” is required. In re City of N.Y., 607 motion defendants have submitted the F.3d at 945. (quotations & citations declarations of Matthew C. Allen (“Allen omitted); White v. City of N.Y., No. 09 Civ. Decl.”), a Homeland Security Investigations 9901(BSJ)(THK), 2010 WL 2899665, at *1 (“HIS”) official, and John P. Wagner (S.D.N.Y. July 23, 2010) (citations omitted), (“Wagner Decl.”), a Customs and Border adopted by No. 09 Civ. 9901(BSJ)(THK), Protection (“CBP”) official, to explain the Docket No. 26; see Holmes v. Fischer, No. origin of certain documents and why the 09 Civ. 929S (LGF), 2013 WL 1309157, at redactions are covered by the LEP. In *5 (W.D.N.Y. Mar. 28, 2013); Carbajal v. addition, defendants have submitted the Vill. of Hempstead, No. 02 Civ. 4270 declaration of Deborah Crum (“Crum (ADS)(ETB), 2003 WL 23138447, at *5 Decl.”), a Federal Bureau of Investigation (E.D.N.Y. Dec. 22, 2003). “It is not enough (“FBI”) official who explains that but for that identification might be of some unrelated documents, the FBI has no assistance, and disclosure should not be documents in its systems that relate to allowed simply to permit a fishing Morales. expedition or to gratify the moving party's curiosity or vengeance.” White, 2010 WL The LEP is a qualified privilege that 2899665, at *3–4. protects “information pertaining to law enforcement techniques and procedures, If the party seeking disclosure satisfies information that would undermine the the three factors, the court must balance confidentiality of sources, information that “[t]he public interest in nondisclosure . . . would endanger witnesses and law against the need of a particular litigant for enforcement personnel or the privacy of access to the privileged information.” In re individuals involved in an investigation, and City of N.Y., 607 F.3d at 945. “In other information that would otherwise interfere words, demonstrating a ‘compelling need’ with an investigation.” In re City of New does not automatically entitle a litigant to York, 607 F.3d 923, 944-95 (2d Cir. 2010) privileged information. Rather, disclosure is (internal quotation marks, alterations, and required only if that compelling need ellipsis omitted); see also Dorsett v. County outweighs the public interest in of Nassau, 762 F. Supp. 2d 500, 520 nondisclosure.” Id.; see Roviaro, 353 U.S. at (E.D.N.Y. 2011). When properly supported, 60, 77 S.Ct. 623 (“[t]he scope of the the LEP creates a “pretty strong” privilege is limited by its underlying presumption against disclosure. In re City of purpose”). N.Y., 607 F.3d at 945. After conducting the in camera review of A party seeking disclosure of LEP each and every document (redacted and information may rebut the presumption unredacted), and carefully considering the against disclosure by showing (1) the suit is parties’ written submissions, along with the non-frivolous and brought in good faith, (2) Allen, Wagner and Crum declarations, it is the information sought is not available clear to me that defendants have established through other discovery or from other that the LEP applies to the redactions. Allen sources, and (3) the information sought is and Wagner have identified the origins of important to their case. With respect to the the specific documents at issue and why importance of the information sought, the they are covered by the LEP, and the “specific harms” that may ensue should the identification numbers and record and protections of the LEP be removed. program codes on documents contained in the government databases will help him The Court need not linger on why the prove his case.2 specific redactions are entitled to LEP protection, as all redactions are amply At oral argument, however, Morales supported in the Allen and Wagner revealed for the first time why he needed to declarations and have been found in other know the specific telephone numbers, email cases to be protected from disclosure. E.g., addresses, and document identification Dousa v. U.S. Dep’t of Homeland Security, numbers and record and program codes: No.: 19cv1255-LAB(KSC), 2019 WL 6311990, *3 (S.D.Ca. Nov. 22, 2019) (LEP Here’s why it matters, Judge. Here’s supports redaction of email addresses and why it matters: Because the telephone numbers of law enforcement defendant’s position in this case and officials, and case and document codes what their argument is going to be is found in databases); Bishop v. U.S. Dep't of that Customs Officer David Homeland Sec., 45 F.Supp.3d 380, 388-89 Hernandez, solely in connection with (S.D.N.Y. 2014) (redactions of document wearing his hat as a Customs and record codes proper under Exception to Officer, only provided minor Freedom of Information Act) (collecting assistance to the Nassau County cases). Police Department by solely tracking Juan Morales’ travel history and then Morales has, however, overcome the providing the travel history and strong presumption against lifting the LEP when he’s coming and going to from some of these documents, at least Nassau County. So what they want partially. Morales’ lawsuit does not appear to argue is that this was only a to be frivolous and presumably was brought Customs, a Customs involvement, in good faith. Morales has also established okay? So it really does matter that the information sought is unavailable because if those codes and those through other discovery and that he has a numbers and those i.d.’s are FBI, compelling need for the redacted then that is extremely important in information. establishing that John Dezalik and Hernandez were wearing FBI federal In his motion papers, beyond describing hats and not Customs hats.
Free access — add to your briefcase to read the full text and ask questions with AI
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK _____________________
No 18-cv-4247 (CBA) (RER) _____________________
JUAN MORALES,
Plaintiff,
VERSUS
UNITED STATES OF AMERICA, ET AL.,
Defendants. _________________________
Memorandum & Order
NOT FOR PUBLICATION _________________________
RAMON E. REYES, JR., U.S.M.J.: declarations and the parties’ written submissions, Morales motion is granted in Before the Court is plaintiff Juan part and denied in part.1 Morales’s (“Morales”) motion to (1) compel defendants to produce certain documents in Defendants designated as confidential unredacted form, (2) strip those documents and produced in redacted form certain of their designation as “confidential” under documents they claim are covered by the the stipulated protective order so they can be law enforcement privilege (“LEP”). The used in a related state court action, and (3) redactions are relatively modest, and include for the Court to conduct an in camera (1) email addresses, office addresses, and review of all documents defendants have telephone numbers of the law enforcement withheld on the basis of privilege. (Dkt. No. officers involved in this case, (2) document 34, Sealed). The motion was previously identification numbers, and record and granted to the extent of ordering defendants program codes on documents contained in to produce “a declaration specifying reasons various law enforcement databases, (3) the relevant documents are subject to the information concerning the investigation of law enforcement privilege as well as individuals unrelated to this case, and (4) redacted and unredacted copies of the substantive information regarding law relevant documents” for in camera review.
(Minute Entry dated 5/19/2020). 1 Familiarity with the parties’ claims and defenses, pleadings and motion papers is presumed. (Dkt. Nos. Having now conducted that in camera 15, 16, 33-36). review, and having considered the enforcement policies and procedures. Along Second Circuit has held that a “compelling with their papers in opposition to Morales’s need” is required. In re City of N.Y., 607 motion defendants have submitted the F.3d at 945. (quotations & citations declarations of Matthew C. Allen (“Allen omitted); White v. City of N.Y., No. 09 Civ. Decl.”), a Homeland Security Investigations 9901(BSJ)(THK), 2010 WL 2899665, at *1 (“HIS”) official, and John P. Wagner (S.D.N.Y. July 23, 2010) (citations omitted), (“Wagner Decl.”), a Customs and Border adopted by No. 09 Civ. 9901(BSJ)(THK), Protection (“CBP”) official, to explain the Docket No. 26; see Holmes v. Fischer, No. origin of certain documents and why the 09 Civ. 929S (LGF), 2013 WL 1309157, at redactions are covered by the LEP. In *5 (W.D.N.Y. Mar. 28, 2013); Carbajal v. addition, defendants have submitted the Vill. of Hempstead, No. 02 Civ. 4270 declaration of Deborah Crum (“Crum (ADS)(ETB), 2003 WL 23138447, at *5 Decl.”), a Federal Bureau of Investigation (E.D.N.Y. Dec. 22, 2003). “It is not enough (“FBI”) official who explains that but for that identification might be of some unrelated documents, the FBI has no assistance, and disclosure should not be documents in its systems that relate to allowed simply to permit a fishing Morales. expedition or to gratify the moving party's curiosity or vengeance.” White, 2010 WL The LEP is a qualified privilege that 2899665, at *3–4. protects “information pertaining to law enforcement techniques and procedures, If the party seeking disclosure satisfies information that would undermine the the three factors, the court must balance confidentiality of sources, information that “[t]he public interest in nondisclosure . . . would endanger witnesses and law against the need of a particular litigant for enforcement personnel or the privacy of access to the privileged information.” In re individuals involved in an investigation, and City of N.Y., 607 F.3d at 945. “In other information that would otherwise interfere words, demonstrating a ‘compelling need’ with an investigation.” In re City of New does not automatically entitle a litigant to York, 607 F.3d 923, 944-95 (2d Cir. 2010) privileged information. Rather, disclosure is (internal quotation marks, alterations, and required only if that compelling need ellipsis omitted); see also Dorsett v. County outweighs the public interest in of Nassau, 762 F. Supp. 2d 500, 520 nondisclosure.” Id.; see Roviaro, 353 U.S. at (E.D.N.Y. 2011). When properly supported, 60, 77 S.Ct. 623 (“[t]he scope of the the LEP creates a “pretty strong” privilege is limited by its underlying presumption against disclosure. In re City of purpose”). N.Y., 607 F.3d at 945. After conducting the in camera review of A party seeking disclosure of LEP each and every document (redacted and information may rebut the presumption unredacted), and carefully considering the against disclosure by showing (1) the suit is parties’ written submissions, along with the non-frivolous and brought in good faith, (2) Allen, Wagner and Crum declarations, it is the information sought is not available clear to me that defendants have established through other discovery or from other that the LEP applies to the redactions. Allen sources, and (3) the information sought is and Wagner have identified the origins of important to their case. With respect to the the specific documents at issue and why importance of the information sought, the they are covered by the LEP, and the “specific harms” that may ensue should the identification numbers and record and protections of the LEP be removed. program codes on documents contained in the government databases will help him The Court need not linger on why the prove his case.2 specific redactions are entitled to LEP protection, as all redactions are amply At oral argument, however, Morales supported in the Allen and Wagner revealed for the first time why he needed to declarations and have been found in other know the specific telephone numbers, email cases to be protected from disclosure. E.g., addresses, and document identification Dousa v. U.S. Dep’t of Homeland Security, numbers and record and program codes: No.: 19cv1255-LAB(KSC), 2019 WL 6311990, *3 (S.D.Ca. Nov. 22, 2019) (LEP Here’s why it matters, Judge. Here’s supports redaction of email addresses and why it matters: Because the telephone numbers of law enforcement defendant’s position in this case and officials, and case and document codes what their argument is going to be is found in databases); Bishop v. U.S. Dep't of that Customs Officer David Homeland Sec., 45 F.Supp.3d 380, 388-89 Hernandez, solely in connection with (S.D.N.Y. 2014) (redactions of document wearing his hat as a Customs and record codes proper under Exception to Officer, only provided minor Freedom of Information Act) (collecting assistance to the Nassau County cases). Police Department by solely tracking Juan Morales’ travel history and then Morales has, however, overcome the providing the travel history and strong presumption against lifting the LEP when he’s coming and going to from some of these documents, at least Nassau County. So what they want partially. Morales’ lawsuit does not appear to argue is that this was only a to be frivolous and presumably was brought Customs, a Customs involvement, in good faith. Morales has also established okay? So it really does matter that the information sought is unavailable because if those codes and those through other discovery and that he has a numbers and those i.d.’s are FBI, compelling need for the redacted then that is extremely important in information. establishing that John Dezalik and Hernandez were wearing FBI federal In his motion papers, beyond describing hats and not Customs hats. It really the redactions and repeatedly demanding does matter because of this FBI that they be removed, Morales did not cyber-crime task force, where you describe with any specificity why he needs
the redacted information. (Dkt. No. 34 at 4 2 The lone exception is that Morales does explain (“the information must be produced why he needed the email addresses of the two unredacted”); see also Dkt. No. 36, Sealed defendants – to establish that they both acted as FBI (no explanation of why redacted information task force agents, as opposed to CBP or Nassau is needed)). For example, Morales did not County police officers, when they investigated and explain why he needs to know the telephone arrested him. Those email addresses, however, have since been produced in unredacted form, at least numbers and office addresses of the various partially to indicate whether they were sent from and government employees who authored received to FBI email domains. Thus, Morales no particular emails or documents, or why the longer has a need for this information. have Dezalik and Hernandez sitting protected is greatly outweighed by such a in the headquarters for the FBI, minimal disclosure and Morales’s need. talking about and investigating my client. They want to -- and you can The disclosure of document identification see it in defense counsel’s papers. numbers and record and program codes, They want to separate themselves as however, is a different matter. Wagner and far as they can from everything Allen both indicate that the various having to do with the FBI. They have document numbers and identification codes no problem if they acknowledge that contain law enforcement sensitive this was all Customs, United States information on how the various agencies Customs. That’s why these i.d.’s and conduct their operations and that revelation these codes all matter, because we of the information would endanger those need to really break down now, who operations and possibly enable hackers to was -- what was Hernandez doing? compromise the various databases. Wagner What was his role and involvement. Decl. at ¶¶ 15-19; Allen Decl. at ¶¶ 8-10, We know that John Dezalik was on 13-14. Both Wagner and Allen declare the task force but I want to know under penalty of perjury that none of whether Hernandez was wearing his redacted information indicates that Morales hat as a Customs Officer or as an was being investigated by any of the federal FBI Officer. agencies involved, including the FBI. Further, Crum declares that aside from his (Dkt. No. 39 at 8-9 (emphasis added)). administrative tort claim, the FBI has no documents in its record keeping systems As discussed above (supra note 4), concerning Morales, further confounding his Morales has already been provided with the claim that Dezalik and Hernandez were domains from which the relevant emails acting as FBI agents when they purportedly were sent and received. He thus no longer investigated and arrested him. (Crum Decl. needs such information and that aspect of at ¶9). Thus, at the very least Morales has his motion should be denied. not established a compelling need for this information, thereby failing to overcome the It is unclear, however, whether Morales strong presumption against disclosure. has been provided with information indicating the origin of the telephone Finally, Morales’s motion to strip the numbers and physical addresses on each of documents of their confidential designation the relevant emails or other documents sent so he can use them in his related state court to or from Dezalik and Hernandez, i.e., action is denied. Beyond reflexively arguing whether they are FBI telephone numbers that he needs the unredacted documents for and/or addresses. Morales is entitled to such use in his related state court case (Dkt. No. information and defendant must produce it 34 at 7), Morales has not shown which forthwith. Whether by the production of documents he needs to use in the state court unredacted documents or a declaration with action or why he needs to use them. The a document-by-document description, Court is disinclined to eviscerate the parties’ defendants must produce such information negotiated protective order without a more within fourteen (14) days. The public fulsome and specific showing of need. interest in keeping such information * * * For the foregoing reasons, Morales’s motion to compel is granted in part and denied in part. SO ORDERED. U dp rostl8J hh] hv AMuHt United States Magistrate Judge Dated: August 5, 2020 Brooklyn, NY