Reid v. Simmons, et al.

Opinion

Reid v. Simmons, et al. CV-89-152-M 08/01/97 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Gordon C. Reid

v. Civil No. 89-152-M

Officers Gary Simmons, Ronald Paul, James Ahern, and Richard Gilman

O R D E R

Gordon Reid has filed three motions directed at the

defendants' answers to his "Set I" interrogatories. His motions

are resolved as follows.

1. Motion to Seal Answers to Set I Interrogatories

Reid moves to seal the defendants' answers "for the reason

that a person or persons unknown are publishing or making use of

the answers for purposes unauthorized and unconnected with this

action to the detriment of the plaintiff."

Upon motion by a party and for good cause shown, the court

"may make any order which justice reguires to protect a party or

person from annoyance, embarrassment, oppression or undue burden

or expense." Fed. R. Civ. P. 26(c). Rule 26(c) provides that

such materials may be sealed only upon the showing of "good

cause," and Federal Rule of Civil Procedure 5 (d) creates a

presumption that discovery materials filed in court will be

available to the public. Public Citizen v. Liggett Group, Inc.,

858 F.2d 775, 778 (1st Cir. 1988). In determining whether good

cause has been shown, the court must balance the Constitutional and common law interests in public access to judicial records

with the litigants' legitimate reasons for protecting the

confidentiality of certain types of information obtained through

the discovery or litigation processes. See Nixon v. Warner

Communications, Inc., 435 U.S. 589, 597, 598 (1978) (where the

court recognized "the common-law right of inspection has bowed

before the power of a court to insure that its records are not

used to gratify private spite or promote public scandal" (cites

omitted)); see also N a ult's Auto. Sales v. American Honda Motor

C o ., 148 F.R.D. 25, 44 (D.N.H. 1993). The moving party bears the

burden of demonstrating good cause for the protection sought.

Id.

_____ Reid's assertion that "a person known or persons unknown"

are making use of defendants' interrogatory answers is too vague

to make the reguired "good cause" showing. Without information

about the nature of the "use" of particular answers, the court is

unable to balance the public's interest against his asserted

privacy interest. Accordingly, the motion to seal (document no.

219) is denied.

2. Motion to Strike Answers to Set I Interrogatories

Reid also moves to strike certain phrases in defendants'

answers to his Set I interrogatories because he contends the

phrases are prejudicial to him and should not be admitted into

evidence at trial and also because he contends some answers are

unresponsive to his guestions. Evidentiary issues are not

2 grounds for striking interrogatory answers as those matters must

be raised either by motions in limine or by objection at trial.

See, e.g., Brennan v. Innovative Dining of Massachusetts, Inc.,

136 F.R.D. 336, 337 (D. Mass. 1991). To the extent particular

answers may be unresponsive to Reid's guestions, that issue is

more appropriately addressed in the context of Reid's motion to

compel answers.

Accordingly, Reid's motion to strike answers (document no.

220) is denied.

3. Motion to Compel Further Answer to Set I Interrogatories

Reid moves to compel further answers to twenty of his fifty

Set I interrogatories. Defendants object, in part, by augmenting

or explaining some of the challenged answers in their objection

to Reid's motion, by pointing out that certain materials were

provided to Reid previously, and by asserting certain privileges

and grounds for objections. As interrogatory answers must be

provided by the party asked, based upon his knowledge, and under

oath, the information provided by counsel cannot serve to augment

defendants' answers and is not considered. To the extent Reid

challenges the defendants' objections as untimely filed, his

motion is denied.

The court reluctantly finds it necessary to scrutinize the

particular guestions and answers in order to explain to all the

proper conduct of discovery.

3 a. Interrogatory No. 18

Reid asks defendants to "state the name and address of any

person or persons who you have retained or intend to retain as an

expert witness in rehard (sic) to the instant action and set

forth his qualifications in his field of specialization." Gary

Simmons responded, "No individuals have been retained to my

knowledge," and the remaining defendants answered:

Depending upon what transpires at trial and what questions are asked of myself and the other named defendants, there is a likelihood that myself and the other defendants could give "expert" testimony in response to questions propounded by the plaintiff and/or the defendant as to investigative procedures and the explanations and reasons why certain actions were taken as outlined in the police report.

As the defendants have denied having expert witnesses, their

answers are sufficient, and they will not be permitted to present

expert opinion testimony in support of their case at trial.

b. Interrogatory No. 20

Interrogatory No. 20:

State whether a statement or deposition, including statement, voice recordings were taken from any person in connection with this action (and incident); setting forth the dates said statement or deposition was taken, by whom it was taken, whether or not is is (sic) signed and who now has custody of the statement.

Answers by Gilman and Paul:

Objection. This question is confusing and appears to ask for attorney/client privilege as well as attorney/client work product. As such, it is objected to.

Answer by Ahern:

4 Objection. This question is confusing and appears to ask for attorney/client privilege as well as attorney/client work product. No depositions have been taken in this case and no recorded statements have been taken that I am aware of.

Answer by Simmons:

All such statements that I am aware of are referenced in the police report. I am not aware of any depositions having been taken in this case.

The question appears to ask about statements taken both

during the investigation of the alleged sexual assault of Misty

P.(which was the basis of charges brought against Reid) and as

part of the defense preparation in this case. The defendants

shall supplement their answers to either list and identify, as

asked, the source and questioner for any statements each

defendant knows were taken in connection with the Misty P.

incident or, if appropriate, reference, specify, and attach a

copy of any report or other document, in the defendant's

possession, that would provide a better source of all of the

information asked. To the extent a defendant does not know the

answer or does not have documents or materials that would supply

the answer, the appropriate response is that he does not know.

With regard to a list of witnesses, who may have been

interviewed in preparation of the defense in this case, the list

itself is not protected by the attorney work product doctrine.

Fed. R. Civ. P. 26( b ) (3). The content of any of the statements,

however, is protected, and defendants' objection is sustained as

to content.

5 Defendants shall supplement their answers to interrogatory

no. 20 as described in this order.

c. Interrogatory No. 21

This interrogatory asks whether the defendants or their

representatives have any "documents" in their possession related

to "this incident," which the defendants and the court interpret

to mean the alleged assault of Misty P. with which Reid was

charged, and to identify the document and its date. The

defendants respond that the attorney work product privilege

protects documents that their counsel have generated or obtained

in preparation of their defense and that otherwise the documents

that were in their police files and Misty P.'s medical records

and reports that they had during the investigation have been

provided.

Defendants' answers are sufficient. Based upon their

answers, however, defendants are precluded from using as evidence

any police file materials or medical records or reports

pertaining to Misty P., which were obtained or generated during

the criminal investigation, that are available to them now, and

that were not provided to Reid as part of discovery in this case.

d. Interrogatory No. 22

Reid asks for the times, places, and substance of any

conversations of any of the defendants with each other or with

the Hillsborough County Attorney, or his representatives, or "any

6 other person in any way relating to the incident, its causes, or

in any way relating to the proof you intend to offer." The

defendants either object or respond that they have no

recollection of conversations beyond what is reflected in the

police report. Defendants contend that the guestion is overly

broad and asks for information for which they lack records.

Defendants also state that police contact with the Hillsborough

County Attorney's office would have been through the police

records division and attach a copy of a letter as an example.

The court agrees that the guestion is overly broad and also

notes that it asks for privileged information concerning

development of the defense in this case. Defendants' answers are

sufficient.

e. Interrogatory no. 25

This guestion asks the defendants to identify the police

officer whose name appears on each investigation or arrest

report. All but defendant Paul answered that the name is

illegible, and they do not remember who it was. Paul did not

answer interrogatory 25 and did not object.

Rule 33 (a) obligates a party in answering interrogatories to

"furnish such information as is available to the party." These

defendants are not obligated to search the records of the police

department in order to answer the guestions asked. Defendants'

answers to interrogatory no. 25 are sufficient; Paul is ordered

to answer.

7 f. Interrogatory No. 26

The question asks about the duties of "the reviewing

officer" and the basis of each defendant's knowledge. Gilman

objected that the question was vague and confusing but stated his

understanding of what the job included without giving the basis

for his knowledge. Ahern and Paul objected that because they

were not reviewing officers, they did not know the duties, but

described the duties "as far as I knew." Simmons answered but

did not provide the basis for his knowledge. The officers'

descriptions of the duties are sufficient, and their answers are

g. Interrogatory No. 27

Reid asks whether the defendants informed the reviewing

officer of any statements of Misty P. taken prior to or in June

1986. Defendants Ahern, Paul, and Gilman do not answer directly

but state that such statements would be in the police reports.

That answer is insufficient. Each of those defendants will

answer the question directly under oath: yes, no, do not know,

or do not remember; or will state an appropriate objection.

h. Interrogatory 28

If any defendants answer "yes" to question 27, he will then

answer question 28.

8 i. Interrogatory 29

While defendants have no obligation to research the police

department records to inform Reid about reports pertaining to

him, when documents are referenced as giving the answer

reguested, defendants must refer to the document with sufficient

specificity to allow Reid to find the answer and attach a copy if

the document has not been produced or if it is not readily

identifiable. Defendants Gilman, Paul, and Ahern have answered

by reference to information provided to Reid previously. If that

is the case, those defendants must specify which documents or

materials provide the information reguested. Defendant Simmons's

answer is sufficient.

j. Interrogatory No. 30

Defendants' answers appropriately respond to the dates

reguested in the interrogatory and make sufficient reference to

the police reports.

k. Interrogatory No. 31

The answers referring to the police reports are sufficient.

Defendants are bound by their answers, however, and may not rely

for their defense on any information about communications that

does not appear in the police reports.

1. Interrogatory N o . 32 Reid asks that defendant Simmons answer directly the

question about his communications to other officers concerning

statements made by Misty P. instead of providing what appears to

be his best guess of what is likely to have happened. Simmons

shall supplement his answer by stating "yes," "no," "I do not

know," or "I do not remember" in response to interrogatory no.

32, or he may assert an appropriate objection.

m. Interrogatory No. 33

The answers are sufficient.

n. Interrogatory No. 35

Reid seeks a direct answer from Simmons as to whether he

did, did not, or does not remember discussing the investigation

with particular people. Simmons shall supplement his answer as

to his fellow officers with a direct response. His answer is

otherwise sufficient.

o. Interrogatory No. 36

Reid asks for each defendant's "special training" in law

enforcement including the location and dates of training and the

officers' grades. Each defendant objects that the question is

beyond the scope of discovery but answers generally that he was

trained by the Manchester Police Department and the State of New

Hampshire but does not have access to their training materials.

In support of his motion to compel, Reid asserts that the

10 information is relevant to the defendants' status as expert

witnesses and their experience is relevant to whether their

actions were reasonable.

The defendants will not be giving expert opinion evidence in

their case. Defendants' general disclosures of their routine

police academy and departmental training is sufficient.

p. Interrogatories No. 39 and No. 40

Reid asks what officer submitted "the discovery package" to

the Hillsborough County Attorney's office during the

investigation of the criminal case against him and the means by

which it was transmitted. The defendants respond that those

materials would have been handled by the records division of the

police department, rather than by an individual officer, and

describe the process. Their answers are sufficient.

q. Interrogatory No. 42

r. Interrogatory No. 47

The defendants' objections to this question, which

incorporates disputed facts, is appropriate and is a sufficient

response to the question.

s. Interrogatory No. 50

The defendants' objections are sustained.

11 Conclusion

For the foregoing reasons, plaintiff's motion to seal

(document no. 219) and motion to strike (document no. 220) are

denied. Plaintiff's motion to compel answers to interrogatories

(document no. 218) is granted in part and denied in part as is

further explained in this order.

SO ORDERED.

Steven J. McAuliffe United States District Judge

August 1, 1997

cc: Robert G. Whaland, Esg. Gordon C. Reid Carolyn M. Kirby, Esg. Ann F. Larney, Esg.