Unger v. Cohen

125 F.R.D. 67, 1989 U.S. Dist. LEXIS 3579, 1989 WL 32098
CourtDistrict Court, S.D. New York
DecidedApril 6, 1989
DocketNo. 86 Civ 5048 (SWK)
StatusPublished
Cited by18 cases

This text of 125 F.R.D. 67 (Unger v. Cohen) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Unger v. Cohen, 125 F.R.D. 67, 1989 U.S. Dist. LEXIS 3579, 1989 WL 32098 (S.D.N.Y. 1989).

Opinion

MEMORANDUM OPINION AND ORDER

BARBARA A. LEE, United States Magistrate.

This is a civil rights action under 42 U.S.C. § 1983 against the City of New York and two of its police officers. Plaintiff sought production, pursuant to Fed.R. Civ.P. 34, of personnel and other records of the individual defendants, to which the defendants objected on various grounds. The parties submitted the documents in question to the Hon. Shirley Wohl Kram, U.S. D.J., who referred the discovery dispute to me by Order of Reference entered May 16, 1988. A separate Order of Reference dated October 4, 1988 referred the case for settlement purposes. For the reasons hereinafter stated, defendants’ objections to production are sustained as to medical records and overruled as to all other documents in issue.

BACKGROUND

The complaint alleges that on July 1, 1985, plaintiff was at his place of business in the Bronx when he was approached by the individual defendants Cohen and Freedman, who were on duty as police officers. They told him to move a car from in front [69]*69of his business, which he said was not his. The officers returned a short time later and the same conversation was repeated. This time, the officers asked to see plaintiffs driver’s license; handcuffed and assaulted him; arrested him, and after driving him around in the patrol car and threatening him, eventually took him to the 44th precinct station, where he was refused the opportunity to telephone a lawyer and spent the night in jail. The next day, the complaint alleges, defendant Freedman returned to plaintiff’s place of business accompanied by another officer, and threatened and harassed plaintiff and his family in various ways. Plaintiff contends that the actions alleged amount to violations of various rights guaranteed by the Fourth and Fourteenth Amendments, as well as violations of the law of the State of New York.

The original Rule 34 request is not part of the record on this motion, but the documents in dispute, and defendants’ objections to production are fully summarized in the letter of Assistant Corporation Counsel Robert Trachtenberg to Judge Kram, dated May 3, 1988, transmitting the documents for in camera inspection. The files in issue are the personnel, medical and civilian complaint files of Freedman and Cohen; the applicant investigation file of Freedman, and a psychiatric file relating to Cohen. Production is objected to on the grounds that the files are (1) “confidential” within the meaning of New York Civil Rights Law § 50-a and (2) irrelevant to plaintiff’s claims.

Both parties have assumed the applicability of § 50-a, and accordingly submitted the documents for in camera review without briefing or indeed any record other than the brief summary of the dispute in defendants’ attorney’s letter. Plaintiff submitted no response, apparently resting on the agreement, recited in the letter, to submit the documents for in camera review by the court. Neither side has submitted any affidavit as to the facts bearing upon the defendants’ claim of privilege.

DISCUSSION

Questions of privilege in cases involving federal claims are governed by federal law. Von Bulow v. Von Bulow, 811 F.2d 136, 141 (2d Cir.), cert. denied, 481 U.S. 1015, 107 S.Ct. 1891, 95 L.Ed.2d 498 (1987); King v. Conde, 121 F.R.D. 180, 187 (E.D.N.Y. 1988); Martin v. Lamb, 122 F.R.D. 143, 145 (W.D.N.Y.1988); Boyd v. City of New York, No. 86 Civ. 4501 (CSH), 1987 WL 6915,1987 U.S.Dist. LEXIS 1044; Burke v. New York City Police Dep’t, 115 F.R.D. 220, 224-25 (S.D.N.Y.1987); Fed.R.Evid. 501. A privilege whose source is State law, whether statutory or decisional, will be recognized in a “spirit of comity” only to the extent consistent with the overriding federal policy of the civil rights laws. King, 121 F.R.D. 187-88, 194. To justify withholding of evidence in a civil rights action, a claim of privilege “must be so meritorious as to overcome the fundamental importance of a law meant to insure each citizen from unconstitutional state action.” Skibo v. City of New York, 109 F.R.D. 58, 61, (E.D.N.Y. 1985) (quoting Wood v. Breier, 54 F.R.D. 7, 13 (E.D.Wis.1972)).

Section 50-a of the New York Civil Rights law creates no independent evidentiary privilege; all it does is establish a procedure for a preliminary judicial determination of the relevance of police files subject to disclosure in a civil action. King, 121 F.R.D. at 191-92; Martin, 122 F.R.D. at 146-47; cf. Burka v. New York City Transit Authority, 110 F.R.D. 660, 665 (S.D.N.Y.1986) (construing N.Y.Pub. Off.Law. § 96); Van Emrik v. Chemung Co. Dep’t of Social Services, 121 F.R.D. 22, 25 (W.D.N.Y.1988) (N.Y.Soc.Ser.L. § 422). That procedure is not directly applicable in federal civil rights cases. King, 121 F.R.D. at 187; Boyd, 1987 WL 6915, 1987 U.S.Dist. LEXIS 1044 at 1-2; Burke, 115 F.R.D. at 224. The State’s legitimate concern in protecting the confidentiality of police officers’ personnel files from unnecessary “fishing expeditions” is, however, a proper consideration to be balanced against the plaintiff’s interest in disclosure pursuant to Rule 26. King, 121 F.R.D. at 190-91; Martin, 122 F.R.D. at 146.

[70]*70Judge Weinstein’s recent decision in King v. Conde includes a comprehensive review of the case law relating to production of police files in civil rights cases, and a summary of the factors to be considered in weighing defendants’ interest in confidentiality of the records against plaintiff’s need for them in developing the proof of his case. The factors “disfavoring” disclosure include threats to police officers’ safety; invasion of officers’ privacy interest in “highly personal” information “unrelated” to acts done in their official capacity; potential weakening of law enforcement programs through disclosure of police procedures; and “chilling” of internal investigations or citizen complainant candor. 121 F.R.D. at 191-95 and authorities cited. Other factors frequently considered in this context are protection of names of informers and information affecting ongoing criminal investigations, particularly if the plaintiff is a possible target. See, e.g., Frankenhauser v. Rizzo, 59 F.R.D. 339 (E.D.Pa.1973); Kelly v. City of San Jose, 114 F.R.D. 653 (N.D.Cal.1987).

The presence of these factors is not to be inferred from the “generalized policies” supporting the confidentiality of the records, however. King at 189. The defendants resisting disclosure must make a “substantial threshold showing” of “specific harms likely to accrue from disclosure of specific materials” before the court reaches the question of balancing the criminal harm against the interests favoring disclosure. King at 189-90; Kelly at 669. That “threshold showing” should be made in the form of an affidavit by the head of the department or other responsible official who is neither a defendant nor an attorney for a defendant, after independent review of the documents. Kerr v. United States District Court, 426 U.S. 394, 399-400, 96 S.Ct.

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Cite This Page — Counsel Stack

Bluebook (online)
125 F.R.D. 67, 1989 U.S. Dist. LEXIS 3579, 1989 WL 32098, Counsel Stack Legal Research, https://law.counselstack.com/opinion/unger-v-cohen-nysd-1989.