United States District Court, D. Massachusetts
MARIANNE DIAZ, individually and as mother and next friend of the two minor children Jane Doe and Jane Roe, BRYANT ALEQUIN, and JOSHUA MATOS, Plaintiffs,
SGT. JAMES P. DEVLIN, DET. NICHOLAS E. NASON, LT. DET. JOSEPH SCAMPINI, SGT. RICHARD CIPRO, DET. JAMES CARMODY, OFF. ANTHONY LORENTE, DET. TERRENCE GAFFNEY, DET. JOHN MORRISSEY, DET. SHAWN BARBALE, DET. RONALD REMILLARD, OFF. REBECCA AGUILAR, OFF. ELIAS BAEZ, CITY OF WORCESTER, CHIEF GARY J. GEMME, CAPT. PAUL SAUCIER, CITY MANAGER EDWARD M. AUGUSTUS, POLICE INFORMANT CR-1, and OFFS. JOHN DOE 1-4, Defendants.
H. Hennessy, United States Magistrate Judge
me by way of referral, see Docket #128, are two
motions to compel discovery in this civil rights action.
First, Plaintiffs move to compel various defendants to
respond to a number of interrogatories and document requests.
See Docket #109; Docket #110. Second, Defendants
move to compel Plaintiffs to produce an affidavit of Mr.
Robert Sykes, a percipient witness to the events from which
this suit arises. See Docket #125. Both motions are
opposed. See Docket #113 (Defendants' opposition
to Plaintiffs' motion); Docket #127 (Plaintiffs'
opposition to Defendants' motion). The parties argued
both motions at a hearing held on March 23, 2018. For the
reasons that follow, Plaintiffs' motion to compel further
responses is GRANTED IN PART AND DENIED IN PART as set forth
below, and Defendants' motion to compel production of Mr.
Sykes's affidavit is GRANTED.
assume the parties' familiarity with Plaintiffs'
allegations in this case. In short, in 2015, Defendant
Massachusetts State Police (“MSP”) Detective
Nicholas Nason applied to the Worcester District Court for a
no-knock warrant to search Plaintiffs' residence at 17
Hillside Street, Apartment 3, in Worcester. Detective
Nason's affidavit alleged that a reliable confidential
informant had reported that days earlier, two individuals
with a history of violence were inside Apartment 3 in
possession of two handguns. The Worcester District Court
issued the warrant, which was executed on August 19, 2015 at
around 5:00am by the Worcester Police Department
(“WPD”) SWAT team and MSP personnel.
team members breached the front door of Apartment 3 and found
all five plaintiffs inside. Plaintiff Marianne Diaz was
asleep in the bedroom with her two minor children, Plaintiff
Bryant Alequin was in the bathroom preparing to go to work,
and Plaintiff Joshua Matos was asleep on a living room couch.
Officers roused Plaintiff Diaz and her children, held them at
gunpoint, and searched the bedroom. Plaintiff Diaz was
unclothed due to the warm weather. Officers did not allow her
to cover herself until their search of the bedroom was
complete. Later, a female officer arrived and frisked
Plaintiff Diaz, reaching under Plaintiff Diaz's bathrobe
and thereby allegedly committing a battery. As for Plaintiff
Matos, officers ran at him, pointed guns at him, and yelled
at him to “get the fuck on the ground.” Plaintiff
Matos “tried to explain” that he had recently
fractured his hand and wrist; he was told to “shut the
fuck up” while an officer stepped on his injured hand,
causing it to be re-fractured. Docket #1-1 ¶ 161.
Plaintiff Alequin was detained after officers kicked down the
bathroom door, causing Plaintiff Alequin to fall backwards.
Officers twisted his arm behind his back and forced him to
the floor at gunpoint. After securing all five plaintiffs,
officers searched and caused damage to the apartment. They
did not find firearms or the persons for whom they were
allege that the no-knock warrant was procured based on false
information contained in Detective Nason's affidavit.
They claim that Defendants used excessive force while
executing the warrant and then falsified reports about what
took place. And they allege that these actions were caused by
a policy, practice, or custom of the Worcester Police
Department and by deficient supervision by then-Chief Gemme
and City Manager Augustus.
Detective Jeffrey Carlson filed a motion to dismiss for
failure to state a claim. See Docket #35. District
Judge Hillman granted that motion. See Docket #74.
No. other defendant has moved to dismiss. Instead, the
remaining defendants moved to bifurcate Plaintiffs'
claims during discovery and trial. See Docket #80.
Judge Hillman ordered that Plaintiffs' Monell
claim will be tried separately from the individual and
supervisory claims, but he denied bifurcation as to
discovery. Docket #89. Thus, the instant motions arise in the
context of discovery as to all claims asserted in this case.
Hillman has entered a protective order governing all
documents produced during this case. See Docket #90.
That order applies to, among other things,
Worcester Police Department personnel files; investigation
reports generated by the [WPD] Bureau of Professional
Standards, formerly known as the Internal Affairs Division; .
. . any and all records related to employment and/or
disciplinary action for any City of Worcester employee; any
answers to interrogatories conveying personnel, Bureau of
Professional Standards investigation information and/or
disciplinary action related to any City of Worcester
employee, and portions of deposition testimony concerning the
contents of these documents and such confidential
Id. at 1. The protective order restricts
Plaintiffs' disclosure and use of materials produced in
discovery to “the preparation for trial and litigation
of this case.” See id. at 2-3.
PLAINTIFFS' MOTION TO COMPEL FURTHER DISCOVERY RESPONSES
scope of discovery is set forth at Federal Rule of Civil
Unless otherwise limited by court order, the scope of
discovery is as follows: Parties may obtain discovery
regarding any nonprivileged matter that is relevant to any
party's claim or defense and proportional to the needs of
the case, considering the importance of the issues at stake
in the action, the amount in controversy, the parties'
relative access to relevant information, the parties'
resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit. Information within
this scope of discovery need not be admissible in evidence to
Fed. R. Civ. P. 26(b)(1). The purpose of discovery is to
enable the parties “to obtain ‘the fullest
possible knowledge of the issues and facts before
trial.'” LeBarron v. Haverhill Coop. Sch.
Dist., 127 F.R.D. 38, 40 (D.N.H. 1989) (quoting 8
Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure: Civil § 2001, at 13). If a
party objects to a discovery request on grounds of relevance,
the Court may “become involved to determine whether the
discovery is relevant to the claims or defenses.”
In re Subpoena to Witzel, 531 F.3d 113, 118 (1st
Cir. 2008) (quoting Fed.R.Civ.P. 26(b)(1)). In this regard,
Rule 26(b)(1) “vests the trial judge with broad
discretion to tailor discovery narrowly.” See
Cutter v. HealthMarkets, Inc., No. 10-cv-11488-JLT, 2011
WL 613703, at *2 (D. Mass. Feb. 10, 2011) (quoting
Crawford-El v. Britton, 523 U.S. 574, 598 (1998)).
law governs claims of privilege in cases, like this one, over
which a federal court exercises federal question
jurisdiction. See Fed.R.Evid. 501. A federal court
presiding over a non-diversity case may choose to afford
state privilege law persuasive or even controlling effect;
“but in the last analysis its decision turns upon the
law of the United States, not that of any state.”
D'Oench, Duhme & Co. v. FDIC, 315 U.S. 447,
471-72 (1942) (Jackson, J., concurring). “Because
privileges have the effect of preventing disclosure of
information that is relevant to a case, they are disfavored
in federal practice.” Sterling Merch., Inc. v.
Nestle, S.A., 470 F.Supp.2d 77, 82 (D.P.R. 2006) (citing
ACLU of Miss., Inc. v. Finch, 638 F.2d 1336, 1344
(5th Cir. Unit A Mar. 1981)); cf. United States v.
Nixon, 418 U.S. 683, 710 (1974) (“[E]xceptions to
the demand for every man's evidence are not lightly
created nor expansively construed, for they are in derogation
of the search for truth.” (footnote omitted)). This
preference for disclosure is especially strong in federal
civil rights actions, which by nature raise issues of
“paramount importance”: in such cases, a claim of
evidentiary privilege “must be so meritorious as to
overcome the fundamental importance of a law meant to insure
each citizen from unconstitutional state action.”
King v. Conde, 121 F.R.D. 180, 195 (E.D.N.Y. 1988)
(Weinstein, J.) (quoting Skibo v. City of New York,
109 F.R.D. 58, 61 (E.D.N.Y. 1985)) (citations omitted).
Rule of Civil Procedure 26(b)(5)(A)(ii) requires that a party
that withholds otherwise discoverable information due to a
claim of privilege must produce a privilege log that
“describe[s] the nature of the documents,
communications, or tangible things not produced or
disclosed-and do[es] so in a manner that, without revealing
information itself privileged or protected, will enable other
parties to assess the claim.” Fed.R.Civ.P.
26(b)(5)(A)(ii); see In re Grand Jury Subpoena, 274
F.3d 563, 575-76 (1st Cir. 2001). This rule does not require
precision “to the point of pedantry, ” but rather
requires a party asserting a privilege claim “to do the
best that he reasonably can to describe the materials to
which his claim adheres.” In re Grand Jury
Subpoena, 274 F.3d at 576. “A party that fails to
submit a privilege log is deemed to waive the underlying
privilege claim.” Id.
explicitly confirmed by Plaintiffs' counsel at the motion
hearing, Plaintiffs' disputed discovery requests pertain
to their Monell claim against the City of Worcester
(the “City”) or their supervisory claims against
Chief Gemme and City Manager Augustus. The nature of
Plaintiffs' claims informs the proper scope of discovery.
See Fed.R.Civ.P. 26(b)(1). Accordingly, at the
motion hearing, I asked Plaintiffs' counsel to
definitively articulate the policy, practice, or custom
underlying the Monell claim. Counsel replied: a lack of
accountability within the Worcester Police Department for the
use of excessive force and for injuries to civilians
resulting from the use of excessive force. My ruling on
Plaintiffs' motion to compel is premised on this
characterization by Plaintiffs' counsel.
five of the numerous discovery requests addressed in
Plaintiffs' motion remain in dispute. Each concerns a
request to the City. I address them sequentially.
Document Request #5
[a]ll documents or communications concerning any allegation
or complaint from any source against any of the defendants
Jeffrey Carlson, Joseph Scampini, Richard Cipro, James
Carmody, Anthony Lorente, Terrence Gaffney, John Morrissey,
Shawn Barbale, Ronald Remillard, Rebecca Aguilar, or Elias
Baez alleging use of excessive force, threatening, or any
form of untruthfulness, such as lying, cheating, stealing, or
filing false reports.
Docket #110 at 3. Defendants oppose this request on a litany
of grounds including relevance, overbreadth, undue burden,
and privilege. See Docket #113 at 3-7. For the
reasons stated below, I balance Plaintiffs' need for
information against Defendants' arguments against
disclosure, and order Defendants to produce some discovery
within the scope of this request.
with Defendants that Plaintiffs' request for “[a]ll
documents or communications concerning any allegation or
complaint” is overbroad. I also find that allegations
of “threatening or any form of untruthfulness”
are of minimal relevance to the alleged policy, practice, or
custom underlying Plaintiffs' Monell claim.
However, discovery regarding a Monell claim often
properly encompasses both pre-event and post-event matters
that tend to show the existence and operation of a policy,
practice, or custom alleged to have caused a plaintiff to
suffer the deprivation of a constitutional right.
See 2 Sheldon H. Nahmod, Civil Rights and Civil
Liberties Litigation: The Law of Section 1983 §
6:37 (Aug. 2017 update) (collecting cases). Accordingly, I
will compel some discovery responsive to this request; but I
will limit the period for responsive documents to
approximately five years before the incident and through the
end of 2017, and narrow the scope of responsive documents as
set forth below.
scope and relevance, Defendants' opposition to
Plaintiffs' motion relies on qualified privileges that
protect “certain information related to law enforcement
activities” as well as so-called “official
information.” See Docket #113 at
Respecting the law enforcement privilege, Defendants point to
Roviaro v. United States, 353 U.S. 53 (1957), and
Puerto Rico v. United States, 490 F.3d 50 (1st Cir.
2007). In Roviaro, the Court recognized “the
informer's privilege, ” which “is in reality
the Government's privilege to withhold from disclosure
the identity of persons who furnish information of violations
of law to officers charged with enforcement of that
law.” 353 U.S. at 59 (citations omitted). The privilege
is not absolute; rather, “[w]here the disclosure of an
informer's identity, or of the contents of his
communication, is relevant and helpful to the defense of an
accused, or is essential to a fair determination of a cause,
the privilege must give way.” Id. at 60-61. In
practice, the Court must balance “the public interest
in protecting the flow of information against the
individual's right to prepare his defense.” Id.
Puerto Rico v. United States extended the privilege to
information revealing “law enforcement techniques and
procedures, ” while reiterating that “this
qualified privilege is subject to balancing the federal
government's interest in preserving . . .
confidentialilty . . . against the requesting party's
interest in disclosure.” 490 F.3d at 64.
second privilege on which Defendants rely, the official
information privilege, pertains to “confidential
information in police files” that is sought in
“civil rights cases against state and local law
enforcement agencies.” Kelly v. City of San
Jose, 114 F.R.D. 653, 660-61 (N.D. Cal. 1987)
(capitalization altered). This, too, is a qualified
privilege: in applying it, “the court must balance the
public interest in nondisclosure against the need of the
particular litigant for access to the privileged
information.” Shea v. McGovern, No.
1:08-cv-12148-MLW, 2011 WL 322652, at *5 (D. Mass. Jan. 31,
2011) (citations omitted). As set forth in King v.
Conde, 121 F.R.D. 180 (E.D.N.Y. 1988):
The factors disfavoring disclosure are the threat to the
safety of police officers, the invasion of the privacy of
police officers, the weakening of law enforcement programs or
procedures, the chilling of police investigative candor, the
chilling of citizen complainant candor, and state privacy
law. The factors favoring disclosure are the relevance of the
material to the plaintiff's case, the importance of the
material to the plaintiff's case, the strength of the
plaintiff's case, and the importance to the public
interest in releasing the information.
Nat'l Cong. for Puerto Rican Rights ex rel. Perez v.
City of New York, 194 F.R.D. 88, 95-96 (S.D.N.Y. 2000)
(quoting Morrissey v. City of New York, 171 F.R.D.
85, 92 (S.D.N.Y. 1997) (citing King, 121 F.R.D. at
190-96)); see also Martin v. Conner, 287 F.R.D. 348,
350-51 & n.3 (D. Md. 2012) (collecting cases applying
this balancing test). Of these factors, the importance of the
material to a plaintiff's case has been recognized as
“a most important factor” or “the most
important” factor of all. King, 121 F.R.D. at
194 (citations and quotations omitted).
on these two qualified privileges, the City argues first that
information Plaintiffs seek will divulge the identities of
complainants, which, in turn, will deter the public from
filing complaints in the future. The City submits that that
it “should not be required to produce any complaints to
Plaintiffs without at least the complainants' personal
information redacted.” Docket #113 at 6. I reject the
City's argument. It offers no evidence supporting its
empirical argument, and other decisions, including King
v. Conde, have concluded to the contrary that:
the more persuasive hypothesis is that disclosure will have
no influence on citizen complaints. It is not at all clear
that people who feel aggrieved by actions of police officers
would even think about the possibility that their complaints
might be disclosed to another person who feels aggrieved by
King, 121 F.R.D. at 193-94 (quoting Kelly,
114 F.R.D. at 666). In addition, Judge Hillman has entered a
protective order that restricts the dissemination and use of
information produced in discovery. His order facilitates
disclosure while providing a measure of privacy protection.
the City argues that many complainants' identities are
known to Plaintiffs' counsel, whose practice focuses on
police misconduct involving the WPD. To the extent that those
identities are known to Plaintiffs' ...