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Diaz v. Devlin

United States District Court, D. Massachusetts

April 3, 2018

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,


          David H. Hennessy, United States Magistrate Judge

         Before 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.

         I. BACKGROUND

         I 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.

         SWAT 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 searching.

         Plaintiffs 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.

         Defendant 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.

         Judge 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 information.

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.


         A. Standard

         The scope of discovery is set forth at Federal Rule of Civil Procedure 26(b)(1):

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 be discoverable.

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)).

         Federal 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).

         Federal 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.

         B. Analysis

         As 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.[1] 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.

         Only five of the numerous discovery requests addressed in Plaintiffs' motion remain in dispute.[2] Each concerns a request to the City. I address them sequentially.

         1. Document Request #5

         Plaintiffs request

[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.

         I agree 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.

         Beyond 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 5.[3] 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.

         The 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).

         Relying 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.[4] 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 police officers.

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.

         Finally, 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' ...

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