Opinion
03 Civ. 4526 (RWS0, 03 Civ. 4915 (RWS), 03 Civ. 7790 (RWS), 03 Civ. 8445 (RWS), 03 Civ. 9188 (RWS), 03 Civ. 9191 (RWS), 04 Civ. 665 (RWS), 04 Civ. 1145 (RWS), 04 Civ. 1371 (RWS), 04 Civ. 2713 (RWS).
June 30, 2004.
JAMES I. MEYERSON, ESQ., Attorney for Plaintiffs Susan Fountain and Jacob McKean, New York, NY.
MOORE GOODMAN, Attorneys for Plaintiffs Amy Haus and Carey Larsen, New York, NY, By: JONATHAN C. MOORE, ESQ., WILLIAM M. GOODMAN, ESQ., DAVID MILTON, ESQ., Of Counsel.
JOEL BERGER, ESQ., Attorney for Plaintiffs Jessica Scherer, Nicholas Merrill and Alexandra Linadarkis, New York, NY.
ROSE M. WEBER, ESQ., Attorney for Plaintiffs Daniel Lang Ralph Klaber, New York, NY.
EMERY CELLI CUTI BRICKERHOFF ABADY, Attorneys for Plaintiff Sarah Kunstler New York, NY, By: MATTHEW D. BRICKERHOFF, ESQ., Of Counsel.
HONORABLE MICHAEL A. CARDOZO, Attorneys for Defendants, New York, NY, By: CHRISTINE C. BURGESS, ESQ., JENNIFER ROSSAN, ESQ., PAMELA LYNAM MAHON, ESQ., JENNIFER A. VAZQUEZ, ESQ., DARA L. WEISS, ESQ., SUSAN P. SCHARFSTEIN, ESQ., Of Counsel.
OPINION
Defendants the City of New York and various individual Police Officers have moved for reconsideration and/or clarification of the opinion issued by this Court on May 3, 2004, familiarity with which is presumed. See Fountain v. City of New York, 2004 WL 941242 (S.D.N.Y. May 3, 2004) (the "Opinion"). The motion for reconsideration is granted in part and denied in part.
Nothing in the Opinion should be construed as requiring the defendants to move in state court to unseal the criminal records of the plaintiffs if the plaintiffs supply a § 160.50 release to the defendants for the unsealing of their records. The procedure outlined in the Opinion should only be used if a plaintiff or plaintiffs have refused to provide such a release. Alternately, defendants may make an application to have the Court direct a given plaintiff to provide a signed release.
Further, nothing in the Opinion should be construed as foreclosing any objections to production of police officer disciplinary records on relevance grounds. The Opinion stated that "where CCRB records contain allegations wholly unrelated to those alleged in the complaint, their relevance has been found too tenuous to allow discovery." Fountain, 2004 WL 941242, at *2 (quoting Reyes v. City of New York, 00 Civ. 2300, 2000 WL 1528239, at *1 (S.D.N.Y. Oct. 16, 2000)).
Both CCRB and IAB records are, however, presumptively discoverable, regardless of the age, subject matter, or disposition of the underlying complaint. See King v. Conde, 121 F.R.D. 180, 198 (E.D.N.Y. 1988) (". . . except for reasonable redactions of names and addresses to protect privacy or informer sources, plaintiffs in federal civil rights actions are presumptively entitled to recollections as well as documents on prior complaints and police history."). Before producing such records, the defendants may make a written motion objecting to the disclosure of specific records on the grounds that the law enforcement privilege or the official information privilege precludes disclosure, or that the records in question are not relevant within the meaning of Federal Rule of Civil Procedure 26(b)(1). It is not necessary to assert a claim of privilege in order to object to production on relevance grounds.
The defendants have provided no controlling authority for a reconsideration of the defendants' earlier request to extend the discovery restrictions of Local Civil Rule 33.2, which applies only to pro se prisoners, to all plaintiffs. Accordingly, the request is denied. See Melnitzky v. Rose, 305 F. Supp.2d 349, 350 (S.D.N.Y. 2004) (a "motion for reconsideration is not an opportunity for the moving party to `argue those issues already considered when a party does not like the way the original motion was resolved.'") (quoting In re Houbigant, Inc., 914 F. Supp. 997, 1001 (S.D.N.Y. 1996)); Novomoskovsk Joint Stock Company "Azot" v. Revson, 95 Civ. 5399, 1999 WL 767325, at *1 (S.D.N.Y. Sept. 28, 1999) ("in order to prevail on a motion for reconsideration, the proponent must show that the Court overlooked or ignored critical facts or controlling law that required a different result.").
In their opposition papers, the plaintiffs have requested reconsideration or clarification of portions of the Opinion relating to the requests by plaintiffs for the names of the nonparty arrestees. Although the Opinion refers to files in the custody of the district attorney, plaintiffs argue that the information they seek is exclusively in the possession of the New York City Police Department ("NYPD") and that it has not been sealed pursuant to C.P.L. § 160.50. Defendants argue conversely that records maintained by the NYPD fall within the ambit of records sealed under the statute.
The relevant subsection of § 160.50 provides, inter alia, that the following shall be sealed upon the notification of the termination of a criminal action in favor of such a person:
all official records and papers . . . relating to the arrest or prosecution, including duplicates and copies thereof, on file with the division of criminal justice services, any court, police agency, or prosecutor's office. . . .
§ 160.50(1)(c). Plaintiffs argue that the NYPD form known as a UF-49, which typically, though not always, contains the names of persons arrested by the NYPD at a demonstration or similar public gathering, should not be considered an "official record or paper" and sealed pursuant to § 160.50. Plaintiffs provide no authority for this interpretation, which is contrary to the unambiguous language of the statute. Further, the sealing of such records is in accord with the purpose of § 160.50, which is to "insur[e] that one who is charged but not convicted of an offense suffers no stigma as a result of his having once been the object of an unsustained accusation." Matter of Hynes v. Karassik, 47 N.Y.2d 659, 662, 419 N.Y.S.2d 942, 393 N.E.2d 1015 (1979). The UF-49, and other NYPD documents identifying the names of arrestees, are therefore deemed to fall within the official records and papers sealed pursuant to § 160.50.
Section 160.50 also protects the privacy of persons who were arrested but not charged with any offense, as a criminal proceeding is considered to be terminated in favor of a person, and the records of such proceeding subject to sealing, where "prior to the filing of an accusatory instrument in a local criminal court against such person, the prosecutor elects not to prosecute such person." § 160.50(3)(i); see also Doe v. District Attorney of County of Nassau, 166 Misc.2d 188, 193, 632 N.Y.S.2d 414, 417 (N.Y.Sup.Ct. 1995) (discussing the legislative history of §§ 160.50 3(i) and 3(j)). It is possible that in such a case, all or nearly all of the relevant documents would be in the sole possession of the police agency.
At oral argument, plaintiffs argued that it would be unfair for the defendants to have access to the names of the co-arrestees while plaintiffs were denied the same information. In recognition of this possibility, defendants are hereby ordered to disclose to the plaintiffs and to the Court any use they may make or have already made in this litigation of the information contained in the police, court, or district attorney records of the non-party arrestees that have been withheld from plaintiffs on the grounds that they are sealed pursuant to § 160.50.
If the plaintiffs believe that they will still be unfairly disadvantaged without the names of the non-party arrestees, they may propose a procedure by which the Court could determine whether any of the arrestees wish to be involved in this litigation. Such a procedure was suggested by Magistrate Judge Douglas F. Eaton in Bryant v. City of New York, 99 Civ. 11237, 2000 WL 1877082, at *2-3 (S.D.N.Y. Dec. 27, 2000), although Magistrate Judge Eaton ultimately held that "plaintiffs have not shown a pressing need for testimony from such persons." Id. at *3; see also Daniels v. City of New York, 99 Civ. 1695, 2001 WL 228091 (S.D.N.Y. Mar. 8, 2001) (Scheindlin, J.) (outlining procedure for civilians in police database to be contacted by magistrate judge and to have willing civilians contacted by plaintiffs' counsel). While there is a possibility that some of the non-party arrestees may have relevant information, plaintiffs have not yet shown that their need for the information outweighs "the administrative burden on the City, and (more importantly) [the] burden on the privacy interest of the . . . non-parties." Bryant, 2000 WL 1877082, at *4.
Conclusion
For the reasons stated above, the motion for reconsideration is denied in part and granted in part.
It is so ordered.