Summary
declining motion to compel production of names and memo books from all officers assigned to a demonstration where the information would be relevant "only in particularized instances"
Summary of this case from Stinson v. City of N.Y.Opinion
No. 04 Civ. 0665 (RWS).
April 27, 2005
MEMORANDUM OPINION
Plaintiffs Carey Larsen ("Larsen"), Megan Kathleen Reed ("Reed"), Miyong Noh ("Noh"), Nancy Ordover ("Ordover"), Seth Tobocman ("Tobocman") and Eric Shtob ("Shtob") (collectively, the "Plaintiffs") have moved by letter motion to compel the production of documents in possession of defendants The City of New York ("the City"), Raymond Kelly, New York City Police Commissioner (the "Commissioner"), Bruce Smolka, Assistant Chief of Police, Patrol Borough, Manhattan South, New York City Police Department ("Chief Smolka") and Police Officers Rigoberto Perez ("PO Perez"), Francis Knowles ("PO Knowles"), Anthony Cuoco ("PO Cuoco"), John Taveras ("PO Taveras"), Louis Guardino ("PO Guardino") and twenty-five John Doe Police Officers (collectively, the "Defendants"). The Defendants have moved for a protective order. As set forth below, the motions are granted in part and denied in part. Prior Proceedings
The Plaintiffs filed their complaint in this action on January 28, 2004 under 42 U.S.C. § 1983 alleging deprivations of their civil rights arising out of the events surrounding a demonstration against the Carlyle Group in Manhattan on April 7, 2003 (the "Demonstration"). These events are also the subject matter of another action brought by fifty-five other plaintiffs (Kunstler v. City of New York, 04 Civ. 1145 (RWS)).
The Plaintiffs by letter motion have sought to compel production of documents describing the planning by the New York City Police Department ("NYPD") relating to the Demonstration, any reports of persons injured at the Demonstration ("aided reports"), incident reports, the identities of police officers present, and such police officers' memo books.
The Defendants have moved for a protective order for: (1) any evaluative, assessment, or planning documents on the grounds of relevance and the law enforcement privilege, (2) any non-party aided report or incident report on privacy and relevance grounds, and (3) memo books of officers assigned to the Demonstration on overbreadth and relevance grounds.
Defendants have not provided legal authority concerning the withholding of the incident reports. In the absence of such authority, these incident reports shall be produced.
The motions were heard and marked fully submitted on January 19, 2005.
The Planning Documents
The NYPD prepared a planning document entitled "Detail for the M27 Coalition `Die In,' within the confines of Patrol Borough Manhattan South, Monday April 7th, 2003." (the "Planning Document"). This Planning Document is similar in all material aspects to a planning document that the City was ordered to produce in redacted form in this Court's April 27, 2005 Memorandum Opinion in Haus, et al. v. City of New York, et al., 03 Civ. 4915 (RWS).
The determination arrived at in the April 27, 2005 Haus Memorandum Opinion applies with equal force to Planning Document at issue here.
The Aided Reports
The Defendants have objected to the production of aided reports on the grounds that they are not relevant and that they are protected by the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"). See 42 U.S.C. 1301 et seq.
The complaint has alleged that the police used excessive force in effectuating Plaintiffs' arrests, and that such force was part of a municipal policy, practice, or custom of retaliating against political protestors and that but for the actions of the police, the Demonstration and the demonstrators would have remained entirely peaceful.
The Defendants do not argue that the aided reports do not contain relevant information. Rather, they assert a privilege under HIPAA. However, Defendants have not produced a privilege log identifying documents with particularity or confirming that any such documents even exist.
Unlike the identities of nonparty arrestees, the aided reports are not sealed pursuant to statute, and no authorities have been cited to authorize the withholding of police records under HIPAA. The aided reports are police information and do not contain medical records of the individuals injured on the scene. They are relevant to the Plaintiffs' claims and will be produced.
The Memo Books
The request for the memo books of every officer is overbroad and only in particularized instances may contain information that is relevant or reasonably calculated to lead to the discovery of admissible evidence. In addition, there is a more practical way of obtaining the information sought, namely, the depositions of the arresting officers and supervisors who have already been identified.
The demonstration of a particularized need for the identification of an officer or officers and the relevant memo book of information will be permitted and may be the subject of a further determination.
Conclusion
The incident reports, Planning Document and the aided reports will be produced. The identification of police officers and their memo books will be withheld.
It is so ordered.