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Such questions are clearly relevant to the alleged cause of action for negligent retention.


A Kings Order of Protection Lawyer said that, in this police misconduct action, plaintiff seeks an order pursuant to CPLR 3124 compelling defendant Police Officer to appear for a further examination before trial to answer questions that he was instructed by his counsel not to answer at an examination held on July 31, 2006. Although not included in the Notice of Motion, Plaintiff also asks for copies of documents related to the subject matter of certain unanswered questions, and, because addressed in the opposition of defendant and co-defendants City of New York, Police Officers the requested documents will be addressed by the Court as well.

A Kings Criminal Lawyer said that, plaintiff’s Complaint arises out of an incident on May 2, 2004, when the vehicle Plaintiff was driving was stopped, and Plaintiff was arrested and charged with criminal possession of a weapon, assault, forgery, and resisting arrest. The Complaint seeks compensatory and punitive damages for battery, negligence, negligent hiring and retention, false arrest, false imprisonment, malicious prosecution, and for Federal civil rights violations under 42 USC § 1983. The City has answered for itself and for said defendant Police Officers. The Police Officer was produced for deposition as a witness on his own behalf and as a witness for the City.

The issue in this case is whether defendant should be compelled pursuant to CPLR 3124 to appear for a further examination before trial to answer questions that he was instructed by his counsel not to answer at an examination held on July 31, 2006.

The deposition of the defendant was conducted prior to the effective date of the Uniform Rules for the Conduct of Depositions, but “the basic rules of liberal discovery and civility pre-date Part 221.” “The proper procedure during the course of an examination before trial is to permit the witness to answer all questions posed, subject to objections pursuant to subdivisions b, c and d of CPLR 3115, unless the question is clearly violative of the witness’s constitutional rights or of some privilege recognized in law, or is palpably irrelevant.” There shall be full disclosure of all evidence material and necessary in the prosecution or defense of an action, regardless of the burden of proof. “The words material and necessary’ are to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity.” “The test is one of usefulness and reason.” “The word necessary’ means needful’ and not indispensable.” “CPLR 3101 requires revelation of inadmissible testimony that may lead to discovery of admissible evidence.” “Article 31 was substantially amended in 1993 to broaden the reach of the disclosure devices, but the general view is that the amendments merely codified what New York courts had already effectively determined by making disclosure standards comparable to the liberal, federal standard of discovery under F.R.C.P. 26 (b) (1).” Of particular importance in this action and others including § 1983 Federal civil rights claims, “we are governed by Federal law in determining discovery motions notwithstanding possibly more restrictive State law norms, especially involving law enforcement records,” and “Federal law has allowed in such civil rights cases for much more liberal discovery of recollections and documentation of prior complaints and police history, subject to appropriate redaction to protect informers or privacy.” The deposition questions at issue can be roughly categorized as related to marital status (nos. 1-3); discussions with an Assistant District Attorney or other person within the District’s Attorney’s Office concerning Plaintiff’s arrest (no. 4); disciplinary proceedings and civilian complaints (nos. 5-10); and counseling, including psychiatric and psychological counseling, and anger and stress management (nos. 11-14.)

With respect to the questions related to defendant’s marital status, Defendants argue that the questions were “palpably improper” because the officer’s marital status “has absolutely no bearing or relevance to the case at hand.” Plaintiff argues that, “if it is determined that this witness was indeed involved in a divorce which was based upon spousal abuse or if there were complaints of domestic violence not protected by the Court granting the divorce, this would certainly lead to further discoverable documents.” Given the tenuous and remote relationship, if any, between the use of force incident to an arrest and allegations of domestic violence, the lack of any evidence here that would suggest a history of domestic violence, and the interest in ensuring the safety of police officers’ families, the proferred justification for the marital status questions is rejected.

With respect to the question concerning discussions between defendant and representatives of the District Attorney’s Office concerning prosecution of Plaintiff, “the City objects to the question being answered because the Kings County District Attorney’s Office is not a party to this action, and the DA’s Office should have the opportunity to assert the Prosecutorial Privilege to protect its interests in this matter.” The City fails, however, to describe the privilege or cite authority for its judicial recognition; fails to show that such a privilege would be recognized under Federal discovery rules in § 1983 actions; and fails to establish the City’s standing to assert the privilege if it is recognized.

In addition to a Prosecutorial Privilege, Defendants contend that “the information which Plaintiff’s counsel seeks to elicit should not be disclosed as it is protected by the Public Interest Privilege.” Defendants have cited no authority to support the existence in the § 1983 context of a privilege for discussions with prosecutors. In the absence of a “specific federal rule,” the court must balance the interests disfavoring disclosure and the interests favoring disclosure, as set out in a 1988, “with the party invoking the privilege bearing the burden of proof.”

It addressed the discoverability of police personnel files and complaint records of police officers who were defendants in a § 1983 action. Although rejecting the direct applicability of state privilege law, including New York Civil Rights Law § 50-a, the court describes a “procedure and test to govern all discovery disputes over police records in federal civil rights actions” in the Eastern District, “regardless of the label used to refer to the privilege.” Among the labels mentioned is an “official information” privilege, which appears to be another label for the “public interest” privilege. The procedure is essentially in two parts.

First, “in order to assert a claim of privilege against disclosure of police materials the officers or the police department must make a substantial threshold showing’ that there are specific harms likely to accrue from disclosure of specific materials, based upon a balancing test.” The government must specify the documents or class of documents for which the privilege is claimed, and “must explain the reasons for nondisclosure with particularity, so that the court can make an intelligent and informed choice as to each requested piece of information.” The assertion of privilege must be accompanied by “a declaration or affidavit, under oath and penalty of perjury, from a responsible official within the agency who has personal knowledge of the principal matters to be attested to in the affidavit or declaration.” This statement must be based on personal review of the documents by an official in the police agency (not the defendant’s attorney) and must explain (not merely state conclusorily) how the materials at issue have been generated or collected; how they have been kept confidential; what specific interests (e.g. of the police officers, of law enforcement, or of public concern) would be injured by disclosure to plaintiff, to plaintiff’s attorney, and to the public; and the projected severity of each such injury.

If the court determines that the defendant’s “threshold burdens” have not been met, “direct disclosure is in order,” that is, without prior review by the court. If the threshold showing is made, the court may then review the materials at issue in camera and decide which, if any, to withhold from disclosure, or to disclose with redactions or subject to a protective order. In making the determinations as to disclosure, “the court must balance the interests favoring and disfavoring disclosure, keeping in mind that the burden of persuasion rests on the party seeking to prevent disclosure.” The factors disfavoring disclosure include: “(1) Threat to police officers’ own safety”; “(2) Invasion of police officers’ privacy”; “(3) Weakening of law enforcement programs”; “(4) Chilling of police internal investigative candor”; “(5) Chilling of citizen complaint candor”; “(6) State privacy law.” The factors favoring disclosure include: “(1) Relevance to the plaintiff’s case”; “(2) Importance to the plaintiff’s case”; “(3) Strength of the plaintiff’s case”; “(4) Importance to the public interest.”

As applied to discussions between police officers and prosecutors concerning an arrest at issue, the factors articulated may not sufficiently address the interests of third parties, including the prosecutors. It is clear, however, that, to the extent state privilege law would protect such interests, it “may be a useful referent for courts in federal question cases.” “The court should consider the policies underlying the state law and weigh those policies just as any other factors disfavoring disclosure, keeping in mind that state laws may work to protect state officials against the enforcement of federal rights.”

There must be specific support for the claim of privilege, and the governmental agency must come forward and show that the public interest would indeed be jeopardized by a disclosure of the information. The identity of persons communicating information to prosecutorial agencies concerning the commission of crimes has long been accorded the privilege of confidentiality as an aid to law enforcement, and in order to keep sources of information from drying up.” On the other hand, “public interest encompasses not only the needs of the government, but also the societal interests in redressing private wrongs and arriving at a just result in private litigation.”

Here, it is clear that Defendants have not established that the content of any discussions between Officer Reich and any prosecutor is exempt from disclosure. Defendants do not recognize the predominance of Federal disclosure rules in § 1983 actions, and do not provide any factual or evidentiary basis for the State public interest privilege. Defendant Police Officer will, therefore, be required to appear for further examination. Because, however, the District Attorney may have a cognizable interest to be protected, even where, as here, proceedings with respect to the underlying criminal charge are apparently completed, the District Attorney should be given sufficient notice of the resumed deposition to allow for an application by order to show cause for a protective order.

The Court concludes, nonetheless, that the questions concerning counseling, including psychiatric and psychological counseling, were improper. Plaintiff argues only that “any character traits of this witness, especially violent ones, given the claims being sued for, are not only relevant, but critical, necessary, and material to the litigation of this lawsuit.” But even in § 1983 actions, “the plaintiff’s allegations of excessive force and false arrest do not, by themselves, place the officers’ mental health in issue.” The same conclusion, however, does not hold for the questions concerning anger management and stress management courses, to the extent that the defendant Officer might have been required or encouraged to attend by the Department. Such questions are clearly relevant to the alleged cause of action for negligent retention.

Accordingly the court held that the Plaintiff’s motion is granted.

If you are involved in a similar crime charge, seek the assistance of a Kings Domestic Violence Attorney and Kings Order of Protection Attorney at Stephen Bilkis and Associates in order to help you handle your day in court.

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