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Case 1:04-cv-01775-ENV-MDG Document 42 Filed 06/02/10 Page 1 of 14

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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TOWANDA VELEZ, as personal
representative of the estate of Anthony
Velez, deceased,

Plaintiff,

- against -
CITY OF NEW YORK, et al.,

Defendants.

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GO, United States Magistrate Judge:

ORDER
CV 2004-1775 (ENV)(MDG)

Plaintiff Towanda Velez ("plaintiff"), on behalf of the

decedent Anthony Velez (the "decedent" or "Velez"), brings this
action pursuant to 42 U.S.C. § 1983 against defendants the City
of New York (the "City") and New York City Police Department
("NYPD") officers Rudolph Hall, Michael Ruggiero and other
unnamed officers alleging deprivations of the decedent's civil
rights. Plaintiff moves to compel discovery of information
relating to the NYPD's policies and practices that she sought in
her Second Demand for Discovery and Inspection. See ct. doc. 16.
Opposing on grounds of relevance and privilege, the City cross-
moves for a protective order to prevent discovery of the NYPD's
file concerning its open investigation into the homicide of the
decedent and related documents. See ct. doc. 14. The City has
submitted, at the Court’s request, some of the documents it seeks
to withhold from plaintiff for in camera review.

Case 1:04-cv-01775-ENV-MDG Document 42 Filed 06/02/10 Page 2 of 14

BACKGROUND

Plaintiff alleges that the decedent was a confidential

informant ("CI") of the NYPD who provided information to
defendant Hall regarding drugs and/or weapons located at 24 Stone
Avenue, Apartment 5C in Brooklyn, New York (the "apartment").
When Officer Hall and other NYPD officers went to that address,
they encountered the decedent exiting the apartment. After
detaining him while they obtained consent and searched the
apartment, they permitted the decedent to leave. Plaintiff
further alleges that during the search of the apartment, Officer
Ruggiero told the occupants of the apartment that the decedent
was the source of the information that prompted the search.
Approximately one and one half hours later, the decedent was shot
and killed, which plaintiff alleges was in retaliation for
providing the tip.

The NYPD conducted an investigation into the decedent's

homicide and an internal investigation into whether the homicide
was related to the NYPD's treatment of the decedent as an
informant. Plaintiff alleges that Velez's death was a result of
the NYPD's failure to provide Officers Hall and Ruggiero with
proper training and instruction on the treatment of information
obtained from a CI and protecting the safety of a CI.

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Case 1:04-cv-01775-ENV-MDG Document 42 Filed 06/02/10 Page 3 of 14

Plaintiff's Motion to Compel

DISCUSSION

Rule 26(b)(1) of the Federal Rules of Civil Procedure

permits parties to “obtain discovery regarding any non-
privileged matter that is relevant to any party’s claim or
defense” and, upon a showing of "good cause," a "court may order
discovery of any matter relevant to the subject matter involved
in the action." Fed. R. Civ. P. 26(b)(1). Information is
relevant and discoverable so long as the discovery "appears
reasonably calculated to lead to the discovery of admissible
evidence." Id. When broader discovery is sought, the Court
should determine the scope "according to the reasonable needs of
the action, ... depending on the circumstances of the case, the
nature of the claims and defenses, and the scope of the discovery
requested." Fed. R. Civ. P. 26(b)(1) Advisory Committee Notes to
2000 Amendments. Objections to a request on the basis of
relevance or overbreadth are not a basis to preclude discovery
altogether. See Martinez v. Robinson, No. 99 CIV. 11911, 2002 WL
424680, at *2 (S.D.N.Y. Mar. 19, 2002)

Document Demand Nos. 1, 2, 3, 4 and 13
Since the City has agreed to produce documents responsive to
Demand Numbers 1, 2, 3, 4 and 13, plaintiff's motion to compel is
moot with respect to those demands. See Def.'s Mem. in Opp. at 3
(ct. doc. 19).

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Case 1:04-cv-01775-ENV-MDG Document 42 Filed 06/02/10 Page 4 of 14

Document Demand Nos. 5 and 6
Plaintiff seeks documents concerning the training and

instruction provided to NYPD officers and specifically, the
training given to defendants Hall and Ruggiero, for handling
confidential informants, including procedures and practices for
protecting the confidentiality and safety of the informants and
for conducting searches, arrests and "similar police action" when
confidential informants are present. See Declaration of Michael
G. O'Neill dated December 8, 2006 ("12/8/06 O'Neill Decl."), Exh.
B. at 4 (ct. doc. 16-2). The City argues that the request is
overbroad and should be limited to those procedures and policies
regarding the safety and confidentiality of confidential
informants that were in effect at the time of the incident and
“to the factual scenario presented here." I agree that the
relevant documents should be limited in time to those that were
in effect at the time of the incident. However, the documents
produced should include procedures and policies regarding the
safety and confidentiality of confidential informants generally,
including police operations conducted in the presence of
informants. Moreover, the City should also produce documents
concerning the training and instruction actually provided to
defendants Hall and Ruggiero as requested in Demand Number 6.

Document Demand Nos. 7-11
Plaintiff seeks documents concerning the City's experience

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with violence against confidential informants whose identities
were compromised. 12/8/06 O'Neill Decl., Exh. B at 4-5. The
City argues that these requests are overbroad because they refer
to "confidential informants whose identities have been
compromised" rather than to cases where NYPD officers
affirmatively disclosed an informant's identity, as alleged here.
The City takes too restrictive a view of plaintiff’s claims which
encompass the failure of the defendant officers to take the
measures necessary to protect Velez's identity and the City’s
failure to provide proper training and instruction in acting on
information provided by confidential informants or recognizing
when the confidentiality of informants has been compromised.
Therefore, plaintiff is entitled to documents regarding CI’s
whose identities have been compromised whether or not their
identities were affirmatively disclosed by NYPD officers.

Document Demand No. 12
Plaintiff requests documents reflecting the City's

consideration of a policy regarding the protection of
confidential informants. 12/8/06 O'Neill Decl., Exh. B at 6. In
response, the City claims that the request is overbroad as to
time and seeks documents that are protected by the deliberative
process privilege. Def's Mem. in Opp. at 6-7. Plaintiff’s
counsel has agreed to withdraw this request without prejudice so
that he may reformulate it to satisfy the City’s concerns.

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The City is advised that should future disputes arise over

the reformulated request, it may not invoke the deliberative
process privilege unless it submits a privilege log which
specifically describes each of the documents it claims are
privileged and properly asserts the privilege by the head of a
governmental agency or a designated subordinate. See Turkmen v.
Ashcroft, No. 02-CV-2307, 2004 U.S. Dist. LEXIS 14537, at *11
(E.D.N.Y. July 29, 2007); Local Civil Rule 26.2.

Document Demand No. 14
Plaintiff seeks drafts and versions of the NYPD's "Narcotics

Enforcement Initiative Guidebook" ("NEI Guidebook"). 12/08/06
O'Neill Aff., Exh. B at 6. Again, the City claims that the
request is overbroad and the documents are protected by the
deliberative process privilege. The City represents that it will
produce those provisions of the NEI Guidebook in effect at the
time of the incident that relate to the safety and protection of
confidential informants. As a result, plaintiff’s counsel has
withdrawn this request without prejudice.
The City's Motion for a Protective Order

The documents subject to the City's motion for a protective

order have been submitted for in camera review.

Documents P000372-74
These documents were contained in the Internal Affairs

Bureau's file pertaining to its investigation into defendants
Hall's and Ruggiero's use of Velez as a confidential informant.

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The City claims that documents P000372-74 are protected by the
deliberative process privilege because they contain pre-
decisional analysis and recommendations made by a supervisor to
the Internal Affairs investigator assigned to the case.

The deliberative process privilege protects "documents

reflecting advisory opinions, recommendations, and deliberations
comprising part of a process by which governmental decisions and
policies are formulated." Tigue v. U.S. Dep't of Justice, 312
F.3d 70, 76 (2d Cir. 2002); Grand Cent. P'ship, Inc. v. Cuomo,
166 F.3d 473, 482 (2d Cir. 1999). To qualify for protection
under the deliberative process privilege, a document must be both
"predecisional" and "deliberative." Tigue, 312 F.3d at 76; Grand
Cent., 166 F.3d at 482. A document is deliberative when it is
"actually . . . related to the process by which policies are
formulated." Grand Cent., 166 F.3d at 482; Hopkins v. U.S. Dep't
of Hous. & Urban Dev., 929 F.2d 81, 84 (2d Cir. 1991). A
document is predecisional "when it is prepared in order to assist
an agency decisionmaker in arriving at his decision." Tigue, 312
F.3d at 80; Grand Cent., 166 F.3d at 482. The document must have
been created to assist the agency in the formulation of a
specific decision on policy rather than "part of a routine and
ongoing process of agency self-evaluation." Tigue, 312 F.3d at
80 (quoting Maricopa Audubon Soc'y v. U.S. Forest Serv., 108 F.3d
1089, 1094 (9th Cir. 1997)); see also Grand Cent., 166 F.3d at
482 (courts require a showing that "pinpoint[s] the specific

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agency decision to which the document correlates"). By contrast,
measuring compliance with existing procedures is not
predecisional, and thus is not privileged. See Turkmen, 2004
U.S. Dist. LEXIS 14537, at *8 (E.D.N.Y. July 29, 2004); Powell v.
New York City Health & Hosps. Corp., No. 03 Civ. 3264, 2003 WL
22871908, at *1 (S.D.N.Y. Dec. 4, 2003); Tortorici v. Goord, 216
F.R.D. 256, 258 (S.D.N.Y. 2003); Nat'l Congress for Puerto Rican
Rights v. City of New York, 194 F.R.D. 88, 97 (S.D.N.Y. 2000).

These documents do not contain discussions underlying policy

oriented judgments that the deliberative process privilege is
designed to protect. See Tigue, 312 F.3d at 80; Hopkins, 929
F.2d at 84; Mitchell v. Fishbein, 227 F.R.D. 239, 250-51
(S.D.N.Y. 2005) (privilege only extends to "communications
designed to directly contribute to formulation of important
public policy"). The "final decision" the City refers to is
whether disciplinary action was warranted against the defendant
officers based on their failure to follow the applicable
procedures. These recommendations concerning disciplinary review
of a discrete incident do not involve the policy formulations
protected under the deliberative process privilege. Turkmen,
2004 U.S. Dist. LEXIS 14537, at *12-*16; Mitchell, 227 F.R.D. at
250-51 (decision whether to recertify attorney was "routine" and
cannot qualify for the deliberative process privilege); Scott v.
Bd. of Educ. of City of East Orange, 219 F.R.D. 333, 337 (D.N.J.
2004) (termination of employee was routine operating decision not

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shielded by privilege). Many courts have held that the
deliberative process privilege does not preclude the disclosure
of documents concerning internal affairs investigations in civil
rights suits against law enforcement agencies. See Turkmen, 2004
U.S. Dist. LEXIS 14537, at *13-*16; Nat'l Cong., 194 F.R.D. at
95; Morrissey v. City of N.Y., 171 F.R.D. 85, 89 (S.D.N.Y. 1997).
"The Privilege is properly limited to communications relating to
policy formulation at the higher levels of government; it does
not operate indiscriminately to shield all decision-making by
public officials." Scott, 219 F.R.D. at 337; see Grand Cent.,
166 F.3d at 482; Mitchell, 227 F.R.D. at 250.

The City also claims that P000374 is protected by the

attorney work product doctrine as it discloses advice regarding
possible disciplinary action provided by the NYPD Advocate's
Office to the Internal Affairs Bureau in preparation for
litigation. Def.'s Mem. in Opp. at 12. The NYPD Advocate's
Office investigates misconduct charges against police officers
and, if necessary, brings departmental charges at an internal
police department trial. See McAllister v. New York City, No. 97
Civ. 7420, 2000 U.S. Dist. LEXIS 11871, at *2 (S.D.N.Y. Aug. 17,
2000).

Federal Rule of Civil Procedure 26(b)(3) embodies the

federal work product doctrine which provides qualified protection
to "documents and tangible things... prepared in anticipation of
litigation or for trial" from discovery. Fed. R. Civ. P.

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26(b)(3); United States v. Constr. Prods. Research, Inc., 73 F.3d
464, 473 (2d Cir. 1996); Bogan v. Northwestern Mut. Life Ins.
Co., 163 F.R.D. 460, 462 (S.D.N.Y. 1995); Stryker Corp. v.
Intermedics Orthopedics, Inc., 145 F.R.D. 298, 301 (E.D.N.Y.
1992); see Hickman v. Taylor, 329 U.S. 495, 511 (1947).
Documents prepared in anticipation of litigation are those that,
"in light of the nature of the document and the factual situation
in the particular case . . . can fairly be said to have been
prepared or obtained because of the prospect of litigation."
United States v. Adlman, 134 F.3d 1194, 1202 (2d Cir. 1998). The
burden of establishing the applicability of the attorney work
product doctrine rests with the party asserting it. See Constr.
Prods., 73 F.3d at 473.

Upon reviewing the document in camera, I find that only the

last sentence discloses advice given by the NYPD Advocate’s
Office. Since it is undisputed that the advice was provided in
anticipation of litigation, the City may redact the last sentence
of the document. See McAllister, 2000 WL 1161082, at *1
(upholding attorney work product claim for documents created by
Department Advocate's Office).

Documents P000312-29 and P000363-67
These documents consist of personnel profiles of defendants
Ruggiero and Hall. The documents contain personal information,
including their home addresses and medical histories, and
employment information, including summaries of the arrests made

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while employed as police officers, commendations received,
summaries of their performance evaluations from 2000 to 2002 and
information concerning each officer's firearm. The City argues
that the documents are not relevant and are protected by the
official information privilege. Plaintiff argues that she is
entitled to the personnel files to the extent that they do not
contain sensitive personal information regarding the officers.

Although sensitive personal information contained in the

personnel files such as the officers' home address, religion and
medical histories is not relevant to plaintiff's claims,
information regarding arrests, citations and performance
evaluations is reasonably calculated to lead to the discovery of
admissible evidence. Since plaintiff alleges that the defendant
officers were inadequately trained and supervised, information
pertaining to their job performance is relevant. See Harper v.
Port Auth. of New York & New Jersey, No. 05 Civ. 5534, 2006 WL
1910604, at *3 (S.D.N.Y. July 10, 2006); Martinez, 2002 WL
424680, at *4-*5; Morrissey, 171 F.R.D. at 88.

The City further claims that the documents are protected by

the official information privilege. The official information
privilege is a qualified privilege that applies to the disclosure
of police personnel files to protect against "fishing
expeditions." See Collens v. City of N.Y., 222 F.R.D. 249, 253
(S.D.N.Y. 2004); Morrissey, 171 F.R.D. at 92. The court must
balance the "plaintiff's interests in disclosure against the

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state's legitimate concern of protecting the confidentiality of
the officers' personnel files from unnecessary intrusions."
Nat'l Cong., 194 F.R.D. at 95 (quoting Mercado v. Division of New
York State Police, 989 F. Supp. 521, 523 n.1 (S.D.N.Y. 1998)).

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
plaintiff's case, the strength of plaintiff's case and the
importance to the public interest in releasing the information.
See Nat'l Cong., 194 F.R.D. at 95-96; Morrissey, 171 F.R.D. at
92; King v. Conde, 121 F.R.D. 180, 190-96 (E.D.N.Y. 1988).
Here, plaintiff's need for the documents outweighs the

officers' safety and privacy interests which can be adequately
protected under the protective order issued in this case and
redaction of any sensitive personal information. The
unavailability of the information requested from another source
is also an important factor. See Nat'l Cong., 194 F.R.D. at 96.
Moreover, the public has a strong public interest in uncovering
civil rights violations. See id. at 96-97. In contrast, the
City has not demonstrated how disclosure of the information poses
a threat to the officers' safety or implicates any of the other

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factors disfavoring disclosure.

Therefore, the City must disclose the documents regarding

performance, evaluations and training but may redact the
sensitive personal information discussed above.

Documents P000330-62
With the exception of documents P000344 through P000346,

these documents contain information regarding unrelated
complaints made to the Internal Affairs Bureau against defendants
Ruggiero and Hall. None of the complaints involve the misuse of
a confidential informant or the disclosure of confidential
information.

A complaint against a police officer is only relevant and

discoverable upon a showing that it is similar to the misconduct
alleged in the action. See Pacheo v. City of New York, 234
F.R.D. 53, 54 (E.D.N.Y. 2006); Thompson v. City of New York, No.
05 Civ. 3082, 2006 WL 298702, at *3 (S.D.N.Y. Feb. 7, 2006);
Melendez v. Greiner, No. 01 Civ. 7888, 2003 WL 22434101, at *3
(S.D.N.Y. Oct. 23, 2003); Reyes ex rel. Reyes v. City of N.Y.,
No. 00 Civ. 2300, 2000 WL 1528239, at *1 (S.D.N.Y. Oct. 16,
2000). Here, none of the complaints described in these
documents, with the exception of the documents noted above, bear
any relation to the allegations at issue in this litigation or
the officers’ propensity to tell the truth. Therefore, only
documents P000344 through P000346 need be produced.

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Documents P000306-11, P000368-71 and the NYPD's File for the
Open Investigation into Velez's Homicide
Plaintiff originally sought all documents concerning the

open homicide investigation into the death of Velez. In addition
to the documents contained in the NYPD’s investigative file
concerning Velez’s homicide, the City opposed producing documents
P000306-11 and P000368-71 which are contained in the Internal
Affairs Bureau file but discuss the open homicide investigation.
The parties have reached an agreement to limit the production of
documents to those relating to Velez’s dying declaration and the
disclosure of Velez’s identity as an informant.

CONCLUSION

For the foregoing reasons, the plaintiff's motion to compel
and the defendants’ motion for a protective order are granted in
part and denied in part as set forth above.

SO ORDERED.

Dated:

Brooklyn, New York
June 2, 2010

/s/
MARILYN D. GO
UNITED STATES MAGISTRATE JUDGE

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