Dorsett v. County of Nassau, CV 10–1258(ADS)(AKT).

Citation762 F.Supp.2d 500
Decision Date14 January 2011
Docket NumberNo. CV 10–1258(ADS)(AKT).,CV 10–1258(ADS)(AKT).
PartiesSharon DORSETT, individually and as the Administratix of the Estate of Jo'Anna Bird, Plaintiff,v.COUNTY OF NASSAU, Nassau County Police Department, Office of the Nassau County District Attorney, Detective Robert Ariola, in his official and individual capacities, Police Officers And/Or Detectives John and Jane Does 1–10, District Attorney John and Jane Does 1–10, and Leonardo Valdez–Cruz, Defendants.
CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)

OPINION TEXT STARTS HERE

Frederick K. Brewington, Law Offices of Frederick K. Brewington, Hempstead, NY, Julius Stewart Moore, Law Office of J. Stewart Moore, P.C., Central Islip, NY, Valerie M. Cartright, Law Offices of Frederick K. Brewington, Hempstead, NY, for Sharon Dorsett.

Jacob P. Goldstein, Levin Sullivan Koch & Schulz, LLP, New York, NY, for Newsday LLC.Sondra Meryl Toscano, Liora M. Ben–Sorek, Nassau County Attorney's Office, Mineola, NY, for County of Nassau.

MEMORANDUM DECISION AND ORDER

A. KATHLEEN TOMLINSON, United States Magistrate Judge.

This civil rights action arises out of the March 2009 tragic death of Jo'Anna Bird, a young mother, at the hands of her former boyfriend and father of her child, Leonardo Valdez–Cruz, who is a defendant in this case. Jo'Anna Bird had obtained several orders of protection against Valdez–Cruz on her own behalf as well as on behalf of her children. Valdez–Cruz was tried and convicted for the murder of Jo'Anna Bird and is currently serving his sentence. In the current case, Plaintiff Sharon Dorsett, the mother of Jo'Anna Bird, both individually and as the Administratrix of her daughter's estate, has brought a series of claims asserting, among other things, Section 1983 violations against the individual Nassau County defendants, municipal liability against Nassau County pursuant to Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), a Section 1983 conspiracy claim against Leonardo Valdez–Cruz and the Nassau County defendants, as well as claims asserting negligence, abuse of process and wrongful death.

Before the Court at this time is a motion by the County of Nassau, the Nassau County Police Department (“NCPD”), the Office of the Nassau County District Attorney, Detective Robert Ariola, Police Officers and/or Detectives John and Jane Does 1–10, and District Attorney John and Jane Does 1–10 (collectively, the Nassau County Defendants) for an injunction and/or protective order prohibiting the disclosure, dissemination, release or revelation of the contents of Internal Affairs Unit Report 14–2009 (“IAU Report”) which documents the Nassau County Police Department's internal investigation into the death of Jo'Anna Bird. The motion was prompted by a press release issued by Plaintiffs' counsel on November 30, 2010 announcing a press conference to be held at 11 a.m. on December 1, 2010 at the offices of Plaintiffs' counsel, at which time, Plaintiffs' counsel intended to release the IAU Report to the press and public. Defendant Valdez–Cruz, although having been served with the summons and complaint on April 1, 2010 ( see DE 8), has not appeared in this action.

I. Preliminary Statement

Counsel for the County Defendants contacted the Court at approximately 2 p.m. on November 30, 2010 seeking an emergency hearing based on the information contained in the press release prepared by the Plaintiffs' law firm. At that time, Defendants' counsel was directed to contact Plaintiffs' counsel to arrange a conference call with the Court at 5 p.m. when the Court concluded its calendar of cases for the day. Defendants' counsel was also informed that both sides could submit in the interim any cases which they wished to have the Court consider and counsel was directed to convey that information to Plaintiffs' counsel as well.

Immediately prior to and during the 5 p.m. conference call, the Court received, via facsimile, various cases from Defendants' counsel. During that telephone call, the Court heard preliminary argument from both sides regarding the County Defendants' oral application for an injunction and temporary restraining order (“TRO”). The Court made clear to counsel that it was not going to make a final ruling on an issue of such significance based solely upon the oral representations of counsel, without the benefit of any briefing or discussion of cases in the Second Circuit applicable to the specific circumstances of this case. See Redacted Transcript of November 30, 2010 Telephone Conference (“11/30/10 TelCon Tr.”), DE 59, at 29–31. However, given the intention of Plaintiffs' counsel to release the IAU Report the next morning, and balancing the equities involved, this Court granted Defendants' motion and temporarily restrained and preliminarily enjoined Plaintiffs' counsel and his law firm (and the Administratrix and family members to the extent that any of them had actually seen the IAU Report) from releasing or disclosing to any person, entity or organization in written or oral form or in any other manner the contents of the IAU Report (including any references to specific contents of the Report) pending a review and determination by the Court after the parties briefed the issues discussed. In addition, the Court noted to all counsel that a short delay pending the Court's review and decision on the briefs to be submitted would result in no prejudice to the Plaintiffs since the IAU Report, which had been in the possession of Plaintiffs' counsel for some time, could be disclosed within a short time if the Court ruled in Plaintiffs' favor. On the other hand, the Defendants could be irreparably harmed by the immediate disclosure of the IAU Report if it turned out that the Report was not subject to public disclosure, thereby rendering Defendants' rights meaningless. 11/30/10 TelCon Tr. at 30–31. A briefing schedule was then set with counsel for the parties. Id. at 35–36. A written Order summarizing the ruling was entered by the Court at 8:57 p.m. on November 30, 2010. See DE 25.

Following up on that telephone conference, Defendants have submitted their motion papers seeking the following relief: (1) an injunction pursuant to Rule 65; (2) a protective order pursuant to Rule 26(c); and/or (3) the issuance of an order of confidentiality, all pertaining to the proposed disclosure by Plaintiff of the contents of the IAU Report. See DE 50.1

In addition, on December 6, 2010, Newsday LLC and News 12 Networks LLC (collectively, “Press Applicants”) filed a motion seeking to intervene in this action for the limited purpose of: (1) opposing defendants' motion to enjoin plaintiffs, plaintiffs' counsel and plaintiffs' relatives from disclosing the contents of a redacted Internal Affairs Unit Report produced in this litigation and to seal all court records and proceedings relating to that motion; (2) vacate any on-going injunction barring disclosure of the redacted IAU Report or its contents; unseal all motion papers and transcripts and open all subsequent hearings in this matter; (3) request reconsideration under Fed.R.Civ.P. 59(e); Local Civil Rule 6.3, of the Court's denial of modification of its December 1, 2010 order sealing the parties' motion papers. See DE 28. The Press Applicants' motion seeking to intervene was granted on December 7, 2010. See DE 31. This Memorandum and Order addresses only the Press Applicants' arguments relating to Defendants' motion. A separate order will follow on the relief sought by the Press Applicants.

II. Procedural Background

On March 19, 2010, Plaintiffs filed a Complaint against the Defendants alleging violations of 42 U.S.C. § 1983 as well as various state law claims. See DE 1. The Initial Conference to establish a discovery plan for this case was held on August 5, 2010, during which time Plaintiffs' counsel placed on the record his previous attempts to obtain the IAU Report prepared by the NCPD Internal Affairs Unit regarding the response of police department personnel in the underlying circumstances involving the death of Jo'Anna Bird. See DE 37 (Initial Conf. Tr.), at 9–10. Specifically, Plaintiff's counsel stated

[e]ven after this action was filed and served, we asked—we wrote letters to the County Attorney asking for copies of the report and investigation so that we might be able to not actually act in a blind fashion going through this process, so we can name the actual officers who need to be named in the complaint, serve, so that we don't have to go backwards six months from now. We believe that that report is key. It is crucial to our ability to evaluate and name the individuals, and we would like to have that provided to us post haste.

Id. After the Court inquired whether Defendants were objecting to production of the IAU Report, Defendants' counsel stated that it was her belief that the Report was not complete but that she would look into it. Id. at 11. Based on the response of Defendants' counsel, the Court advised that

... we need to get some indication, sooner rather than later, even when it is complete, if there—if the position of the Defendants is that they're not going to turn that over, then you're going to have to make a Motion for a Protective Order, all right? And I want a date certain by which we're going to do that ... I'll give you until September 3rd to file any protective—Motion for a Protective Order

Id. at 12–13.

Also during that same conference, the Court asked the parties whether there was any information to be exchanged which warranted a confidentiality agreement. See id. at 25. In response, Plaintiffs' counsel argued that [w]e don't think so, and we don't see how there could even be a need for a Protective Order .... given the public nature of much of what has taken place” and [a]t this point, that's been a big issue because the lack of disclosure we believe has created real public concern.” Id. The Court responded:

the only thing I see here as potentially raising an issue down the road is if...

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