Mercado v. Division of New York State Police, 96Civ.0235 (PKL)(SEG).

• Decision Date: 09 January 1998
• Docket Number: No. 96Civ.0235 (PKL)(SEG).,96Civ.0235 (PKL)(SEG).
• Parties: Bernardo J. MERCADO, Plaintiff, v. DIVISION OF NEW YORK STATE POLICE, Defendant.
• Court: U.S. District Court — Southern District of New York

Page 521

989 F.Supp. 521

Bernardo J. MERCADO, Plaintiff, v. DIVISION OF NEW YORK STATE POLICE, Defendant.

No. 96Civ.0235 (PKL)(SEG).

United States District Court, S.D. New York.

January 9, 1998.

Bernardo J. Mercado, New Rochelle, NY, pro se.

Elizabeth Ellis, Asst. Atty. Gen., New York State Dept. of Law, New York City, for Defendant.

MEMORANDUM

GRUBIN, United States Magistrate Judge.

This is a Title VII action in which plaintiff pro se, an hispanic former New York State police officer, alleges, inter alia, that he and other minority officers were "dealt with more severely in disciplinary matters" than were white officers and that this discriminatory practice resulted in his termination. Complaint ¶ 8 and undesignated exhibit referenced in that paragraph. Plaintiff now moves to compel production of (1) evaluations of all members of his former Troop from 1984 to 1993 and (2) documents relating to disciplinary charges, investigations, proceedings and penalties relating to 10 members of the Troop. Defendant moves to dismiss the complaint pursuant to Fed.R.Civ.P. 37 as sanctions for plaintiff's failure to appear at two depositions.

Plaintiff's Motion to Compel

Defendant argues that the documents which plaintiff seeks are privileged against disclosure under New York Civil Rights Law § 50-a. Section 50-a provides that the personnel files of police officers are not to be disclosed except by consent of the individual or pursuant to court order. The function of this statute "is to protect irrelevant materials from disclosure: to prevent fishing expeditions, not to safeguard privacy itself." King v. Conde, 121 F.R.D. 180, 192 (S.D.N.Y.1988) (citing Matter of Capital Newspapers v. Burns, 67 N.Y.2d 562, 505 N.Y.S.2d 576, 496 N.E.2d 665 (1986)). This New York statute does not govern discovery in federal cases, and there is no analogue in federal law to this provision. Rodriguez v. Harris, Nos. 87 Civ. 7368(RO) and 87 Civ. 8900(RO), 1991 WL 107444 (S.D.N.Y. June 13, 1991). However, federal common law provides for some consideration of state law privileges, since a "`strong policy of comity between state and federal sovereignties impels federal courts to recognize state privileges where this can be accomplished at no substantial cost to federal substantive and procedural policies.'" Lora v. Board of Education, 74 F.R.D. 565, 576 (E.D.N.Y.1977) (quoting United States v. King, 73 F.R.D. 103, 105 (E.D.N.Y.1976)). To resolve discovery disputes of this kind, a federal court must balance the plaintiff's interests in disclosure against the state's legitimate concern of protecting the confidentiality of the officers' personnel files from unnecessary intrusions. Unger v. Cohen, 125 F.R.D. 67, 69 (S.D.N.Y.1989); King v. Conde, 121 F.R.D. at 190-91.

With respect to the evaluations of plaintiff's former colleagues, plaintiff's own papers demonstrate that these documents are irrelevant to establishing plaintiff's claims of discrimination against him. While plaintiff asserts that these evaluations may show "whether white officers received more favorable evaluations than Hispanic or possibly even black officers," he states that he himself received superior performance evaluations. Plaintiff's Memorandum in Support of Request for Document Production, pp. 5-6. Indeed, defendant does not dispute this, arguing instead that plaintiff's termination was due to his misconduct and insubordinate acts, not his "performance evaluations." Affidavit of Richard P. Barrantes, ¶¶ 7, 11. Since the evaluations of these other officers requested by plaintiff would thus not appear relevant or reasonably calculated to lead to the discovery of admissible evidence as to plaintiff's claims, at least at this time, I find no reason to override the state's interests in protecting the confidentiality of these officers' evaluations. Accordingly, plaintiff's motion to compel production of them is denied. If other discovery should reveal possible relevance of these documents, plaintiff may renew his application then for them.

With respect to the ten disciplinary records sought, on the other hand, as defendant acknowledges, such records might be relevant to prove that similarly situated white officers were treated differently. Defendant asserts, however, that the information sought by plaintiff does not involve disciplinary instances similar to plaintiff's, although it does not provide any basis for that assertion and, instead, faults plaintiff for failing to suggest any similarity. Defendant simply asserts, conclusorily, that, based upon its own review of the records, the situations were not similar without indicating what these situations were or other factual information. Defendant also, in boilerplate language, sets forth the general policy reasons for not disclosing the documents, including the protection of officers against frivolous or vexatious claims concerning their conduct and the protection of the internal deliberative process of law enforcement agencies.¹

Plaintiff's interests in obtaining these admittedly relevant documents outweighs the policy interests identified by defendant. Plaintiff does not intend to file any claims against the officers, and evidence concerning the decision-making process resulting in plaintiff's termination is obviously critically relevant here. Moreover, the policy concerns identified by defendant may be adequately protected by a confidentiality agreement and protective order with regard to these documents. See, e.g., Tolbert v. Atkins, No. 93 Civ. 2791(RPP), 1995 WL 230408 (S.D.N.Y. April 18, 1995); Askew v. Rigler, 130 F.R.D. 26, 27 (S.D.N.Y.1990). Accordingly, if defendant requests, plaintiff shall enter into a confidentiality agreement for the court's signature, at which time defendant shall produce the disciplinary records at issue.

Defendant's Motion for Sanctions

Defendant moves for sanctions under Fed.R.Civ.P. 37(d)(1) on the ground that plaintiff twice failed to appear at depositions duly noticed by defendant. After plaintiff failed to appear on the first scheduled date, defendant's counsel sent him a letter renoticing the deposition and advising plaintiff:

Your continued failure to provide required discovery, may result in defendants seeking sanctions, including dismissal of your case.

Affidavit of Elizabeth G. Ellis ¶ 7. Plaintiff nonetheless failed to appear again. Defendant seeks dismissal under Fed.R.Civ.P. 37(b)(2)(C) or, in the alternative, an award of reasonable expenses, including attorney's fees, caused by the failure and/or an order directing plaintiff to appear at a deposition on a date certain.

Plaintiff admits that he twice failed to appear for his deposition. He states, however, that he was in "fear of being deposed without an attorney, without those documents which [he] believed were necessary to attend the deposition." He further states that his failure to appear was not the result of any "intentional disregard for [his] obligations," but because he was not "entirely familiar with the consequences of failing to appear for a deposition" and that he has now been advised by attorneys whom he consulted that he must appear. Affidavit of Bernardo J. Mercado dated October 3, 1997, ¶¶ 3-5.

Fed.R.Civ.P. 37(d)0006 provides that if a party fails to appear for a properly noticed deposition, the court "on motion may make such orders in regard to the failure as are just," including orders dismissing the action or imposing any of the other sanctions listed in paragraphs (A), (B) and (C) of Fed. R.Civ.P. 37(b)(2)0007. "[D]ismissal with prejudice is a harsh remedy to be used only in extreme situations...., and then only when a court finds willfulness, bad faith, or any fault on the part of the prospective deponent." Valentine v. Museum of Modern Art, 29 F.3d 47, 49 (2d Cir.1994) (quoting Bobal v. Rensselaer Polytechnic Institute, 916 F.2d 759, 764 (2d Cir.1990), cert. denied, 499 U.S. 943, 111 S.Ct. 1404, 113 L.Ed.2d 459 (1991)). Although this sanction may be imposed even on pro se litigants, see id. at...