Opinion
00 Civ. 8333 (LMM) (RLE).
June 11, 2003.
OPINION AND ORDER
I. INTRODUCTION
Before this Court is a motion by plaintiff Elizabeth Newell ("Newell") pursuant to Federal Rules of Civil Procedure 30 and 31 seeking to compel the defendants to produce a confidential informant ("CI") for a deposition. Defendants have cross-moved for a protection order pursuant to Federal Rule of Civil Procedure 26(c) to protect the identity of the CI, as well as an Order placing Newell's motion under seal. For the following reasons, the plaintiff's motion seeking to compel defendants to produce the CI is DENIED and defendant's motion for a protective order and to seal plaintiff's motion is GRANTED.
II. BACKGROUND
This case arises out of an investigation conducted by the New York City Police Department's ("NYCPD") Internal Affairs Bureau ("IAB") of the 62nd Precinct in Brooklyn. Newell, a former employee of the NYCPD, began her career as a police officer on October 15, 1990. See Plaintiff's Brief in Support of Motion to Compel Defendants to Identify/Produce for Deposition the Confidential Informant in the 62nd Precinct Investigation ("Pl. Br.") at 2. Newell was promoted to Detective Third Grade in 1995, and to Sergeant in 1998. Id. It was after her promotion to Sergeant that Newell was transferred to the 62nd Precinct. Id. During the summer of 1999, the CI reported police misconduct at the Café Caserta ("the Café"), an unlicenced social club in Brooklyn owned by John Diana ("Diana"). See Defendant's Memorandum of Law in Opposition to Plaintiff's Motion to Compel Defendants to Identify a Confidential Informant, and in Support of their Cross-Motion for a Protective Order, and to Seal Documents Covered by an Existing Stipulation and Protective Order ("Def. Mem.") at 2-3. Among other things, the CI observed officers drinking alcohol while in uniform, deals between officers and Diana to "fix" tickets, and officers spending the majority of their tours in the Café. See Pl. Br. at Exh. C. As a result of the information provided by the CI, an investigation into police activity at the Café was launched by the IAB late in September, 1999. See Declaration of Undercover Officer in Opposition to Plaintiff's Motion to Compel Defendants to Identify a Confidential Informant ("Undercover Decl.") at ¶ 3.The IAB investigation ran thru early 2000. Id. at ¶ 11. During that time, an undercover officer was used by IAB to investigate police activity at the Café. See Def. Mem. at 3. The undercover officer was used primarily because the CI expressed concern and fear for safety because of the CI's participation in the investigation. See Undercover Decl. at ¶¶ 6, 7. The defendants allege that the CI's fear was a result of Diana's alleged connection with Russian and/or Italian organized crime. Id. at ¶ 5; Declaration of Kevin Richardson in Opposition to Plaintiff's Motion to Compel Defendants to Identify a Confidential Informant ("Richardson Decl.") at ¶ 6. During the course of the investigation, the undercover officer made more than thirty visits to the Café. See Undercover Decl. at ¶ 7. As a result of the investigation, Diana, as well as four male NYCPD officers were prosecuted for illegal conduct. See Richardson Decl. at ¶ 4. More than twenty other officers, including Newell, received some form of discipline. See Undercover Decl. at ¶ 3.
Newell was observed by the undercover officer at the Café on roughly twenty-four occasions during the course of the investigation. Id. at ¶ 11. On April 3, 2000, Newell was demoted in rank to Police Officer. See Complaint at ¶ 30. Newell contends that she was never in the Café before September 8, 1999. See Affidavit in Support of Deposition of Informant ("Newell Aff.") at ¶ 19. Further, she contends that Lieutenant William Church ("Lt. Church"), a probationary lieutenant, was in the Café more frequently than she, yet received no demotion in rank. Id. at ¶ 4. Newell maintains that due to a tour change for Lt. Church, the undercover officer cannot provide information on the activities of Lt. Church. Id. at ¶¶ 13, 14. However, according to Newell, the CI observed and specifically referenced Lt. Church's behavior at the Café prior to the IAB investigation. Id. at ¶ 9.
On March 28, 2003, Newell filed the instant motion. Attached to her moving papers as "Exh. C" were investigator's notes from an IAB file provided to Newell by the defendants. Defendants maintain that this was done in violation of a Stipulation and Protective Order ("Stipulation") agreed to by the parties and so ordered by the Court on December 5, 2002.
III. DISCUSSION
A. Informer's Privilege
As the Supreme Court has noted, "[w]hat is usually referred to as the informer's privilege is in reality the Government's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law." Roviaro v. United States, 353 U.S. 53, 59 (1957). The purpose of the informer's privilege "is the furtherance and protection of the public interest in effective law enforcement." Id. Furthermore, "[t]he privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials, and, by preserving their anonymity, encourages them to perform their obligation." Id.
The Second Circuit has established a two-pronged test to determine whether a party can pierce the veil of the privilege. "To overcome the privilege, the party seeking disclosure has the burden of establishing that the information sought is both relevant and essential to the presentation of his case on the merits, and that the need for disclosure outweighs the need for secrecy." Cullen v. Margiotta, 822 F.2d 698, 715-16 (2d Cir. 1987) (citations omitted), cert. denied, 483 U.S. 1021 (1987), overruled on other grounds, Agency Holding Corporation v. Malley-Duff Associates, Inc., 483 U.S. 143 (1987). "[I]f disclosure of the informant's identity would only be marginally valuable to the defendant's case, then it is insufficient to show that the informant was a particular witness to [the action alleged]." Ortega v. United States, 897 F. Supp. 771, 780 (S.D.N.Y. 1995) (citation omitted). Further, "the availability of other means for discovery or investigation, such as depositions or interviews, even if more expensive, weighs against disclosure, as does the possibility of retaliation against the informant, particularly where [the informant] . . . has been assured by a law enforcement official that his identity will not be disclosed." Cullen, 822 F.2d at 716 (citations omitted).
As courts within this district have noted, "[t]he burden is on the [movant] to demonstrate the need for the extraordinary remedy of disclosure." Ortega, 897 F. Supp. at 780 ( citing United States v. Long, 697 F. Supp. 651, 663 (S.D.N.Y. 1988)). "[T]he district court has considerable discretion in determining whether disclosure is appropriate." Cullen, 811 F.2d at 716. Although the informant's privilege was originally recognized in criminal cases, the privilege applies in both criminal and civil proceedings. See In re United States, 565 F.2d 19, 22 (2d Cir. 1977). "Indeed, there is ample authority for the proposition that the strength of the privilege is greater in civil litigation than in criminal." Id.
The thrust of Newell's argument pertaining to the CI's identity and need to depose centers on the activities of Lt. Church. Newell argues that she will need the identity of the CI to impeach statements Lt. Church has made at a deposition. See Newell Aff. at ¶ 9. However, "[i]nformation that could merely cast doubt on the general credibility of a government witness is normally an insufficient basis to overcome the informant's privilege." Lee v. Harris, 1992 WL 247037 *3 (S.D.N.Y. 1992) ( quoting United States v. Saa, 859 F.2d 1067, 1073 (2d Cir. 1988) (citation omitted)). Furthermore, Newell admits and attaches to her motion evidence provided by the defendants which can be used to impeach Lt. Church in lieu of the CI's testimony. Therefore, to the extent that Newell seeks to depose the CI for purposes of impeaching Lt. Church, her motion is DENIED.
Newell also seeks to depose the CI to get information that was not collected by the undercover officer, namely, the conduct of NYCPD officials at the Café prior to the initiation of the IAB investigation. See Newell Aff. at ¶¶ 9, 14, 15. Although Newell has not explained how such information would be relevant to her claim, the Court assumes she seeks to use information the CI may provide to demonstrate that the NYCPD did not take strong disciplinary action against employees identified by the CI. However, "[i]nformants are not necessarily reliable or credible." Solis v. Walker, 799 F. Supp. 23, 25 (S.D.N.Y. 1992). Thus, it is reasonable for NYCPD to base its disciplinary actions upon observations by the IAB's undercover agent. Further, Newell speculates that information the CI can provide may help in furthering her claim of adverse employment actions. However, the burden to overcome the informant's privilege "is not met by mere speculation that identification might possible be of some assistance." In re United States, 565 F.2d at 23. Finally, the basis of Newell's Title VII complaint deals with discipline "because of allegations of misconduct arising out of a Sting Operation conducted by the NYCPD, Internal Affairs Bureau." Complaint at ¶ 26. Information not pertaining to the discipline that Newell or other officers received is irrelevant. Therefore, Newell cannot satisfy the first prong of the Cullen test, as the information Newell posits the CI possesses seems neither relevant nor necessary to the presentation of her case. Therefore, Newell's motion is DENIED and defendants motion for a protective order is GRANTED.
B. Sealing Plaintiff's Motion
Defendants have moved that Newell's Motion to Compel be sealed because it attaches, as Exhibit C, material covered by the Stipulation. Newell does not contest defendants interpretation of the Stipulation. It is clear to the Court that the material attached to Newell's motion as Exhibit C is covered by the Stipulation. Therefore, defendants cross-motion regarding the sealing of Newell's original motion is GRANTED.