COBB & COBB ATTORNEYS AT LAW

724 BROADWAY, NEWBURGH, NY 12550

TEL: (845) 351-5612 FAX: (845) 565-1035

EMAIL: COBBLAW@AOL.COM

February 15, 2008

Hon. Stephen C. Robinson

United States District Court

300 Quarropas St., Room 633

White Plains, NY 10601

Re: Lawrence Burley, et al. v. City of Newburgh, et al.

Case No. 07-CV-3336 (SCR)

Your Honor:

I represent plaintiffs in the above case. I write to the Court in order to request relief

pursuant to F.R.C.P. Rule 37 and the local civil rules of this Court.

Facts

Plaintiffs have brought a §1983 suit against the City of Newburgh and City of Newburgh

police officers Robert Vasta and Nicholas Cardinale, alleging causes of action for false arrest,

excessive force, and malicious prosecution. Plaintiffs have also asserted Monell liability against

the City of Newburgh for creating and enforcing a policy or practice of abusive police

procedures, which wrongful procedures were the proximate cause of plaintiffs’ constitutional

and bodily injuries.

On August 29, 2007, plaintiffs made a document demand to defendants. (Exhibit “1”,

annexed hereto.) Among the demands were “all documents which relate to any disciplinary

actions, civilian complaints, or civil or criminal actions taken or commenced” against defendants

Nicholas Cardinale and Robert Vasta while they worked in their capacity as employees of the

City of Newburgh. (Exh. “1”, paragraphs 7 and 8)

On December 19, 2007, defendants responded with blanket objections, and stated that the

demand was “overbroad” in time and scope, that the disciplinary records were “confidential”,

and that any records “need only be produced after in camera inspection by the Court after the

parties agree on a confidentiality order.” (Exhibit “2”, paragraphs 7 and 8)

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Hon. Stephen C. Robinson

February 13, 2008

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My office subsequently contacted defense counsel, David Posner, on several occasions,

by letter and telephone, in an attempt to resolve this issue. Although plaintiffs do not agree that

the requested documents are protected by any sort of privilege, I did agree to execute a

confident-iality stipulation if it would result in expedited production of the requested documents. 

In fact, I 

drafted a confidentiality stipulation and sent it to Mr. Posner for his review on February 5, 2008. 

The proposed stipulation called for the production of all substantiated allegations of misconduct,

whether or not related to the causes of action alleged in the complaint, and all unsubstantiated

complaints if they related to use of excessive force or false arrest. I also requested that any

documents not produced should be described in a privilege log, pursuant to F.R.C.P. Rule 26.

Neither the confidentiality stipulation has been signed, nor have the requested documents

been produced, however, and plaintiffs respectfully make this request for an order compelling

production of same.

The Law

Rule 26 of the Federal Rules of Civil Procedure permits parties to request any documents

“that are relevant to the claim or defense of any party, including the existence, description,

nature, custody, condition, and location of any books, documents, or other tangible things, and

the identity and location of persons having knowledge of any discoverable matter. For good

cause, the court may order discover of any matter relevant to the subject matter involved in the

action. Relevant information need not be admissible at the trial if the discovery appears

reasonably calculated to lead to the discovery of admissible evidence.” F.R.C.P. Rule 26(b)(1).

The Federal Rules also clearly state the procedure to be followed if there is a claim of

privilege or confidentiality: 

“When a party withholds information otherwise discoverable under these

rules by claiming that it is privileged or subject to protection as trial

preparation material, the party shall make the claim expressly and shall

describe the nature of the documents, communications, or things not

produced or disclosed in a manner that, without revealing information

itself privileged or protected, will enable other parties to assess the

applicability of the privilege or protection.” F.R.C.P. Rule 26 (b)(5)

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COBB & COBB

Hon. Stephen C. Robinson

February 13, 2008

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Here, defendants have not complied with the plain language of Rule 26 in that they have

not provided plaintiffs with the requested documents nor a description of the documents being

withheld. Plaintiffs have no way of knowing what the documents may be, and are therefore

unable to “assess the applicability” of the claim of confidentiality.

The question of the privilege log, however, is not even relevant, because plaintiffs are

clearly entitled to the requested documents. This Court and others have repeatedly held that

police disciplinary records are subject to disclosure in §1983 actions such as these. King v.

Conde, 121 F.R.D. 180 (E.D.N.Y. 1988), for example, held that, when invoking claims of

privilege for police disciplinary records, “The police must make a substantial threshold showing

that there are specific harms likely to accrue from disclosure of specific materials” and “if the

court finds the defendant has not satisfied its threshold burdens, direct disclosure is in order. If

the threshold burdens are met, the court may then review the materials at issue in camera and

decide which, if any, to withhold from disclosure.” Id. at 189, citing Kerr v. United States

District Court, 426 U.S. at 405-06, (“Discovery is of broader scope than admissibility, and

discovery may be had of inadmissible matters.”) The holding in King has been widely cited and

followed by this Court and others. Torres v. City of New York, Case no. 04 Civ. 3311 (S.D.N.Y.

5-3-2007) (police records without redactions ordered produced), Andrews v. Cruz, Case no. 04

Civ. 0566 (S.D.N.Y. 2006) (corrections officers), Kitevski v. City of New York, Case no. 04

Civ. 7402 (S.D.N.Y. 2006) (disciplinary records ordered produced with sanctions).

The defendants’ disciplinary histories are clearly relevant to the causes of action in this

case, because plaintiffs are alleging lack of proper training, a policy and practice of allowing or

encouraging excessive force to be used against residents of the City of Newburgh, and a

knowledge on the part of the City of Newburgh that the defendants were not fit for duty. Their

disciplinary histories, and any complaint history against them, are vital to a determination of

fitness for duty and a determination of Monell liability on the part of the municipality.

Rule 37 of the Federal Rules of Civil Procedure permits this Court to order the

defendants to produce the requested documents and, in addition, to order sanctions against the

defendants. Plaintiffs are not seeking sanctions at this point, but feel that their document

demands are entirely appropriate and that defendants should be ordered to comply with same.

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COBB & COBB

Hon. Stephen C. Robinson

February 13, 2008

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Conclusion

Based upon the above points and authorities, this Court should order the defendants to

either provide the requested documents to plaintiffs or, in the alternative, to provide a detailed

privilege log describing the documents and the specific reasons for the claim of privilege so that

plaintiffs (and the Court, if necessary) can properly evaluate the claims of privilege.

Thank you for your consideration of this request.

Sincerely,

JOHN COBB (JC 9884)

JC/ssc

Encl: Exhibits 1 and 2

cc: David L. Posner, Esq.

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