UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

CHAMBERS OF MITCHELL H. COHEN COURTHOUSE

 JOEL SCHNEIDER 1 John F. Gerry Plaza, Room 2060

UNITED STATES MAGISTRATE JUDGE CAMDEN, NJ 08101-0887

 (856) 757-5446

LETTER OPINION AND ORDER

ELECTRONICALLY FILED

July 15, 2011

Susan Bellwoar Ayres, Esquire

Hill & Associates PC

123 South Broad Street

Suite 1100

Philadelphia, PA 19109 

Kristin Lynn Vassallo, Esquire 

Office of the U.S. Attorney

District of New Jersey

970 Broad Street

Newark, NJ 07102 

John Charles Gillespie,

Esquire 

Parker McCay, PA

Three Greentree Centre

7001 Lincoln Drive West

PO Box 974

Marlton, NJ 08053 

Re: Wilson v. Player, et al. 

Civil No. 10-3866 (RBK/JS)

Dear Counsel:

The Court has been asked by the parties to Order or authorize

plaintiff to release to defendants a copy of plaintiff’s PreSentence Report (“PSR”). The Court has reviewed the PSR in

camera. For the reasons to be discussed, the parties’ request is

DENIED.

By way of background, PSRs are prepared by a probation

officer for use by a District Judge in sentencing. The reports

contain background information on the criminal defendant (in this

case plaintiff Ken Wilson) and the circumstances of his offense. 

After sentencing, the reports are typically given to the Bureau of

Prisons. See United States Department of Justice v. Julian, 486

U.S. 1, 3-4 (1988). Federal Rule of Criminal Procedure 32(d-g)

addresses PSRs. No corresponding rule of civil procedure addresses

when a party can review a civil plaintiff’s PSR. Wilson’s PSR

contains the following language: “It is the policy of the federal

judiciary and the Department of Justice that further redisclosure

of the presentence investigation report is prohibited without the

consent of the sentencing judge.”

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July 15, 2011

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The Court has not identified a case from this District

discussing if and when a PSR may be discovered in a civil case. 

However, although the applicable legal standard may be worded

differently around the country, courts uniformly hold that PSRs

may not be routinely discovered. See In re Siler, 571 F. 3d 604,

611 (6th Cir. 2009)(lower court did not abuse its discretion in

finding there was not the required “special need” for their

release); United States v. Schlette, 842 F.2d 1574, 1581 (9th Cir.

1988)(“a third party who asks a court to disclose the [PSR] must

make some threshold showing that disclosure will serve the ends of

justice”); United States v. Charmer, 711 F.2d 1164, 1176 (2d Cir.

1983)(collecting cases)(a PSR should not be released to a third

party “unless that person has shown a compelling need for

disclosure to meet the ends of justice”). See also Julian, 486

U.S. at 12 (emphasis in original). (“Both parties agree that in

both civil and criminal cases the courts have been very reluctant

to give third parties access to the pre-sentence investigation

report prepared for some other individual or individuals”).

There are at least two reasons why third party requests for

the disclosure of PSRs are not routinely granted. One is that

disclosure of the PSRs will chill the willingness of individuals

to supply information for the report. The second reason is the

need to protect the confidentiality of the information in the

report. Id. See also Board of Ed. of Evanston Tp. High School

Dist. No. 202, Cook County, Ill. v. Admiral Heating and

Ventilation, Inc., 513 F. Supp. 600, 605 (N.D. Ill., E.D.

1981)(“We judges would break faith with defendants, whom we

uniformly urge to cooperate with and make full disclosure to the

Probation Office to assist us in our sentencing decisions, if we

opened the reports up to public scrutiny”). 

The Court’s in camera review of plaintiff’s PSR reveals that

much of the included information is irrelevant to the issues in

the case. Examples are the status of the co-defendants, the

sentencing analysis, and different sentencing options. As to the

arrest and incident at issue in the case, it appears that the

information included in the PSR came from identified witnesses who

are available to be deposed. In addition, the details of

plaintiff’s plea agreement and plea are matters of record that are

available for defendants’ review. It therefore does not appear

that plaintiff’s PSR contains any relevant information that is not

available to defendants from plaintiff or other readily accessible

sources.

Based on the applicable law and present record, the Court

will not Order or authorize plaintiff to produce his PSR. The

Court finds that no special need or circumstance exists to justify

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July 15, 2011

Page 3

the production. As noted in Schlette, supra, PSRs “should not be

made available to [parties] to save them time in preparing

lawsuits.” 842 F.2d at 1584. See also in re Siler, 571 F.3d at

611 (when virtually everything in the PSR is available from other

sources there is no special need for access). Courts that have

released a PSR to a third party have found that the information

contained therein was not otherwise available. See, e.g.,

Schlette, 842 F.2d at 1584; United States v. Watkins, 623 F. Supp.

2d 514, 517 (S.D.N.Y. 2009). This is not the case here. 

Although the Court will not Order or authorize plaintiff to

produce his PSR, plaintiff is still under a duty to produce nonprivileged and relevant requested information. Pursuant to Fed. R.

Civ. P. 26(e), all parties are under a duty to supplement their

disclosures and answers to written discovery with relevant

information not previously produced.

Accordingly, for all the foregoing reasons, the Court will

not Order or authorize plaintiff to produce to defendants a copy

of his PSR.1

Very truly yours,

 

 s/Joel Schneider

JOEL SCHNEIDER

United States Magistrate Judge

JS:jk

cc: Hon. Robert B. Kugler

1. It makes no difference to the Court’s ruling if plaintiff

consents to the production of his PSR. Even if the subject of a

PSR consents, the routine release of PSRs could chill persons

from supplying complete and accurate information relevant to a

defendant’s sentencing and treatment. The rationale behind

keeping PSRs confidential is not exclusively focused on the

protection of a criminal defendant’s privacy.

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