The opinion of the court was delivered by: Thompson, U.S.D.J.
This matter comes before the Court upon Defendants' Motion for Summary Judgment [docket # 45] and Defendants' Appeal of the Magistrate Judge's Order . The Court has decided the matter upon consideration of the parties' submissions and after holding oral argument on December 20, 2010. For the reasons below, the Defendants' Motion for Summary Judgment is granted in part and denied in part, and Defendants' Appeal of the Magistrate Judge's Order is denied.
On July 11, 2007, Plaintiff was mistakenly involved in a "buy-bust," a drug enforcement operation, while she was seated in her car in a supermarket parking lot. The intended target of the enforcement operation was seated in a car directly in front of Plaintiff's car. After a confidential informant ("CI") made a controlled purchase of drugs from the intended target, the Defendants-New Jersey State Police officers and troopers-converged on Plaintiff's car with weapons drawn, mistakenly believing that Plaintiff was their target. Defendants maintain that authorities only converged "after the passenger in Plaintiff's automobile, Khalid McMorris, exited plaintiff's car and directed loud, distracting and confrontational remarks at the officers while they were in the process of arresting and securing their two drug suspects." (Defs.' Mot. to Dismiss) . Plaintiff denies this and states that she and her passenger, McMorris, were seated in the car, backing out of the parking lot, when Defendants stopped and removed them. (Pl.'s Statement of Facts in Opp'n to Def's Mot. for Summ. J. 2) . Defendants then brought Plaintiff and McMorris to the ground and secured them with flex handcuffs. After determining that the Plaintiff and McMorris were unrelated to the investigation, the police released them both. The parties disagree on the length of the detention. Plaintiff was then transported to a nearby hospital after complaining of knee pain. She also claims that she was hyperventilating and that her blood pressure became elevated. (Id. at 3.) The CI was seated in a nearby car during the incident, although the parties dispute what the CI might have witnessed.
On June 26, 2008, Plaintiff filed suit in state court. She claims that she was unlawfully arrested in violation of her rights under 42 U.S.C. § 1983 and the New Jersey Civil Rights Act and asserts several state law causes of action as well. The matter was removed to this court on August 18, 2008. The Attorney General, the State of New Jersey, and the Division of State Police (the State defendants) were dismissed from the case by order. (Order, August 25, 2010)
. Five defendants remain: Officers Crutchley, Poskay, Lemanowicz, Eustace, and Primerano.
On September 27, 2010, Magistrate Judge Bongiovanni ordered Defendants to produce for a deposition the CI who made the controlled drug purchase. (Order, Sept. 27, 2010) . The Magistrate Judge's order limited the scope of the deposition, barring questions about the identity and background of the CI, and restricting attendance to counsel only. (Id. 1-2.) Defendants appeal the order on the grounds that the "informant's privilege" should excuse them from having to produce the CI.. Defendants also move for summary judgment on all claims.
II. APPEAL OF THE MAGISTRATE JUDGE'S ORDER
Under L. Civ. R. 72.1(c)(1)(A), a party may appeal a Magistrate Judge's determination of a non-dispositive matter. A Magistrate Judge's decision will be overturned only when the ruling was "clearly erroneous or contrary to law." L. Civ. R. 72.1(c)(1)(A). "The party filing the notice of appeal bears the burden of demonstrating that the magistrate judge's decision was clearly erroneous or contrary to law." Marks v. Struble, 347 F. Supp. 2d 136, 149 (D.N.J. 2004). A ruling is contrary to law "if the magistrate judge has misinterpreted or misapplied applicable law," whereas a finding is clearly erroneous when the reviewing court "is left with the definite and firm conviction that a mistake has been committed." Id.
A privilege exists in favor of allowing the government to withhold the identity of an informant in a civil case unless disclosure is "essential to assure a fair determination of the issues." Mitchell v. Roma, 265 F.2d 633, 635-36 (1959). Defendants' appeal argues that the CI's testimony is not "essential" because the CI was not in a position to witness the events, and even if the CI had been, the testimony would simply be cumulative of evidence already produced. Defendants believe that any speculative potential benefit from the CI's testimony is greatly outweighed by the costs of forcing Defendants to produce their informant. Their concern is that the CI's identity will be disclosed as a result of the deposition, putting the CI's life in danger and chilling the future cooperation of this and other informants.
We are not unsympathetic to Defendants' arguments. The chances are low that Plaintiff's Counsel will obtain anything of value during the deposition, as Plaintiff's Counsel conceded at oral argument. And we recognize that informants are often reluctant to become involved in formal legal proceedings. However, the balancing of the benefits and costs of ordering an informant deposed involves a substantial amount of judgment. Although another judge might have reached a different conclusion, that alone does not make the ruling clearly erroneous. In this case, the Magistrate Judge conscientiously crafted an order that addresses the Defendants' concerns about the CI's safety while still allowing Plaintiff the benefit of the CI's testimony. The Order prevents anyone but counsel from attending the deposition, Plaintiff's counsel is forbidden from asking any questions about the identity or background ...