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Kush v. United Food & Commercial Workers Union Local 152, Clc

United States District Court, D. New Jersey

July 17, 2014




This matter comes before the Court upon Defendant Case Pork Roll Company, Inc.'s ("Case") motion for a protective order pursuant to FED.R.CIV.P. ("Rule") 26(c) and L.Civ.R. 5.3., seeking to preclude Plaintiff Dakuquian Kush ("Kush") from learning the identities of four Case employees who have provided sworn statements to the effect that they witnessed Kush remove cases of pork roll from a room in which they were working. [Docket Entry No. 33]. Defendant United Food & Commercial Workers Union Local 152, CLC ("Local 152") joins Case's motion. [Docket Entry No. 34]. Kush opposes Case's motion. The Court has fully reviewed and considered all arguments made in support of and in opposition to Case's motion. The Court considers same without oral argument pursuant to L.Civ.R. 78.1(b). For the reasons set forth more fully below, Case's motion is DENIED.

I. Background and Procedural History

In light of the parties' familiarity with the facts underlying this matter, they shall not be restated at length herein. Instead, the Court shall recount only those facts necessary for the resolution of Case's motion for a protective order. At issue in this motion is whether Kush should be permitted to learn the identities of four potential defense witnesses all of whom worked at Case with Kush. These individuals have executed sworn witness statement stating that they observed Kush removing cases of pork roll from the room in which they were working.[1] Kush's employment with Case was terminated on October 11, 2011 after he was allegedly seen stealing company property.

Kush's termination from Case forms the basis of his Complaint here. Kush contends that Case's termination of his employment was arbitrary and capricious and contrary to Local 152's Collective Bargaining Agreement ("CBA"). Kush previously sought to obtain access to the witness statements put forth by the four Case employees. However, via Letter Order entered on September 18, 2013, the Court stayed the decision on whether Kush should gain access to the witness statements, and thereby the witnesses' identities, until after a decision on Case's then still pending motion to dismiss was rendered. ( See Letter Order of 9/18/2013; Docket Entry No. 29). On March 12, 2014, the District Court exercised its discretion to excuse Kush from exhausting any intra-union remedies on his breach of duty of fair representation claims against Local 152 and allowed this suit to proceed here against both Case and Local 152. This Court then entered two Letter Orders, the first set a general schedule to govern this matter ( See Letter Order of 3/12/2014; Docket Entry No. 30); the second imposed a deadline on Defendants by which any motion for a protective order concerning the aforementioned witness statements had to be filed. ( See Letter order of 4/30/2014; Docket Entry No. 32). Case timely filed the instant motion.

II. The Parties' Arguments

A. Case and Local 152

Case and Local 152 both argue that they have presented credible, reliable evidence to demonstrate that the four individuals employed by Case who identified Kush as having perpetrated a theft at the company have good cause to fear for their safety if their identities are disclosed now in the context of pretrial discovery. In this regard, they rely on Kush's alleged propensity for violence, as demonstrated by Kush's past criminal record and/or the content of a book he wrote, which contains facts from his life, to justify the reasonableness of their fear of retaliation by Kush should their identities be disclosed.

With respect to Kush's criminal record, Case notes that Kush was charged with two violent crimes: a charge of terroristic threats in 1992 and a charge of aggravated manslaughter in 1993.[2] Case notes that Kush was convicted of the aggravated manslaughter charge on January 21, 1994 and sentenced to 25 years in State prison with 7 years of parole ineligibility. Further, with respect to Kush's book, "The Land of the Burnt Face People, " Case and Local 152 claim that this book, which chronicles Kush's life experiences in Trenton as well as his desire to torture and kill for the sake of revenge, demonstrates Kush's willingness to use violence to get what he wants. Case and Local 152 point to passages from the book such as the following to support their position:

• "I don't have no one to call and give the green light to have Maria[3] and her kids killed but now I am a true believer of the saying that everybody needs somebody sometimes." (Hilliard Decl., Ex. B at 35; Bushinsky Cert., Ex. B at 35).
• "When I picked my head up you could see the hate in me that I had for her through the window pane of my soul. I looked at her with a spirit that was so settled and said, Today is your day Maria, but one day it is going to be my day and when I come for you don't plea to me or scream for mercy. Take your punishment like the woman I see in front of me. It could be thirty years from now. Whenever I am free from jail, I'm coming to look for you and when I find you I'm going to take my time and torture you first and then when I get tired of you I'm going to murder you Maria. When I come for you and you are not home the habitation that is in the house when I get there, I am going to kill everyone until I get to you.'" (Hilliard Decl., Ex. B at 43; Bushinsky Cert., Ex. B at 43).
• "I was known for giving out a good old-fashioned ass whipping, breaking jawbones or knocking people out with either had while they were still standing on their feet, which is called a delayed-knock out." (Hilliard Decl., Ex. B at 55; Bushinsky Cert., Ex. B at 55).
• "When I wasn't fucking people up for recreation, then I would wander the dark streets of North Trenton until I had found a mass of confusion." (Hilliard Decl., Ex. B at 55; Bushinsky Cert., Ex. B at 55).
• "I pulled out my Glock nine-millimeter and unloaded it on the both of them, only shooting them from the waist down. Maria was terrified. There were two reasons I did this. Number one was that the two guys got in the way of my goals of what I was trying to do. And number two I wanted Maria to see that if she ever ...

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