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Schaeffer v. Tracey

United States District Court, D. New Jersey

February 3, 2017

SCHAEFFER, Plaintiff,
TRACEY, et al., Defendants.


          Steven C. Mannion, United States Magistrate Judge.

         Before this Court are cross-motions to enforce a subpoena and a protective order, filed respectively, by Plaintiff Angela Schaeffer (“Ms. Schaeffer”) and non-party the Morris County Prosecutor's Office (“Prosecutor's Office” or “Prosecutor”).[1] Ms. Schaeffer's subpoena seeks production of certain internal affairs documents generated and maintained by the Prosecutor's Office which are being withheld on various privilege grounds.[2] On October 14, 2016, the parties entered a consent protective order under which the Prosecutor agreed to submit documents for in camera review to the Court.[3] The records were submitted to the Court for in camera review on about November 4, 2016. Having reviewed the parties' submissions, the Court decides the motions without oral argument. For the reasons set forth herein, Ms. Schaeffer's motion is granted in part and the Prosecutor's motion is denied.


         Magistrate judges are authorized to decide any non-dispositive motion designated by the Court.[4] This District specifies that magistrate judges may determine all non-dispositive pre-trial motions which includes discovery motions.[5] Decisions by magistrate judges must be upheld unless “clearly erroneous or contrary to law.”[6]

         II. BACKGROUND[7]

         Ms. Schaeffer filed this suit against Defendants the Township of Roxbury, the Borough of Hopatcong, Thomas Van Houten (“Mr. Van Houten” or “Officer Van Houten”) and four other law enforcement officers for § 1983 civil rights violations.[8] Ms. Schaeffer alleges that while working as a confidential informant for the Township of Roxbury and the Borough of Hopatcong, Officer Van Houten, who has since retired, abused his position of authority for sex, “forwarded nude images of him[self] to Schaeffer and overtly and repeatedly pressured Schaeffer into sexual liaisons and threesomes with him and another woman and/or women.”[9] Ms. Shaeffer complained about Officer Van Houten's conduct.[10] The Morris County Prosecutor's Office reviewed Ms. Schaeffer's allegations against Officer Van Houten and determined that her allegations of misconduct could not be proven “beyond a reasonable doubt.”[11] The Prosecutor's Office further informed her that Officer Van Houten had resigned his position as a Roxbury Township police officer and therefore it would “take no further action.”[12]


         The Federal Rules of Civil Procedure “allow broad and liberal discovery.”[13] Under Federal Rule of Civil Procedure (“Rule”) 26, “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.”[14]District courts must remain mindful that relevance is a broader inquiry at the discovery stage than at the trial stage.[15] Accordingly, “[f]or good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.”[16]

         “Although the scope of discovery under the Federal Rules is broad, this right is not unlimited and may be circumscribed.”[17] A court may issue a protective order to regulate the terms, conditions, time or place of discovery.[18] The moving party for a protective order bears the burden of showing good cause for the issuance of a protective order "by demonstrating a particular need for protection [and] [b]road allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test."[19]

         To make a showing of good cause, the party seeking confidentiality has the burden of showing the injury ‘with specificity.'”[20] “Broad allegations of harm, unsubstantiated by specific examples, [] will not suffice.”[21] Courts typically consider the following Pansy factors in assessing whether sufficient good cause exists for the issuance of a protective order:

1) whether disclosure will violate any privacy interest;
2) whether the information is being sought for a legitimate purpose or for an improper purpose;
3) whether disclosure of the information will cause a party embarrassment;
4) whether confidentiality is being sought over information important to public health and safety;
5) whether the sharing of information among litigants will promote fairness and efficiency;
6) whether a party benefitting from the order of confidentiality is a public entity or official; and
7) whether the case involves issues important to the public.[22]


         The Prosecutor's Office bears the burden of demonstrating good cause exists for the issuance of a protective order. The threshold inquiry in any discovery dispute is whether the at-issue records or information is relevant to any party's claim or defense. Thus, the Court will first determine whether the withheld documents are relevant and next, look to the privilege log and asserted privilege claims in finding the presence or absence of good cause.

         a. Relevance

         As an initial matter, the Court finds that the documents marked MCPO 420 - 422 concerning a motor vehicle accident in 2000 are not relevant to this case. However, the balance of the withheld documents is relevant as discussed below. Ms. Schaeffer asserts Monell claims against the Township of Roxbury as well as § 1983 civil rights claims against former Officer Van Houten.[23] To prove Monell liability, a plaintiff must prove that the alleged constitutional violation resulted from an official policy or an unofficial custom."[24] As previously explained in this District,

A government policy or custom can be established in two ways. Policy is made when a decision maker possessing final authority to establish a municipal policy with respect to the action issues an official proclamation, policy, or edict. A course of conduct is considered to be a custom when, though not authorized by law, such practices of state officials [are] so permanently and well-settled as to virtually constitute law.[25] Proving the existence of a custom "requires proof of knowledge and acquiescence by the decision maker."[26] "A custom of failing to investigate citizen complaints may provide a basis for municipal liability if ‘a policy-maker (1) had notice that a constitutional violation was likely to occur, and (2) acted with deliberate indifference to the risk.'"[27]

         A plaintiff must also “show why those prior incidents deserved discipline and how the misconduct in those situations was similar to the present one.”[28]

         Prior complaints lodged against Officer Van Houten for related conduct are relevant to demonstrating the Township of Roxbury's Monell liability. MCPO 324 - 356 are Roxbury Township Police Department Internal Affairs records concerning a 2007 investigation into allegations that Officer Van Houten misused a government computer database to obtain information and driver's identification photographs of various women.[29] “He would then send these pictures to other members of his squad for comment” and discuss their appearances via instant message.[30] Documents MCPO 357 - 419 concern a 2009 Roxbury Township Police Department Internal Affairs investigation that Officer Van Houten sent sexually explicit messages and pornography to a married woman using his work computer or a cell phone. Since documentation of prior complaints against Officer Van Houten of related conduct is necessary to Ms. Schaeffer's burden to establish the Township of Roxbury's policy, practice, or custom, documents MCPO 324 - 356 and 357 - 419 are relevant.[31]

         Furthermore, Ms. Schaeffer asserts civil rights claims against Officer Van Houten for depriving her of constitutionally protected rights while acting under color of state law. Documents MCPO 423 - 426 consist of a 2014 Roxbury Township Police Department report regarding Ms. Schaeffer's efforts as a confidential informant. Documents MCPO 427 - 436 consist of 2014 Prosecutor's Office reports regarding Ms. Schaeffer's allegations against Officer Van Houten. These internal reports concern Ms. Schaeffer's claims against the individual defendants and the Court finds that they are also relevant.

         b. Privilege Log

         Next we ask whether any of the relevant records are subject to a privilege that prevents disclosure. The Prosecutor has supplied counsel and the Court with a privilege log referencing the withheld documents by marking author, recipient, and a very generic subject matter description.[32]The Federal Rules require a detailed and specific showing to withhold discovery on grounds of privilege.[33] The production of an inadequate privilege log or none at all, “is contrary to the rule, subjects the party to sanctions under Rule 37(b)(2), and may be viewed as a waiver to the privilege.”[34] A withholding party must “(i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed- and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.”[35] In Torres, this Court expressly applied this standard to claims of privilege over police internal affairs records and found that the defendant's “broad speculations of harm potentially flowing to the officers involved” were insufficient to support a finding of privilege.[36]

         Here, the Prosecutor's Office privilege log asserts that the “law enforcement privilege” applies and prohibits the disclosure of all the withheld documents. The privilege log, however, included only generic subject matter descriptions that do not adequately “describe the nature of the . . . communications . . . in a manner that . . . will enable other parties to assess the claim” as required by Rule 26(b)(5).[37] Accordingly, the Court finds that law enforcement privilege has been waived in this instance. In the abundance of caution the Court will nonetheless analyze the merits of the privilege.

         c. Law Enforcement Privilege

         The law enforcement privilege is a “qualified privilege designed to prevent the disclosure of information that would be contrary to the public interest in the effective functioning of law enforcement.”[38] In cases invoking the privilege, “the court is required to balance the public interest in having the information remain secret against the litigants' need to obtain discovery.”[39] The movant must therefore demonstrate that the documents' “relevancy is outweighed by the specific harm that would ensue from their disclosure.”[40]

         “A claim of privilege must be asserted by the head of the agency claiming the privilege after he or she has personally reviewed the material and submitted ‘precise and certain reasons for preserving' the confidentiality of the communications.”[41] The party asserting the privilege must also “‘provide a court with the information necessary to make a reasoned assessment of the weight of interests against and in favor of disclosure, ' and to allow the ...

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