United States District Court, D. New Jersey
DOUGLAS E. ARPERT UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court on a Motion [ECF No. 18] by
non-party movant, the Mercer County Prosecutor's Office
(“MCPO”) to quash Plaintiff Talaya
Greenfield's (“Plaintiff”) subpoena for the
production of materials in connection with a four-year-long
criminal investigation. The Court conducted oral argument on
the Motion on April 19, 2018. For the reasons set forth
below, the MCPO's Motion to quash is denied.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
is the mother of Jamer J. Greenfield and serves as the
administrator of his Estate, bringing this action against the
City of Trenton (“Trenton” or the
“City”) and the City's Police Department
(“TPD”) (cumulatively, “Defendants”)
for allegedly violating his rights under the United States
and New Jersey State Constitutions. Complaint
(“Compl.”), ¶¶ 7-9. The Complaint
originally named Mercer County (the “County”) and
the MCPO as defendants, but the District Court entered an
Order dismissing those entities from this action on June 6,
2017. ECF No. 15.
allegations, as pled in the Complaint, stem from an incident
which occurred in the early morning hours of July 19, 2014.
Compl., ¶ 18. Specifically, Plaintiff's son was the
victim of multiple gunshot wounds, at or near the vicinity of
an “after-hours club” located on Rosemont Avenue
in Trenton. Compl., ¶¶ 17-18, 21. Moreover, the
responding TPD officers who subsequently arrived at the crime
scene allegedly failed to provide Mr. Greenfield with the
required “proper and immediate medical
attention”; instead, he was placed in handcuffs, which
“inexplicabl[e]” “acts and/or
omissions” possibly contributed to his death. Compl.,
the previously described events prompted the underlying
criminal investigation, Defendants have allegedly failed to
provide Plaintiff with any information about the death of her
son. Compl., ¶¶ 26, 30. Similarly, the MCPO only
met with Plaintiff on one occasion which she describes as
“meaningless, ” without ever providing “an
explanation as to what happened on July 19, 2014.”
Compl., ¶¶ 30-31. According to Plaintiff, these
circumstances demonstrate the absence of any “serious
steps” and the failure to “actually
investigate” Mr. Greenfield's murder, whose death
occurred over two years before the instant Complaint was
filed, and over four years from the date of this Opinion.
Compl., ¶ 24.
alleged manner in which the TPD officers treated Mr.
Greenfield and the ensuing murder investigation prompted
Plaintiff to file the instant five-count Complaint, wherein
she includes claims for wrongful death and survivorship.
Compl., ¶¶ 40-48. Plaintiff also alleges various
violations of the Fourth Amendment of the U.S. Constitution,
the New Jersey State Constitution, the New Jersey Civil
Rights Act, and the New Jersey Law Against Discrimination.
Compl., ¶¶ 49-72.
support, Plaintiff alleges that the responding officers
subjected her son to an unreasonable search and used
excessive force by placing him in handcuffs, constituting a
deliberate indifference toward his medical needs. Compl.,
¶¶ 49-59. Moreover, Plaintiff contends that the
municipal entities have denied her access to the
“services, facilitates, and benefits of local law
enforcement agencies, ” and that, on a larger scale, a
“pattern appears to exist wherein murder investigations
are delayed, not thoroughly pursued, and even ignored, when
the victims are African American males” in Trenton.
Compl., ¶¶ 62, 68.
the MCPO moves to quash Plaintiff's subpoena which seeks
to compel the production of certain materials in connection
with its investigation of the murder of Mr. Greenfield.
Specifically, the MCPO argues that the subpoena is improper
and need not be complied with, because the requested
information is privileged, given that it pertains to an
ongoing criminal investigation. The City originally posited
that the investigative file should be produced subject to a
strict protective order; however, it subsequently retracted
this position. Plaintiff opposes the Motion.
STANDARD OF REVIEW
in federal litigation is governed by the broad provisions of
Federal Rule of Civil Procedure 26(b)(1), which specifically
provides that a party is entitled to obtain the following
[A]ny nonprivileged matter that is relevant to any
party's claim or defense and proportional to the needs of
the case, considering the importance of the issues at stake
in the action, the amount in controversy, the parties'
relative access to relevant information, the parties'
resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit. Information within
this scope of discovery need not be admissible in evidence to
Fed. R. Civ. P. 26(b)(1). A Rule 45 subpoena served in
conjunction with discovery is required to fall within the
scope set forth by Rule 26. Schmulovich v. 1161 Rt. 9
LLC, No. 07-597, 2007 U.S. Dist. LEXIS 59705, at *4
(D.N.J. Aug. 13, 2007); Caver v. City of Trenton,
192 F.R.D. 154, 159 (D.N.J. 2000) (citing Oppenheimer
Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)). In
that connection, a District Court must quash a subpoena in
four situations, one of which includes “(A) [o]n timely
motion, the court for the district where compliance is
required must quash or modify a subpoena that . . . (iii)
requires disclosure of privileged or other protected matter,
if no exception or waiver applies . . . .” Fed.R.Civ.P.
45(d)(3)(A)(iii). Before the Court may grant a request for
such relief, however, the moving party must
“demonstrate that a privilege exists and that the
subpoena would disclose such information.” Malibu
Media, LLC v. Doe, No. 12-2077, 2012 U.S. Dist. LEXIS
105768, at *14 (E.D. Pa. July 30, 2012) (citation omitted).
instant dispute was fully briefed by the parties, after which
the Court conducted oral argument on April 19, 2018. However,
because neither the City nor the MCPO had actually reviewed
the investigation file prior to the hearing,  the MCPO was
ordered to submit a Certification for the Court to review
in camera. That Certification was required to
specifically describe the status of the open and active
underlying criminal investigation, the materials within the
disputed file, and the federal privileges which allegedly
supported withholding its contents from Plaintiff.
11, 2018, the MCPO provided a Certification to the Court
which was signed by James M. Scott, an Assistant Prosecutor
for the MCPO. The Certification includes three sperate
sections: (1) general background information on homicide
investigations; (2) pertinent details about the underlying
investigation; and (3) a privilege log. Furthermore, the
privilege log specifies each document in the disputed file
and maintains that the majority of them are protected by
Third Circuit has held, “[w]hen a request for relevant
documents or information is made, a claim of privilege should
be interposed judiciously and not casually.” O'
Neill, 619 F.2d at 225. For this reason,
“broadside invocation[s] of privilege, which fail to
designate with particularity the specific documents or file
to which the claim of privilege applie[s]” are
insufficient to properly withhold the production of relevant
information. Id. Rather, the manner in which a party
invokes a privilege claim must satisfy the following
requirements, as previously set forth by the Supreme Court:
“[t]here must be a formal claim of privilege, lodged by
the head of the department which has control over the matter,
after actual personal consideration by that officer.”
Id. at 226 (quoting United States v.
Reynolds, 345 U.S. 1, 7-8, (1953)). There must also be
“‘a specific designation and description of the
documents claimed to be privileged, '” in addition
to the representation of “‘precise and certain
reasons for preserving' the confidentiality” of the
disputed materials. Id. (quoting Smith v.
Federal Trade Com., 403 F.Supp. 1000, 1016 (D. Del.
even properly asserted claims of privilege are not
absolute-to the contrary, they must be demonstrated on a
case-by-case basis. In this regard, the Third Circuit has
held that “the party who seeks the information must
show the need for it so that the [C]ourt can ‘balance
on one hand the policies which give rise to the privilege and
their applicability to the facts at hand against the need for
the evidence sought to be obtained in the case at
hand.'” Id. at 227 (citing Riley v.
City of Chester, 612 F.2d 708, 716 (3d Cir. 1979));
Schaeffer v. Tracey, No. 15-8836, 2017 U.S. Dist.
LEXIS 15708, at *10 (D.N.J. Feb. 2, 2017) (“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 ...