Hoyt v. Connare CV-95-168-B 04/10/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Karl B. Hovt

v. Civil No. 95-168-B

David Connare, et al.

O R D E R

Currently for the court's consideration is Plaintiff's

Motion to Compel Discovery (document no. 12). For the reasons

set forth below, the motion is granted in part and denied in

part.

BACKGROUND

On March 29, 1995 plaintiff, Karl Hoyt, filed an action

pursuant to

alleging violations of his

constitutional rights by defendants David Connare (police officer

for the Manchester Police Department), Marc Desilets (police

officer for the Manchester Police Department), and Peter Favreau

(Chief of Police for the Manchester Police Department).

Specifically, the complaint alleges that the plaintiff was

subjected to the use of excessive force by Manchester Police

Department personnel. The complaint also suggests that the City

of Manchester has established a municipal custom or policy of

deliberate indifference to, or tacit approval of, constitutional

deprivations inflicted on individuals arrested or detained by the City of Manchester Police Department.

Following the commencement of his action, plaintiff compiled

and directed a set of interrogatories and production of documents

on defendants Connare, Desilets and Favreau. According to the

plaintiff, the discovery reguests were calculated to identify and

obtain admissible evidence, or inadmissible evidence reasonably

calculated to lead to the discovery of admissible evidence.

After plaintiff allegedly granted defendants several

extensions of time in which to complete the discovery reguests,

the defendants submitted their responses in July and August,

1995.

Upon review of the responses, however, plaintiff discovered

that defendants failed to provide complete answers. Unable to

work his discovery dispute out with the defendants, plaintiff

filed the motion to compel now for consideration. As support for

the motion, the plaintiff identifies specific guestions or

inguiries posed to the defendants which have not been properly

addressed or answered. Generally speaking, plaintiff seeks the

following remaining information: (1) whether, by whom, and when

any internal affairs investigations were conducted which concern

the facts and circumstances giving rise to the instant action;

(2) the names of the individuals who serve as the custodian of

records for internal investigation documentation; (3)

2 results/determinations of particular investigations along with

any written or recorded statements; (4) identity of any persons

having, or claiming to have, information relating to the facts

and circumstances giving rise to the instant action and who have

given statements; (5) a list of all complaints made against the

City of Manchester during the last ten years concerning

allegations of police misconduct in the specific areas of use of

force, prisoner abuse or mishandling and failure to render

medical treatment; (6) identification of all instances of

disciplinary actions taken against Manchester Police Department

employees stemming from allegations of police misconduct in the

area of use of force, prisoner abuse or mishandling and failure

to render medical treatment; (7) identification of all instances

of complaints and/or disciplinary actions against Manchester

Police Department employees which resulted from allegations of

police misconduct in the area of "gay bashing"; and (8) the name

of the person who cleaned up the blood that was found in the cell

in which the plaintiff was detained.

Defendants object to plaintiff's motion stating that the

plaintiff is not entitled to the "documents and information

sought and, moreover, that the City of Manchester could be

subjected to future liability if it does release the reguested

materials, in that such disclosure would not only violate the

3 defendants' privacy interests and privileges, but would also

unjustly intrude upon the privacy of numerous individuals having

no connection to this litigation." Defendants' Objection to

Plaintiff's Motion to Compel Discovery at page 2. With regard to

internal investigations, defendants assert that "it is a well-

settled principle of New Hampshire law that such information is

privileged from disclosure" under

-A:5,

105:13-b and 516:36.

DISCUSSION

The law is well-established that, "[p]arties may obtain

discovery regarding any matter, not privileged, which is relevant

to the subject matter involved in the pending action . . . ."

Fed. R. Civ. P. 26 (b)(1). It is not grounds for objection that

the information sought will be inadmissible at the trial if the

information sought appears reasonably calculated to lead to the

discovery of admissible evidence.

The underlying purpose of

the "modern discovery doctrine" is to allow parties to obtain

"the fullest possible knowledge of the issues and facts before

trial." LeBarron v. Haverhill Cooperative School Dist.,

(D.N.H. 1989) (citing 8 C. Wright & A. Miller,

Federal Practice and Procedure: Civil § 2001 at 13). Fed. R.

Civ. P. 26(b)(1) was added to tailor discovery to the issues

4 involved in the particular case and prevent over discovery. See

Mack v. Great Atlantic and Pacific Tea Co., Inc.,

(1st Cir. 1989)(citing Fed. R. Civ. P. 26 Advisory

Committee's Notes (1983 amendments)). A "court should develop

the parameters of . . . discovery . . . by carefully weighing the

interests involved, balancing the importance of [any] privilege

asserted against the defending party's need for the information

to construct its most effective defense." Greater Newburyport

Clamshell Alliance v. Public Service Co. of New Hampshire,

(1st Cir. 1988). In weighing all interests involved,

a court must consider the relevance of the reguested information

and whether the information will aid in the presentation of the

case.

Prior to addressing the specific material reguested by the

plaintiff, a consideration into defendants' main reasons for not

producing information and documentation is warranted. The

defendants vehemently attempt to draw support for their decision

to refrain from disclosing certain information by maintaining

that the internal investigation files, and similar information

reguested by the plaintiff, are exempt from public disclosure

under RSA 91-A:5, 516:36 and 105:13-b. Defendants' Objection to

Plaintiff's Motion to Compel Discovery at page 4 (citing Union

Leader Corp. v. Fenniman,

(1993)).

5 Although RSA 91-A:5 does provide exceptions to disclosure

requirements, it is generally recognized that, with respect to

federal claims, a court is not obligated to apply the privileges

provided by a state statute unless the court chooses to do so.

Garritv v. Thomson,

(1979); Gomez v. Nashua,

No. 87-306-D (D.N.H. filed June 21, 1989). Moreover, this court

has held that "in nondiversity federal cases, RSA 91-A is not

applicable." Houle v. Manchester, No. CV-89-178-D, slip op. at 3

(D.N.H. May 18, 1990).

Similar to the instant case, Houle v. Manchester, supra,

involved discovery requests of police files. In resolving the

discovery dispute, the court, id. at 4, held:

In civil rights actions, an important factor in "the determination as to whether particular evidence should be discovered is the importance of the evidence to the plaintiffs' case." Inmates of Unit 14 v. Rebideau,

(N.D.N.Y. 1984) .

Given the case law that has emanated from this jurisdiction

concerning the applicability of RSA 91-A:5 and recognizing the

magnitude of the claims presented in plaintiff's action, this

court concludes that RSA 91-A:5 does not prevent the type of

disclosure to which the plaintiff is currently seeking.

Defendants next suggest that the particular information

sought by the plaintiff is protected from discovery by RSA

516:36. As support for this proposition, defendants rely on Topp

6 v. Wolkowski, No. 90-496-S (D.N.H. November 12, 1992) which

states, in part, "[t]he records and reports of police officers

relating to any internal investigation into the conduct of any

officer of any state law enforcement agency are . . . protected

from discovery by New Hampshire RSA 516:36, II . . . ."

RSA 516:36, II provides:

All records, reports, letters, memoranda, and other documents relating to any internal investigation into the conduct of any officer, employee, or agent of any state, county, or municipal law enforcement agency having the powers of a peace officer shall not be admissible in any civil action other than in a disciplinary action between the agency and its officers, agents, or employees. Nothing in this paragraph shall preclude the admissibility of otherwise relevant records of the law enforcement agency which relate to the incident under investigation that are not generated by or part of the internal investigation. For the purposes of this paragraph, "internal investigation" shall include any inguiry conducted by the chief law enforcement officer within a law enforcement agency or authorized by him.

The simple answer to defendants' contention is that "the law

of the State of New Hampshire, statutory or decisional, is not

here applicable." Parker v. Nashua, CV-91-407-D (D.N.H. filed

July 14, 1992). "Civil rights cases are not cases in which

'State law supplies the rule of decision.1"

(guoting Rule

501 Fed. R. Evid.); Garritv,

. Further, in

actions where both federal law claims and state law claims are

alleged, the federal rule shall be applied. William T. Thompson

Co. v. General Nutrition Corp., Inc.,

(3d Cir.

7 1982); O'Neil v. O.L.C.R.I., Inc.,

(D.R.I.

1990). "Inasmuch as the law of evidence governing the actual

trial as to privileged matters also governs discovery examination

under Rule 26(b), ... [a court] need not apply state law as to

privilege unless [it chooses] to do so." Garritv,

. Accordingly, defendants may not seek protection from

plaintiff's discovery reguests by asserting a privilege under RSA

516:36.

As a tangential but relevant aside, the defendants are

correct in suggesting that the court in Topp, supra, prevented

the disclosure of internal police investigation reports.

However, the court's decision restricting disclosure was not

based on RSA 516:36. While the court recognized the strong

policy decisions against disclosure of internal investigations,

the denial of the discovery was attributable to the fact that the

"defendants have clearly demonstrated to this court that the same

information plaintiff seeks can be obtained through other means

and lead to the same admissible evidence." Topp, No. 90-496-S at

3. This determination was the result of balancing the benefits

of discovery and the harm resulting from disclosure. Garritv,

. Conseguently, despite the conclusion by the Topp

court preventing the plaintiff there from discovering internal

investigation information, the decision is not construed, by this

8 court, as one requiring an across the board prevention of

discovery of police records and reports pertaining to internal

investigations.

As additional support for their objection to plaintiff's

motion to compel discovery, the defendants suggest that the

discovery sought should not occur given the applicability of RSA

105:13-b. RSA 105:13-b concerns personnel files of police

officers serving as a witness or prosecutors in a criminal case.

Accordingly, the provision has no application to the

discoverability of the files now at issue.

Boiling the applicability of the aforementioned state

statutes down to their essence. New Hampshire courts considering

issues of disclosure utilize a "balancing test, " the intent of

which is to determine "whether the benefits of disclosure

outweigh the benefits of nondisclosure." Union Leader,

; Mans v. Lebanon School Bd.,

(1972);

Perras v. Clements,

(1986). This balancing

process has also been used by the First Circuit as well as this

court. Greater Newburyport Clamshell Alliance,

.

Having determined that various state statutes do not

automatically prevent the type of discovery sought by the

plaintiff, the court is now in a position to consider plaintiff's

requests in the context of the balancing approach noted previously as well as general discovery notions embodied in the

Federal Rules of Civil Procedure.

I. Information pertaining to date and outcome of investigations

In interrogatory number 21 posed to defendant Desilets and

interrogatory number 21 posed to defendant Connare, plaintiff

reguested information as to whether any investigations were

performed regarding actions occurring on May 31, 1994. If

investigations were conducted, the plaintiff reguested the

identity of the person(s) who initiated and were in charge of

such investigations, the date of the proceeding, and the outcome

of the proceeding.

Upon reviewing the answers provided by defendants, the court

concludes that defendants have provided adeguate answers to most

of the information sought in the interrogatory. Specifically,

defendants' answers indicate that an internal investigation was

conducted in response to plaintiff's complaint. Further, the

responses reveal that a L t . Steinmetz was the person responsible

for conducting the investigations. The responses by defendants,

however, do not reveal the date of the investigations nor the

outcome of the investigation.

In weighing the plaintiff's need for the disclosure of the

date and outcome of particular investigations against the

10 defendants' concern for privacy, the balance in this case tips in

favor of disclosure. The matters into which the plaintiff seeks

to inquire appear closely related to various allegations in the

complaint. Fundamentally, within the complaint, plaintiff

alleges that defendant (s) have "through deficient supervision,

training, discipline and remedial action, established a municipal

custom or policy of deliberate indifference to, or tacit approval

of, constitutional deprivations inflicted on City of Manchester

Police Department arrestees and pretrial detainees." Plaintiff's

Complaint at 547. The information sought by the plaintiff is

neither tangential nor remote from the central legal issues

encompassed in this case and may address the protocol by which

Manchester police balance their enforcement obligations against

the constitutional rights of the citizenry. Defendants have also

offered no indications that the character of the information

sought by the plaintiff is available from other sources, and the

probative value of the information sought by the plaintiff is

strong enough to overcome the privacy interest claimed by

defendants. Accordingly, defendants Desilets and Connare shall

provide information concerning the date of any investigation

performed in response to actions occurring on May 31, 1994 as

well as the outcome of such investigations.

11 II. Statements from others with knowledge of the incident

Within interrogatory number 23 originally posed to defendant

Desilets and interrogatory number 23 presented to defendant

Connare, plaintiff sought information as to whether defendants

were aware of any statements, oral or written, pertaining to the

incident at issue which were made by any other person(s). To the

extent any such statements exist, plaintiff also sought the

identity and last known location of the person (s) providing the

statement.

In responding to the reguest, both defendants stated that

"[o]ther than testimony offered at the Manchester District Court

and the Administrative License Suspension hearing, [they] know of

no statements." Irrespective of their assertion that RSA 516:36

prevents discovery of the sort reguested by the plaintiff.

Defendants' answers are adeguate and complete. Accordingly, to

the extent plaintiff seek to compel defendants to provide any

additional information with respect to these interrogatories, the

reguest is denied.

III. Statements by defendants concerning May 31, 1994 incident

In interrogatory number 24 submitted to defendant Desilets

and interrogatory number 25 given to defendant Connare, plaintiff

reguested information regarding whether defendants have provided

12 "any written or recorded statement concerning the incident to any

person or entity." If defendants have made such statements,

plaintiff also sought the person or entity to which such

statements were given and the present custodian of the

statements.

With the exception of providing the name of the present

custodian of their statement, defendants have reasonably answered

plaintiff's interrogatories. Both defendants informed plaintiff

that they gave statements at the internal affairs investigation.

Defendant Desilets also indicated that he gave a deposition

before Attorneys King and Flood on October 13, 1994 as well as

testimony at the Manchester District Court. Defendant Connare

stated that he provided testimony at the Manchester District

Court trial and the Administrative License Suspension hearing.

To the degree defendants Desilets or Connare are aware of

the present custodian of their statements provided at their

internal investigation proceedings, they shall provide such

information to the plaintiff. Beyond this information,

defendants have adeguately responded to plaintiff's reguests.

IV. Evaluations, investigations or reviews of police officers

Within interrogatory number 5 presented to defendant

13 Favreau, plaintiff requested evaluations, investigations or other

reviews (written, electronic or otherwise) regarding actions, by

Officer David Connare, Officer Marc Desilets and L t . Doherty,

relating to or referring to the use of force, or the failure to

intervene in the unauthorized use of force, against a suspect,

potential suspect, or other individual. With respect to any

evaluations and investigations performed, plaintiff also

requested information about the name, title and current home

address of each person who conducted or participated in the

evaluation or investigation. Additionally, plaintiff sought

information concerning a particular statement made by L t . Doherty

to Brian Denault.

In carefully weighing the particular interests involved in

this case, the information requested, by plaintiff, in

interrogatory number 5 is considered within the bounds of

permissible discovery. The issues presented in this case involve

serious allegations of excessive force and deliberate

indifference to the serious medical needs of the plaintiff. The

information sought in interrogatory number 5 appears directly

related to those legal issues. Moreover, the material into which

plaintiff seeks to inquire may be relevant to establishing a

particular custom or practice of the Manchester Police

Department. Although interrogatory number 5 is a relevant

14 inquiry, plaintiff's version is overly broad and somewhat

confusing. Accordingly, the court will tailor plaintiff's

request in the following manner: defendant Favreau shall provide

information as to whether any evaluations or investigations,

conducted during the last three years, pertaining to allegations

of excessive use of force, failure to intervene in circumstances

involving excessive force, and/or failure to provide medical

treatment or the statement allegedly made by L t . Doherty set out

in interrogatory 5 were charged or alleged against Officer David

Connare, Officer Marc Desilets and L t . Doherty. The information

shall provide the date of the complaint, the nature of the

complaint, the officer complained of, and the action taken, if

any. The identity of the complainant is not to be provided at

this time, but may be subject to further discovery consistent

with privacy concerns. Defendant Favreau shall also indicate

whether any records (written, electronic or otherwise) exist with

respect to each of the particular evaluations or investigations

noted. However, with respect to plaintiff's request for the

name, title and current home address of any person who is

familiar with the particular evaluations and investigations, the

request is denied.

15 V. Complaints against the Manchester Police Department

Interrogatory number 9 propounded to defendant Favreau seeks

information of any and all complaints, made against the police

department in the last ten years, pertaining to excessive use of

force, prisoner abuse or mishandling, or the failure to render

medical treatment.

The defendant has responded to this inguiry by stating, in

part, that the information reguested is not kept in a way that is

easily retrievable. Undoubtedly, reguiring the defendant and

other police department personnel to review documents (including

hundreds of personnel files) originating back one decade is an

unreasonable burden. However, defendant Favreau has been a high

ranking officer with the police department for several years,

which suggests a more practical approach to plaintiff's reguest.

Chief Favreau is to answer interrogatory number 9 based on his

own recollection and reasonable inguiry of other senior officers

and records of any instances or complaints of police misconduct

in the last five years in the areas of use of excessive force,

prisoner abuse or mishandling or the failure to render medical

treatment. With respect to those instances or complaints

identified, defendant, who has been sued solely in his official

capacity, is to make a search of police department records for

documents that directly relate to those instances or complaints.

16 Defendant is to then identify all such events by date and

description of the complaint.

VI. Disciplinary actions against Police Department employees

In interrogatories numbered 10 and 11, plaintiff sought

information from defendant Favreau concerning all instances

involving the issuance or initiation of disciplinary actions

resulting from allegations of police misconduct in the areas of

use of force, prisoner abuse or mishandling, the failure to

render medical treatment to individuals in the custody or control

of the Manchester Police Department, and "Gay Bashing."

Here again, reguiring defendant Favreau to search files

compiled during the last ten years for the purpose of satisfying

plaintiff's reguest would be unduly burdensome. However, the

court is heedful that the information sought is relevant to

plaintiff's case or likely to lead to the discovery of admissible

evidence. Accordingly, defendant Favreau shall, from his

personal recollection, reasonable inguiry of others and review of

documents indicate whether there has been, within the last five

years, any issuances or initiations of disciplinary actions

against Manchester Police Department employees stemming from

allegations of police misconduct in the areas of use of force,

prisoner abuse or mishandling, the failure to render medical

17 treatment to individuals in the custody or control of the

Manchester Police Department, or "Gay Bashing." To the extent

defendant Favreau is able to identify instances of allegations of

alleged police misconduct, before answering the interrogatories

he shall make a review of police department records in order to

determine whether any reports or files exist which pertain to

such allegations.

VII. Information concerning condition of plaintiff's cell

Aside from the issues surrounding the discoverability of

internal police investigation records and reports, defendants

seek to preclude the plaintiff from acguiring the address and

telephone number of one Mr. Cusson. Mr. Cusson is allegedly the

individual who was responsible for cleaning plaintiff's cell

after the assault. According to the defendants, as a present

employee of the municipal corporation which is potentially

subject to liability in this matter, Mr. Cusson is an agent of

the City and is under the municipality's control and direction.

The defendants submit that defense counsel, as the chosen

representative of the principal, should be present for any

interview or deposition of Mr. Cusson. Notably, defendants fail

to offer any case law to support the theory that Mr. Cusson is an

agent under the control or direction of the municipality and may

18 not be contacted by the plaintiff.

Courts have generally looked with disfavor on attempts to

place limits on a lawyer's ability to interview prospective

witnesses. Mompoint v. Lotus Development Corp.,

(D .Mass. 198 6); International Business Machines Corp. v.

Edelstein,

(2d Cir. 1975). "Most of the

reported cases . . . have dealt with governmental agencies which

attempt to restrict their employees from speaking to counsel for

opposing parties; court have uniformly prohibited any such

restrictions." Mompoint,

; see also

Rodriquez v. Percell,

(S.D.N.Y. 1975); United

States v. City of Milwaukee,

(E.D.Wis. 1975);

Vega v. Bloomsburqh,

(D.Mass. 1977) .

In weighing the municipality's interest of restricting the

information which may be elicited from its (non-party) employees

against the plaintiff's interest in having the fullest possible

knowledge of the issues and facts before trial, the balance tips

in favor of allowing unfettered access. Consistent with this

approach, the United States Supreme Court has indicated that

discovery should be liberally allowed and may properly encompass

"any matter that bears on, or that reasonably could lead to other

matter that could bear on, any issue that is or may be in the

case." Qppenheimer Fund, Inc. v. Sanders,

, 351

19 (1978). "The parties must be permitted to scrutinize all

relevant evidence so that each will have a fair opportunity to

present its case at trial." Nestle Foods Corp. v. Aetna Cas. and

Sur. Co..

(D.N.J. 1990).

Defendants' arguments that they should not be required to

reveal the address and telephone number of Mr. Cusson is simply

unavailing. Accordingly, defendants are ordered to provide this

information to the plaintiff.

CONCLUSION

The plaintiff has requested, from the defendants, various

information pertaining to investigation records, disciplinary

proceedings, and complaints of misconduct. The defendants have

failed to provide the information requested, claiming such

information is exempt from discovery or disclosure under various

state statutes. After considering the arguments posed by the

parties, this court concludes that it is not bound to prevent

such discovery in accord with

-A:5,

516:36 and 105:13-b. Further, upon considering the claims

alleged in this action, the court concludes that there is

information which has not been disclosed by the defendants but is

relevant to the subject matter and/or likely to lead to the

discovery of admissible evidence. Therefore, with respect to the

20 information and documentation sought by the plaintiff, the

defendants shall produce information requested by the plaintiff

to the extent noted in previous portions of this Order. The

production of information, however, is subject to the following

limitations: (1) all information to be disclosed by the terms of

this Order shall be disclosed solely to plaintiff's counsel or

parties directly employed by plaintiff's counsel in the

preparation of this litigation; (2) no portion of the information

disclosed shall be disclosed to the plaintiff; (3) to protect

certain privacy or confidentiality interests, no names of

complainants or witnesses contained within any records or reports

produced, if any, by the defendants shall be removed or redacted,

until the court has had an opportunity to conduct an j_n camera

review of unredacted copies; (4) any documents disclosed under

this Order shall not be used at trial without the prior

permission of the court; (5) at the conclusion of this litigation

all discovery materials encompassed by this Order, and any copies

thereof, are to be returned to counsel for the defendants, and

none of such materials are to be copied or retained in the files

of plaintiff's counsel or given to any other counsel who might be

involved in similar litigation; and (6) no party shall seek to

broaden or restrict the terms and limitations noted above without

prior approval of the court.

21 Plaintiff's Motion to Compel Discovery (document no. 12) is

granted in part and denied in part.

SO ORDERED.

James R. Muirhead United States Magistrate Judge

Date: April 10, 1996

cc: Scott W. Flood, Esg. Donald E. Gardner, Esg.

22