Benn v. Morrison

Background

George Benn’s case concerns his allegation that he was falsely arrested in connection with the shootings of Willis Bennet and Jawuan Faust. The court had previously granted part of Benn’s motion to compel, permitting production of witness statements while allowing the New York District Attorney’s Office (DANY) to seek a protective order for statements that might be covered by the law-enforcement privilege. The DANY was not a party to the case; it had received a subpoena for documents.

The DANY sought a protective order covering videotaped statements by Ted Simon and Antoine Knox. In the alternative, it asked that the videos be labeled “attorney’s eyes only” and that the DANY keep possession of them while allowing the parties to view them at the DANY’s office. Benn and the defendants opposed withholding the statements and argued that those restrictions would adequately protect the videos.

Law-Enforcement Privilege

The law-enforcement privilege can protect information involving law-enforcement methods, confidential sources, witness or officer safety, investigative privacy, or the ability to conduct future investigations. The party asserting the privilege bears the burden of showing that it applies.

The DANY argued that disclosure could endanger the witnesses and discourage future witnesses from cooperating. It relied partly on a letter allegedly sent by Benn to Simon threatening him if he cooperated with law enforcement, and on Benn’s prior indictment—but not conviction—for witness tampering. The court found that the DANY had not explained why disclosure of the videos would create additional danger because Benn already knew the witnesses’ identities and the substance of their conversations. The court also found the argument about the videos revealing a “cooperative demeanor” too speculative.

The court further found that the DANY had not shown that disclosure would interfere with any specific ongoing or potential investigation. The police reports already disclosed the witnesses’ names and summaries of their testimony, and the DANY did not claim that confidentiality promises had been made to the witnesses. The court therefore concluded that the DANY had not established that the privilege applied.

Benn’s Need for the Statements

The court stated that, even if the privilege applied, Benn had a compelling need for the videos. To overcome the usual presumption against disclosure, he had to show that his lawsuit was brought in good faith and was not frivolous, that the information was unavailable from other sources, and that it was important to his case. The court also had to weigh his need against the public interest in keeping the information confidential.

The DANY did not argue, and the record did not indicate, that Benn acted in bad faith. The court treated the statements as relevant to Benn’s malicious-prosecution claims, which require examining whether there was probable cause for the prosecution and the evidence prosecutors relied on. The court rejected the DANY’s suggestion that Benn first depose defendants who had attended or viewed the interviews. Because Benn alleged that detectives fabricated witness statements and evidence, the court found that comparing the original interviews with the later police reports was necessary; depositions would not be an adequate substitute for that comparison.

Balancing and Disposition

The court found that the DANY had offered only a general argument that disclosure might discourage future cooperation, rather than a specific showing of public harm. It concluded that the combined need of Benn and the defendants for the statements outweighed the public interest against disclosure. The court noted that the witnesses’ identities and testimony summaries had already been disclosed and that the existence of civil-rights claims supported disclosure.

Magistrate Judge Ona T. Wang denied the DANY’s motion for a protective order. The two statements were to be produced with an “attorney’s eyes only” designation. The DANY was to retain possession and make the videos available for viewing by the parties at its office at mutually agreeable times. Any later request to cite the videos as evidence was to be made under seal. The DANY was also directed to coordinate with chambers for return of the DVDs and related documents.