Days v. Police Department

Background

Selwyn Days brought this action against the Eastchester Police Department, the Westchester County Police Department, the County of Westchester, Mario Astarita, George Barletta, Matthew Kiernan, and Christopher Calabrese. On August 4, 2020, Days served a request and subpoenas on the United States Attorney’s Office for the Southern District of New York and the Federal Bureau of Investigation seeking documents and testimony connected to the underlying criminal investigation and prosecution of Days.

The request was governed by Department of Justice regulations commonly called the Touhy regulations. Those regulations restrict Department of Justice employees from disclosing requested information without approval from the appropriate Department official. The parties also represented that some requested records could contain information protected by the Privacy Act of 1974.

The Order

The court found good cause for entering a Privacy Act order and protective order under Federal Rule of Civil Procedure 26(c). Under the order, the government was authorized to produce information that otherwise could be barred from disclosure under the Privacy Act when the Privacy Act permits disclosure pursuant to a court order. The order did not require production of information barred by other privileges, statutes, regulations, or legal authorities.

The order defined “Protected Information” broadly to include documents, records, and information containing confidential, proprietary, personal, or similar information, including privileged law-enforcement information and information protected by the Privacy Act. The government could designate such material by marking it “Confidential - Subject to Protective Order.”

Protected Information could be used only for this action and could not be publicly disclosed or shared except as the order allowed. Authorized recipients included Days and his attorneys and staff, the defendants and their attorneys and staff, witnesses during depositions when relevant, retained experts and consultants, court reporters, the court and its personnel, and other people later authorized by the court. Recipients had to receive a copy of the order and were prohibited from sharing the information with unauthorized people.

The order imposed additional procedures for depositions and public filings. Deposition questioning about Protected Information could occur only in the presence of authorized persons, and related transcript portions received the same protections. Protected Information included in a public filing had to be filed under seal under the court’s local rules. The order also addressed disclosures required by law or court order, inadvertent failures to mark documents, and the return or destruction of Protected Information within 30 days after final disposition of the action, including appeals, for materials held by qualified persons other than party counsel.

What the Court Did Not Decide

The order expressly stated that it did not decide whether any document or category of information was discoverable. It also did not decide potential objections based on discoverability, relevance, admissibility, privilege, or other protections from disclosure. The order preserved the parties’ and government’s rights to assert objections or seek additional protection or disclosure.

Disposition

The parties stipulated and agreed to the order, and Magistrate Judge Andrew E. Krause entered it on January 8, 2021. This was a discovery and confidentiality order, not a decision on the merits of the underlying action or on whether the government ultimately had to produce particular records or testimony.