*1 Plaintiff Gina Anne Noel Pane (herein, “Pane”) moves for an order compelling non-party/respondent the Westchester County District Attorney's Office (herein, “WCDA”) to respond to a subpoena duces tecum served upon it on February 19, 2009. See Docket # 61, Order to Show Cause. For the reasons that follow, Pane's motion to compel is granted.

BACKGROUND

Pane brings this action against Defendants, asserting claims under both 42 U.S.C. § 1983 and state law, in connection with her arrest by Town of Greenburgh police officers on January 21, 2006, and an ensuing encounter with Police Officer Erik Ward. This encounter led to the criminal prosecution and trial of Police Officer Ward in the Town of Greenburgh Justice Court, which ended in an acquittal.

During the course of discovery in the instant civil rights action, Pane served a subpoena duces tecum on the WCDA for the “[e]ntire file/record, including all transcripts of court proceedings, interviews, & search warrant applications, photo/video/audio recordings, call logs, notes, messages[,] subpoenas, & correspondence maintained regarding the investigation, arrest and prosecution of Erik Ward, DOB: 11/1/74, Greenburgh DKT 06-030821, DA Inv. # 2006-PI-0007.” See Docket # 60, Affirmation in Support of an Order to Show Cause (herein, “Aff. in Supp.”) Ex. 1. In light of the WCDA's initial objection to responding to the subpoena, see id. Ex. 3, on March 16, 2009, counsel for Pane sent the WCDA a “Designation of Agent for Access to Sealed Records Pursuant to C.P.L. § 160.50(1)(d),” signed by Erik Ward on March 11, 2009, which designated counsel for Pane as a person to whom the following records should be made available: “all records and papers relating to my arrest and prosecution in the criminal action identified herein on file with any court, police agency, prosecutor's office, or state or local agency that were ordered to be sealed under the provisions of C.P.L. § 160.50.” Aff. in Supp. Ex. 7.

At a pretrial conference held on March 25, 2009, the undersigned told counsel for Pane that if the WCDA failed to comply with the subpoena duces tecum, then he could file a motion to compel by way of an order to show cause, which motion would be returnable on May 7, 2009. That same day, counsel for Pane received a small number of documents from the WCDA. See Aff. in Supp. Ex. 8. The WCDA soon informed counsel that additional files had been located and that an additional response to the subpoena would be made shortly. Id. Ex. 9.

In a letter to the undersigned dated April 1, 2009, which purported to provide materials in further response to the subpoena, the WCDA provided a list of “official records and papers” from its file which were being produced to counsel for Pane and asserted that other documents were being withheld since they were “attorney work product, reflect the opinions and thought processes of the prosecutor and/or are otherwise protected from disclosure.” Aff. in Supp. Ex. 10. The WCDA described these documents in a so-called “privilege log” and offered to produce them to the Court for in camera review “upon request.” Id. The Court never received this letter, nor did Pane's counsel receive the documents which the WCDA stated were being produced therewith. As a result, on April 27, 2009, counsel for Pane submitted an application for an order to show cause on their motion to compel. Docket # 60. On May 5, 2009, the WCDA filed its opposition to the motion to compel, claiming that certain records in its file are privileged and cannot be produced, and other records are exempt from disclosure based on state statutory provisions. Docket # 63. Counsel for Pane filed reply papers on May 6, 2009, responding to these arguments. Docket # 66.

DISCUSSION

A. Standard of Review

*2 Federal trial courts have broad latitude in conducting and overseeing pre-trial discovery. See In re Fitch, 330 F.3d 104, 108 (2d Cir. 2003). “Motions to compel and motions to quash a subpoena are both ‘entrusted to the sound discretion of the district court.’ ” Id. (quoting United States v. Sanders, 211 F.3d 711, 720 (2d Cir. 2000)). Federal Rule of Civil Procedure 26 provides that civil litigants “may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.” See Fed. R. Civ. P. 26(b)(1). Rule 26 further provides that “[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Id. Discovery may be limited, however, in instances of duplication, delay, or unnecessary burden on the producing party. See Fed. R. Civ. P. 26(b)(2)(C)(i)-(iii). Federal Rule of Civil Procedure 45 similarly circumscribes the information that may be obtained through discovery via the subpoena power of the court by requiring that the “party or attorney responsible for issuing or serving the subpoena [ ] take reasonable steps to avoid imposing undue burden or expense on the person subject to the subpoena.” Fed. R. Civ. P. 45(c)(1). A court may quash a subpoena when the subpoena requires the disclosure of privileged material or when the subpoena subjects a responding person to undue burden. See Fed. R. Civ. P. 45(c)(3)(A)(iii), (iv).

B. Pane's Motion to Compel Subpoena Duces Tecum and WCDA's Objections

Pane challenges the WCDA's claims of privilege with respect to certain documents in its file from the Erik Ward case. She argues that the WCDA has failed to provide the kind of privilege log required by both the Federal Rules of Civil Procedure and the Local Rules of this Court so that its claims of privilege cannot be properly assessed. She also argues that the WCDA's claims of privilege are governed by federal law, rather than any of the state statutes cited by the WCDA, and that these claims do not hold up under federal law.

In a civil action pending in federal court that involves federal and state law claims, “only privileges recognized as a matter of federal law are applicable.” Agran v. City of New York, No. 95 Civ. 2170, 1997 WL 107452, at *2 (S.D.N.Y. Mar. 11, 1997) (citing Von Bulow v. Von Bulow, 811 F.2d 136, 141 (2d Cir.), cert. denied sub nom Reynolds v. Von Bulow, 481 U.S. 1015 (1987)); see Fed. R. Evid. 501 (claims of privilege “shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience”). “A party seeking to invoke a privilege bears the burden of justifying its application. The party asserting the privilege must specify which documents or class of documents are privileged and for what reasons. The party's showing must detail the reasons for nondisclosure with sufficient particularity. Otherwise, the court has no choice but to order disclosure.” Thompson v. Lynbrook Police Dep't, 172 F.R.D. 23, 25-26 (E.D.N.Y. 1997) (internal quotation marks and citations omitted).

The WCDA's Privilege Log

Both the federal rules and the local rules set forth procedures to be followed when parties assert claims of privilege in the course of discovery. Fed. R. Civ. P. 26(b)(5)(A) states,

Local Civil Rule 26.2(a) states,

A privilege log must provide “sufficient detail to permit a judgment as to whether the document is at least potentially protected from disclosure.” U.S. v. Constr. Prods. Research, Inc., 73 F.3d 464, 473 (2d Cir. 1996) (internal quotation marks and citation omitted). Failure to provide a sufficiently detailed privilege log will result in denial of a party's privilege claim. Id.

The privilege log provided by the WCDA in its April 1, 2009, letter sets forth a list, as follows:

Aff. in Supp. Ex. 10.

Such a generalized privilege log is deficient and cannot sustain the WCDA's claims of privilege with respect to the withheld documents. See Alleyne v. New York State Educ. Dep't, 248 F.R.D. 383, 388 (N.D.N.Y. 2008) (ordering disclosure of documents where privilege logs were “factually insufficient to permit identification of each element of each privilege claim”). Even if the privilege log were adequate to permit review by this Court, the WCDA's assertions of privilege must fail; as explained in greater detail below, the WCDA has failed to carry its burden with respect to the specific privileges asserted.

*4 Governmental Privileges

In response to the motion to compel, the WCDA contends that “certain records contained in its file are privileged from disclosure, including materials, notes, questions, legal research and similar records compiled and/or prepared by prosecutors in preparation for trial, which constitute attorney work product[1] and internal confidential communications” and that these records are subject to governmental privileges, including the executive privilege and the deliberative process privilege.[2] Decl. in Response to Mot. to Compel (Docket # 63) at 2-3; see Aff. in Supp. Ex. 10 (Privilege Log item number 1). The documents in this category also include “a series of handwritten notes, the author of which is unidentified [, which] appear to be a recitation of recorded events.” Decl. in Response to Mot. to Compel at 2 n.1; see Aff. in Supp. Ex. 10 (Privilege Log item number 6).

The executive privilege and deliberative process privilege are closely related, and “it is unclear whether there is any pragmatic difference” between the two. Alleyne, 248 F.R.D. at 387. Moreover, it is doubtful “whether the executive privilege can properly be invoked by a state actor like the [WCDA].” Agran, 1997 WL 107452, at *3 (citation omitted); see Alleyne, 248 F.R.D. at 387 (“the court shares the view that there is no executive privilege per se beyond that possibly reposed in the federal executive branch”) (citations omitted).

The deliberative process privilege protects documents that are “both predecisional and deliberative. A document is predecisional when it is prepared in order to assist an agency decisionmaker in arriving at [her] decision.... A document is deliberative when it is actually ... related to the process by which policies are formulated.... Thus, the privilege focuses on documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated. The privilege does not, as a general matter, extend to purely factual material.” Nat'l Congress for Puerto Rican Rights v. City of New York, 194 F.R.D. 88, 92 (S.D.N.Y. 2000) (internal quotation marks and citations omitted). Additional requirements that have been imposed with respect to this privilege are (i) that it “must be asserted by the agency head or [his or] her qualified designee”; (ii) “the documents must be specifically identified and described”; and (iii) “the agency must offer precise reasons for asserting confidentiality.” Alleyne, 248 F.R.D. at 388 (citations omitted). Furthermore, the deliberative process privilege “is properly applicable only to communications relating to policy formulation at the higher levels of government; it does not operate indiscriminately to shield all decision-making by public officials.” Jean D. v. Cuomo, No. 90 Civ. 0861, 1993 WL 276067, at *2 (S.D.N.Y. July 20, 1993) (citations omitted).

*5 Simply put, the WCDA has failed to carry its burden of justifying the application of any governmental privilege to the documents in question. All it has set forth in its submission in opposition to the motion are general statements of law, without explaining how the law applies to the documents it seeks to withhold. See Decl. in Response to Mot. to Compel at 2-3 & nn. 2-3. The documents themselves are only vaguely described – “materials, notes, questions, legal research and similar records compiled and/or prepared by prosecutors in preparation for trial, which constitute attorney work product and internal confidential communications” and “a series of handwritten notes, the author of which is unidentified [, which] appear to be a recitation of recorded events.” Furthermore, none of the prerequisites for application of the deliberative process privilege are met, or even attempted – the assertion is not made by the District Attorney herself, the documents are not identified with specificity, and no precise reasons have been offered to support the claim of confidentiality. The WCDA has failed to explain the reasons for nondisclosure with sufficient particularity to allow the Court to rule in its favor. With such scant information, the Court finds that the WCDA's assertion of these privileges is deficient, and these documents must be produced.

Privileges Based on State Law

The WCDA asserts privilege over other documents in its Erik Ward file based on state statutes. For example, the WCDA claims that since reports relating to two incidents involving Erik Ward on board Carnival Cruise ships are part of his personnel file, they may be withheld pursuant to N.Y. Civ. Rights Law § 50-a(1).[3] See Aff. in Supp. Ex. 10 (Privilege Log item number 5). The WCDA also claims that criminal history reports, or “RAP sheets,” are exempt from disclosure under N.Y. Executive Law § 837(8), N.Y. Public Officers Law § 87(2)(b), and 9 N.Y.C.R.R. § 6150.4(b)(6). See id. (Privilege Log item number 3).

As previously stated, assertions of privilege in federal cases are governed by federal law, and “there is no federal counterpart to Section 50-a.” Melendez v. Greiner, 01 Civ. 07888, 2003 U.S. Dist. LEXIS 19084, at *15 (S.D.N.Y. Oct. 22, 2003) (citations omitted). Federal policy favors disclosure in cases claiming a violation of constitutional rights, and “[i]n order to counter this federal policy favoring disclosure, defendants must make a ‘substantial threshold showing’ that there are ‘specific harms likely to accrue from disclosure of specific materials.’ ” Id. at *16 (citation omitted). The WCDA has failed to make any showing at all as to how disclosure of these two incident reports would cause any kind of harm to anyone, let alone to Ward, who is not himself claiming any such privilege over these documents; indeed, he provided express written consent for their disclosure. Consequently, the incident reports must be produced.

N.Y. Executive Law § 837(8), N.Y. Public Officers Law § 87(2)(b), and 9 N.Y.C.R.R. § 6150.4(b)(6) are statutory provisions which protect RAP sheets from disclosure based on concerns about invasions of personal privacy.[4] However, given Ward's authorization of the release of these documents to counsel for Pane, there is no such privacy concern at stake in this case. The WCDA cites no case law in which these statutes have served as a basis for withholding the production of documents in a federal action, and following the above-stated reasoning concerning production of the incident reports leads to the conclusion that the RAP sheets must likewise be produced. Cf. Melendez v. Greiner, supra, at *21 n.2 (holding that New York Personal Privacy Protection Law, Public Officers Law § 91, did not exempt from disclosure documents concerning prior grievances or complaints lodged against defendant Department of Corrections officers).

*6 Assertions of privilege for which no legal basis has been provided

Lastly, the WCDA asserts a privilege over two other categories of documents without providing any legal basis: (i) a print-out of arrests involving P.O. Ward, on the ground that it lists the names of arrestees and charges but does not provide sufficient information from which one could determine whether the matters were ultimately sealed, and (ii) a listing of the video camera system, including the location of video cameras, in effect at the Greenburgh Police Department on January 21, 2006, on the ground that “disclosure of this information would impair the integrity of the police department's video surveillance system.” Decl. in Response to Mot. to Compel at 4; see Aff. in Supp. Ex. 10 (Privilege Log item numbers 2 and 4).

The Court sees no basis for withholding disclosure of these documents. To the extent that the WCDA is concerned about disclosing the identities of any arrestees on the print-out of Ward's arrests, the Court directs that the WCDA redact the names of the arrestees from the print-out prior to producing such document. With respect to information concerning the video camera system, the municipal defendants have already produced recordings from these video cameras to counsel for Pane, see Aff. in Supp. at 21, so despite the WCDA's conclusory assertion of harm (to the municipal defendants, no less), discovery concerning the location of the video cameras is relevant and must be produced. The location of the cameras at the relevant time has not been shown to create a risk to current law enforcement, so the WCDA's claims in this regard must be denied.

C. Audiotapes, CD-rom

On May 8, 2009, the Court received audiotapes from the WCDA's file, some of which are said to contain internal police department interviews of police officers. As explained by the WCDA, “These officers, who are accompanied by their PBA representative, are explicitly advised that they are required to answer the questions posed to them and that nothing they say can be used against them in any criminal proceeding. We have no knowledge as to whether the officers received any other guarantees, either verbally or contractually, regarding the confidentiality or use of these interview tapes.” May 8, 2009, Letter from the WCDA, attached hereto. However, the WCDA states that the audiotapes have been submitted “for whatever action [the Court] deem[s] appropriate.” As this recitation is not a sufficient claim of privilege which might lead to in camera review, the Court has not listened to the audiotapes, and sees no reason why they should not be turned over to counsel for Pane. Accordingly, counsel for Pane is directed both to contact the Court to make arrangements for obtaining the audiotapes and to contact counsel for the other parties in this action to ensure that they have access to these audiotapes as well.

In its April 1, 2009, letter, the WCDA stated that it was also in the process of reviewing a CD-rom from its file and would provide a copy, or assert a privilege with respect to same, under separate cover. As far as the Court is aware, neither has occurred. Therefore, the Court deems the privilege waived and directs that within one week of the date of this Decision and Order, the WCDA produce the CD-rom to counsel for Pane.[5]

CONCLUSION

*7 For the aforementioned reasons, Plaintiff Gina Anne Noel Pane's motion to compel the WCDA's compliance with the subpoena duces tecum, seeking production of the entire file maintained by the WCDA in connection with the investigation, arrest, and prosecution of Erik Ward, is granted. The WCDA has failed to meet its burden with respect to its assertions of privilege, and therefore, the documents referred to in its privilege log must be produced as well. All documents and/or other records from the file are to be produced to counsel for Pane, as they are kept in the usual course of business by the WCDA, within one week of the date of this Decision and Order, whether or not they have previously been produced. Docket # 61 shall be terminated by the Clerk of the Court.

This constitutes the Decision and Order of the Court.

SO ORDERED.

OFFICE OF THE DISTRICT ATTORNEY

WESTCHESTER COUNTY

WESTCHESTER COUNTY COURTHOUSE

111 Dr. Martin Luther King, Jr. Blvd.

White Plains, New York 10601

(914) 995-2000

JANET DiFIORE

DISTRICT ATTORNEY

May 7, 2009

Magistrate Judge Lisa Margaret Smith

United States District Court

Southern District of New York

300 Quarropas Street

White Plains, New York 10601

Re: Pane v. Town of Greenburgh. - CV 07-3216 (WP4)(LMS)

Dear Judge Smith:

In further compliance with the so-ordered subpoena, which was served on our Office by Ravi Batra, Esq., counsel for plaintiff Gina Pane in the above referenced matter, we are hereby advising the Court that we have now had the opportunity to listen to the audiotapes maintained in our file.

After listening to the tapes, we discovered that several of them contain internal police department interviews of police officers. These officers, who are accompanied by their PBA representative, are explicitly advised that they are required to answer the questions posed to them and that nothing they say can be used against them in any criminal proceeding. We have no knowledge as to whether the officers received any other guarantees, either verbally or contractually, regarding the confidentiality or use of these interview tapes. Accordingly, in our efforts to fully comply with the so-ordered subpoena, we are submitting them to the Court for whatever action you deem appropriate.

Thank you for your courtesies in this matter.

Very truly yours,

JANET DiFIORE

DISTRICT ATTORNEY

John J. Carmody

Assistant District Attorney