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American News & Information SVCS., Inc. v. Rovella

United States District Court, D. Connecticut

August 30, 2017

JAMES C. ROVELLA, et al., Defendants.


          Donna F. Martinez United States Magistrate Judge.

         Plaintiffs, American News & Information Services, Inc. (“American News”) and Edward Peruta (“Peruta”), bring this civil rights action against several Hartford police officers[1] alleging violations of plaintiffs’ First and Fourteenth Amendment rights, 42 U.S.C. §§ 1983, 1988 and the Connecticut Constitution, Art. I, §§ 4, 5. In particular, plaintiffs allege that on September 12, 2014 and August 7, 2015, Hartford police officers (1) prevented Peruta “from videotaping and photographing police officers in public” in the vicinity of 519 Park Street and 38 Kelsey Street, respectively, and (2) threatened Peruta with arrest if he did not leave the scene. (Compl. ¶¶ 39-61, 82-101.) Pending before the court are defendants’ motion for protective order (doc. #80) and the City of Hartford’s motion to quash subpoena and for a protective order (doc. #93).[2] For the reasons that follow, the motions are DENIED.

         I. Background

         According to the complaint, Peruta owns and operates American News, “a news and information company . . . that operates throughout the United States, and which gathers and provides raw, breaking news video, photographs, and news tips to various mainstream media outlets.” (Compl. ¶ 10.) American News broadcasts two regular programs: (i) “The Morning Report,” broadcasted from 7:00 to 7:30 a.m., Monday through Thursday and (ii) “Summary Judgment,” broadcasted from 4:00 to 6:00 p.m. on Saturdays. (Doc. #80-1, Peruta Dep. at 5.) These programs are broadcasted live on American News’ website, YouTube, and the Facebook pages of both American News and Peruta. (Id. at 5-7.) The programs also are recorded and then distributed in Connecticut for broadcast to local television stations, Cable 5 in Torrington, and Charter Communications in Winsted. (Id.) Plaintiffs’ counsel, Attorney Rachel Baird, is a “founding sponsor” of American News and co-hosts both news programs with Peruta in a studio in her office building. (Id. and Doc. #80-2.)

         II. Motion for Protective Order (Doc. #80)

         Defendants Brian J. Foley, Michael Coates, Brandon J. O’Brien and Sean Spell, along with four non-party witnesses,[3]filed the instant motion seeking a protective order (1) prohibiting plaintiffs and their counsel from disclosing, publishing or disseminating information obtained through discovery; and (2) ordering plaintiffs to remove already– published information from any website under their control. (Doc. #80 at 1.) As a separate matter, anticipating that plaintiffs will seek discovery concerning certain events that occurred on June 4, 2016 on Flatbush Avenue in Hartford, defendants are seeking an order preventing such discovery. (Id.)

         In support of their motion, defendants contend that Peruta and his attorney have discussed the litigation and disclosed information obtained through discovery on American News’ internet broadcasts. It appears undisputed that they have read portions of Peruta’s deposition transcript on air and published at least one of the defendant’s written discovery responses on plaintiffs’ and counsel’s website. (Doc. #80 at 9.) In addition, defendants maintain that plaintiffs and their counsel have made “disparaging assertions against the character of defendants . . . and defense counsel” during their internet news broadcasts. (Id.)

         A. Rule 26(c) Standard

         “The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed.R.Civ.P. 26(c)(1). Rule 26(c) “is not a blanket authorization for the court to prohibit disclosure of information whenever it deems it advisable to do so . . . .” Bridge C.A.T. Scan Assocs. v. Technicare Corp., 710 F.2d 940, 944–45 (2d Cir. 1983). Rather, the “court may issue a protective order only after the moving party demonstrates that ‘good cause’ exists for the protection of the material.” Burgess v. Town of Wallingford, No. 3:11cv1129 (CSH), 2012 WL 4344194, at *6 (D. Conn. Sept. 21, 2012).

         “Good cause is established by demonstrating a clearly defined and serious injury resulting from disclosure. . . . Broad allegations of harm will not establish good cause, rather to establish good cause under Rule 26(c), courts require a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements.” Hansen v. U.S. Airports Air Cargo, LLC, No. 3:07cv353 (JCH)(HBF), 2008 WL 4426909, at *1 (D. Conn. Sept. 26, 2008). See, e.g., In re Terrorist Attacks on Sept. 11, 2001, 454 F.Supp.2d 220, 222 (S.D.N.Y. 2006)(holding that a party establishes “good cause” by showing that a “clearly defined, specific and serious injury” will occur in the absence of a protective order); Burgess v. Town of Wallingford, 2012 WL 4344194, at *6 ("Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test."); Uniroyal Chemical Co. Inc. v. Syngenta Crop Protection, 224 F.R.D.53, 56 (D. Conn. 2004)(same). The court has “broad discretion” to “decide when a protective order is appropriate and what degree of protection is required.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984). “The mere fact that some level of discomfort, or even embarrassment, may result from the dissemination of [defendant’s] deposition testimony is not in and of itself sufficient to establish good cause to support the issuance of [a] protective order.” Flaherty v. Seroussi, 209 F.R.D. 295, 299 (N.D.N.Y. 2001).

         “If the moving party meets its burden of establishing good cause for a protective order, the court may balance any countervailing interests in determining whether to exercise its discretion to grant the order.” DaCosta v. City of Danbury, 298 F.R.D. 37, 38-39 (D. Conn. 2014)(citing Burgess, 2012 WL 4344194, at *6.)) “Such countervailing interests might include whether the order will prevent the threatened harm, whether there are less restrictive means of preventing the threatened harm, the interests of the party opposing the motion, and the interests of the public.” Id. at 39 (citations omitted).

         B. Discussion

         Defendants argue that a protective order is appropriate because plaintiffs’ use of discovery materials is intended to annoy, harass, and embarrass defendants and has the risk of tainting the jury pool. (Doc. #80 at 20.) Plaintiffs respond that defendants have not shown the good cause required to grant a protective order and that a protective order would unduly hamper the public’s access to materials bearing on matters of public concern.

         Generally speaking, dissemination of pretrial discovery materials by the receiving party is not prohibited absent a protective order. See Burgess, 2012 WL 4344194, at *9 n.17 (“Absent a protective order, the discovery rules place no [specific] limitations on what a party may do with materials obtained during discovery . . . .”) (citation and internal quotation marks omitted). “Nonetheless, dissemination for non-judicial purposes is unusual and rightly so. The discovery rules are ‘a matter of legislative grace.’” DaCosta v. City of Danbury, 298 F.R.D. at 39 (quoting Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32 (1984)). “They compel parties to divulge information ‘for the sole purpose of assisting in the preparation and trial, or the settlement, of litigated disputes.’” Id. (quoting Seattle Times Co. v. Rhinehart, 467 U.S. at 34).

         The liberality of this process creates “a significant potential for abuse” such as delay, expense, misuse of court process, and damage to the reputation and privacy of litigants and third parties. Id. at 34–35. Courts therefore must be mindful that the purpose of discovery is “to facilitate orderly preparation for trial, not to educate or titillate the public.” Joy v. North, 692 F.2d 880, 893 (2d Cir. 1982). Although the details underlying a particular litigation might hold some interest for many members of the public:

[V]irtually all [members of the public] have an interest in ensuring that everyone in our society ha[s] access to a fair and impartial judicial system without having to pay too high a price of admission in the form of the surrender of personal privacy. Thus, courts must be vigilant to ensure that their processes are not used improperly for purposes unrelated to their role.

Paisley Park Enterprises v. Uptown Prods., 54 F.Supp.2d 347, 349 (S.D.N.Y. 1999). That said, “[i]n cases where issues of strong public interest favoring the free dissemination of discovery materials are at play, the normal practice of not according discovery materials the same degree of access as those filed in connection with trial gives way to a presumption of open inspection.” Flaherty v. Seroussi, 209 F.R.D. 295, 299 ...

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