United States District Court, D. Connecticut
PATRICK W. GAYNOR, Plaintiff,
v.
CITY OF MERIDEN and JEFFRY COSSETTE, Defendants.
RULING ON NON-PARTY CHRISTOPHER DINGWELL, SR.'S
MOTION FOR PROTECTIVE ORDER AND MOTION TO QUASH
SUBPOENA
CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE.
This
civil rights action is before the Court on a motion for a
protective order by a non-party witness who the Defendants
have served with a subpoena. The motion papers reveal that
there are presently pending in the Court two related cases
involving the City of Meriden, Connecticut and Jeffry
Cossette, the Meriden Police Chief: the captioned case,
bearing docket number 3:17-cv-1103, assigned to the
undersigned, and the case bearing docket number 3:17-cv-1531,
assigned to District Judge Dooley.
In
3:17-cv-1103, the captioned case before me, the Plaintiff is
Patrick W. Gaynor. The Defendants are Meriden and Chief
Jeffry Cossette. Gaynor alleges that at the pertinent times
he was a Captain in the Meriden Police Department. During the
period from 2011 through June 2013, Gaynor gave testimony in
a federal criminal trial against Evan Cossette, a Meriden
police officer and son of Chief Cossette, which resulted in
Evan Cossette's conviction and incarceration for beating
a detainee in a holding cell. Gaynor's complaint further
alleges that subsequently, Meriden and Chief Cossette
disciplined Gaynor and then terminated his employment with
the Police Department, all in “retaliation for his
protected speech” during the trial of Evan Cossette.
Doc. 1 at ¶ 26. Gaynor sues Meriden and Chief Cossette
pursuant to the United States Constitution and 42 U.S.C.
§ 1983.
In
3:17-cv-1531, the case before Judge Dooley, the Plaintiff is
Christopher Dingwell, Sr., who resides in Meriden. Dingwell
Complaint, Doc. 1-2 at ¶ 1. The Defendants are the City
of Meriden, Chief Cossete, and John Willams, a Meriden Police
Department detective. Dingwell alleges that “[i]n or
around January 2015 ” he “became aware of a
potential issue with regard to two firearms that were missing
from the armory of the Meriden Police Department.”
Id. ¶ 15. Dingwell addressed inquiries about
the missing guns to the City, and reported the subject to the
federal BATF, the Connecticut State Police, and the local
press. Id. ¶¶ 16-24. Dingwell also
publicly criticized the conduct of the Meriden Police
Department, requested that Chief Cossette be fired at a City
Council meeting, and continued to follow up with Meriden
Police Department officials by email regarding the issue.
Id. ¶¶ 36-37, 40. Dingwell alleges that
the defendants retaliated against him because of his
complaints, and that he “is currently fearful of
continued retaliation and has been forced to curtail his
public speech against the Meriden Police Department as a
result of their continued retaliation and efforts to thwart
him.” Id. ¶¶ 43-45.
Defendants'
counsel in the Gaynor case has served a subpoena for
deposition and production of documents on Dingwell, not as a
party, but rather as a witness in the captioned action
wherein Gaynor is plaintiff. Dingwell initially filed this
motion seeking to quash the subpoena or, in the alternative,
to obtain a protective order limiting the scope of discovery.
See Doc. 37. The parties, to their great credit,
have been able to resolve most of the issues raised in the
motion amicably. See Status Report, Doc. 42 at 1.
They appear to have agreed, inter alia, that
Dingwell will be deposed and produce documents, and as to the
scope of the deposition. Id. Thus, the sole issues
remaining for this Court are (i) the time frame and (ii) the
scope of certain documents to be produced by Dingwell.
Id.
The
question presented is governed by Rule 26 of the Federal
Rules of Civil Procedure. Rule 26(b)(1) provides:
“Unless otherwise limited by court order, the scope of
discovery is as follows: Parties may obtain discovery
regarding any nonprivileged matter that is relevant to any
party's claim or defense and proportional to the needs of
the case . . . . Information within this scope of discovery
need not be admissible in evidence to be discoverable.”
However, while information to be discoverable need not be
admissible, it must be relevant. This is a
recurring theme in the Advisory Committee's Notes to the
2015 Amendments. The 2015 Notes' discussion of Rule
26(b)(1) begins by saying: “Information is discoverable
under Revised Rule 26(b)(1) if it is relevant to any
party's claim or defense and is proportional to the needs
of the case.” (emphasis added). The Notes also say:
“Proportional discovery relevant to any
party's claim or defense suffices, given a proper
understanding of what is relevant to a claim or
defense, ” and “[d]iscovery of what is
relevant to the parties' claims or defenses may
also support amendment of the pleadings to add a new claim or
defense that affects the scope of discovery.” (emphases
added). While the Federal Rules of Civil Procedure do not
define “relevant, ” the operative definition can
be found in Rule 401 of the Federal Rules of Evidence, which
provides: “Evidence is relevant if (a) it has any
tendency to make a fact more or less probable than it would
be without the evidence; and (b) the fact is of consequence
in determining the action.” Fed.R.Evid. 401.
Dingwell's
motion lies under Fed.R.Civ.P. 26(c)(1), which provides that
a party or person “from whom discovery is sought may
move for a protective order in the court where the action is
pending.” Fed.R.Civ.P. 26(c)(1). The court “may,
for good cause, issue an order to protect a person from
annoyance, embarrassment, oppression, or undue burden or
expense, ” the permissible orders including an order
“forbidding the disclosure or discovery, ” and
“forbidding inquiry into certain matters, or limiting
the scope of disclosure or discovery to certain
matters.” Fed.R.Civ.P. 26(c)(1)(A), (D).
Dingwell
has been asked to produce “all documents relating to
your communication with former Captain Patrick Gaynor”
from January 1, 2014 through the present. Id. at 1.
Counsel for Dingwell seeks to limit that request to
communications with Gaynor related to the defendants'
and/or Captain Gaynor's employment with the City of
Meriden Police Department from January 1, 2014 through
the date of Gaynor's termination. Id.
at 2. Defendants' counsel respond that “[a]ny and
all of Mr. Gaynor's statements to Mr. Dingwell are
potential admissions of a party opponent and therefore
discoverable on that basis.” Doc. 38 at 3. They also
contend that communications after Gaynor's termination
are relevant because “the deponent and Patrick Gaynor
had raised this issue in their past testimony at the State
Board of Mediation and Arbitration.” Doc. 42 at 2.
The
request by Defendants' counsel for all
communications between a non-party witness and Plaintiff,
without any regard for subject matter, is precisely the sort
of “fishing expedition” that the Federal Rules
prohibit. See Lerwick v. Kelsey, 150 Fed.Appx. 62,
65 (2d Cir. 2005). The motion papers indicate that there may
have been some conversations between Gaynor and Dingwell.
That is not surprising: a time certainly came when these two
individuals each had negative opinions about the Meriden
Police Department and its Chief. Defendants are entitled to
that information. See Fed. R. Civ. P. 26(b)(1). But
limiting discovery to communications related to the
parties' employment with the City of Meriden Police
Department-i.e., the precise subject at issue in
this case-is not only reasonable, but required under the
relevance standard set forth in FRCP Rule 26(b)(1) and FRE
401. See Doe v. Univ. of Connecticut, No. 3:09CV1071
WWE, 2012 WL 12745, at *2 (D. Conn. Jan. 4, 2012)
(“Parties may obtain discovery regarding any
non-privileged matter that is relevant to the subject
matter involved in the pending litigation.”
(emphasis added)). Moreover, requiring a non-party to produce
such a broad set of documents would be unduly burdensome and
potentially prejudicial to Dingwell in his own action before
Judge Dooley.[1]
The
Court sees no reason, however, to block document production
after Gaynor's termination. Dingwell's counsel argues
that because this case is about a retaliatory termination,
communications between her client and Gaynor after
Gaynor's termination are not relevant. Not so. To state
the obvious, Gaynor could not discuss the circumstances of
his termination-the central issue in this case-until he had,
in fact, been terminated. If anything, it seems more
likely that relevant communications would have taken place
after Gaynor was terminated than before. The timeframe
proposed by Dingwell's counsel would impermissibly limit
Defendants' ability to collect information relevant to
their defense.[2]
Accordingly,
the Court makes this Order:[3]
1. The
Motion of non-party Chistopher Dingwell. Sr. for a Protective
Order [Doc. 37] is GRANTED IN PART. Dingwell's counsel
must produce all non-privileged communications between
Dingwell and Gaynor related to the Defendants' and/or
Captain Gaynor's employment with, and Captain
Gaynor's termination from, the City of Meriden Police
Department from January 1, 2014 through the present.
2. The
Subpoena to Testify dated August 28, 2018 served by
Defendants City of Meriden and Jeffry ...