Hon David E.

Peebles
United States Magistrate Judge
Northern District of New York
James M. Hanley Federal Building
100 S. Clinton St.
Syracuse, NY 13261
Re:

December 13, 2016

Burks v. Stickney, et al. 16-cv-00759-FJS-DEP

Your Honor -Plaintiff writes in opposition to defendants demand for a blanket Confidentiality Order
prior to producing the investigation file related to plaintiffs assault. Plaintiff requests a
pre-motion conference pursuant to Local Rule 7.1(b)(2).
Defendants have agreed to provide the undersigned with the Office of Special
Investigations (OSI) file in connection with the assaults on plaintiff. However,
defendants propose that the entire OSI file relating to the assault on plaintiff be deemed
confidential, for attorneys eyes only. They further propose that once the litigation is
complete, the undersigned return the file and provide defendants with a certification
that no copies have been retained and that the protective order was complied with. It also
provides no opportunity to challenge defendants assertion of confidentiality. It simply
demands that plaintiff accept and abide by their wisdom.
[I]t should be incumbent on the attorneys to make a good faith effort to resolve as much
of this type of dispute as possible before resorting to the court. Smith v. Goord, 222
F.R.D. 238, 241 (N.D.N.Y. MJ Peebles 2004). Despite our requests, defendants have not
engaged in good faith discussions.
The parties have discussed the matter. Plaintiff agreed to redactions of social security
numbers and addresses (if they agreed to accept service on behalf of officers in the report
who may need to be named). We asked to discuss the matter by phone, and suggested as
a starting point a provision that would allow us to challenge specific materials under the
order. However, defendants responded by email flatly stating that under no
circumstances would we agree to the release of the OSI file to the public. We followed
up and asked what specific privileges they were claiming to justify their position.
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Defendants counsel replied that we should schedule a conference with the court. We
asked again for the basis for the proposed order, and they clarified that they are not
asserting any privilege.1 Rather, they are seeking an order that (1) prevents an inmate
from possessing material that implicates law enforcement, investigatory and security
concerns and (2) prevents public disclosure of the same material for the same reasons.
(See attached emails.)
The issuance of protective orders is governed by Rule 26(c) of the Federal Rules of
Civil Procedure. That rule provides, in pertinent part, that [u]pon motion by a party ...
and for good cause shown, the court ... may make any order which justice requires to
protect a party or person from annoyance, embarrassment, oppression, or undue burden
or expense ... Fed.R.Civ.P. 26(c). The burden of establishing entitlement to a
protective order rests with the party seeking to restrict discovery. Flaherty v. Seroussi,
209 F.R.D. 300, 30304 (N.D.N.Y. MJ Peebles 2002)
Because protective orders can implicate the public's First Amendment and common law
right of access to the courts Rule 26(c) requires the party seeking the order to
demonstrate good cause. Cooks v. Town of Southampton, 2015 WL 1476672, at 5
(E.D.N.Y. 2015) citing In re Agent Orange Prod. Liab. Litig., 821 F.2d 139, 145 (2d
Cir.1987). At a minimum, the governing rules strongly suggest a philosophy which
favors free access to discovery materials in the absence of countervailing considerations.
Flaherty v. Seroussi, 209 F.R.D. 295, 298 (N.D.N.Y. MJ Peebles 2001).
Broad allegations of harm, unsubstantiated by specific examples or articulated
reasoning, do not satisfy the Rule 26(c) test. Moreover, the harm must be significant, not
a mere trifle. Schiller v. City of N.Y., 2007 WL 136149, at 5 (S.D.N.Y. 2007). [G]ood
cause [for a protective order] exists when a party shows that disclosure will result in a
clearly defined, specific and serious injury. Id. See also Allen v. City of N.Y., 420 F.
Supp. 2d 295, 302 (S.D.N.Y. 2006).
Here, the defendants have refused to substantiate their need for the order except to make
a blanket statement about law enforcement, investigatory and security concerns. This
is precisely the broad allegation of harm unsubstantiated by example or reasoning that
courts in this district have always rejected. Plaintiff submits that they have not and
cannot meet their burden under Rule 26(c).
First, we note that the investigation at issue here, the investigation of the assault of
plaintiff, appears to be complete. Furthermore, defendants have not demonstrated how or
why any disclosure of the documents would impair future investigations. To the
contrary, although plaintiff has not requested documents related to other investigations to
date (though plaintiff may do so), the defendants have already objected to such disclosure
that is not outside the scope of your clients claim of assault in April, 2015 and July 5,
2015). If their objection to our potential request for files relating to other investigations
is that they are irrelevant, can it also be claimed that disclosure of this file would impact
such other investigations? Finally, a less restrictive way to balance a legitimately made
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We accept defendants representation that they are not asserting a privilege, yet the order they ask the
undersigned and this court to sign states that the file contains information protected from disclosure by the
law enforcement privilege.
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assertion of law enforcement privilege with the right to public access would surely be to
require confidentiality in the identities of witnesses while leaving the substance of the
investigation accessible to the public.
The subject matter of this litigation is a matter of great and grave public concern.
Plaintiff claims that he was assaulted due to the knowledge he had about the relationships
between David Sweat and Richard Matt, the two inmates who escaped from Clinton C.F.
with the assistance of DOCCS employees. The initial investigations revealed that
DOCCS employees had business and sexual relationships with inmates, which caused a
major security risk for the facility and the surrounding communities.
Furthermore, the Inspector Generals report of the escape revealed among many other
things that DOCCS staff, from executive staff down, did not cooperate and gave false
testimony under oath.
[t]his investigation was made more difficult by a lack of
full cooperation on the part of a number of Clinton staff,
including executive management, civilian employees, and
uniformed officers. Notwithstanding the unprecedented
granting of immunity from criminal prosecution for most
uniformed officers, employees provided testimony under
oath that was incomplete and at times not credible. Among
other claims, they testified they could not recall such
information as the names of colleagues with whom they
regularly worked, supervisors, or staff who had trained
them. Several officers, testifying under oath within several
weeks of the event, claimed not to remember their activities
or observations on the night of the escape. Other
employees claimed ignorance of security lapses that were
longstanding and widely known.2
Or as Lyle Mitchell, husband of convicted DOCCS employee Joyce Mitchell said more
succinctly theres nothing worse than being a snitch in jail. Id. at 33.
In addition, the Inspector General identified a number of employees who committed
criminal acts and violated DOCCS directives and policies. Yet, it appears that only the
two employees caught red handed in the escape, Correction Officer Gene Palmer and
Joyce Mitchell have been prosecuted in connection with any criminal acts by employees
of Clinton C.F.
Clinton C.F. houses nearly 3,000 inmates throughout New York State. The taxpayers of
the State support the nearly 1,000 guards who work there, as well as numerous other

Investigation of the June 5, 2015 Escape of Inmates David Sweat and Richard Matt from Clinton
Correctional Facility at p.11. The Report can be found here:
https://ig.ny.gov/sites/default/files/pdfs/DOCCS%20Clinton%20Report%20FINAL_1.pdf
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employees.3 Defendants attempt to conduct this litigation under the cloak of darkness
ought to be rejected, given the public interest at stake. Experience has shown that
sunlight prompts the State to action when it comes to its prisons. Two days after the New
York Times published an article demonstrating the racial disparity of treatment in New
York State prisons, Governor Andrew Cuomo announced a commission to investigate the
issue. See http://www.nytimes.com/2016/12/05/nyregion/governor-cuomo-ordersinvestigation-of-racial-bias-in-ny-state-prisons.html.
We respectfully submit that the undersigned, the Attorney Generals Office, and the court
can conduct this litigation in a manner that protects witnesses and the integrity of future
investigations while honoring the philosophy of free access to discovery materials in a
case of important public interest. We thank the court for its consideration.
Sincerely,
/S/
Leo Glickman

Correctional Association of New York, Clinton Correctional Facility, 2012-2014. The Report can be
found here: http://www.correctionalassociation.org/wp-content/uploads/2015/03/Clinton-CorrectionalFacility-Final-Draft-2.pdf
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