Commercial Litigation and Arbitration

Contempt for Violation of Protective Order under Rule 37(c) — Standards for Contempt

Dorsett v. County of Nassau, 2012 U.S. Dist. LEXIS 71445 (E.D.N.Y. May 22, 2012):

Presently before the Court is a motion to intervene by non-party the Police Benevolent Association of the Police Department of the County of Nassau, New York, Inc. ("PBA"), to enforce this Court's December 15, 2011 Confidentiality Order ("Confidentiality Order"). For the reasons set forth below, the PBA's motion to intervene is granted and the Court will hold a hearing for the purposes of determining whether Nassau County Legislature Presiding Officer Peter Schmitt is in contempt of the Court's Confidentiality Order and what sanctions, if any, are appropriate.


The Plaintiff Sharon Dorsett commenced the present action on March 19, 2010. This action arises from the March 2009 tragic death of the Plaintiff's daughter Jo'Anna Bird, a young mother, at the hands of Leonardo Valdez-Cruz, her former boyfriend and the father of her child. Valdez-Cruz was tried and convicted for the murder of Jo'Anna Bird and is currently serving his sentence. The Plaintiff brought a series of claims both individually and as the Administratrix of her daughter's estate, asserting, among other things, Section 1983 violations against the individual Nassau County Defendants, municipal liability against Nassau County pursuant to Monell v. Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), a Section 1983 conspiracy claim against Leonardo Valdez-Cruz and the Nassau County Defendants, as well as claims asserting wrongful death, negligence, and abuse of process.

The nature of this case has attracted the attention of several media organizations as well as the general public, particularly with respect to the contents of a major piece of discovery: Internal Affairs Unit Report 14-2009 ( the "IAU Report"), which documents the Nassau County Police Department's internal investigation into the death of Jo'Anna Bird. On January 14, 2011, United States Magistrate Judge A. Kathleen Tomlinson issued an extensive memorandum decision and order addressing a motion by the Nassau County Defendants for an injunction and/or protective order prohibiting the disclosure, dissemination, release or revelation of the contents of the IAU Report ("Protective Order"). Judge Tomlinson found that the Defendants established the limited baseline showing of "good cause" to warrant a protective order restricting access to the IAU Report to the parties in this litigation. (See generally Docket Entry No. 60.)

On July 22, 2011, the parties indicated to the Court that they had reached a settlement agreement and that a stipulation of discontinuance would be filed following payment of the settlement funds. However, on October 31, 2011, the Plaintiff filed a motion to convert the settlement agreement into a judgment because the Defendants did not pay the monies due under the settlement agreement. The Defendants contended that the agreement was conditional upon approval by the Nassau County Legislature ("Legislature"), and that the legislative process had yet to be completed.

*** In order to facilitate the settlement process and receive final approval or denial of payment by the Legislature, the Court entered a Confidentiality Order on December 15, 2011. The purpose of the Confidentiality Order was to permit members of the Legislature to have an opportunity to review the IAU Report so they could make an informed decision as to whether to approve the settlement. ***

On February 7, 2012, in a videotaped Cablevision editorial, Nassau County Presiding Officer Peter Schmitt ("Schmitt") made several statements to an interviewer that the PBA alleges revealed contents of the IAU Report that were protected pursuant to the Court's Confidentiality Order.

Federal Rule of Civil Procedure 37(b)(2) states that a court may "treat[ ] as contempt . . . the failure to obey any order except an order to submit to a physical or mental examination." Fed. R. Civ. P. 37(b)(2); see also 18 U.S.C. § 401 ("A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as--. . . (3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command."). The Advisory Committee Notes make clear that noncompliance with protective orders issued pursuant to Rule 26(c) may be sanctioned under this provision. See 1970 Advisory Committee Note to Fed. R. Civ. P. 37 at 207 (2011 ed.); see also Gregory P. Joseph, Sanctions: The Federal Law of Litigation Abuse § 48(A)(2) (4th ed. 2008). The Second Circuit generally instructs that "[a] party may be held in civil contempt for failure to comply with a court order if (1) the order the contemnor failed to comply with is clear and unambiguous, (2) the proof of noncompliance is clear and convincing, and (3) the contemnor has not diligently attempted to comply in a reasonable manner." Paramedics Electromedicina Comercial, Ltda. v. GE Med. Sys. Info. Tech., Inc., 369 F.3d 645, 655 (2d Cir. 2004).

Under Rule 37(b)(2)(C), a finding of contempt may also lead to an award of "reasonable expenses, including attorney's fees, caused by the failure [to comply]," payable by either the offending party, its attorney, or both. A court is "free to consider the full record in the case in order to choose the appropriate sanction." Southern New England Tel. Co., 624 F.3d at 144. However, a court need not find willfulness or bad faith as a prerequisite to a contempt finding pursuant to Rule 37. See Paramedics, 369 F.3d at 655. Of importance, "[i]t is well-settled that a court's contempt power extends to non-parties who have notice of the court's order and the responsibility to comply with it." Bridgeport Guardians v. Delmonte, 371 F. Supp. 2d 115, 121 n.5 (D. Conn. 2005) (quoting Chicago Truck Drivers v. Bhd. Labor Leasing, 207 F.3d 500, 507 (8th Cir. 2000)).

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