PANE, Plaintiff, v. GREENBURGH, et al., Defendants 07 Civ. 3216 (LMS) United States District Court, S.D. New York Filed November 16, 2009 Counsel Ginna Anne Noel Pane, pro se. Brian David Murphy, Stecich Murphy & Lammers, Tarrytown, NY, for Defendant John Kapica. Thomas J. Troetti, Law Offices of Thomas J. Troetti, White Plains, NY, for Defendants Police Officer Michael Muesser, Sergeant Francis Pumillo, Police Officer Paul Fertig, John Doe, Police Officer Edward Olsen. Thomas J. Troetti, Law Offices of Thomas J. Troetti, Elmsford, NY, for Defendant Police Officer Daniel Massett Smith, Lisa Margaret, United States Magistrate Judge DECISION AND ORDER *1 Plaintiff seeks, by letter motion dated October 15, 2009, to have this Court So Order a series of subpoenas duces tecum, which seek various telephone records and financial records, as well as certain business records maintained by Dell, Inc., a third-party manufacturer and distributor of computers. Portions of the request are opposed by counsel for defendants Michael Muesser, Robert Gramaglia, Francis Pumillo, Paul Fertig, Daniel Massett, and Edward Olsen (“the individual officer defendants”), by letter dated October 21, 2009. Portions of the request relating solely to matters pertaining to defendant Erik Ward have been consented to, in an email dated October 20, 2009. Counsel for plaintiff further supports his application by letter dated October 23, 2009, and counsel for the individual officer defendants further opposes the application by letter dated October 26, 2009. For the reasons set forth below, the application is granted only insofar as counsel for defendant Ward consents to the issuance of the subpoenas in question, and is denied for the remaining subpoenas. The cell phone records sought by plaintiff through the contested subpoenas cover the period from January 21, 2006, the date of plaintiff's arrest (Am'd Complaint at ¶¶ 32, 37, 39, 42) through February 3, 2006, which is the day after certain information about the underlying arrest was revealed to local news sources. (Am'd Complaint at ¶ 75). This time period is overbroad for discovery relevant to the claims or defenses asserted in the case, and for that reason the application, except for the subpoenas which have been consented to, is denied. The amended complaint in this case, filed by Order dated August 15, 2008, contains ten counts. Counts one through four are brought as constitutional claims, pursuant to 42 U.S.C. § 1983. The remaining six counts are brought as state law claims in this Court under the Court's pendent jurisdiction authority. The first count asserts a Fourth Amendment claim, alleging that on January 21, 2006, plaintiff was arrested, searched, and detained without “sufficient cause” (Am'd Complaint at ¶ 81). There is no allegation of a subsequent conspiracy or constitutional violation after the approximately three hours during which plaintiff was detained. (Am'd Complaint at ¶ 51). The second count alleges a Fourteenth Amendment violation, alleging that “[i]n restraining the plaintiff in handcuffs, and in cells, absent a constitutionally proper basis, while mocking her, the defendant officers deprived the plaintiff of her liberty without due process of law in violation of the Fourteenth Amendment of the United States Constitution.” (Am'd Complaint at ¶ 86). Again, there is no allegation of any conspiracy or any constitutional violation after January 21, 2006. The third count also alleges a Fourteenth Amendment violation, alleging that “[i]n participating in a pattern of harassment against the plaintiff based upon her status as a woman, while she [was] detained and restrained in the custody of the defendants, without any liberty or freedom of movement, and thereby required to be subjected to the demeaning and denigrating sex based speech, comments, and actions of the defendants collectively, the defendant officers deprived the plaintiff of Equal Protection of law in violation of the Fourteenth Amendment of the United States Constitution.” (Am'd Complaint at ¶ 91). There is no allegation of any continuing violation after January 21, 2006. The fourth count is asserted as a violation of the Fifth Amendment, but there are no specific allegations against any individual officer in the count. Rather, it “repeats, reiterates, and realleges” the allegations in the preceding paragraphs (Am'd Complaint at ¶ 95) and then asserts municipal liability for the actions of the individual officers. (Am'd Complaint at ¶¶ 96-98). The undersigned infers that the plaintiff intends to assert either that she “shall [not] be compelled in any criminal case to be a witness against [her]self,” or that she shall not “be deprived of life, liberty, or property, without due process of law” (Amendment Five to the Constitution), or both. In either event, such claims, referring to the allegations in the preceding paragraphs, logically relate only to the events of January 21, 2006. Thus, for purposes of the four Constitutional claims asserted in the amended complaint, the only potentially relevant time period is January 21, 2006.[2] *2 The fifth count is for false arrest under New York State law, and the sixth count is for false imprisonment under New York State law. Logically, these apply only to the events of January 21, 2006, when plaintiff was in custody. The eighth count alleges battery under New York State law, asserting that plaintiff was touched and handcuffed, that the touching was offensive, and that the defendants were not lawfully permitted to touch her in this fashion. (Am'd Complaint at ¶¶ 124 - 134). This, too, is limited to the events of January 21, 2006. Thus, as set forth more fully below, only the seventh and tenth counts allege any claim incorporating behavior that went beyond January 21, 2006.[3] None of the claims set forth in counts one through six, or in counts eight and nine, would support the requested discovery. The seventh count is for malicious prosecution. The prosecution in the underlying case was concluded, according to the amended complaint, by an Adjournment in Contemplation of Dismissal entered on February 21, 2007. Thus, this claim covers a period of thirteen months, including the two week period from January 21, 2006, through February 3, 2006. However, the relationship between the requested discovery and this cause of action is not obvious. The allegations in this count are simple: the other allegations are repeated (Am'd Complaint at ¶ 113); as a result of the defendants’ actions, criminal proceedings were brought against plaintiff (Am'd Complaint at ¶ 114); the criminal proceedings terminated in plaintiff's favor (Am'd Complaint at ¶ 115); there was no probable cause for plaintiff's arrest (Am'd Complaint at ¶ 116); defendants brought the charges against plaintiff with actual malice toward plaintiff (Am'd Complaint at ¶ 117); and the municipal defendants are liable pursuant to the doctrine of respondeat superior. (Am'd Complaint at ¶ 118). The sole portion of this claim which could, arguably, relate in any way to the activities that are alleged to have occurred in the two weeks after January 21, 2006, is that defendants had actual malice toward plaintiff. Of course, the claim for malicious prosecution only applies to the “DWI-drugs” charge, which was dismissed on March 16, 2006.[4] (Am'd Complaint at ¶ 49). Thus, the question is whether evidence that particular phone calls were made to or from certain designated cell phones during the time period between January 21, 2006, and February 3, 2006, would be relevant evidence of the existence of actual malice in connection with the DWI charge. A similar question arises with regard to the relevance of the requested information to the tenth count of the amended complaint. In order to sustain a claim of intentional infliction of emotional distress under New York state law, the plaintiff must establish that the conduct in question was “so outrageous in character, and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.” Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1999) (quoting Howell v. New York Post Co., 81 N.Y.2d 115, 122 (1993)); see also Conboy v. AT&T Universal Card Servs. Corp., 241 F.3d 242, 258 (2d Cir. 2001). There are four elements for such a claim: “(1) extreme and outrageous conduct; (2) intent to cause, or reckless disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between the conduct and the injury; and (4) severe emotional distress.” Id. (quoting Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir.1999)). *3 The tenth cause of action appears to satisfy these requirements for pleading purposes, alleging that the behavior of the defendants, and particularly that of defendant Erik Ward, as described in the amended complaint, was extreme and outrageous (Am'd Complaint at ¶ 136); that the defendants intended to cause severe emotional distress to plaintiff (Am'd Complaint at ¶ 137); and that the actions of the defendants actually caused plaintiff to suffer severe emotional distress (Am'd Complaint at ¶ 138). The argument in support of the request for the subpoenas does not identify the causes of action to which the requested evidence might relate, but the review of the amended complaint, set forth above, establishes that only counts seven and ten could logically incorporate any events beyond those of January 21, 2006. The arguments put forth in plaintiff's letter application in support of the request apply to the case as a whole, and reference plaintiff's allegations of “both a ‘cover up’ and spoliation of evidence, based upon improper communications amongst the individual defendants and/or other employees of the municipal defendants along with the individual defendants.” Letter of October 15, 2009, at p. 3. In supporting the assertion that such communications are discoverable, counsel cites to a 1977 decision by the late Judge Charles L. Brieant, which, of course, predated several amendments to Fed. R. Civ. P. 26 which were intended to limit the scope of discovery under the Rule, and it is that more limited Rule 26 which applies to the issues presented here, not the version of the Rule which existed in 1977. Plaintiff also references the alleged communications with local media, which occurred on or about February 2, 2006, and which are alleged to constitute witness intimidation, as well as aggravation of plaintiff's injuries. Finally, plaintiff references the belief that defendant Ward was warned in advance of the existence of a search warrant for his computer. It appears from the letter of October 21, 2009, from counsel for the individual defendants, that the search warrant was executed on January 31, 2006. October 21, 2009 letter, at p. 3. The first category of information arguably relating to the alleged malice in count seven and the alleged infliction of emotional distress in count ten is spoliation of evidence, presumably by the disposal of Erik Ward's personal computer. Spoliation of evidence may, if established, support a variety of sanctions, including potentially an adverse inference charge at trial. However, spoliation would only occur once a litigant is reasonably aware of the requirement to preserve evidence. “The obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.” Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 436 (2d Cir.2001). At the time of the alleged spoliation, when a search warrant was about to be effected, plaintiff had filed a civilian complaint against Erik Ward, and an investigation was being undertaken. The investigation, however, was not being undertaken by plaintiff, or even on plaintiff's behalf. It was an official investigation undertaken by the Greenburgh Police Department, unrelated to this litigation; there is no reason to conclude that at the time the computer was allegedly disposed of anyone knew or should have known that plaintiff would commence litigation, beyond the citizen complaint she had already filed. The facts alleged by plaintiff are not sufficient to confer upon plaintiff standing to object to any such alleged disposal of the evidence: to the degree that there was any litigation ongoing, or that anyone was aware of or reasonably anticipated, it was an official investigation being undertaken by the Police Department as a result of plaintiff's complaint to the Police Department, and plaintiff's interest in that investigation does not give her standing to assert a spoliation claim with regard to the missing computer. *4 Plaintiff also claims a “cover up.” As there is no claim of conspiracy or any other continuing claim, except for malicious prosecution and intentional infliction of emotional distress, it is difficult to ascertain how such a claim fits with the claimed need for additional discovery along the lines sought by plaintiff. Indeed, other than the alleged spoliation of defendant Ward's computer, the only specific allegation in the October 15, 2009, letter is that defendant Ward “concocted his versions of events to be somewhat consistent with the scientific evidence.” Letter of October 15, 2009, at p. 3; see also Am'd Complaint at ¶ 73. However, this allegation of a cover up is directed solely at defendant Ward, and has nothing to do with any alleged communications from or between other defendants. Thus, the analysis applied to the spoliation argument also applies to the cover up argument. In the same vein as the alleged spoliation and cover up, plaintiff also claims that on February 2, 2006, some unidentified party notified News 12 as well as a newspaper reporter of her arrest nearly two weeks before. One might infer that this, too, was an act in furtherance of a conspiracy of some sort, but no such conspiracy has been alleged. Rather, the allegation is that the subsequent news reports were intended – by unknown persons – to intimidate plaintiff from being a witness against the officers in connection with her civilian complaint (as there was, at that time, no specific reason to know that further litigation would be initiated), and also served to aggravate plaintiff's injuries. The only factual allegations in this regard, in paragraph 75 of the amended complaint, make no reference to any actions by any of the defendants. Rather, “an unknown source” contacted the news media, and the news coverage caused plaintiff to “contemplate not going forward with her complaint against the officers who acted illegally and dishonorably.” (Am'd. Complaint at ¶ 75). It is finally alleged, “[u]pon information and belief, [that] these media reports were designed as witness-intimidation and resulted in aggravating the injury to Gina Pane.” (Id.) Such general factual allegations, which make no reference to any defendant in this case, and which are followed by legal conclusions (see Seventh Count, ¶¶ 113-18, and Tenth Count, ¶¶ 135-38) are an insufficient basis for permitting discovery on this issue. See Iqbal v. Ashcroft, __ U.S. __, 129 S. Ct. 1937, 1949-50 (2009) (“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief. Two working principles underlie our decision in [Bell Atlantic Corp. v.] Twombly [550 U.S. 544 (2007)]. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we are not bound to accept as true a legal conclusion couched as a factual allegation. Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.”) (internal quotation marks, citations, and brackets omitted; emphasis added). *5 For these reasons the application is denied, except as consented to by counsel for defendant Erik Ward. New subpoenas conforming to this decision are to be submitted for signature of the undersigned. This constitutes the Decision and Order of this Court. SO ORDERED, Footnotes [1] The parties have consented to my exercise of jurisdiction over this matter pursuant to 28 U.S.C. § 636(c). See Docket # 11. [2] By reaching this conclusion I do not hold that the telephone records sought would necessarily be sufficiently relevant to the claims that such discovery would be appropriate, even if limited to January 21, 2006. [3] Although there are factual allegations which depict activities after January 21, 2006, the inclusion of those factual allegations in the amended complaint does not make them relevant to the causes of action which have been pled by plaintiff. As noted above, the counts as pled in the amended complaint are temporally limited. [4] The other charge, described as “criminal possession marijuana,” was resolved by an adjournment in contemplation of dismissal on February 21, 2007 (Am'd Complaint at ¶ 50), which is not a favorable termination as required to support a malicious prosecution claim. See Fulton v. Robinson, 289 F.3d 188, 196 (2d Cir. 2002) (“[A]n ‘adjournment in contemplation of dismissal,’ .... is not a favorable termination because it leaves open the question of the accused's guilt....”); see also Zarro v. Spitzer, 274 F. App'x 31, 35 (2d Cir. 2008).