EMILIANO PEREZ, as Administrator of the Estate of JUAN RENE JAVIER PEREZ, Plaintiff, v. TOWN/VILLAGE OF MT. KISCO, New York, and GEORGE BUBARIS, individually, Defendants 07 Civ. 8780 (SCR) (LMS) United States District Court, S.D. New York Filed October 29, 2008 Counsel Amy L. Bellantoni, Jonathan Lovett, Lovett & Bellantoni, LLP, Hawthorne, NY, for Plaintiff. James A. Randazzo, Gelardi & Randazzo LLP, Rye Brooke, NY, for Defendant Town/Village of Mt. Kisco. Lewis R. Silverman, Rutherford & Christie, LLP, New York, NY, for Defendant George Bubaris .. Smith, Lisa Margaret, United States Magistrate Judge DECISION AND ORDER *1 Defendant George Bubaris (herein, “Bubaris”) moves for an order compelling non-party/respondent the Westchester County District Attorney's Office (herein, “WCDA”) to respond to a subpoena duces tecum served upon it on July 11, 2008. See Docket #25, Bubaris Notice of Motion. For the following reasons Bubaris’ motion to compel is granted subject to the following caveats. BACKGROUND Defendant Bubaris is one of two defendants named in the above-captioned section 1983 civil rights lawsuit filed by the Estate of Juan Rene Javier Perez after Juan Rene Javier Perez (herein, “Perez”) was found badly injured alongside a road in Mount Kisco, New York, in April of 2007. See Docket #10, Plaintiff's Amended Complaint (herein, “Am. Comp.”) at ¶¶9, 10. Perez died shortly after being brought to a local hospital. Id. at ¶10. Perez's estate commenced the instant action against the defendants alleging that Defendant Town of Mount Kisco engaged in a pattern of “border dumping,” see Am. Comp. at ¶¶7-8, and that Defendant Bubaris, a former Mount Kisco police officer, took Perez into custody on April 27, 2007, beat him, and intentionally left him alongside Byram Lake Road knowing that Perez was in need of immediate emergency medical care. Id. Bubaris was indicted in connection with Perez's death by a Westchester County Grand Jury in September of 2007, and on July 17, 2008, a jury acquitted Bubaris on the charge of manslaughter in the second degree. See Docket #36, Affidavit of John Sergi in Opposition to Motion to Compel (herein, “Sergi Aff.”) at pp. 2, 4. During the course of discovery in the instant civil rights action, Bubaris served a subpoena duces tecum on the WCDA for “[t]he entire criminal file maintained by the Westchester County District Attorney's Office pertaining to the investigation and prosecution of The People of the State of New York v. George Bubaris, County of Westchester, State of New York, including but not limited to video recordings, audio recordings, medical reports, charts, maps, timelines, statements, sworn statements, sworn depositions, police reports, aided reports, arrest reports, subpoenas, subpoena responses, medical examiner's records, forensic records, all exhibits marked for identification and admitted into evidence at trial, Bedford Police Department records, DD-5 reports, audiotape transcripts, recorded interview audiotapes, New York State Police records and District Attorney investigator's reports.” See Docket #25, Declaration of Lewis Silverman (herein, “Silverman Decl.”), Ex. C, Subpoena Duces Tecum, Exhibit A. Following a pretrial conference before the undersigned at which counsel for Bubaris complained of the WCDA's failure to respond to the subpoena duces tecum, counsel for Bubaris moved to compel production of the aforementioned items. On September 25, 2008, the WCDA filed its opposition to Bubaris’ motion to compel. The WCDA asserts several arguments in opposition to Bubaris’ motion, including that its file has been sealed pursuant to New York State law following Bubaris’ acquittal, see N.Y. C.P.L. § 160.50, that compliance with the subpoena would result in undue burden, that some of the material requested is not relevant, that most of the material has already been produced to Bubaris’ criminal defense attorney during the course of the criminal proceeding, that the subpoena is overbroad, and that the subpoena requests privileged material. See Docket #35, WCDA Memorandum of Law in Opposition (herein, “WCDA Opp.”). Both Bubaris and the WCDA have filed reply papers responding to the arguments raised in connection with the instant motion. See Docket #38, Bubaris Reply; Docket #41, WCDA Sur-Reply. DISCUSSION A. Standard of Review *2 Federal trial courts have broad latitude in conducting and overseeing pre-trial discovery. See In re Fitch, 330 F.3d 104, 108 (2d Cir. 2003). “Motions to compel and motions to quash a subpoena are both ‘entrusted to the sound discretion of the district court.’ ” Id. (quoting United States v. Sanders, 211 F.3d 711, 720 (2d Cir. 2000)). Federal Rule of Civil Procedure 26 provides that civil litigants “may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.” See Fed. R. Civ. P. 26(b)(1). Rule 26 further provides that “[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Id. Discovery may be limited, however, in instances of duplication, delay, or unnecessary burden on the producing party. See Fed. R. Civ. P. 26(b)(2)(C)(i)-(iii). Federal Rule of Civil Procedure 45 similarly circumscribes the information that may be obtained through discovery via the subpoena power of the court by requiring that the “party or attorney responsible for issuing or serving the subpoena [ ] take reasonable steps to avoid imposing undue burden or expense on the person subject to the subpoena.” Fed. R. Civ. P. 45(c)(1). A court may quash a subpoena when the subpoena requires the disclosure of privileged material or when the subpoena subjects a responding person to undue burden. See Fed. R. Civ. P. 45(c)(3)(A)(iii), (iv). B. Bubaris’ Motion to Compel Subpoena Duces Tecum and WCDA's Objections 1. N.Y. C.P.L. § 160.50 The WCDA first argues that Bubaris should petition a New York state court to unseal his criminal file in light of the file's sealing, by operation of law, following his acquittal of criminal charges. See WCDA Opp. at pp. 2-3. This argument appears to be propounded by district attorneys routinely when faced with subpoenas for criminal files made in connection with federal civil rights litigation and this argument is rejected routinely. See Lehman v. Kornblau, 206 F.R.D. 345, 347 (E.D.N.Y. 2001); Landrigan v. Kaytes, 07 Civ. 8669 (WCC), 2008 U.S. Dist. LEXIS 47133, at *8-10 (S.D.N.Y. June 13, 2008) (no Westlaw cite available); Cruz v. Kennedy, 97 Civ. 4001 (KMK), 1997 WL 839483, at *2, 1997 U.S. Dist. LEXIS 23012, at *5 (S.D.N.Y. Dec. 19, 1997). The purpose of sealing a criminal file following a defendant's acquittal is to protect the acquitted individual from the stigma associated with a criminal indictment and trial; the purpose of the sealing of the file “is not meant to protect the ADA or the DA's office.” Landrigan, 2008 U.S. Dist. LEXIS 47133, at *8. The intended beneficiary of a sealed criminal file may waive this protection by initiating litigation based upon the commencement of criminal proceedings against him or her or by otherwise evincing his or her intent to waive this protection. See id. at *10 (requiring a “signed and notarized release of [ ] rights under New York Criminal Procedure Law Section 160.50.”).[2] There appears to be no policy justification under New York law that would support withholding this information under the facts of this case. Bubaris, the intended beneficiary of the sealing statute, has placed the information contained with the WCDA's criminal file in controversy by requesting to review such information in connection with his defense in this case. Bubaris has also sufficiently evinced his intent to waive the protection of the statute by making this motion and by arguing for the file's unsealing. Additionally, because Bubaris subpoenaed the WCDA and because the WCDA has had an opportunity to respond to Bubaris’ subpoena, it is more efficient and economical to have this Court address the unsealing of Bubaris’ criminal file rather than have Bubaris re-initiate this process by petitioning a state court to unseal the file. See Lehman, 206 F.R.D. at 347 (“If the district attorney moves to quash a subpoena, or objects to a discovery demand, the issue is appropriately before the federal court.”). The Court therefore concludes that Bubaris has waived the protection of N.Y. C.P.L. § 160.50, that this issue is properly before this Court, and that the criminal file maintained by the WCDA in connection with People of the State of New York v. George Bubaris should be unsealed. 2. WCDA's Arguments as to Lack of Relevant Information, Undue Burden, and Duplication *3 The WCDA devotes most of its opposition to Bubaris’ motion to compel arguing that the information contained within the criminal file has already been produced to Bubaris’ criminal defense attorney and that Bubaris’ civil defense attorney has not suggested that such information is inaccessible or no longer available. Thus, relying on redundancy and duplication, the WCDA concludes that it should not be put to the burden of reproducing that which has been produced. See WCDA Opp. at p. 9. The WCDA also submits that Bubaris should have to meet a “heightened required showing” to justify its production of the criminal file because it is a “busy prosecutorial office.” See WCDA Opp. at pp. 5-6. Finally the WCDA identifies two categories of information demanded by Bubaris that were not turned over to Bubaris’ criminal defense attorney that it claims are not relevant to Bubaris’ defense: enlargements of exhibits used at trial – the exhibits themselves were produced to Bubaris’ criminal defense counsel – and subpoenas and subpoena responses issued by the WCDA in connection with the Grand Jury proceedings. See WCDA Opp. at pp. 6-7 and n.1.[3] Many of these objections are mooted by the common sense suggestion made by Bubaris’ counsel that counsel can “make arrangements to review and copy the file contents at the WCDA's office.” See Docket #38, Bubaris’ Reply at p. 2; see also Docket #27, Bubaris’ Memorandum of Law at p. 6 (“arrangements can be made to reproduce and retrieve the materials from the District Attorney's offices in White Plains.”).[4] This middle ground will relieve the WCDA from any possible delay, burden, or expense incurred in copying and producing the criminal file to counsel and will also allow all counsel to review the file for potentially relevant information to be used in connection with this case. This solution appears especially well-tailored to this case in which Bubaris again must defend himself against claims that he caused or was otherwise responsible for the death of Perez. Permitting Bubaris the opportunity to review the file for any information that may help him mount a defense to this claim, including any possible exculpatory information, is well within the bounds of permissible federal pre-trial discovery.[5] 3. WCDA's Assertion of Privilege The WCDA finally argues that the material contained within Bubaris’ criminal file is comprised of privileged information that should be withheld from counsel under a variety of privileges, including the common law work product doctrine and the deliberative process privilege. Counsel for Bubaris responds in Reply that if the WCDA seeks to assert a privilege for any withheld documents that it should comply with the Local Rules of this District and should provide a privilege log detailing its assertion of privilege along with the documents to this Court for in camera review. See Bubaris Reply at p. 4. The WCDA has clarified in its Sur-Reply, however, that the only document that it believes falls within either of these categories of privilege is a one page document referred to as a “pink sheet,” which consists of an internal assessment of Bubaris’ criminal case by a member of the WCDA. See WCDA Reply at p. 5; WCDA Opp. at p. 17. The WCDA has sent to my Chambers a copy of this document for in camera review. Rather than rule on any possible application of privilege, a brief in camera review of this document demonstrates that it contains nothing more than a terse summary of information already known to counsel. Much of the information contained in this synopsis is recounted in Plaintiff's Amended Complaint, such as the date and time of the incident in question, where Perez was found, the nature of Perez's injury, and alleged statements made by Bubaris – which are contained verbatim in the Plaintiff's Amended Complaint – on the night in question. For fear of establishing bad precedent, the WCDA appears to have interposed a privilege objection to this document. See WCDA Opp. at p. 16 (“it is essential to the candor by which Assistant District Attorneys conduct any internal assessment of any criminal case that it be and remain confidential.”). As noted, rather than rule on this putative assertion of privilege, the Court is satisfied that the document provides nothing new to counsel for Bubaris, Perez, or the Town of Mount Kisco, and thus does not have to be turned over to counsel. This single document, identified by the WCDA as its “pink sheet,” and submitted to the Court for in camera review, therefore, may be withheld from the production of the documents subpoenaed by Bubaris’ criminal defense counsel. *4 Finally the WCDA raises the prospect that medical information contained within the criminal file about Juan Rene Jaiver Perez may be protected by HIPAA and that such information should be sought directly from the Estate of Juan Rene Javier Perez. See WCDA Opp. at p. 10. In the event that any information contained within the criminal file pertaining to Perez would be covered by HIPAA, the Court orders that such information should be disclosed to counsel in this case. Counsel for Plaintiff Estate of Juan Rene Javier Perez – the holder of the privacy protection of any such document – has not opposed this motion to unseal the criminal file maintained by the WCDA and has joined in Bubaris’ application to review the criminal file. See Bubaris Mem. at p. 2 (“Based upon conversations with the plaintiff's counsel and counsel for the co-defendant, they do not oppose our application and join in the motion.”). Counsel are instructed that any information that would be covered by HIPAA within the criminal file pertaining to Perez is to be used for this litigation only. The possibility of medical information pertaining to the deceased that may be covered by HIPAA within the WCDA's criminal file, therefore, does not serve as a bar to the disclosure of the file. CONCLUSION For the aforementioned reasons Defendant George Bubaris’ motion to compel the WCDA's compliance with the subpoena duces tecum seeking production of the criminal file maintained by the WCDA in connection with People of the State of New York v. George Bubaris is granted. Bubaris has placed the issues contained within the criminal file in question by requesting such information and this Court accordingly orders the criminal file maintained by the WCDA to be unsealed. The remaining objections raised by the WCDA are mitigated by defense counsel's offer to review, inspect, and copy the WCDA's criminal file at the WCDA's offices. The one document identified by the WCDA as privileged in nature, the “pink sheet,” may be withheld from the production of the criminal file. Counsel for Perez, Town of Mount Kisco, and Bubaris are directed to find a mutually agreeable date and time when they may review the criminal file made available to them at the offices of the Westchester County District Attorney's Offices in White Plains, New York. Any costs associated with copying the criminal file are to be borne by the party making the copies. Docket number 25 should be terminated by the Court. This constitutes the Decision and Order of the Court. SO ORDERED. Footnotes [1] This case has been reassigned to the docket of the Honorable Stephen C. Robinson, U.S.D.J., following the death of the late-Honorable Charles L. Brieant, U.S.D.J., and the recusal of the Honorable Cathy Seibel, U.S.D.J. See Docket #33, Notice of Reassignment. [2] Certain courts note that “[t]he privilege, which is intended to protect the accused, may not be used as a sword to gain advantage in a civil action.” Landrigan, 2008 U.S. Dist. LEXIS 47133, at *8-9 (quoting Kalogris v. Roberts, 185 A.D.2d 335, 336 (2d Dep't 1992)). Although this language could be read to serve as a bar to Bubaris’ subpoena for his criminal file, this proposition of law is intended to counter situations in which civil rights plaintiffs place “the information protected by [N.Y.] C.P.L. 160.50 into issue,” but oppose the unsealing of the criminal file. Kalogris, 185 A.D.2d at 336. That situation is not presented in this case. [3] The WCDA notes, however, that “all of the testimony and evidence placed before the grand jury testimony (sic) has already been provided, [and that] there is no need for ‘subpoenas’ and ‘subpoena responses’ before that body.” See WCDA Opp. at p. 7 n.1. [4] Although the submissions do not explicitly state that Bubaris’ counsel will provide his own equipment, that is the inference to be drawn therefrom. [5] Bubaris’ counsel suggests that there exists a pattern of withholding exculpatory material by the Westchester County District Attorney and that this pattern substantiates Bubaris’ request to examine the criminal file in this case. See Bubaris Reply at p. 3. The undersigned offers no opinion on the propriety of this extrapolation. The significant similarity between Bubaris’ position as a criminal defendant and a civil defendant, along with the other factors discussed, justifies allowing counsel the opportunity to review the criminal file in this case.