Greene v. City of New York et al

Filing 160

ORDER re 139 : Defendants are Ordered to produce documents as directed herein. So Ordered by Magistrate Judge Cheryl L. Pollak on 11/27/2012. (Klein, Jennifer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

---------------------------------------------------)(

CYGREENE,

MEMORANDUM & ORDER
Plaintiff,
-against-

08 CV 243 (RJD)

CITY OF NEW YORK, et aI.,
Defendants.

---------------------------------------------------J(
On January 16, 2008, plaintiff Cy Greene filed this action, seeking damages from the City
of New York ("City"), New York City Transit Authority ("Transit Authority"), detectives or
former detectives Michael Norrito and Joseph Tumbarello, in their individual and official
capacities, former Assistant District Attorney Robert Sullivan, in his individual and official
capacities, Kings County District Attorney Charles J. Hynes, in his official capacity, and other
unidentified defendants, resulting from plaintiffs alleged false arrest and false imprisonment.
Plaintiff brings claims under 42 U.S.C. § 1983,42 U.S.C. § 1985(3),42 U.S.C. § 1986, various
provisions of the New York State Constitution, as well as claims of malicious prosecution,
negligence of individual defendants, and negligence on the part of the City and Transit Authority.
On June 17,2011, plaintiff filed a motion ("Mot.") seeking to compel defendants to
produce, in unredacted form, all documents subpoenaed in connection with a deposition noticed
for non-party witness Phyllis Mintz, an Assistant District Attorney ("ADA") in Kings County; in
the alternative, plaintiffs motion sought to compel defendants to submit two sets of the
documents to the Court for in camera review, one set unredacted and the other redacted. In their
response to plaintiffs motion, filed on July 6, 2011 ("Opp."), defendants argued that many of the

1

documents requested by plaintiff are protected by the attorney work product, deliberative process,
and attorney client privileges. 1
On July 13,2011, the Court held a hearing on plaintiff's motion, and on October 7, 2011,
the Court issued an Order granting in part and denying in part plaintiff's motion. Specifically,
the Court Ordered defendants to produce all purportedly privileged documents to the Court for in
camera review and to indicate, in a letter accompanying the documents submitted to the Court,
any claims that information contained in a purportedly privileged document is available through
less intrusive means. (Ord. at 19). The Court also Ordered defendants to provide all grand jury
minutes listed on defendants' privilege log, and it directed plaintiff to submit a subpoena to the
Court to compel production of certain criminal history records for in camera review.

ilih at 20).

On October 17,2011, pursuant to the Court's October 7, 2011 Order, defendants
submitted a set of documents subject to privilege claims, along with an index identifying each
document and proposing less intrusive sources of the same information available to plaintiff
("the index"). On the same date, defendants produced a document containing grand jury minutes
from plaintiff's underlying criminal case. Finally, on October 25,2011, the Court received the
criminal history records requested by plaintiff. The Court has reviewed, in camer~ all of the
documents submitted by defendants.

Although defendants originally asserted attorney-client privilege claims as to five
documents on the privilege log (documents 30, 78, 79, 117, and 118), all of these claims have
since been resolved. Defendants withdrew their assertion of attorney-client privilege as to the
latter four documents in their opposition to plaintiff's motion; and, in its October 7, 2011 Order
("Ord."), the Court held that defendants had made the requisite showing to invoke the attorneyclient privilege with respect to document 30. (See Ord. at 13-14).
1

2

BACKGROUND
On June 14, 1983, John Choi ("Choi") was robbed and murdered at the subway station at
Nostrand and Church Avenue in Brooklyn. (Compl.2 ~~ 22,51-57). Detectives Norrito and
Tumbarello were assigned to lead the investigation, and ADA Sullivan was the ADA initially
assigned to the case. (Compi. ~~ 86,87). On June 24,1983, plaintiff was indicted for Choi's
murder and robbery, along with co-defendant Larry Williams. (Id.
following a jury trial held before Justice Michael L. Pesce (id.

~

~

23). On May 8, 1985,

25), plaintiff was convicted of

felony murder and second degree robbery. (Mot. at 8). During the criminal trial, Jae Hark Kim
testified as the single eyewitness and identified Greene as the stabber. (Id.) However, plaintiff
alleges that "as established in the criminal case, it was information obtained from one Mark Best
that purportedly first led the detectives, defendants Norrito and Tumbarello in this civil case, to
seek out and arrest Cy Greene .... " (Id.) Plaintiff asserts that he "served over 22 Y2 years in
prison for a crime he did not commit." (Id.)
Over the years following his conviction, "Greene had unsuccessfully brought a number of
post-conviction proceedings, either represented by other counselor pro se." (Id. at 9). In
December 2003, Greene commenced a Criminal Procedure Law § 440.10 ("440") proceeding
seeking a new trial. (Id.) In January 2006, the trial court vacated the conviction "for
ineffectiveness of counsel, essentially for failure to investigate and obtain information from
numerous available civilian witnesses who had given police descriptive information about
suspects ... and who could have given favorable testimony on Cy Greene's behalf .... " (Id.)
The Appellate Division, Second Department affirmed the decision. On June 11,2007, all

2Citations to "CompI." refer to plaintiffs Complaint, filed January 16,2008.
3

charges "were dismissed on the District Attorney's motion." (Id.)
Plaintiffs Complaint "alleges numerous wrongful acts and Brady violations by the main
defendants and others with whom they conspired." (Id.) According to plaintiff, Kings County
District Attorneys (KCDA) and New York City Police Department (NYPD) officers knew (1)
information about Greene and other suspects, and (2) information as to which ADAs and police
officers were involved and the date at which they received information. (Id.) Plaintiff asserts
that such information "is important for plaintiffs case and solely within the KCDA's control in
their office files .... " (Id. at 10).
The first alleged Brady violation involves "the 'tall guy' description withheld in the
criminal case." (Id.) Plaintiff claims that Jae Hark Kim "initially told police the stabber was 6
feet tall and later said 5 feet 9/five feet 8 Y2 inches tall," while Greene "was no taller than 5'2"."
(Id.) Kim's tape recorded precinct statement "was not provided to defense counsel," and the "tall
guy" description was omitted from Kim's precinct interview transcript in what plaintiff contends
was a "monumental instance of police and prosecutorial misconduct." (Id. at 11).
Another significant Brady/Giglio violation alleged in the Complaint involves multiple
instances of police and prosecutorial misconduct including: 1) "failure to disclose that a prime
suspect, Mark [Best's] brother Lenny Best, had been identified on June 14, 1983 ... as having
fled" from the crime scene immediately after the crime; 2) "falsification of a 'DD-5' follow-up
police report ... "; and 3) "failure to disclose that Lenny Best escaped from a police car when he
was being taken in for questioning on June 15, 1983." (Id. at 11-12). The Complaint alleges that
Mark Best's "false identification of Green was the product of improper police pressure, coercion
and inducements," and plaintiff cites examples ofNorrito's false testimony. (Id. at 12-13).
4

A third significant Brady/Giglio violation alleged in the Complaint involves a DD-5
police report concerning the cabdriver that was provided to the defense in the criminal trial. The
report "failed to include the Spanish-speaking and height information [of three suspects seen
running from the crime scene], which was never disclosed in connection with the criminal trial
and was first learned by current counsel during our 440 proceeding." (Id. at 14).
In the Complaint, plaintiff alleges additional Brady and merit issues "which are relevant

to the privilege log issues," including wrongfully obtained photo and lineup identifications, an
undisclosed material witness, DNA evidence of actual innocence,3 and "racial discrimination
against African Americans and related class animus." Moreover, plaintiffs allege that the City is
liable pursuant to Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978) "because of
unconstitutional policy, procedures and practices, most particularly relating to failure to train,
supervise and discipline [ADAs] and police regarding their obligations pursuant to Brady v.
Maryland .... " (Id. at 14-15).

DISCUSSION
I.

Legal Standard

A.

Relevance
Federal Rule of Civil Procedure 26(b)(1) governs the scope of discovery in federal court

cases. Rule 26(b)(1) "authorizes discovery of any 'nonprivileged matter that is relevant to any
party's claim or defense .... Relevant information need not be admissible at the trial ifthe

3Plaintiff states that "we learned during our 440 proceeding that DNA recovered from the
knife handle did not match Greene." (Mot. at 14).
5

discovery appears reasonably calculated to lead to the discovery of admissible evidence.'"
Garcia v. Benjamin Group Enterprise Inc., 800 F. Supp. 2d 399, 403 (E.D.N.Y. 2011) (quoting
Fed. R. Civ. P. 26(b)(1». "'Relevance' under Rule 26 'has been construed broadly to encompass
any matter that bears on, or that reasonably could lead to other matter that could bear on any
issue that is or may be in the case.'" Crosby v. City of New York, 269 F.R.D. 267, 282
(S.D.N.Y. 2010) (quoting Oppenheimer Fund. Inc. v. Sanders, 437 U.S. 340, 351 (1978».
B.

Attorney Work Product Protection
Rule 26(b)(3) of the Federal Rules of Civil Procedure provides the general rule that

material prepared by or at the request of an attorney in anticipation of litigation is not subject to
discovery. See Fed. R. Civ. P. 26(b)(3). The work product doctrine "provides qualified
protection for materials prepared by or at the behest of counsel in anticipation of litigation or for
trial." In re Grand Jury Subpoenas Dated Mar. 19.2002 & Aug. 2. 2002,318 F.3d 379, 383 (2d
Cir. 2002). Among other things, the work product doctrine protects '''the files and the mental
impressions of an attorney ... reflected, of course, in interviews, statements, memoranda,
correspondence ... and countless other tangible and intangible ways'" prepared in anticipation of
litigation. A Michael's Piano, Inc. v. Fed. Trade Comm'n, 18 F.3d 138, 146 (2d Cir.) (quoting
Hickman v. Taylor, 328 U.S. 495, 510-11 (1947», cert. denied, 513 U.S. 1015 (1994). The Rule
states: "Ordinarily, a party may not discover documents and tangible things that are prepared in
anticipation of litigation or for trial ... ," Fed. R. Civ. P. 26(b)(3)(A), and provides for discovery
of work product materials only upon a showing that the party seeking discovery "has substantial
need for the materials to prepare its case and cannot, without undue hardship, obtain their
substantial equivalent by other means." Fed. R. Civ. P. 26(b)(3)(A)(ii); see also In re Grand Jury
6

Subpoena Dated July 6.2005,510 F.3d 180, 183 (2d Cir. 2007), cert. denied, Doe v. U.S., 553
U.S. 1094 (2008); Jean v. City of New York, No. 09 CV 801,2010 WL 148420, at *2 (E.D.N.Y.
Jan. 12,2010); The Shinnecock Indian Nation v. Kempthorne, 652 F. Supp. 2d 345, 364
(E.D.N.Y.2009).
There are generally two types of work product considered by the courts in determining
whether disclosure is warranted: factual work product, which may include factual material
obtained by the attorney during the course of a factual investigation; and "so-called 'core' work
product, which includes the 'mental impressions, conclusions, opinions or legal theories of an
attorney.'" Jean v. City of New York, 2010 WL 148420, at *2. Core work product containing
the mental impressions of an attorney is, in this circuit, entitled to more stringent protection, see
United States v. Adlman, 134 F.3d 1194, 1197 (2d Cir 1998), and "at a minimum such material
is to be protected unless a highly persuasive showing [of need] is made." Id. at 1204; see also
Jean v. City of New York. 2010 WL 148420, at *2. This is because "any slight factual content
that such items may have is generally outweighed by the adversary system's interest in
maintaining the privacy of an attorney's thought processes and in ensuring that each side relies
on its own wit in preparing their respective cases." Sporck v. Peil, 759 F.2d 312,316 (3d Cir.)
(citations omitted), cert. denied, 474 U.S. 903 (1985).
"A contemporaneous factual memorandum memorializing the circumstances of the
[incident] does not become attorney work product solely because the [incident] may thereafter
lead to litigation." Robbins v. Chase Manhattan Bank. N.A., No. 97 CV 676, 1998 WL 106152,
at *1 (S.D.N.Y. Mar. 9,1998) (citing Smith v. Harmon Group. Inc., No. 90 CV 3348, 1992 WL
8176, at *4 (S.D.N.Y. Jan. 13,1992)). In Smith v. Harmon Group. Inc., the document at issue
7

was claimed to have been "prepared for and under the direction of counsel in anticipation of
potential litigation," as is claimed here, but the court found that "[t]he content of the document
does not support this claim. It is a straightforward narrative account of what was said and done .
. . the document 'does not relay any legal advice but merely discusses factual circumstances.'"
Smith v. Harmon Group, Inc., 1992 WL 8176, at *2. The court therefore decided that "[i]n light
of the possibility that the parties may rely on different versions of the events on the day of the
[incident], raising issues of credibility and accuracy of recollection, plaintiff is entitled to
defendants' contemporaneous factual record of their conversations with him." Id. (citing
Grossman v. Schwarz, 125 F.R.D. 376, 389 (S.D.N.Y. 1989)). Another court also found that "[a]
fair determination of the threshold [issues in the case] can not be made unless [the requesting
party] is allowed [access to] the objective factual information available to [the other party]." In
re Pfohl Bros. Landfill Litig., 175 F.R.D. 13,25 (W.D.N.Y. 1997).
C.

Deliberative Process Privilege
The deliberative process privilege precludes disclosure of "'documents reflecting

advisory opinions, recommendations and deliberations comprising part of a process by which
governmental decisions and policies are formulated.'" National Council of La Raza v. Dep't of
Justice, 411 F.3d 350,356 (2d Cir. 2005) (quoting Tigue v. U.S. Dep't of Justice, 312 F.3d 70,
76 (2d Cir. 2002), cert. denied, 538 U.S. 1056 (2003)). To be subject to the privilege, a
document must be both "predecisional" and "deliberative." See, e.g., Davis v. City of N.Y., No.
10 Civ. 699, 2011 WL 1742748, at *2 (S.D.N.Y. May 5, 2011). "[P]urely factual material," as
well as "materials related to the explanation, interpretation or application of an existing policy, as
opposed to the formulation of a new policy," are not subject to the privilege. Id.
8

Documents are considered "predecisional" ifthey are "prepared in order to assist an
agency decisionmaker in arriving at his decision." National Council of La Raza v. Dep't of
Justice, 411 F.3d at 356 (quoting Grand Cent. P'ship v. Cuomo, 166 F.3d 473, 482 (2d Cir.
1999». "Such materials include 'recommendations, draft documents, proposals, suggestions,
and other subjective documents [that] reflect the personal opinions of the writer rather than the
policy ofthe agency.'" Davis v. City of N.Y., 2011 WL 1742748, at *2 n.19 (quoting Grand
Cent. P'ship v. Cuomo, 166 F.3d at 482).
Documents are "deliberative" ifthey are '''actually ... related to the process by which
policies are formulated. '" Id. (citing National Council of La Raza v. Dep't of Justice, 411 F.3d at
356). Courts considering whether a document should be deemed deliberative analyze "'whether
the document (i) formed an essential link in a specified consultative process, (ii) reflects the
personal opinions of the writer rather than the policy of the agency, and (iii) if released, would
inaccurately reflect or prematurely disclose the views of the agency.'" Id. (quoting Grand Cent.
P'ship v. Cuomo, 166 F.3d at 482).
A determination that documents qualify for the deliberative process privilege does not
end the inquiry. "[W]hen the existence of privilege is established, there is a need to balance the
public interest in nondisclosure against the need of the particular litigant for access to privileged
information." MacNamara v. City of N.Y., 249 F.R.D. 70, 79 (S.D.N.Y. 2008) (quotations
omitted). Factors weighing in favor of disclosure include the following:
'(1) the relevance of the requested materials to the [requesting party's]
case, (2) the importance of the materials to the [requesting party's] case,
including the availability of the information from alternative sources, (3)
the strength of the [requesting party's] case ... ,and (4) the importance [of
disclosure] to the public interest.'

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Davis v. City of N.Y., 2011 WL 1742748, at *2 (quoting MacNamara v. City ofN.Y., 249
F.R.D. at 80. Factors weighing against disclosure include "(1) threats to public safety, (2) the
invasion of government officials' privacy, (3) the weakening of government programs, and (4)
the chilling of internal candor." Id., at *3.
An assertion of the deliberative process privilege must be made "by the head of the
agency after personal consideration of the allegedly privileged material," or by a "subordinate
with high authority" to claim the privilege pursuant to guidelines issued by the agency.
Resolution Trust COW. v. Diamond, 137 F.R.D. 634, 641 (S.D.N.Y. 1991).

II.

Analysis

A.

Privilege Claims
1.

Documents Relating to Pre-Trial and Trial Preparation for People v. Green

Defendants have submitted forty-seven documents purportedly relating to pre-trial and
trial preparation for People v. Green, the trial in which plaintiff was convicted of felony murder
and first degree robbery for the stabbing death of John Choi ("Redweld A,,).4 Defendants assert
attorney work product protection for all of the documents in Redweld A, and they additionally
assert "attorney work product-opinion,,5 for thirty-six of the documents.

4Defendants have dated eight of these documents with dates ranging from "after
[November 28, 1983]" until "after [January 31, 1985]"; two documents are dated by month and
day, but the year is unknown; for the remaining thirty-seven documents, defendants have
indicated that the date of each document is unknown.
5It is unclear whether, by claiming "attorney work product-opinion," defendants intend to
assert a separate protection from the attorney work product protection or if they are merely
specifying which documents contain "core" work product as opposed to factual work product.
Jean v. City of New York, 2010 WL 148420, at *2. The Court is unaware of any basis for a
10

a.

Documents A-I and A-5

Documents A-I and A-5 are copies of the Notice of Alibi for Barbara Nicholas, Cy
Green's sister-in-law and alibi witness (A-I), and Kevin Davis (A-5). Both documents contain
ADA Douglas Kallen's handwritten notes regarding the underlying criminal trial. Defendants
claim that these documents are protected by the attorney work product protection and that
Document A-I contains core attorney work product. Defendants' index indicates that the
Notices themselves, without the handwritten attorney notes, are publically available filings.
Based on a review of these document, it appears that the underlying documents and much
of the information contained in the handwritten notes are either publically available or "core"
work product. The documents also contain a small number of illegible notes, and it does not
appear that they contain information relevant to plaintiff's case. Accordingly, defendants are not
required to produce Documents A-I and A-5 at this time.
b.

Documents A-2 and A-44

Documents A-2 and A-44 consist of handwritten notes relating to the polygraph test and
alibi ofCy Greene's co-defendant Larry Williams. Document A-2 is addressed to ADA
Plaszner. Defendants claim that these documents contain core attorney work product and are
protected under the attorney work product protection.
The Court finds that these documents may be relevant to plaintiff s case and that plaintiff
has established that he has a substantial need for the work product contained in these documents

separate "attorney work product-opinion" protection in this jurisdiction's case law. Accordingly,
the Court's analysis of whether the documents produced by defendants are protected proceeds
with the understanding that, where defendants have claimed "attorney work product-opinion,"
defendants' intent was to draw the Court's attention to "core" work product.
11

and an inability to obtain their substantial equivalent without undue hardship. Accordingly,
defendants are directed to produce Documents A-2 and A-44.
c.

Document A-3, A-4, A-9, A-II. A-I2 and A-45

Documents A-3, A-4, A-9, A-II, A-I2, and A-45 are described as ADA Kallen's
handwritten notes, conveying his opinions and mental impressions regarding Dorothy Williams,
the mother of Larry Williams (A-3 and A-45), Se~gio Azona, a man who was interviewed by
police and provided information relating to Larry Williams' alibi on the night of John Choi's
stabbing (A-4), and Mark Best (A-9, A-II, and A-I2). Defendants claim that these documents
contain core attorney work product6 and are protected under the attorney work product
protection. The index indicates that plaintiffs counsel has the audio recording and transcript of
the interview upon which Document A-3 is based and that most of the information contained in
Document A-9 is available less intrusively through the criminal history records of Mark Best.
Document A-3 appears to contain factual information that can be accessed through the
audio recording and transcript of the interview with Dorothy Williams; since the document
contains "core" attorney work product and litigation strategy, it is not subject to disclosure.
Document A-45 similarly contains only a small amount of factual information, which is not
crucial to plaintiff s claim in the instant case. Plaintiff has not made an adequate showing of
substantial need and an inability to obtain the contents of Documents A-3 and A-45 elsewhere
without undue hardship. However, because they could indicate what information about
plaintiffs criminal case ADA Kallen was aware of at the time, Documents A-4, A-9, and A-II
may contain information that is relevant to the contentions made by plaintiff in this litigation.

6Except for Document A-12.
12

With respect to Document A-12, defendants are directed to explain whether any parts of this
document have been redacted, and, if so, why. Further, defendants are Ordered to provide a more
specific description of this document and explain why these notes should not be disclosed.
Accordingly, defendants are required to produce Documents A-4, A-9, and A-II, but they
need not produce Documents A-3 and A-45 at this time. Defendants are also Ordered to provide
further information about Document A-12 as directed above.
d.

Documents A-6 and A-39

Documents A-6 and A-39 consist of handwritten notes, believed to be written by ADA
Kallen and Plaszner, respectively, which purportedly convey the attorneys' mental impressions
and opinions of witness Mark Best. Defendants claim that these documents contain core attorney
work product and are protected by the attorney work product protection. Defendants also
contend that plaintiff can obtain any factual information contained in Document A-6 from the
DD-5 of Mark Best, the precinct interview of Mark Best, and the June 21, 1983 lineup record.
Although Documents A-6 and A-39 are comprised, for the most part, of facts that are
likely accessible through other documents that have been produced in this litigation and of some
"core" attorney work product, considering the length of time that has passed since plaintiff s
criminal case and plaintiffs need to depose witnesses, the Court finds that plaintiff has
established a substantial need for the work product contained in these documents.
Accordingly, defendants are Ordered to produce Documents A-6 and A-39.
e.

Document A-7

Document A-7 consists of handwritten attorney notes, believed to be written by ADA
Kallen, purportedly conveying mental impressions and opinions relating to a telephone call with
13

defense attorney Jeff Richman. Defendants claim that this document contains core attorney work
product and is protected by the attorney work product protection.
Based on a review of this document, which contains primarily core work product and
litigation strategy, the attorney work product protection applies. Accordingly, defendants are not
required to produce Document A-7 at this time.
f.

Document A-8

Document A-8 is a copy of a January 31, 1985 letter from Lewis Cohen, plaintiff's prior
counsel, to Judge Joseph Lombardo requesting that plaintiff be moved to a different correctional
facility. This copy of the letter contains the handwritten notes of ADA Kallen. Defendants claim
that this document is protected by the attorney work product protection.
This document contains only limited handwritten notes, which are unlikely to provide
plaintiff with information useful to his case. Accordingly, the Court finds that plaintiff has not
established a substantial need for this document, and defendants are not required to produce
Document A-8 at this time.
g.

Document A-lO. A-13. and A-15

Documents A-lO, A-13, and A-15 consist of handwritten attorney notes, believed to be
written by ADA Kallen. The notes in Document A-I 0 regard December dates for upcoming
testimony, and the notes in Document A-13 appear to be an outline of issues to raise during
summation. Defendants claim that Document A-15 conveys opinions and mental impressions
relating to strategies to be used in approaching various witnesses, respectively. Defendants claim
that these documents are protected by the attorney work product protection and that Documents
A-13 and A-15 contain core attorney work product.
14

Based on a review of these documents, the Court finds that Document A-lO, which is
clearly work product, contains no relevant facts that would require its production, and that
Document A-13 is the type of core attorney work product that contains no facts, but merely the
ADA's thoughts on how to best organize his summation. Accordingly, the defendants are not
required to produce either Document A-lO or A-13. As for Document A-IS, it is not entirely
clear who prepared these notes or the factual basis underlying the notes. Considering the time
that has passed since this document was created and plaintiff s need for evidence concerning the
broader context of the alleged misconduct, the Court finds that plaintiff has shown a substantial
need for this document. Accordingly, defendants are required to produce Document A-IS.
h.

Document A-14

Document A-14 consists of handwritten attorney notes, believed to be written by ADA
Kallen, regarding plaintiff and Larry Williams. Defendants claim that this document is protected
by the attorney work product protection.
Considering the minimal information contained in this document, the Court finds that
plaintiff does not have a substantial need for disclosure. Accordingly, defendants are not
required to produce Document A-14 at this time.
1.

Document A-16

Document A-16 consists of handwritten attorney notes, believed to be written by ADA
Kallen, purportedly conveying mental impressions and opinions relating to the serology report of
John Choi. Defendants claim that this document contains core attorney work product and is
protected by the attorney work product protection. The index indicates that any factual
information contained in the document can be less intrusively obtained in the serology report of
15

John Choi.
Based on a review of this document, the Court finds that it may contain information
relevant to plaintiffs claims. Accordingly, defendants are directed to produce Document A-16.

J.

Documents A-17 through A-19

Documents A -17 through A -19 consist of handwritten attorney notes, believed to be
written by ADA Kallen, purportedly conveying mental impressions and opinions relating to the
testimony of Jae Hark Kim, the man accompanying victim John Choi at the time of his murder,
and resulting ideas for trial strategy. Defendants claim that these documents contain core
attorney work product and are protected by the attorney work product protection. With respect to
document A-19, defendants claim that any factual information can be obtained from the UF-61
dated June 14, 1983, the DD-5 of Kim dated June 14, 1985, the report on the lineup conducted
before Kim dated June 21, 1983, the precinct statement of Kim dated June 14, 1983, and minutes
from the grand jury proceeding dated June 23, 1983.
Documents A-17 through A-19 may well contain information that is relevant to plaintiffs
case. Plaintiff has made a showing of substantial need for the information contained in these
documents that is adequate to overcome the public interest served by maintaining the
confidentiality of ADA Kallen's notes. Accordingly, defendants are Ordered to produce
Documents A-17, A-18, and A-19 to plaintiffs counsel.
k.

Documents A-20 and A-21

Document A-20 consists of handwritten attorney notes, believed to be written by ADA
Kallen in preparation for an opening statement, which purportedly conveys mental impressions
and opinions relating to plaintiffs criminal case. One page of this fourteen page document
16

appears to have been written by someone other than ADA Kallen. Document A-21 consists of
handwritten attorney notes, believed to be written by ADA Plaszner, purportedly conveying
mental impressions and opinions about defendants and witnesses involved in plaintiff s criminal
case. Defendants claim that these documents contain core attorney work product and are
protected by the attorney work product protection.
These documents may shed light on the broader context in which the alleged misconduct
took place, as well as provide potentially useful handwriting samples for plaintiff to use in
developing his case. Plaintiff s potential need for these documents is adequate to overcome the
public interest served by maintaining the confidentiality ofthe ADA Kallen and Plaszner's notes.
Accordingly, defendants are Ordered to produce Documents A-20 and A-21.
1.

Document A-22

Document A-22 consists of handwritten attorney notes, believed to be written by ADA
Kallen, purportedly conveying mental impressions and opinions relating to UF-61 and DD-5
reports. Defendants claim that this document contains core attorney work product and is
protected by the attorney work product protection. The index indicates that factual information
contained in this document can be accessed by plaintiff in the UF-61 and DD-5 reports prepared
by the NYPD.
Despite the fact that much of the factual information contained in this document is
available to plaintiff elsewhere, the Court finds that plaintiff has shown of substantial need for
notes from KCDA staff members who were involved in his criminal case. Accordingly,
defendants are required to produce Document A-22.

17

m.

Document A-23

Document A-23 consists of handwritten attorney notes, believed to be written by ADA
Kallen, purportedly conveying mental impressions and opinions relating to the minutes of the
Wade/Dunaway hearing. Defendants claim that this document contains core attorney work
product and is protected by the attorney work product protection. The index indicates that the
factual information contained in this document can be accessed by plaintiff in the minutes from
the December 14, 1984 WadelDunaway hearing.
Based on a review of this document, it appears that plaintiff has not shown that he can not
obtain by other means, without undue hardship, the substantial equivalent of the information
contained in this document. Accordingly, defendants are not required to produce Document A23 at this time.
n.

Document A-24

Document A-24 consists of handwritten attorney notes, believed to be written by ADA
Kallen, purportedly conveying mental impressions and opinions relating to Thomas Lee, John
Choi's brother-in-law and the person who identified John Choi's body. Defendants claim that
this document is protected by the attorney work product protection.
Based on a review of this document, it does not appear to contain information relevant to
plaintiffs case. Accordingly, defendants are not required to produce Document A-24.
o.

Documents A-25 and A-26

Documents A-25 and A-26 consist of handwritten attorney notes, believed to be written
by ADA Plaszner, purportedly conveying mental impressions and opinions relating to trial
strategies and various witnesses. Defendants claim that these documents contain core attorney
18

work product and are protected by the attorney work product protection.
Although Document A-26 appears to contain only information that is available to plaintiff
elsewhere, Document A-25 contains information about Kim's ability to identify plaintiff, which
goes to the heart of plaintiff s claim. Accordingly, defendants are directed to produce Document
A-25, but need not produce Document A-26 at this time.
p.

Documents A-27 and A-28

Documents A-27 and A-28 consist of handwritten attorney notes, believed to be written
by ADA Kallen, purportedly conveying mental impressions and opinions relating to Sergeant
Walsh's background and role in the case; defendants contend that Sergeant Walsh has not been
accused of misconduct and that plaintiff has provided no support for requiring production of
information relating to him. Defendants again claim that these documents contain core attorney
work product and invoke the attorney work product protection to support their claim that these
documents should be protected.
Based on a review of Document A-27, which consists of a proposed question and answer
sheet for Sergeant Walsh and contains no factual information but merely litigation strategy, the
Court sees no compelling reason to require defendants to disclose these portions of the
document. However, Document A-28 contains information about the knife used in Choi's
murder which may be relevant to plaintiffs case. Accordingly, defendants are Ordered to
produce Document A-28.
q.

Documents A-29. A-34. and A-35

Documents A-29, A-34, and A-35 consist of handwritten attorney notes, believed to be
written by ADA Kallen, purportedly conveying mental impressions and opinions relating to the
19

questioning of various parties involved in the case, including Detectives Norrito (A-34, A-35)
and Tumbarello (A-29, A-34), Mark Best (A-34), and Jae Hark Kim (A-34). Document A-35
also contains infonnation about the investigation time line. Defendants claim that these
documents contain core attorney work product and are protected by the attorney work product
protection.
Based on a review of these documents, the Court finds that these documents go to the
heart of plaintiffs claim of misidentification and contain infonnation regarding the ADA's
knowledge at the time of the lineup that may be relevant to plaintiff s case and for which plaintiff
has shown substantial need. Accordingly, defendants are required to produce Documents A-29,
A-34, and A-35.
r.

Documents A-30 and A-31

Documents A-30 and A-31 consists of handwritten attorney notes, believed to be written
by ADA Kallen, purportedly conveying mental impressions and opinions regarding the lineups
leading to Cy Greene's identification as John Choi's stabber. Defendants state that document A30 may have resulted from an interview with Detective Tumbarello. Defendants claim that these
documents contain core attorney work product and are protected by the attorney work product
protection. The index indicates that the factual infonnation contained in Document A-30 can be
obtained by plaintiff in the June 21, 1983 lineup reports from the 76th Precinct.
These documents also contain infonnation regarding the lineup (and photo array) that
may shed light on plaintiffs claim in this case, and which plaintiff may be unable to obtain
elsewhere. Accordingly, defendants are directed to disclose both Document A-30 and A-31.
However, defendants may redact page KCDA-PRL 0000324 of Document A-31, which contains
20

only factual infonnation already available to plaintiff.
s.

Document A-32

Document A-32 consists of handwritten attorney notes, believed to be written by ADA
Kallen, purportedly conveying mental impressions and opinions relating to the parties involved
in plaintiffs criminal case, key events in the case, and strategy moving forward, including
communications with other parties. Defendants claim that this document contains core attorney
work product and is protected by the attorney work product protection.
Based on a review of this document, the Court finds that the infonnation contained on
page KCDA-PRL 0000328 of this document may be relevant to plaintiff's case, but that the rest
of the document, which contains primarily contact infonnation for various witnesses, need not be
disclosed. In short, defendants are Ordered to disclose page KCDA-PRL 0000328 of Document
A-32.
t.

Document A-33

Document A-33 consists of handwritten attorney notes, believed to be written by ADA
Kallen, purportedly conveying mental impressions and opinions relating to the alibis of plaintiff
and Larry Williams on the night of John Choi's stabbing. Defendants claim that this document
contains core attorney work product and is protected by the attorney work product protection.
Pages KCDA-PRL 0000334 and 0000335 of this document appear to contain litigation
strategy for which plaintiff has not shown a substantial need. Pages KCDA-PRL 0000333 and
0000336 on the other hand, contain factual infonnation that may support plaintiff's case.
Accordingly, defendants are Ordered to produce pages KCDA-PRL 0000333 and 0000336 of
Document A-33.
21

u.

Document A-36

Document A-36 consists of a handwritten attorney note, internal to the District Attorney's
Office, from ADA Marc Ruskin to the Early Complaint Assessment Bureau ("ECAB"),
requesting that ECAB proof an affidavit and insert notices in anticipation of grand jury
proceedings. Defendants claim that this document is protected by the attorney work product
protection.
Based on a review of this document, the Court finds that this document is protected by
the attorney work product protection and plaintiff has not shown a substantial need for the
information it contains. Accordingly, defendants are not required to produce Document A-36 at
this time.
v.

Document A-37

Document A-37 consists of a handwritten attorney note, internal to the District Attorney's
Office, believed to be written by ADA Plaszner to ADA Kallen regarding the unavailability of an
alibi witness for co-defendant Larry Williams, Kevin Davis, whose car was unavailable.
Defendants claim that this document is protected by the attorney work product protection.
Based on a review of this document, the information contained in this document is not
relevant to plaintiffs case. Accordingly, defendants are not required to produce Document A-37
at this time.
w.

Document A-38

Document A-38 consists of handwritten attorney notes, believed to be written by ADA
Kallen, purportedly conveying mental impressions and opinions relating to the status of the case,
the defendants, and trial strategy, particularly the examination and cross-examination of

22

witnesses. Defendants claim that this document contains core attorney work product and is
protected by the attorney work product protection.
The Court finds that the information contained in this document is relevant to plaintiff s
case, and that plaintiff has shown a substantial need for Document A-38. Accordingly,
defendants are Ordered to disclose Document A-38.
x.

Documents A-40, A-41, A-42, A-43, A-46, and A-47

Documents A-40 and A-41 consist of handwritten attorney notes, believed to be written
by ADA Kallen, purportedly conveying mental impressions and opinions about Margaret Pilato
(A-40) and John Castricone (A-41), two of the first police officers to respond to the scene of
John Choi's murder. (Compl.

~

64). Document A-42 consists of handwritten attorney notes,

believed to be written by ADA Kallen, purportedly conveying mental impressions and opinions
regarding videos of plaintiff and co-defendant Larry Williams, and the cross-examination of
Barbara Nicholas, Cy Green's sister-in-law and alibi witness. Defendants claim that these
documents contain core attorney work product and are protected by the attorney work product
protection. The index indicates that the factual information contained in Document A-42 can be
accessed by plaintiff in the June 21, 1983 precinct statements of plaintiff and Larry Williams.
Document A-43 consists of a handwritten attorney note, internal to the District Attorney's
Office, relating to a phone call from Queenie Jones, Larry Williams' grandmother, about Larry
Williams. Defendants claim that this document is protected by the attorney work product
protection.
Document A-46 consists of handwritten attorney notes, believed to be written by ADA
Kallen, purportedly conveying mental impressions and opinions relating to potential cross23

examination questions for Patrick Palmer, who appeared in the lineup on June 21, 1983.
Defendants claim that these documents contain core attorney work product and are protected by
the attorney work product protection.
Document A-47 consists of handwritten attorney notes, internal to the District Attorney's
Office, regarding plaintiff s criminal history and known associates. Defendants claim that this
document is protected by the attorney work product protection, and defendants' index indicates
that plaintiff can obtain factual information contained in this document from plaintiffs criminal
history report.
With respect to document A-42, although defendants claim that plaintiff can access the
factual information contained therein in the relevant precinct statements, the statements do not
address the cross-examination of Barbara Nicholas. For the sake of consistency, the Court finds
that Document A-42 should be disclosed in its entirety. The Court also finds that plaintiff has
established a substantial need for Document A-46. However, based on a review of the remaining
documents, plaintiff has not shown substantial need for the information contained in Documents
A-40, A-41, A-43, and A-47 and defendants are not required to produce these documents at this
time.
2.

Documents Relating to Plaintiffs First Motion to Vacate His Conviction

Defendants have submitted seven documents purportedly relating to plaintiff s first 440
motion to vacate his conviction in People v. Green {"Redweld B,,).7 Defendants assert attorney
work product protection for all of the documents in Redweld B and "attorney work product-

7The documents in Redwell B are dated from "after [February 22, 1990]" until November
18, 1991. Document B-7 is dated "approximately 1991."
24

opinion" for six of the documents. With respect to the documents in Redwell B, defendants
contend that the government's response to plaintiff's 440 motion is not at issue in this litigation,
and plaintiff has not established substantial need to access attorney work product pertaining to it.
a.

Documents B-1 through B-3

Documents B-1 through B-3 are copies of the Defendant-Appellant's February 22, 1990
Reply Brief (B-1), the April 12, 1991 Affirmation (B-2 and B-3) and the April 16, 1991 Notice of
Motion filed by Michael Joseph on behalf of plaintiff (B-2), as well as the February 26, 1991
Affidavit of Mark Best (B-3), which either contain underlining or handwritten attorney notes
purportedly conveying mental impressions and opinions regarding plaintiff's first 440 motion.
Defendants claim that these documents contain core attorney work product and are protected by
the attorney work product protection. Defendants' index indicates that the underlying filings have
already been produced to plaintiff's counsel under the bates numbers NYC HHR 025931 through
NYC HHR 025938, NYC HHR 022488 through NYC HHR 022493, and NYC HHR 022489
through NYC HHR 022495, respectively.
Document B-1 does not contain information relevant to plaintiff's case. The handwritten
notes on Document B-2 are illegible, but clearer copies of the same notes are provided in
Document B-3, and the Court finds that plaintiff has shown a substantial need for these notes.
Accordingly, defendants are required to produce Document B-3, but Documents B-1 and B-2
need not be disclosed at this time.

b.

Document B-4

Document B-4 is a copy of ADA Jane Sutley's June 7, 1991 Affidavit in Opposition to
Motion to Vacate Judgement and the accompanying Memorandum of Law, which contain
25

handwritten attorney notes purportedly conveying mental impressions and opinions regarding
plaintiffs first 440 motion. Defendants claim that this document is protected by the attorney
work product protection, and defendants' index indicates that the underlying filings have already
been produced to plaintiffs counsel under bates numbers NYC HHR 028238 through NYC HHR
028250.
Based on a review of this document, Document B-4 contains only extremely limited
notes, which do not appear to be relevant to plaintiffs case. Accordingly, defendants are not
required to produce Document B-4.
c.

Document B-5

Defendants have provided three drafts of Document B-5, which is a memorandum,
internal to the District Attorney's Office, sent from ADA Jane Sutley to ADA Marianne Crosley,
purportedly conveying mental impressions and opinions regarding plaintiff s first 440 motion.
Defendants again claim that these documents contain core attorney work product and are
protected by the attorney work product protection.
Based on a review of this document, it does not contain information relevant to plaintiffs
case. Accordingly, defendants need not produce Document B-5.
d.

Documents B-6 and B-7

Defendants have provided duplicate versions of Document B-6, which is a memorandum
from ADA Jane Meyers to ADA Ed Boyar, purportedly conveying mental impressions and
opinions regarding plaintiff s first 440 motion. Defendants' index indicates that the factual
information in the memorandum is available less intrusively by reference to the case documents,
hearing transcripts, the appeal record, and the 440 hearings. Document B-7 consists of
26

handwritten attorney notes, purportedly conveying attorney work product about individuals
involved in plaintiffs criminal case and mental impressions and opinions regarding expected
testimony in plaintiffs first 440 motion. The index indicates that plaintiff can obtain any factual
information in these notes from the 440 hearing transcripts and the criminal history reports of
Mark Best, Leonard Best, and Joseph Ross.8 Once again, defendants claim that these documents
contain core attorney work product and are protected by the attorney work product protection.
Considering the lack of relevant information contained in these documents, the Court
finds that Documents B-6 and B-7 should not be disclosed.
3.

Documents Relating to Plaintiff s Second Motion to Vacate His Conviction

Defendants have submitted five documents purportedly relating to plaintiff s second 440
motion to vacate his conviction ("Redweld C").9 Defendants assert attorney work product
protection for all of the documents in Redweld C, "attorney work product-opinion" for four of
the documents, and deliberative process privilege for one document. With respect to the
Documents in Redwell C, defendants contend that the government's response to plaintiffs
second 440 motion is not at issue in this litigation and that plaintiff has not established a
substantial need for attorney work product regarding that motion.
a.

Document C-l

Document C-l is a copy of ADA Appelbaum's September 14, 1992 Affidavit in
Opposition to Defendant's Motion to Vacate Judgment, which contains handwritten attorney

8According to plaintiffs Complaint, Joseph Ross is one of the people identified by
witness Eric Head, and was interviewed by Detectives Norrito and Tumbarello at the 67th
Precinct on June 15, 1983. (Compl. ~ 173).
9The documents in Redwell C are dated from September 14, 1992 until February 4, 1993.
27

notes regarding the litigation that was ongoing at the time. According to defendants, this
document was used in preparing the People's response to plaintiffs second 440 motion. In
addition to defendants' objection on the basis of relevance, defendants claim that this document
contains core attorney work product and is protected by the attorney work product protection.
The index indicates that the underlying Affidavit has already been produced to plaintiff under
bates number NYC HHR 022008 through NYC HHR 022028. Defendants additionally contend
that, to the extent that the notes reflect statements made during a January 8, 1993 court
conference on the 440 motion, the minutes of that conference would be a less intrusive means of
obtaining the same information.
The underlying document in Document C-l is publically available, but the handwritten
notes in Document C-l are relevant to the investigation of plaintiffs criminal trial, for which
plaintiff has shown substantial need. Accordingly, defendants must produce Document C-l.
b.

Document C-2

Document C-2 consists of handwritten attorney notes, believed to be written by ADA
Mintz, purportedly conveying mental impressions and opinions concerning arguments made in
1991 and 1992 in relation to plaintiff s 440 motion. Defendants claim that this document
contains core attorney work product and is protected by the attorney work product protection.
Based on a review of this document, it does not contain information relevant to plaintiffs
case. Accordingly, defendants need not produce Document C-2 at this time.
c.

Document C-3

Defendants have provided duplicate copies of Document C-3, which is a memorandum,
internal to the District Attorney's Office, purportedly conveying mental impressions and opinions
28

on the status of plaintiffs second 440 motion and the viability of various legal arguments in the
case. Defendants claim that these documents contain core attorney work product and are
protected by the attorney work product and deliberative process privileges. Defendants further
assert that, to the extent Document C-3 contains factual summaries of the crime, plaintiffs
conviction, and subsequent appeals, the information could be obtained through less intrusive
means in the original police files, court transcripts, court dockets, and submitted appeal papers.
This memorandum describes a conference with Judge Pesce, and it indicates that some of
Judge Pesce's statements were made off the record. Therefore, some of the information
contained in this document may not be reflected in the transcript, contrary to defendants'
contention. Accordingly, defendants must produce Document C-3.
d.

Document C-4

Document C-4 is a fax transmittal sheet related to an unidentified document with limited
notes written by ADA Appelbaum. Defendants claim that this document is protected by the
attorney work product protection.
The relevance of this document to plaintiffs case is not clear, and the Court finds that
Document C-4 should not be disclosed.
e.

Document C-5

Document C-5 consists of handwritten attorney notes, internal to the District Attorney's
Office, concerning the location of Mark Best and Larry Williams. Defendants claim that this
document contains core attorney work product and is protected by the attorney work product
protection.
Based on a review of this document, plaintiff has not made a showing of substantial need

29

to obtain the information in Document C-5. Accordingly, defendants are not required to produce
Document C-5 at this time.
4.

Documents Relating to Plaintiffs Third Motion to Vacate His Conviction

Defendants have submitted eight documents purportedly relating to plaintiff s third 440
motion to vacate his conviction ("Redweld D").10 Defendants contend that the government's
response to plaintiffs third 440 motion is not at issue in this litigation and that plaintiff has not
established a substantial need for attorney work product regarding that motion. Specifically,
defendants note that plaintiff's third 440 motion alleged that an unusual occurrence report
("report"), allegedly discovered by plaintiff during a Freedom ofInformation Law (FOIL)
request, had been withheld from plaintiffs attorney at trial. According to defendants, Judge
Michael Pesce denied plaintiff s 440 motion and ruled that the unusual occurrence report was a
forgery. Defendants claim that plaintiff has since admitted under oath that he forged the report.
Defendants argue that, since the forged unusual occurrence report and the government's response
to it are not mentioned in plaintiffs Complaint in this civil action, plaintiff does not have a
substantial need for related documents.
Defendants assert attorney work product protection for all of the documents in Redweld
D, "attorney work product-opinion" for three of the documents, and deliberative process
privilege for one document.
a.

Documents D-l through D-3

Document D-l consists of a fax exchange between ADA Lewis and Sergeant Deleon, in

IOThe documents in Redwell D are dated from May 27, 1994 until March 14, 1995.
Document D-7 is dated "after [August 1, 1986]; likely during 1994," and document D-8 is dated
"after [January 12, 1995]."
30

which ADA Lewis requests assistance in locating documents in connection with plaintiff's third
440 motion. Documents D-2 and D-3 consist of handwritten transmittal notes indicating that
someone from the NYPD Legal Bureau had called ADA Lewis. Defendants claim that these
documents are protected by the attorney work product protection.
Document D-I appears to be the "forged report" described above, but if it is not, it is
clearly relevant. If it is the forged report, plaintiff presumably has it already and it is unclear why
defendants have asserted a privilege. Documents D-2 and D-3, however, do not contain any
information that is likely to lead to discovery of admissible evidence in plaintiff's case.
Accordingly, defendants are Ordered to produce Document D-l but need not produce Documents
D-2 and D-3 at this time.
b.

Document D-4

Document D-4 consists of handwritten notes, believed to be written by ADA Kallen,
purportedly consisting of work product, including a phone message for John Best, notes
concerning Mark Best's travel arrangements, and notes relating to his mother, Diane Best.
Defendants claim that this document is protected by the attorney work product protection.
Document D-4 is of questionable relevance. However, given that the documents in D-4
all appear to be dated 1985 rather than 1995 as the index states, Document D-4 may have more
significance than defendants attribute to it. Accordingly, defendants are Ordered to produce
Document D-4.
c.

Documents D-5 through D-7

Document D-5 consists of two memoranda, internal to the District Attorney's Office,
purportedly conveying ADA Lewis' mental impressions and opinions relating to plaintiffs third
31

440 motion and the "Unusual Occurrence Report" which plaintiff claimed was "newly
discovered." Defendants claim that this document contains core attorney work product and is
protected by the attorney work product and deliberative process privileges.
Document D-6 is an unsent draft ofa letter from ADA Appelbaum to Sergeant William J.
Matusiak of the NYPD Legal Bureau, FOIL Unit. The stated purpose of the letter is to request
records in preparation for the People's response to plaintiff's third 440 motion. Defendants
claim that this document is protected by the attorney work product protection.
Document D-7 is a page of handwritten notes regarding plaintiff's third 440 motion.
Defendants claim that this document contains core attorney work product and is protected by the
attorney work product protection.
Document D-8 is a copy of the January 12, 1995 decision issued by Judge Pesce, which
contains handwritten attorney notes, purportedly conveying mental impressions and opinions
regarding plaintiff s third 440 motion. Defendants claim that this document contains core
attorney work product and is protected by the attorney work product protection. The index
indicates that the underlying document, without attorney notes, is public ally available.
Based on a review of these documents, they do not appear to contain information for
which plaintiff has shown a substantial need or an inability to obtain elsewhere without undue
burden. Accordingly, defendants need not produce Documents D-5, D-6, D-7, and D-8.
5.

Documents Relating to Plaintiffs Fourth Motion to Vacate His Conviction

Defendants have submitted twenty-nine documents purportedly relating to plaintiff s

32

fourth 440 motion to vacate his conviction ("Redweld E").ll Defendants claim that the
government's response to plaintiffs 440 litigation and related FOIL proceedings is not at issue in
this litigation and that plaintiff has not established substantial need to access attorney work
product pertaining to them. Defendants assert attorney work product protection for all of the
documents in Redweld E, "attorney work product-opinion" for twenty-one of the documents, and
deliberative process privilege for three documents.
a.

Documents E-l

Defendants have provided duplicate copies of Document E-l, a letter sent from plaintiffs
counsel, Myron Beldock, to ADA Mintz on February 7,2002, which contain handwritten notes
of emphasis by ADA Mintz, purportedly conveying mental impressions and opinion~ regarding
plaintiffs FOIL request. Defendants claim that this document contains core attorney work
product and is protected by the attorney work product protection. The index states that plaintiffs
counsel can access the underlying document without ADA Mintz's notes, as he is the author of
the letter.
Based on a review of this document, it does not appear that plaintiff has a substantial
need for Document E-l. The document contains only limited handwritten notes, comprised of
underlines and circles, and the underlying document is already accessible by plaintiffs counsel.
Accordingly, defendants are not required to produce Document E-l at this time.
b.

Documents E-2. E-4 and E-16 through E-19

Documents E-2, E-4, E-16, E-17, E-18, and E-19 are copies of United States caselaw,

11Thirteen of the documents in Redwell E are dated from February 7,2002 until January
23,2008. Dates for the rest of the documents in Redwell E are either unknown or estimated.

33

some of which contain handwritten attorney notes by the ADA. Document E-4 is in the form of
an email. Defendants claim attorney work product protection for these documents and that
Documents E-4 and E-16 contain core attorney work product. The index indicates that the
underlying cases are publically available.
Based on a review of these documents, they do not appear to contain information that is
relevant to plaintiffs case. Accordingly, defendants are not required to produce Documents E-2,
E-4, E-16, E-17, E-18, and E-19.
c.

Documents E-3 and E-5

Document E-3 is an unsent draft of a letter from ADA Mintz to Judge Pesce, purportedly
conveying ADA Mintz's opinions regarding relevant caselaw in connection with plaintiffs
fourth 440 motion. According to defendants, the final version of this letter was copied to
plaintiffs counsel on July 23,2004 and provides a less intrusive means of accessing the
information contained therein.
Document E-5 consists of a business card and two pages of handwritten attorney notes,
believed to be written by ADA Mintz, purportedly conveying mental impression and opinions
related to her conversations with Detective Bruce Mitchell of the 67th Precinct about plaintiffs
fourth 440 motion. Defendants claim that these documents contain core attorney work product
and are protected by the attorney work product protection.
Based on a review of these documents, they do not appear to contain information that is
crucial to plaintiffs case. Accordingly, defendants are not required to produce Documents E-3
and E-5 at this time.

34

d.

Documents E-6 through E-8

Documents E-6 through E-8 consist of handwritten attorney notes, believed to be written
by ADA Mintz. According to defendants, Document E-6 contains logistical information relating
to plaintiffs fourth 440 motion; Document E-7 conveys the attorney's opinions and mental
impressions about the April 7, 2005 through May 16, 2005 hearings; and Document E-8 conveys
mental impressions and opinions about testimony given during the May 16, 2005 hearing.
Defendants claim attorney work product protection for these documents and that Documents E-7
and E-8 contain core attorney work product. Defendants further claim that any factual
information contained in the notes in Documents E-7 and E-8 is available less intrusively in the
transcripts of the hearings.
Documents E-6 and E-8 do not appear to contain information that is relevant to plaintiff s
claims. Accordingly, defendants are not required to produce documents E-6 and E-8. However,
based on a review of document E-7, the Court finds that plaintiff has shown substantial need for
this document and an inability to obtain its substantial equivalent without undue hardship.
Accordingly, defendants are Ordered to produce E-7.
e.

Documents E-9, E-11. E-12, and E-29

Defendants have provided three drafts of Document E-9, one copy of Document E-11,
three drafts of Document E-12, and one copy of Document E-29. These documents are
memoranda, internal to the District Attorney's Office, sent by ADA Mintz to ADAs Anne Swern
(E-9 and E-11) and Ken Taub (E-12), or to Lance Ogiste (E-29), counsel to the KCDA.
According to defendants, the memoranda convey ADA Mintz's mental impressions and opinions
regarding plaintiffs case. Defendants claim that these documents contain core attorney work
35

product and are protected by the attorney work product protection. Defendants further assert that
all except Document E-29 are protected by the deliberative process privilege.
Based on a review of these documents, Documents E-9, E-ll, E-12, and E-29 do appear
to be core work product and do not appear to contain information that is not otherwise accessible
to plaintiff. Accordingly, defendants are not required to produce these documents at this time.

r.

Documents E-IO, E-13, and E-14

Document E-l 0 consists of a fax from Paul Goncharoff, who appears to have been a
forensic biologist, and the handwritten notes of ADA Mintz, purportedly conveying mental
impressions and opinions regarding DNA analysis in relation to plaintiffs fourth 440 motion.
Document E-13 consists of handwritten attorney notes, believed to be written by ADA
Mintz, purportedly conveying mental impressions and opinions regarding Greene v. Walker, in
which the Second Circuit Court of Appeals affirmed the denial of plaintiffs petition for a writ of
habeas corpus. Defendants claim that Documents E-l 0 and E-13 contain core attorney work
product and are protected by the attorney work product protection and that the government's
response to plaintiff s denial of habeas corpus is not at issue in this litigation.
Document E-14 consists of typed notes, internal to the District Attorney's Office, which
also contain the handwritten notes of ADA Mintz. Defendants contend that this document
conveys attorney work product regarding proceedings in 2003 and that this document is protected
by the attorney work product protection.
Based on a review of these documents, they do not appear to contain information that is
relevant to plaintiffs instant case. Accordingly, defendants are not required to produce
Documents E-l 0, E-13, and E-14.
36

g.

Document E-15

Document E-15 is a note, internal to the District Attorney's Office, purportedly
conveying attorney opinion and mental impressions on the status of plaintiff s case and
discussing whether a reply brief should be filed by the People. Defendants claim that this
document contains core attorney work product and is protected by the attorney work product
protection. Further, the index indicates that, to the extend Document E-15 discusses arguments
raised in defendants' brief and the People's brief, any information therein could be obtained less
intrusively by reference to those briefs.
Based on a review of this document, plaintiff has not shown a substantial need for the
information contained in this document or an inability to obtain the substantial equivalent
elsewhere without undue hardship. Accordingly, defendants are not required to produce
Document E-15 at this time.
h.

Documents E-20 through E-22

Documents E-20 through E-22 consist of attorney notes, believed to be written by ADA
Mintz, purportedly conveying mental impressions and opinions about descriptions given by
witnesses in relation to plaintiffs fourth 440 motion. The witnesses discussed in these
documents include Rodolfo Brown and Ruperto Lindsay (E-20); Fred Thomas,12 Abdul

12Plaintiff contends that, on June 15, 1983, Fred Thomas gave descriptions of three men
he witnessed running from the subway station in which John Choi was murdered at the
approximate time of the incident. (Compi. ~~ 119-123).
37

Rahman,13 Eric Head,14 Reynold Guerrier,15 James Robinson,16 Lavaughn Ryan,17 and Mark Best
(E-21); and Abdul Rahman, Eric Head, Reynold Guerrier, James Robinson, and Mark Best (E22). Defendants claim that these documents contain core attorney work product and are
protected by the attorney work product protection. The index indicates that plaintiff can obtain
any factual information in Document E-20 from Ruperto Lindsay's December 21,2010
deposition.
Based on a review of these documents, the Court finds that Documents E-20 through E22 primarily contain litigation strategy and lack information that is relevant to plaintiffs instant
case. Accordingly, defendants are not required to produce these documents.

13Plaintiff claims that Abdul Rahman was a vendor standing on the subway station
platform at the Nostrand and Church Avenue subway station, and that Mr. Rahman witnessed
John Choi's murder. (Compl. ~~ 60-63).
140n June 14, 1983, Eric Head was allegedly interviewed by detectives Norrito and
Tumbarello, and he reported seeing three men leave the subway station where Choi was
murdered. According to plaintiff, Head was shown photographs and identified these men as
Joseph Ross, Ronald Blanding, and Lenny Best, the older brother of Mark Best. (Compl. ~~ 147154). Plaintiff also claims that the official DD5 report about information taken by the police
from Eric Head falsely stated that the third person Head identified was Eric Tidwell rather than
Lenny Best. (Compl. ~ 164).
15 According to the Complaint, Reynold Guerrier is "a cab driver, who described three
men, seen by other witnesses running from the subway station, who entered his taxicab several
blocks away from the scene of the crime." (Compl. ~ 109).
16Plaintiff asserts that James Robinson is a "neighborhood witness," who was interviewed
on June 14, 1983 at the 67th Precinct. According to plaintiff, Robinson told the police that, on
the date of Choi' s murder, he chased a man who was running on Nostrand Avenue and saw him
enter a taxicab in which two other men were already sitting. Robinson described the man he
chased as, inter alia, a black male approximately six feet in height. (Compl. ~~ 111-115).
17The Complaint alleges that Lavaughn Ryan was also interviewed at the 67th Precinct on
the date of Choi' s murder and that Ryan told officers he has seen three men running on Church
Avenue at the approximate time of the incident. (Compl. ~~ 116-118).
38

1.

Documents E-23 through E-27

Documents E-23 and E-24 consist of handwritten attorney notes referencing the latent
prints and serology report in plaintiffs case, and a list of tasks relating to plaintiffs fourth 440
motion, respectively. Defendants claim that these documents are protected by the attorney work
product protection.
Document E-25 is a transcript of an interview conducted with Abdul Rahman by Myron
Beldock on August 13,2004 in relation to plaintiffs fourth 440 motion, which contains
handwritten notes by ADA Mintz, purportedly conveying opinions and mental impressions about
plaintiff's case. Defendants claim that this document contains core attorney work product and is
protected by the attorney work product protection, and the index indicates that plaintiff can
independently access the underlying transcript without ADA Mintz's notes, as plaintiffs counsel
conducted and transcribed the interview.
Document E-26 is a letter dated January 3,2007 from Myron Beldock to James Pelzer,
clerk ofthe New York Supreme Court, bringing the court's attention to caselaw relevant to the
People's appeal of Judge Pesce's decision to vacate plaintiffs conviction. According to the
defendants, this version of the letter contains handwritten attorney notes conveying mental
impressions and opinions about the caselaw and its relevance to plaintiffs case. Defendants
claim that this document contains core attorney work product and is protected by the attorney
work product protection, and the index indicates that plaintiff can access the underlying letter
without the handwritten notes, as he is the author of the letter.
Document E-27 is a handwritten note, internal to the District Attorney's Office, from
ADA Sutley to ADA Mintz, purportedly conveying opinions and mental impressions regarding
39

caselaw relevant to the People's appeal of Judge Pesce's decision to vacate plaintiff's conviction.
Defendants claim that this document contains core attorney work product and is protected by the
attorney work product protection.
Based on a review of these documents, they appear to be core work product and do not
appear to contain information for which plaintiff has shown a substantial need. Accordingly,
defendants are not required to produce Document E-23, E-24, E-25, E-26 and E-27.

J.

Document E-28

Document E-28 consists of handwritten attorney notes, believed to be written by ADA
Mintz during the pendency ofplaintiffs fourth 440 motion, purportedly conveying opinions and
mental impressions about the processing of the knife used in John Choi's murder. Defendants
claim that this document contains core attorney work product and is protected by the attorney
work product protection.
Plaintiff has shown a substantial need for Document E-28 and an inability to obtain the
substantial equivalent without undue hardship. Accordingly, defendants are Ordered to produce
Document E-28 to plaintiff.
6.

Undated Documents

Finally, defendants have submitted eleven undated documents for which defendants could
not ascertain the related proceedings ("Redweld F"), although, in some instances, defendants
have provided rough estimates of a document's date. Defendants assert attorney work product
protection for all of the documents in Redweld F and "attorney work product-opinion" for six of
the documents.

40

a.

Document F-l, F-I0. and F-ll

Document F -1 consists of handwritten attorney notes, purportedly conveying opinions
and mental impressions relating to key events in plaintiff's case. Defendants claim that this
document contains core attorney work product and is protected by the attorney work product
protection.
Documents F-I0 and F-ll consist of ADA Lewis' handwritten notes, regarding
discussion with the NYPD Legal Bureau about locating documents in connection with one of
plaintiff s 440 motions. Defendants claim that these documents are protected by the attorney
work product protection.
The handwritten notes in Documents F-l, F-lO, and F-ll are largely illegible and appear
to be irrelevant to plaintiffs case. The Court finds that these Documents need not be produced.
b.

Documents F-2 through F-5

Documents F-2 through F-5 are copies of United States caselaw, containing handwritten
attorney notes or analysis. Defendants claim that these documents are protected by the attorney
work product protection and that Documents F -4 and F -5 contain core attorney work product.
According to the defendants' index, the underlying cases are all publically accessible documents.
Based on a review of these documents, they do not appear to contain information that is
relevant to plaintiff's case or not otherwise accessible without undue hardship. Accordingly,
defendants are not required to produce Documents F-2, F-3, F-4, and F-5.
c.

Document F -6

Document F-6 is a handwritten log, internal to the District Attorney's Office, listing
information about filings made in plaintiffs case. Defendants claim that this document is
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protected by the attorney work product protection.
Plaintiff has not shown a substantial need for the information contained in this document,
and Document F-6 need not be disclosed at this time.
d.

Documents F-7 through F-9

Documents F-7 and F-8 consist of handwritten attorney notes, believed to be written by
ADA Plaszner, purportedly conveying opinions and mental impressions relating to Jae Hark
Kim's testimony and the questioning of Detective Norrito, respectively. Defendants claim that
these documents contain core attorney work product and are protected by the attorney work
product protection.
Document F-9 consists of handwritten attorney notes, believed to be written by ADA
Mintz, purportedly conveying opinions and mental impressions about the hearing testimony of
Detectives Norrito and Tumbarello, and Larry Williams. Defendants claim that this document
contains core attorney work product and is protected by the attorney work product protection.
The index indicates that plaintiff can obtain factual information contained in this document from
the transcript of the December 14, 1984 Wade/Dunaway hearing.
While Document F -7 does not contain information for which plaintiff has shown a
substantial need or an inability to obtain elsewhere without undue hardship, Documents F -8 and
F-9 do appear to contain information relevant to plaintiffs claims. Accordingly, defendants are
Ordered to produce Documents F -8 and F-9, but need not produce Document F -7 at this time.

B.

Grand Jury Minutes
In his June 17,2011 motion, plaintiff sought production of certain materials related to the

grand jury's deliberations in the underlying criminal prosecution, particularly the testimony of
42

Mark Best. (Mot. at 36). In response, defendants contended that Federal Rule of Criminal
Procedure 6(e)(2) and New York Criminal Procedure Law § 190.25 prohibit disclosure of
matters before the grand jury. (Opp. at 26). After hearing both parties on the issue, the Court
found that plaintiff had made the requisite showing of particularized need in order to justify
disclosure of the requested information and that the significant passage of time - more than
twenty-five years - had diminished the need to protect the secrecy of the grand jury proceeding.
(Ord. at 16). However, "out of deference to the state law concerns regarding the general privacy
of grand jury proceedings" (Ord. at 17), the Court directed defendants to produce the minutes for
in camera review before determining whether to Order defendants to disclose them to plaintiff.
(Id.)

On October 17,2011, pursuant to the Court's Order, the Kings County District Attorney
sent the Court minutes containing the grand jury testimony of Detective Michael Norrito and the
entering of three documents into evidence. 18 Defendants claim that, with the exception of Jae
Hark Kim's testimony, which is already in plaintiffs possession, the minutes provided to the
Court constitute the entirety oftestimony and evidentiary matters before the grand jury.
Although the Court is inclined to agree with plaintiff that disclosure of any testimony by
Mark Best would be proper, such testimony has not been provided. Obviously, the most
important implication of the absence of any minutes is that Mark Best did not testify before the
grand jury. By plaintiffs own admission, the minutes that have been provided, which consist
solely of the testimony of Detective Norrito, have already been produced in the underlying

18The three documents are the Certificate of Death, Police Identification of Body and
Personal Identification of Body of Mr. Choi, the victim in the underlying criminal case.
43

criminal case. (Mot. at 36). Thus, the Court declines to Order production of the grand jury
minutes, which have been previously provided. 19
C.

Criminal History Records
Plaintiff s motion sought production of the criminal records of thirteen persons listed on

defendants' confidentiality log. (Mot. at 38). Defendants claimed, in response, that a
confidentiality agreement between the New York State Division of Criminal Justice Services
(DCJS) and the Kings County District Attorney's Office prohibits "dissemination of criminal
history records ... [unless] specifically authorized by law." (Vogel Declaration in Support of
Defendants' Response to Plaintiffs Motion to Compel, filed on July 6,2011, Ex. 27 at 2-3). The

19There is an additional reason for the Court to decline to provide the minutes of
Detective Norrito's grand jury testimony. The Supreme Court recently held that "a witness in a
grand jury proceeding is entitled to the same absolute immunity from suit under [Section] 1983
as a witness who testifies at trial." Rehberg v. Paulk, - u.S. -, 132 S. Ct. 1497, 1498 (2012)
(dismissing Section 1983 claims against a district attorney, prosecutor, and investigator alleging
that they had fabricated evidence in their grand jury testimony against a criminal defendant).
Further, the Court in Rehberg v. Paulk held that the immunity of grand jury witnesses "may not
be circumvented... by using evidence of the witness' testimony to support any other [Section]
1983 claim concerning the initiation or maintenance ofa prosecution." - U.S. -, 132 S. Ct. at
1506. Therefore, it appears that the Supreme Court's holding in Rehberg v. Paulk would bar
disclosure of Detective Norrito's grand jury testimony even ifit had not already been produced to
plaintiff
However, because Mark Best is not a defendant in this case, disclosure of his grand jury
testimony, had it been provided, may have been proper despite Rehberg v. Paulk. The question
of whether the Supreme Court's reference to '''any other [Section] 1983 claim' refers to any
claim at all- or... to any claim against the witness who testified" was addressed recently by the
Federal District Court for the Southern District of New York in Frederick v. New York City, No.
11 CV 469, 2012 WL 4947806, at *3 (S.D.N.Y. Oct. 11,2012) (emphasis in the original). The
Court in Frederick v. New York City held that Rehberg v. Paulk "does not create a categorical
bar to the use of grand jury testimony as evidence against defendants in malicious prosecution
suits brought pursuant to [Section] 1983. Rather, where [Rehberg v. Paulk] bans 'using evidence
of the witness' testimony to support any other [Section] 1983 claim concerning the initiation or
maintenance of a prosecution,' that decision prohibits only the use of a witness's own grand jury
testimony against that witness ifhe or she subsequently becomes a [Section] 1983 defendant."
2012 WL 4947806, at *4.
44

Court found that plaintiff had demonstrated a need for the criminal history records and that "the
unique circumstances of this case persuade the Court to conclude that state privileges may need
to give way to federal concerns present here." (Ord. at 18). Accordingly, the Court Ordered
plaintiff to prepare and submit to the Court a subpoena to be so-ordered directing DCJS to
produce the relevant criminal history records for in camera review. (Id.)
On October 25,2011, the Court received the criminal history records requested by
plaintiff for in camera review. 20 Although no criminal records were found for Queenie Jones or
Sergio Azona, the Court finds that the remaining criminal history records "reasonably could lead
to other matter that could bear on any issue that is or may be in the case," Crosby v. City of New
York, 269 F.R.D. at 282, and Orders defendants to produce the records to plaintiff. However, in
the interest of privacy, the Court finds that redactions of certain identifying information would be
appropriate.
Accordingly, defendants are Ordered to produce the requested criminal history records,
excluding Queenie Jones and Sergio Azona, with the following redactions: social-security
numbers should include only the last four digits, and dates of birth should include only the year
of the individual's birth.

appears that the subpoena received by the DCJS included a request for the records of
Barbara Nicholas, Cy Greene's sister-in-law. Plaintiff did not request Ms. Nicholas' records in
his motion, and the DCJS was unable to identify any record on file for Ms. Nicholas.
201t

45

CONCLUSION
Having reviewed the documents produced for in camera review, the Court Orders as
follows:
1.

From Redwell A, defendants are Ordered to produce Documents A-2, A-4, A-6,
A-9, A-II, A-IS, A-I6, A-I7, A-I8, A-I9, A-20, A-2I, A-22, A-25, A-28, A-29,
A-30, A-3I (with redactions), page KCDA-PRL 0000328 of A-32, pages KCDAPRL 0000333 and 0000336 of A-33, A-34, A-35, A-38, A-39, A-42, A-44, and A46, and to provide additional information about Document A-I2 as directed.

2.

From Redwell B, defendants are Ordered to produce Document B-3.

3.

From Redwell C, defendants are Ordered to produce Documents C-I and C-3.

4.

From Redwell D, defendants are Ordered to produce Documents D-I and D-4.

5.

From Redwell E, defendants are Ordered to produce Documents E-7 and E-28.

6.

From Redwell F, defendants are Ordered to produce Documents F-8 and F-9.

7.

Defendants must produce the criminal history records for Larry Williams, Abdul
Rahman, Henry King, Mark Best, Eric Head, Kevin Davis, Ruperto Lindsay,
Delano Brown, Leonard Best, Joseph Ross, and Patrick Palmer. Social-security
numbers should be redacted to include only the last four digits, and dates of birth
should be redacted to include only the year of the individual's birth.

SO ORDERED.
Dated: Brooklyn, New York
November 27,2012

/s/ Cheryl L. Pollak
ates Magistrate Judge
Eastern District of New York
46