Locurto v. United States of America

Filing 122

MEMORANDUM & ORDER re 114 Motion for Reconsideration. As Petitioner has not presented any compelling reason to reconsider the Discovery Order, his Motion for Reconsideration is DENIED. So Ordered by Judge Nicholas G. Garaufis on 3/9/2017. (Lee, Tiffeny)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-X

STEPHEN LOCURTO,

Petitioner,

MEMORANDUM & ORDER

lO-CV-4589(NGG)

-againstUNITED STATES OF AMERICA,

Respondent.
-X

NICHOLAS G. GARAUFIS,United States District Judge.

On July 9,2013, Petitioner Stephen LoCurto moved for discovery of"any and all notes,
memoranda,records or other documentation ofthe United States Attorney's Office for the

Eastern District ofNew York regarding the plea agreement proposal offered to Stephen LoCurto
by the United States Attorney's Office in the matter of United States v. Stephen LoCurto. Cr.

No. 03-1382(S-1)"(the "Discovery Request"), in connection with his pending petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2255. (Mot. for Disc.(Dkt. 34).) After conducting a
thorough search ofits files, the Government produced to Petitioner's counsel the responsive,
non-privileged documents that it was able to locate. (See Nov. 4, 2016, Ltr.(Dkt. 105).) The
Government maintains that the remainder ofthe responsive documents that it located
(the "Intemal Documents")—i.e."notes of AUSA Greg Andres, as well as an internal
memorandxim regarding the proposed plea agreements"—are not discoverable because they are

protected by several privileges, including the work-product privilege. (Id. at 2; see also Dec. 5,
2016, Ltr.(Dkt. 111)at 2(privilege log).) On December 12, 2016,this court held that the
Government was not obligated to produce the Intemal Documents and that no further discovery
was warranted with respect to the Discovery Request(the "Discovery Order"). (Discovery Order
(Dkt. 113).) Petitioner now moves for reconsideration ofthe Discovery Order, pursuant to Local
1

Civil Rule 6.3. (Mot. for Recons.(Dkt. 114).) For the reasons discussed below,Plaintiffs
Motion for Reconsideration is DENIED.
I.

LEGAL STANDARD

Local Civil Rule 6.3 provides that, within 14 days ofthe entry of an order, a party may
move for reconsideration by filing a notice of motion and memorandum identifying 'Hhe matters
or controlling decisions which counsel believes the Court has overlooked." Local Civ. R.6.3.
However,reconsideration ofa previous order is an "extraordinary remedy to be employed
sparingly in the interests offinality and conservation of scarce judicial resources." NEMRe
Receivables. LLC v. Fortress Re. Inc.. 187 F. Supp. 3d 390, 395(S.D.N.Y. 2016)(quoting In re
Health Mgmt. Svs. Inc. Sec. Litig.. 113 F. Supp. 2d 613,614(S.D.N.Y. 2000)). The primary

grounds justifying reconsideration are "an intervening change in controlling law,the availability
of new evidence, or the need to correct a clear error or prevent manifest injustice." Kolel Beth
Yechiel Mechil of Tartikov. Inc. v. YLL Irrevocable Trust. 729 F.3d 99, 104(2d Cir. 2013)
tauoting Virgin Atl. Airwavs. Ltd. v. Naf1 Mediation Bd.. 956 F.2d 1245, 1255(2d Cir. 1992)).

A request for reconsideration under Local Rule 6.3 must point to controlling law or
factual matters put before the court in that the movant believes the court overlooked, and that
might reasonably be expected to alter the conclusion reached by the court.

Shrader v. CSX

Transp.. Inc.. 70 F.3d 255,257(2d Cir. 1995); Anwar v. Fairfield Greenwich Ltd..

164 F. Supp. 3d 558,560(S.D.N.Y. 2016). Local Civil Rule 6.3 must be narrowly construed and
strictly applied so as to "avoid duplicative rulings on previously considered issues" and prevent
the rule from being used to advance theories not previously argued or "as a substitute for
appealing a finaljudgment." Merced Irrigation Dist. v. Barclavs Bank PLC. 178 F. Supp. 3d

181, 183 (S.D.N.Y. 2016) rquotiiig Montanile v. Nat'l Broad. Co.. 216 F. Supp. 2d 341,342
(S.D.N.Y. 2002)).
II.

DISCUSSION

Petitioner appears to assert three arguments as to why the ccmrt should reconsider its
Discovery Order, which held that the Intemal Documents were non-discoverable work-product.
Firsts Petitioner maintains that the Order "does not take into account the fact that [he] cannot

obtain [the Intemal Documents], or their substantial equivalent, from any other source" and he
has a "substantial need for discovery" ofthe Intemal Documents, as the "information contained
in the documents make up the core aspects ofthe essential elements of his case." (Mot. for
Recons. at 3.) Second,Petitioner argues that the work-product privilege is inapplicable where, as
here,"the activities of counsel are directly at issue in the litigation giving rise to the discovery

request." (Id at 2.) Third, he asserts that the Government has implicitly waived the

work-product privilege in this case:"[T]he [G]overment's continued refusal to admit that it
would have offered Mr. LoCurto a plea deal" gives Petitioner a"need to examine the

documents" as the Government"unfairly seeks to use the privilege as both a 'shield and a sword'
in this litigation." (Id) None ofthese arguments, which are addressed in tum below,justify
reconsideration ofthe Discovery Order.
1. Petitioner Has Not Shown the Requisite Substantial Need

A party seeking discovery of documents protected by the work-product privilege must
show that it has a "substantial need"for the work-product materials and "cannot, without undue

hardship, obtain their substantial equivalent by other means." Fed. R. Civ. P. 26(b)(3)(A).
Work-product that contains "mental impressions, conclusions, opinions, or legal theory of an

attorney" should be protected "unless a highly persuasive showing [of need] is made."^ In re
Grand Jury Proceedings. 219 F.3d 175, 190(2d Cir, 2000)(internal citation omitted); Upiohn
Co. V. United States. 449 U.S. 383,400(1981)("Rule 26 accords special protection to work

product revealing the attorney's mental processes."). Trial courts have "wide discretion in
determining the existence ofsubstantial need and undue hardship." Brock v. Frank V.
Panzarino. Inc.. 109 F.R.D. 157,159 n.4(E.D.N.Y. 1986).

As articulated in the court's Discovery Order, Petitioner has not made the required

showing to justify disclosure ofthe Intemal Documents. (Discovery Order at 3.) In his Motion
for Reconsideration, Petitioner has not identified any matters not considered by the court'"that

might reasonably be expected to alter the conclusion reached by the court.'" Ctv. of Suffolk v.
First Am. Real Estate Sols., 261 F.3d 179,187(2d Cir. 2001)(intemal citation omitted).

Nonetheless,the court takes this opportunity to clarify the reasoning underlying its Discovery
Order.

One ofthe questions critical to resolving Ground One ofPetitioner's habeas petition is
whether the Government offered Petitioner a plea agreement in advance of Petitioner's criminal
trial. On November 1, 2005, Assistant United States Attomey("AUSA")Greg Andres sent a

letter to attomeys representing Petitioner and 10 of his codefendants concerning plea

negotiations (the "Andres Letter"). (Pet'r's Mem. of Law in Supp. of Mot. to Vacate (Dkt. 2)at

' Government represents that the Intemal Documents "contain mental impressions and conclusions of AUSA
The
Andres."(Dec. 5, 2016, Ltr. at 2.)

ECF p.26.) The parties dispute whether the Andres Letter represented a plea offer.^ (Compare
Pet'r's Suppl. Mem. of Law in Supp. ofPet.(Dkt. 21)at 10, with Gov't Mem.ofLaw in Opp'n
to Pet.(Dkt. 28)at 27). In its August 11, 2016, Memorandum & Order,the court noted that, in
order to determine whether the Andres Letter was in fact a plea offer, formal or informal,
the court would benefit jfrom more information about the context in

which the letter was sent and whether it represented the entirety of
the parties' communications regarding a possible plea.

(See Order Adopting Report & Recommendation("Order re R&R")(Dkt. 87)at 18.) While the
Andres Letter has some indicia ofa plea offer—^it is written, sets a deadline for guilty pleas, and

lists specific recommended maximum sentences for each defendant—^it omits reference to the
charges to which each defendant would need to plead guilty to, a material term ofany plea
agreement. See United States v. Waters,No. 11-CR-lOO (JRP),2013 WL 3949092, at *8
(E.D. Pa. July 31,2013)("While we have been unable to find any authority defining the requisite
elements of a formal plea offer, it is clear that an oral discussion ofthe sentencing range for a
possible plea agreement that does not include an agreement on the charges to which the

defendant will plead guilty and the facts that he will admit, does not constitute a formal plea
offer."). Whether the Government discussed with Petitioner's trial counsel, Harry Batchelder,
the charges Petitioner would be required to plead to in exchange for the Government

recommending a lower sentence is highly relevant to Petitioner's claim ofineffective assistance
of counsel.

^ The Government admits that the Andres Letter shows a willingness on the part ofthe Government to enter plea

negotiations with the defendant. (Sept. 6,2016, Ltr.(Dkt. 96)at 2.) The court is highly skeptical that mere
willingness to negotiate a plea agreement provides sufficient grounds for a successful Strickland claim. See Lafler
V. Cooper. 566 U.S. 156,168(2012)("If no plea offer is made ...the IStricklandl issue raised here simply does not
arise."); Barnes v. United States. No.09-CR-1053(SAS),2013 WL 3357925, at *7(S.D.N.Y. July 2,2013)("With
no plea ofier ever made to [petitioner], it would be entirely speculative to consider the terms, including the length of
sentence, ofa theoretical plea bargain
The absence of a plea offer is fatal to the ineffective assistance of coimsel
claims....").

To that end,the Government has produced its written correspondence with Batchelder.

(See Ex. B,Nov.4,2016, Ltr.(Dkt. 105-2).). While the Internal Documents could summarize
Andres's verbal conversations with Batchelder, it is premature to conclude that the Intemal

Documents are the only available evidence as to the parties' verbal plea negotiations. Petitioner

can question Batchelder and the former AUSAs who were involved in Petitioner's case about
their plea negotiations at the future evidentiary hearing, which the court has already determined
Petitioner is entitled to with respect to Ground One of his habeas petition fsee Order re R&R

at 19). Ifthese witnesses are no longer available or are unable to recollect the information

sought,^ then Petitioner may be able to demonstrate substantial need for the Intemal Documents.
See Hom & Hardart Co. v. Pillsburv Co.. 888 F.2d 8,12(2d Cir. 1989)(holding that plaintiff
failed to show substantial need for attomey's meeting notes where plaintiff could depose

individuals present at the meeting); Tribune Co. v. Purcigliotti. No.93-CV-7222(LAP)
(THK),
1997 WL 10924, at *4(S.D.N.Y. Jan. 10,1997)("[T]here is no substantial need where the
information can be obtained by deposing witnesses, unless the witnesses are no longer available
or are unable to recollect the information sought."). At this stage in the proceedings, however.
Petitioner has not demonstrated that he has a "substantial need" for the Intemal Documents and

that he "cannot, without undue hardship, obtain their substantial equivalent by other means."
Fed. R. Civ. P. 26(b)(3)(A).

^ Petitioner's speculative and unfounded argument that "bias ... may color [the former AUSAs']recollections" and
questioning these witnesses will "only result in 'selfserving responses' which would not be as detailed or accurate
as the documents themselves"(Pet'r's Mem. ofLaw in Supp. ofDiscovery Mots.(Dkt. 108) at 16-17) does not
change the result here. See A.I.A. Holdings. S.A. v. Lehman Bros.. Inc.. No. 97-CV-4978(LMM)
(HB),2002 WL
31385824, at *9(S.D.N.Y. Oct. 21,2002)("It is always the case that a witness may lie at a deposition or may not
have an accurate recollection. However, ifthose facts, without more, were sufficient to pierce a claim of work
product, work-product protection, at least with respect to witness statements, would quickly become meaningless.").

2. Counsel's Intent Is Not"At Issue** in this Litigation

Petitioner also asserts that the work-product privilege is inapplicable where, as here,

counsel's intent is "at issue." (Mot. for Recons. at 2.) He maintains that the "best evidence"
that the Andres Letter qualifies as a plea offer would be "the contemporaneous statements of

witnesses, especially AUSA Andres and his subjective impressions of whether he was
recommending such an offer." (Pet'r's Mem.ofLaw in Supp. ofDiscovery Mots.(Dkt. 108)

at 15-16.) Therefore, according to Petitioner,"the mental workings of AUSA Andres in
preparation ofthe [Internal Documents] are at issue, especially to the extent that h[e] and his
colleagues['] mental processes reflect whether the letter eventually sent to prior coimsel qualifies
as a 'plea offer,' in the context of[the] Lafler/FrFvel analysis." (Id. at 16.) The subjective
beliefs ofthe AUSAs as to whether the Andres Letter constitutes a plea offer are irrelevant,

however. Although there is little guidance on what constitutes a "plea offer" for purposes of
Strickland, none ofthe cases cited by the parties suggest that a prosecutor's subjective beliefs

about whether there was a plea agreement are relevant to evaluating whether such offer was in
fact made.

3. The Government Did Not Waive its Work-Product Privilege

"[I]mplied waiver may be found where the privilege holder 'asserts a claim that in

fairness requires examination ofprotected communications.'" In re Grand Jurv Proceedings. 219
F.3d at 182(quoting United States v. Bilzerian. 926 F.2d 1285,1292(2d Cir. 1991)).
Fairness considerations arise when the party attempts to use the
privilege both as 'a shield and a sword.' In other words, a party
cannot partially disclose privileged communications or
affirmatively rely on privileged communications to support its claim

The Second Circuit cases that Petitioner cites for this proposition actually address the separate question of waiver,
which is discussed in Section 11.3, infra.

or defense and then shield the underlying communications from
scrutiny by the opposing party.

(Id.) Here, Petitioner presents no evidence that the Government has selectively disclosed the
contents ofthe Internal Documents or relied on the Internal Documents to advance its own

arguments in this proceeding. It is not as though the Government, relying on the Internal
Documents, argues that it would never have offered Petitioner a plea offer. In fact, the
Government has stated that it will not argue that it would not have offered Petitioner a plea offer:
The Government cannot and will not argue that the 'government
would not have offered LoCurto the opportunity to enter into a plea
agreement consistent with the terms described in the government's
letter dated November 1, 2005' had plea negotiations commenced
in LoCurto's criminal case.

(Sept. 6,2016, Ltr. at 2).

[T]he government is not taking the position[,] as I've tried to clarify
earlier[,] that we can prove definitively, he would have not been
made that offer. We can't prove that. We cannot go back nine years
in time ~ eleven years in time at this point and say there's no
circumstances imder which he would have been made that offer, had

plea negotiations commenced.

(Tr. of Aug. 23,2016, Status Conference (Dkt. 91) 18:24-19:5.) Accordingly, it cannot be said
that the Government is using the Internal Documents to support its position and yet refuses to

grant Petitioner access to them. There is no basis, therefore, to find that the Government has
impliedly waived the work-product privilege in this case.
III.

CONCLUSION

As Petitioner has not presented any compelling reason to reconsider the Discovery Order,
his Motion for Reconsideration is DENIED.
SO ORDERED.

s/Nicholas G. Garaufis

Dated: Brooklyn, New York

March ^,2017

NICHOLAS G. GARAUFIIj

United States District Judge'