Bellamy v. City of New York et al

Filing 103

MEMORANDUM ORDER granting in part and denying in part 75 Motion to Compel. Ordered by Magistrate Judge Viktor V. Pohorelsky on 5/22/2015. (Pohorelsky, Viktor)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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KAREEM BELLAMY,
Plaintiff,
MEMORANDUM ORDER
-vCV-12-1025 (WFK)(VVP)
CITY OF NEW YORK, et al.,
Defendants.
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The plaintiff has moved [Dkt. Ent. 75] to compel the defendants to produce certain
documents from the files of the Queens County District Attorney which have been itemized
on a privilege log prepared by the defendants.1 A number of the documents that were
initially the subject of the motion were produced upon further review by the defendants’
counsel. The documents that remain in dispute have been produced to the court for in
camera review. Upon consideration of the arguments made by the parties and a review of the
documents, the motion is granted in part and denied in part for the reasons below.2
Initially, the court rejects the plaintiff’s argument that the work-product protection
asserted by the Queens County District Attorney does not apply because they are not a party
and because the rationale underlying the work product doctrine no longer exists with respect
to the documents at issue. Although it is true that the District Attorney is not a named party,
its work product may nevertheless be protected if it has interests that are likely to be affected
in the litigation. See, e.g., Jean v. City of New York, No. CV-09-801, 2010 WL 148420, at *2
(E.D.N.Y. Jan. 12, 2010) (citing cases). Here, the conduct of the Queens District Attorney
forms the basis of some of the claims for which the plaintiff seeks to hold the City of New

1

The Queens County District Attorney is not a named defendant here, but the Office of
Corporation Counsel is acting as their counsel in connection with the document production at issue.
2

In addition to the moving papers filed by the parties, the court has reviewed a previous
letter submitted by the plaintiff [63] and a subsequent letter submitted by the plaintiff [98] which
provide factual context and specificity concerning the need for production of the documents under
review.

York liable, and in that sense that office has the same interest as if they were a party in this
case.
Moreover, the rationale for the work-product doctrine continues to exist with respect
to the documents notwithstanding the fact that a further prosecution of the plaintiff cannot
be maintained. The three purposes underlying the work-product doctrine, upon which the
parties here agree, include (1) protecting an attorney’s ability to formulate legal theories and
prepare cases; (2) preventing opposing counsel from “free-loading” off an attorney’s work;
and (3) preventing interference with ongoing litigation. See, e.g., Abdell v. City of New York,
No. 05 Civ. 8453, 2006 WL 2664313, at *4 (S.D.N.Y. Sept. 14, 2006) (citing Hickman v.
Taylor, 329 U.S. 495, 510-11, 516 (1947)). At a minimum the third purpose above remains
alive because there is no statute of limitations on murder, the crime for which the plaintiff
was convicted, and a prosecution of the participants in the murder (there were at least two)
may yet be commenced if further information comes to light.
The court thus concludes that the Queens County District Attorney may continue to
assert work-product protection for the documents at issue, and a review of the documents is
therefore necessary to determine whether the plaintiff has established a sufficient need for
any of the information in the documents and the inability to obtain the information without
undue hardship. See, e.g., In re Grand Jury Proceedings, 219 F.3d 175, 190–91 (2d Cir. 2000);
Jean, 2010 WL 148420, at *2. In conducting that review, the court is mindful that so-called
“core” work product, consisting of the mental impressions, conclusions, opinions, and legal
theories of an attorney, are entitled to a high degree of protection. Jean, 2010 WL 148420, at
*2 (citing cases).
Upon review of the documents submitted by the defendant,3 the court has reached
the following conclusions. The documents bearing numbers 193, 195-198, and 202-205 are
not work product because they were not prepared “because of the prospect of litigation.”

3

Documents identified by the following numbers on the privilege log were reviewed by the
court: 33, 181, 347, 353, 355, 28-29, 89, 348, 350, 380-384, 386-387, 193, 195-198, 202-205, 53, 65,
10, 401-402, 429, 456-457, 477, 520, 565, 568
-2-

United States v. Adlman, 134 F.3d 1194, 1202 (2d Cir. 1998) (quoting Charles Alan Wright,
Arthur R. Miller, and Richard L. Marcus, 8 Federal Practice & Procedure § 2024, at 343
(1994)). Rather, they were prepared in order to respond to a Freedom of Information Law
request. Those documents must therefore be produced. Information in certain of the
remaining documents, as identified in the Appendix to this order, constitutes fact workproduct for which the plaintiff has identified both a sufficient need and an inability to
otherwise obtain, and the defendants are therefore required to produce the documents to the
plaintiff, redacted to eliminate any information not identified in the Appendix. The balance
of the documents need not be produced as they constitute either core work-product for
which the plaintiff has not made a heightened showing of need, or factual work-product for
which the plaintiff has no need because the facts are already available to him.
SO ORDERED:

Viktor V. Pohorelsky
VIKTOR V. POHORELSKY
United States Magistrate Judge
Dated:

Brooklyn, New York
May 22, 2015

-3-

APPENDIX
The following documents are to be produced, redacted to provide the information described
below:
Doc. No.

Information To Be Disclosed

355

On the first page, the information at the top of the page beginning with
“Homicide Arrest” through the words “old robbery out of Nassau
County”

380

On the first page, the circled information on the upper right hand
portion of the page to which the arrow leading from the circled star on
the left part of the page is pointing; on the third page, all but the last
line

402

The entire first page except for handwriting at the upper right, the
NYCLIS #, the Comptroller’s Case Number, and the Telephone
Number; the entire second page; the first two lines of the third page

456

The entire first page except for handwriting at the upper right, the
NYCLIS #, the Comptroller’s Case Number, and the Telephone
Number; the entire second page; the first two lines of the third page