Bailey v. City of New York et al
Filing
91
ORDER granting 81 Motion to Compel. For the reasons stated in the attached Memorandum and Order, this Court grants Plaintiff's motion to compel the production of the Reversal Memos and Year-End Memos (Exhibits 223-237) from the Collins litigation, and denies Defendants' motion to subject these documents to a confidentiality order. Defendants are ordered to produce the Reversal Memos and Year-End Memos to Plaintiff by 8/3/2015. Ordered by Magistrate Judge Vera M. Scanlon on 7/27/2015. (Rice, Liane)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------------ X
:
CLARENCE BAILEY,
:
:
Plaintiff,
:
:
-against:
CITY OF NEW YORK, JOSEPH TALLARINE, :
MICHAEL O’KEEFE and MICHAEL COLLINS, :
:
individually and as members of the New York
:
City Police Department (NYPD),
:
:
Defendants.
----------------------------------------------------------- X
MEMORANDUM & ORDER
No. 14 Civ. 2091 (JBW) (VMS)
Vera M. Scanlon, United States Magistrate Judge:
Plaintiff Clarence Bailey (“Mr. Bailey” or “Plaintiff”) brought this action against the City
of New York (“City”), Joseph Tallarine, Michael O’Keefe and Michael Collins (collectively,
“Defendants”), pursuant to 42 U.S.C. § 1983, alleging violations of his rights pursuant to the
Fourth, Sixth and Fourteenth Amendments to the United States Constitution as a result of his
alleged unlawful arrest, malicious prosecution and denial of due process and a fair trial by the
City of New York, through members of the New York City Police Department (“NYPD”) and
the Kings County District Attorney’s Office (“KCDAO”). Compl. ¶¶ 79-87, 96-101, ECF No. 1.
Presently before the Court is Plaintiff’s motion to compel, pursuant to Federal Rule of Procedure
(“Rule”) 37, the disclosure of “Reversal Memos” and “Year-End Memos” maintained by the
KCDAO, which were entered as Exhibits 223-236 and 237, respectively, in the litigation of
Collins v. City of New York, No. 11 Civ. 0766 (FB) (RML) (E.D.N.Y. Feb. 16, 2011). Pl.
Second Mot. to Compel (“Pl. Mot. II”) at 1, ECF No. 81. In addition, the Court considers
Defendants’ motion, pursuant to Rule 26(c), for a confidentiality order to apply to the Collins
exhibits. Defs. Opp., at 2, ECF No. 82.
1
For the following reasons, Plaintiff’s motion to compel is granted, and Defendants’
motion for a confidentiality order as to the Collins exhibits is denied.
I.
BACKGROUND
A.
Plaintiff’s Claims
Mr. Bailey brought charges against the City, under 42 U.S.C. § 1983, for alleged
violations of his Fourth, Sixth and Fourteenth Amendment rights, and pursuant to Monell v.
Department of Social Services of City of New York, 436 U.S. 658 (1978).1 Compl. ¶ 96-101.
Plaintiff alleges that the KCDAO, under the leadership of then District Attorney Charles Hynes
(“Mr. Hynes”), had in place an explicit policy “to hold back exculpatory material, including the
names and addresses of witnesses who could provide an alibi for the defendant or could
otherwise demonstrate that the defendant was not guilty, until the eve of trial.” Id. ¶ 67. In
Plaintiff’s case, he alleges that Assistant District Attorney Howard Jackson (“ADA Jackson”)
waited until less than a week before trial to produce some initial exculpatory material; waited
until the middle of trial to produce additional exculpatory material, including contact information
that would have lead directly to witnesses whose testimony would have supported Mr. Bailey’s
innocence and prevented his wrongful conviction at trial; and denied his attorney any meaningful
opportunity to make use of the late-provided materials. Id. ¶ 99. It is Plaintiff’s position that
these acts constituted a violation of Brady v. Maryland, 373 U.S. 83 (1963),2 and that the
violation was caused by a KCDAO policy. Id. ¶ 100.
1
Pursuant to Monell, a local government can be held liable under 42 U.S.C. § 1983 when a
municipal policy or custom causes the constitutional violation that injured the plaintiff. Monell,
436 U.S. at 694.
2
“The suppression by the prosecution of evidence favorable to an accused . . . violates due
process where the evidence is material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution.” Brady, 373 U.S. at 87. “Evidence is ‘material’ within the
meaning of Brady when there is a reasonable probability that, had the evidence been disclosed,
2
B.
Procedural Background
After Defendants filed a motion for summary judgment, the Honorable Jack B. Weinstein
issued a Memorandum and Order, granting summary judgment regarding Plaintiff’s false arrest
claim, but denying summary judgment with respect to Plaintiff’s Monell, fair trial, and federal
and state malicious prosecution claims. Summ. J. Order at 47, ECF No. 72. District Judge
Weinstein specifically stated that “given the materials submitted by Plaintiff suggesting a
possible pattern and practice by the District Attorney of Kings County in violation of the
constitution, the Monell issue cannot be swept under the rug.” Id. at 39; see id. at 40.
Following Judge Weinstein’s Order, Plaintiff filed his first motion to compel production
of witnesses and documentary discovery, including deposition transcripts and deposition exhibits
from the Collins case. Pl. Mot. to Compel (“Pl. Mot. I”), ECF No. 74. After reviewing the
Parties’ written submission and hearing oral argument, this Court granted Plaintiff’s motion,
stating that,
As to the Collins DA materials, all depositions and supporting
materials must be produced by 2/13/15 except as to materials
marked confidential and as to FOIL materials. Counsel may
negotiate a narrowing of the request, especially as to exhibits. By
[close of business] on 2/10/15, [Defendants] may submit an ex
parte letter explaining why any Collins material should remain
confidential. As discussed on the record, Plaintiff made a
sufficient claim that the Brady issues explored in Collins are likely
to lead to admissible Monell information/evidence, and
[Defendants] failed to show any privilege or lack of relevance,
particularly given that Defendants’ counsel did not know the
contents of several of the witnesses’ testimony/deposition
transcripts. Notably, [Defendants] failed to explain that or whether
the result of the proceeding would have been different.” Cone v. Bell, 556 U.S. 449, 469-70
(2009). In addition, “[u]nder the Rosario rule, the prosecutor is required to make available to the
defendant prior to trial ‘[a]ny written or recorded statement . . . made by a person whom the
prosecutor intends to call as a witness at trial, and which relates to the subject matter of the
witness’s testimony.’” Mayo v. Henderson, 13 F.3d 528, 534 (2d Cir. 1994) (quoting N.Y. Crim.
Pro. L. § 240.45(1)(a)).
3
any policing or investigatory processes would be revealed to the
[Defendants’] or the public’s detriment.
Order at 2-3, ECF No. 77.3
Defendants did not submit a letter by the deadline. Thereafter, Judge Weinstein set a
deadline for the completion of discovery of October 1, 2015. Minute Entry, ECF No. 78. In
addition, after a telephone conference with counsel, this Court permitted Defendants additional
time in which to produce or object to the production of any Collins deposition exhibits, and
allowed Defendants to, at that time, withhold allegedly confidential Collins materials.
Scheduling Order, ECF No. 80.
Plaintiff then filed the motion to compel currently before this Court, in which Plaintiff
initially requested the production of Exhibits 223-237 and 401-405 from the Collins case. Pl.
Mot. II, Ex. 1. Defendants responded by agreeing to produce Exhibits 232, 234 and 237 subject
to a protective order;4 producing Exhibits 402 and 403; informing Plaintiff that Defendants were
unable to locate Exhibit 404; agreeing to produce Exhibit 405 with redactions; and objecting to
the rest of the requested exhibits on relevancy and privilege grounds.5 Defs. Opp. at 2. Plaintiff
filed a reply. Pl. Reply, ECF No. 83. The Court also permitted the Parties to submit
supplemental letters. Defs. Letter, ECF No. 85; Pl. Letter, ECF No. 86. Thus, Plaintiff seeks
3
Following this Order, Defendants have not raised any additional argument suggesting
Defendants are asserting a law-enforcement privilege.
4
These documents were produced by Defendants “with the understanding that those documents
would remain confidential until this issue was resolved by the Court.” Defs. Letter at 2, ECF
No. 85.
5
Neither Party has addressed Exhibit 401, described as “Kings County District Attorney’s Office
Polices and Regulations for Assistant District Attorneys,” Pl. Mot. II, Ex. 2; see Defs. Letter at 23, and as Plaintiff now requests only the Reversal Memos and Year-End Memos, Pl. Letter at 1,
ECF No. 86, the Court assumes the Parties have resolved their dispute as to Exhibit 401, in
addition as to Exhibits 402-405.
4
disclosure of Exhibits 223-231, 233 and 235-236, and the resolution of the confidentiality of
Exhibits 232, 234 and 237.
C.
The Collins Litigation
The Collins litigation concerned a former inmate who was granted federal habeas relief
after serving more than sixteen years upon his conviction for murder and other offenses, and who
then brought an action under § 1983 against the City, members of the NYPD and members of the
KCDAO, seeking damages for violations of federal and and New York law stemming from the
wrongful deprivation of his liberty. See Collins v. City of New York, 923 F. Supp. 2d 462, 462
(E.D.N.Y. 2013). The Monell claim in Collins accused the KCDAO and Mr. Hynes of
“maintaining a policy, custom, and/or practice of deliberate indifference to violations by his
employees of the constitutional rights of individuals who were investigated and criminally
prosecuted in Kings County, including, but not limited to, abuse of process, manufacturing of
false evidence and testimony through improper coercion of witnesses, Brady violations, reliance
on false or misleading evidence and argument at trial, and covering up the same.” Collins, No.
11 Civ. 0766 (FB) (RML) (E.D.N.Y. Feb. 16, 2011) (Compl. ¶ 79, ECF No. 1).
The discovery produced in Collins included KCDAO Reversal Memos related to
purported mistakes made by Assistant District Attorneys in particular cases, and which were sent
from the Appeals Bureau to the Bureau where the particular ADA was assigned. Pl. Letter at 1,
Ex. 1. In addition, the discovery included Year-End Memos which “broadly surveyed appellate
developments from a given year.” Id. at 1.
II.
DISCUSSION
Rule 26(b) permits parties to “obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1). Rule 37 allows a party to
5
move for an order compelling disclosure or discovery, where the opposing party fails to make a
disclosure required by Rule 26(a) and the movant has in good faith conferred or attempted to
confer with the opposing party in an effort to obtain the disputed materials without court action.
Fed. R. Civ. P. 37(a)(1), (3)(A).
A.
The Collins Exhibits Are Relevant For Purposes of Discovery
It is axiomatic that the federal rules concerning discovery are afforded a “broad and
liberal construction.” Shahzad v. Cnty. of Nassau, No. 13 Civ. 2268 (SJF) (SIL), 2014 WL
4805022, at *3 (E.D.N.Y. Sept. 26, 2014) (quoting Anderson v. Sposato, No. 11 Civ. 5663 (SJF)
(WDW), 2014 WL 794282, at *2 (E.D.N.Y. Feb. 26, 2014)); see Ambac Assur. Corp. v.
Adelanto Pub. Util. Auth., No. 09 Civ. 5087 (JFK), 2012 WL 1589597, at *5 (S.D.N.Y. May 7,
2012) (same). “[T]he overriding policy is one of disclosure of relevant information in the
interest of promoting the search for truth in a federal question case.” Steinberg v. Mount Sinai
Med. Ctr., Inc., No. 12 Civ. 51 (SLT) (VMS), 2014 WL 1311572, at *2 (E.D.N.Y. Mar. 31,
2014) (quoting Sabharwal v. Mount Sinai Med. Ctr., No. 09 Civ. 1950 (JBW), 2011 WL 477693,
at *2 (E.D.N.Y. Feb.4, 2011)). “Relevant information need not be admissible at the trial if the
discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed.
R. Civ. P. 26(b)(1). The scope of discovery is particularly broad in a federal civil rights action.
See Steinberg, 2014 WL 1311572, at *6; King v. Conde, 121 F.R.D. 180, 195 (E.D.N.Y. 1988)
(in a civil rights case, “the defendants’ case for restricted disclosure must be extremely
persuasive”).
In this case, Plaintiff contends that the Reversal Memos and Year-End Memos entered as
exhibits during depositions in Collins, even those not specifically relating to Brady or Rosario
violations, provide significant information concerning the manner in which the KCDAO
6
addressed and responded to trial misconduct by its attorneys and are therefore relevant to the
present case. Pl. Mot. II at 2. Plaintiff seeks these documents as evidence of the notice and
policy of the KCDAO concerning the violations challenged by Plaintiff, and because the
summary documents may be an efficient approach through which Plaintiff can obtain the
information needed to support his claims on the fairly strict discovery timetable required by the
Court, rather than Plaintiff asking Defendants for discovery on a case-by-case basis, which
would likely require greater resources than will a limited review of the cases on the summary
documents. Indeed, Judge Weinstein, in denying summary judgment on the Monell claim, cited
to Collins several times, including a quotation from Collins that “[t]he Court concludes that [the]
allegations regarding Hynes’s response—or lack thereof—to misconduct [involving Brady
violations and other prosecutorial misconduct] . . . make plausible [the] theory that Hynes was so
deliberately indifferent to the underhanded tactics that his subordinates employed as to
effectively encourage them to do so.” Summ. J. Order at 21, ECF No. 72 (quoting Collins, 923
F. Supp. 2d at 478); see id. at 39-40 (repeating this quotation from Collins); see also id. at 20
(“The Mollen Report . . . establishes—at least for present purposes—that the misconduct
underlying this case . . . was sufficiently widespread to support an inference of deliberate
indifference. An entire section of the Report is devoted to ‘Perjury and Falsifying Documents,’
which is described as ‘a serious problem facing the Department.’ A jury could reasonably infer
from that circumstance, if proven, that the department’s policymakers were aware of a serious
risk of constitutional violations, and that the failure to take any action in response to the
problem—whether through training or otherwise—was the result of deliberate indifference.”
(quoting Collins, 923 F. Supp. 2d at 479)).
7
Defendants argue that Plaintiff’s Monell claim is more limited in scope than the Monell
claim in Collins, as Plaintiff’s claim only involves allegations of a policy or practice by the
KCDAO of failing to timely disclose Brady and/or Rosario material, and therefore the Reversal
Memos and Year-End Memos disclosed in Collins that do not deal with Brady or Rosario
violations by the KCDAO are not relevant in this case. Defs. Opp. at 2. Although the Monell
claim in Collins asserted several types of constitutional violations, Plaintiff’s Monell claim in
this case only referenced an explicit policy by the KCDAO and Mr. Hynes “to hold back
exculpatory material, including the names and addresses of witnesses who could provide an alibi
for the defendant or could otherwise demonstrate that the defendant was not guilty, until the eve
of trial.” Compl. ¶ 67.
This Court agrees with Plaintiff that the exhibits at issue are relevant and/or calculated to
lead to the discovery of relevant evidence. The requested Reversal Memos and Year-End
Memos are relevant not only to Plaintiff’s allegations of trial misconduct by trial ADAs at the
KCDAO, but as they are memoranda circulated throughout the office, they show that these
issues, including the failure to timely disclose Brady and Rosario material, were known to the
KCDAO and the District Attorney. Such documents may support Plaintiff’s position that the
City is liable for the KCDAO’s failure to timely disclose Brady and Rosario material, which for
Plaintiff allegedly resulted in his wrongful conviction and imprisonment. See Compl. ¶¶ 56-73,
96-101.
Although some of the requested exhibits concern types of constitutional violations other
than Brady or Rosario violations, the Collins exhibits are nonetheless relevant in that they may
shed light on a culture and policies that “effectively encouraged [ADAs] to” engage in
“underhanded tactics.” Summ. J. Order at 39-40 (quoting Collins, 923 F. Supp. 2d at 478).
8
Moreover, Plaintiff’s request is not, in the circumstances of this case, overbroad. Plaintiff seeks
only seventeen documents from the Collins litigation. Plaintiff has not requested discovery of all
Reversal Memos and Year-End Memos; rather, Plaintiff has narrowed his request to a small
number of documents at issue in an action which led to findings that have already been
recognized as useful and informative to this litigation. See Summ. J. Order at 20-21, 39-40
(citing to Collins, 923 F. Supp. 2d at 478-79). In these circumstances, the broad, permissive
standard of discovery in federal civil rights cases is compatible with allowing Plaintiff some
leeway to explore how the alleged Brady and Rosario misconduct related to other findings of
constitutional violations at the KCDAO, particularly where, as here, the modest scope of
Plaintiff’s request protects Defendants from a discovery fishing expedition.
B.
The Collins Exhibits Are Not Privileged
Defendants argue that the requested exhibits from Collins are “internal memos created by
attorneys within the KCDAO and circulated within the office, thus subject to privilege.” Defs.
Opp. at 2. They claim that the “production of these internal memos without the protection of a
confidentiality stipulation would defeat one of the purposes of the privilege here,” which is “‘to
assure that subordinates within an agency will feel free to provide the decision maker with their
uninhibited opinions and recommendations without fear or later being subject to public ridicule
or criticism.” Id. (quoting Providence Journal Co. v. U.S. Dep’t of Army, 981 F.2d 552, 557 (1st
Cir. 1992)).6 Defendants also claim that since the Reversal Memos were produced in the Collins
litigation with a cover letter stating, “Pursuant to the parties’ agreement, and pending the
6
The Court notes that Providence Journal Co. concerns the deliberative process privilege in the
context of a FOIA request for documents pertaining to an investigation of the Rhode Island
National Guard. Providence Journal Co., 981 F.2d at 557. There is no FOIA request at issue in
the present motion. The only other case cited by Defendants on the issue of privilege was United
States v. Nixon, 418 U.S. 683, 705 (1974) (Defs. Opp. at 2-3), in which the court found that the
President’s communications were not subject to absolute privilege, see id. at 713. That issue is,
of course, not before the Court in this case.
9
adoption of a protective order to govern discovery in this matter, these materials are to be kept
confidential and to be viewed only by the parties and their counsel,” that there was an implicit
understanding that these documents were to be treated as confidential, and therefore a
confidentiality stipulation should be entered into before these materials are produced to Plaintiff,
if they are to be produced at all. Defs. Opp. at 3.
Plaintiff asserts that the exhibits from Collins are not privileged and should not be
disclosed subject to any confidentiality agreement or order, as they “were not ultimately treated
as [confidential]” in Collins, thereby waiving any possible privilege to which they might
otherwise have been subject; were “discussed liberally in the non-confidential portions of the
[Collins] transcripts defendant[s] exchanged,” including during non-confidential portions of the
deposition of Jodi Mandel (“Ms. Mandel”), a Bureau Chief in the KCDAO; and were not
included in the “specifically enumerated materials” covered by the confidentiality order issued in
Collins. Pl. Reply at 2.7
Defendants have not specified, in any of their submissions to the Court, the type of
privilege to which they claim the disputed exhibits are subject. This is in and of itself sufficient
grounds for denying Defendants’ objection to production. Nonetheless, as Defendants’
arguments most closely mirror an argument for a finding of the self-critical analysis privilege,
and as Defendants’ citation to Providence Journal Co. implies that Defendants believe the
deliberative process privilege to be relevant, the Court—in the interest of completeness—will
consider the application of these privileges.
7
The confidentiality Order issued in Collins was not submitted by the Parties for the Court’s
review in this case, but Defendants did not dispute Plaintiff’s characterization of that Order.
10
1.
The Self-Critical Analysis Privilege Does Not Apply
The self-critical analysis privilege “protect[s] a party’s confidential analysis of its own
performance when that analysis tries to correct problems, on the assumption that disclosure of
the analysis during litigation may deter future candid reviews.” Ravenell v. Avis Budget Grp.
Inc., No. 08 Civ. 2113 (SLT), 2012 WL 1150450, at *4 (E.D.N.Y. Apr. 5, 2012) (quoting In re
Ashanti Goldfields Sec. Litig., 213 F.R.D. 102, 104 (E.D.N.Y. 2003)). “Neither the Supreme
Court nor the Second Circuit has settled the question of whether the self-critical analysis
privilege should be recognized as a matter of federal law.” MacNamara v. City of New York,
No. 04 Civ. (KMK) (JCF), 2007 WL 755401, at *3 (S.D.N.Y. Mar. 14, 2007) (quoting Mitchell
v. Fishbein, 227 F.R.D. 239, 251 (S.D.N.Y. 2005), adhered to on reconsideration, No. 04 Civ.
9216 (RJS) (JC), 2007 WL 3196295 (S.D.N.Y. Oct. 30, 2007); see Ravenell, 2012 WL 1150450,
at *4 (same); Devins v. Lazoff, No. 09 Civ. 9599 (PAC) (KNF), 2012 WL 1080182 at *1
(S.D.N.Y. Mar. 30, 2012) (same). To the extent that this privilege is recognizable, “a party
invoking the self-critical analysis privilege must show that: (i) the information sought ‘resulted
from a critical self-analysis undertaken by the party seeking protection’; (ii) ‘the public has a
strong interest in preserving the free flow of the type of information sought’; and (iii) ‘the
information is of the type whose flow would be curtailed if the discovery were allowed.’”
Devins, 2012 WL 1080182, at *1 (quoting Mitchell, 227 F.R.D. at 252).
The Court need not resolve whether to recognize the self-critical analysis in this case
because, assuming arguendo that the privilege could apply, Defendants have nonetheless failed
to demonstrate that “the information is of the type whose flow would be curtailed if the
discovery were allowed.” Devins, 2012 WL 1080182, at *1. In other words, Defendants have
not demonstrated that the KCDAO would suppress the type of self-critical analysis at issue
11
here—such as investigating and disciplining misconduct by ADAs—were discovery allowed in
this matter. For example, in MacNamara, when the City argued that the privilege should protect
the NYPD’s After-Action Reports to prevent that self-critical analysis from being curtailed, the
court stated that “the City [gave] NYPD officials too little credit” as “[t]he NYPD has a strong
incentive to evaluate its tactics regularly and carefully because, as a government agency, it has
an obligation to the public to ensure that its operations are effective.” MacNamara, 2007 WL
755401, at *4. The court also cited to “the many cases in which courts have rejected assertions
of the privilege on the ground that the self-critical analysis function would occur irrespective of
whether the court required that analysis to be disclosed in litigation.” Id. (quoting Mitchell, 227
F.R.D. at 252, and collecting cases); see Ravenell, 2012 WL 1150450, at *5 (a “blanket assertion
that the disclosure of employment audit documents in any case would discourage evaluation of
employee position classifications” was insufficient to support a claim of self-critical analysis
privilege); In re Ashanti Goldfields Sec. Litig., 213 F.R.D. at 105 (holding that the corporate
defendant had “significant incentives to assess and correct problems in its business strategies and
undertake corrective measures to avoid future losses” and that “[t]hose incentives far outweigh
any harm that might result from disclosure”).
As in MacNamara, Defendants in this case have a strong incentive to evaluate the
performance of the ADAs in the KCDAO and to investigate any allegations of corruption or
incompetence. Unlike many other circumstances in which the privilege might apply because the
reviews would draw on confidential sources or analysis about failures of the KCDAO, the
KCDAO memos draw on the results in publicly filed and prosecuted cases, where many of the
failures are identified in the public record and in court decisions. This makes the very nature of
the events under scrutiny different from self-critical reviews conducted by private entities, such
12
as in Ravenell, 2012 WL 1150450, at *5, and In re Ashanti Goldfields Sec. Litig., 213 F.R.D. at
105. In any event, as in Ravenell, Defendants’ conclusory assertion that their self-critical
analysis would be chilled by the prospect of discovery is insufficient to support a finding of
privilege. Indeed, Defendants have not provided any relevant legal or factual argument to
support this claim, and for these reasons the Court finds that the self-critical analysis privilege
does not apply to the disputed Collins exhibits.
2.
The Deliberative Process Privilege Does Not Apply
The deliberative process privilege may protect from disclosure “documents reflecting
advisory opinions, recommendations and deliberations comprising part of a process by which
governmental decisions and policies are formulated.” Tigue v. U.S. Dep’t of Justice, 312 F.3d
70, 76 (2d Cir. 2002) (quoting Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532
U.S. 1, 8, (2001)). “An inter- or intra-agency document may be withheld pursuant to the
deliberative process privilege if it is: (1) ‘predecisional,’ i.e., ‘prepared in order to assist an
agency decisionmaker in arriving at his decision,’ and (2) ‘deliberative,’ i.e., ‘actually . . . related
to the process by which policies are formulated.’” Nat’l Council of La Raza v. Dep’t of Justice,
411 F.3d 350, 356 (2d Cir. 2005) (quoting Grand Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473, 482
(2d Cir. 1999)). The burden of establishing this qualified privilege rests with the party asserting
the privilege, and the court may consider “the various competing interests for and against
disclosure of any document found to qualify as a deliberative document.” Pearson v. City of
New York, No. 08 Civ. 3208 (SLT) (MDG), 2009 WL 3247433, at *2 (E.D.N.Y. Oct. 6, 2009).
The deliberative process privilege does not apply when “the documents were not created
to assist a governmental agency in the formulation of a specific decision on policy.” Charles v.
City of New York, No. 11 Civ. 0980 (KAM) (JO), 2011 WL 5838478, at *2 (E.D.N.Y. Nov. 18,
13
2011) (internal affairs investigation documents did not “contain the sort of deliberative
communications underlying the formation of public policy that the deliberative process privilege
is designed to protect,” but rather were “part of a routine process to determine whether
disciplinary action was warranted”; collecting similar cases concerning internal affairs
investigations); see Tigue, 312 F.3d at 80 (to qualify for the privilege, the document must have
been “prepared to assist [agency] decisionmaking on a specific issue,” and not as part of the
agency’s routine processes); see also Pearson, 2009 WL 3247433, at *1 (“comments relating to
the adequacy of personnel,” “logistical issues” and operating decisions “are not policy matters”
and are not privileged); Mitchell v. Fishbein, 227 F.R.D. 239, 251 (S.D.N.Y. 2005) (documents
related to the recertification of attorneys were not protected by the deliberative process privilege
because “decisions whether to certify or decertify an attorney are best characterized as ‘routine’
decisions of the Screening Committee . . . and thus cannot qualify for the deliberative process
privilege”); Otterson v. Nat’l R.R. Passenger Corp., 228 F.R.D. 205, 208 (S.D.N.Y. 2005) (notes
made by an agent of Amtrak’s Office of the Inspector General concerning an investigation were
not protected by the deliberative process privilege because the document was unrelated to “any
policy issues”).
Likewise, “explaining or interpreting an existing policy or measuring
compliance with existing procedures is not predecisional, and thus is not privileged.” Pearson,
2009 WL 3247433, at *1; E.B. v. N.Y.C. Bd. of Educ., 233 F.R.D. 289, 292 (E.D.N.Y. 2005)
(same). At bottom, “[t]he [deliberative process p]rivilege is properly limited to communications
relating to policy formulation at the higher levels of government; it does not operate
indiscriminately to shield all decision-making by public officials.” Charles, 2011 WL 5838478,
at *2 (quoting Scott v. Bd. of Educ. of City of E. Orange, 219 F.R.D. 333, 337 (D.N.J. 2004)).
14
In this case, Defendants merely state that permitting disclosure could inhibit
“subordinates” from informing a “decision maker” of their “uninhibited opinions.” Defs. Opp. at
2 (quoting Providence Journal Co., 981 F.2d at 557). Although the burden for establishing the
privilege rests with Defendants, see Pearson, 2009 WL 3247433, at *2, Defendants have not
identified any “specific decision on policy” for which the Collins exhibits were created, Charles,
2011 WL 5838478, at *2. Defendants’ vague references to subordinates and a decision maker is
not sufficient to meet Defendants’ burden. Therefore, this Court finds that Defendants have not
demonstrated that the deliberative process privilege applies.
C.
The Collins Documents Need Not Be Produced
Subject To A Confidentiality Order
Finally, as discussed supra Section II.B, Defendants contend that if the Collins
documents are to be produced, they should be produced pursuant to a confidentiality order.
Defs. Letter at 3. Pursuant to Rule 26(c), upon a showing of good cause, a court may issue a
protective order “to protect a party or person from annoyance, embarrassment, oppression, or
undue burden or expense,” including by “forbidding the disclosure of discovery.” Fed. R. Civ.
P. 26(c)(1)(a). “‘Good cause’ for the issuance of a protective order is established ‘when a party
is able to show that a clearly defined, specific and serious injury will occur in the absence of
such an order.’” Liyan He v. Cigna Life Ins. Co. of New York, No. 14 Civ. 2180 (AT) (GWG),
2015 WL 4114523, at *1 (S.D.N.Y. July 8, 2015) (quoting Qube Films Ltd. v. Padell, No. 13
Civ. 8405 (AJN), 2015 WL 109628, at *2 (S.D.N.Y. Jan. 5, 2015)).
To the extent Defendants assert that the Collins documents were designated and
maintained as confidential during the Collins litigation, Plaintiff submitted portions of the
deposition of Ms. Mandel, in which the disputed documents were introduced as exhibits. Pl.
Reply, Ex. A. In this submitted portion of Ms. Mandel’s deposition, Exhibits 225-237 are
15
marked for identification, presented to her and then identified. For each Exhibit, Ms. Mandel
identified the exhibit number, usually identified the name of the case, and sometimes identified
the Bureau or ADA responsible for that case. Id. For example, as to Exhibit 230, the following
exchange occurred, without the deposition, or this segment of the deposition, being designated as
confidential:
Q.
Turn to exhibit 230. Do you recognize this document?
A.
Yes.
Q.
What do you recognize it as?
A.
It is a reversal memo from Anthea Brufee to the executive
in charge of the gray zone and her bureau chief I believe is
Aaron Nodditch.
Q.
Have you ever seen this memorandum before?
A.
No.
Q.
Are you aware of whether the ADA involved in this case,
People v. Liverpool, was investigated or disciplined in
connection with his conduct in this case?
Ms. Krasnow: Objection to form.
A.
I don’t know. . . .
Id. Furthermore, as to Exhibit 232, Ms. Mandel described the specific type of error at issue in
that Reversal Memo. Id. As noted above, the kind of memoranda at issue relate to Court’s
rulings on publicly filed cases such that the foundational materials of the memoranda are
necessarily not confidential.
16
Notably, neither these portions of Ms. Mandel’s deposition transcript nor the specific
deposition exhibits was designated as confidential by counsel in Collins during that deposition,
notwithstanding the initial cover letter suggesting the exhibits would be treated as confidential.
Cf. In Re Phillip Services Corp. Secs. Litig., No. 98 Civ. 0835 (MBM) (DF), 2005 WL 2482494,
at *2 (S.D.N.Y. Oct. 7, 2005) (That “two letters were apparently marked as exhibits at a
deposition . . . without objection from any party” weighed in favor of finding the attorney-client
privilege waived). Plaintiff also attached a portion of the deposition of Michael Vecchione (“Mr.
Vecchione”), a former employee of the KCDAO, which was taken two months after Ms. Mandel
had testified in the Collins litigation. Pl. Letter at 2, Ex. B. Plaintiff offered this transcript to
demonstrate that counsel had designated portions of Mr. Vecchione’s deposition testimony as
confidential, showing that counsel in Collins were aware of the need to mark restricted matters as
confidential. Id. at Ex. B. Moreover, Defendants have not asserted that the defendants in Collins
or Defendants in this action took any action to seal the Collins exhibits during or after the Collins
litigation. See generally SOHC, Inc. v. Zentis Sweet Ovations Holding LLC, No. 14 Civ. 2270
(JMF), 2014 WL 5643683, at *6 (S.D.N.Y. Nov. 4, 2014) (where exhibits were public filed
without redaction “for months,” and the defendant “did not take any immediate steps to cure the
disclosure” or to “draw the Court’s attention to the fact that it believed its confidential
information was being made public,” “the proverbial cat is out of the bag” and the defendant’s
request for redaction was denied as moot), reconsideration denied sub nom. SOHC, Inc. v. Zentis
Food Solutions N. Am., LLC, No. 14 Civ. 2270 (JMF), 2014 WL 6603951 (S.D.N.Y. Nov. 20,
2014).
Thus, Plaintiff has demonstrated that the Reversal Memos and Year-End Memos were
introduced as deposition exhibits in Collins, without any designation of confidentiality or timely
17
action to correct any inadvertent disclosure. Any initial intention to secure the confidentiality of
these documents was repudiated by the subsequent litigation decisions, and the treatment of the
Collins deposition exhibits as unprotected documents and topics of public discussion in Collins
weighs against imposing a confidentiality order in the present case.
Besides arguing that the Collins exhibits should be deemed confidential in this case
because they were purportedly treated as confidential in Collins, Defs. Letter at 3, Defendants
only argument in support of a confidentiality order is that it would promote self-critical analysis
and would prevent “public dissemination” of the documents. Defs. Opp. at 2-3. Defendants
raise vague “concerns as to plaintiff’s purpose for obtaining this information,” and Defendants
would put the burden on Plaintiff to demonstrate “why these internal memos of the KCDAO’s
should not be protected.” Id. at 3.
To the contrary, the burden of establishing good cause for a protective order lies with the
party seeking the protective order. See Gambale v. Deutsche Bank AG, 377 F.3d 133, 142 (2d
Cir. 2004); Hassan v. Town of Brookhaven, No. 13 Civ. 4544 (JMA) (SIL), 2015 WL 3455108,
at *3 (E.D.N.Y. May 29, 2015). Here, Defendants have not met their burden to “show a clearlydefined and significant harm,” and instead provide conclusory assertions that public
dissemination would be harmful without supporting those assertions with any factual showing.
Allstate Ins. Co. v. Nazarov, No. 11 Civ. 6187 (PKC) (VMS), 2015 WL 1396377, at *2
(E.D.N.Y. Mar. 25, 2015); see Levy v. Ina Life Ins. Co. of New York, No. 05 Civ. 10310 (GEL),
2006 WL 3316849, at *2 (S.D.N.Y. Nov. 14, 2006) (“generalized and conclusory assertions” of
harm are “insufficient to show good cause for a protective order”). Defendants have had ample
opportunity to make such a showing in this case, but they have failed to do so. “Where the party
seeking a protective order does not demonstrate the materials to be actually sensitive, courts are
18
not obliged to enter orders that limit the freedom of opposing counsel and require the court to
police future use or public disclosure of materials obtained in discovery.” Levy, 2006 WL
3316849, at *1. This reasoning is particularly apt where, as here, the documents at issue were
treated in a non-confidential manner in prior litigation. Thus, as Defendants have failed to
demonstrate good cause for the confidentiality order they seek, their request is denied.
III.
CONCLUSION
For the reasons stated herein, this Court grants Plaintiff’s motion to compel the
production of the Reversal Memos and Year-End Memos (Exhibits 223-237) from the Collins
litigation, and denies Defendants’ motion to subject these documents to a confidentiality order.
Defendants are ordered to produce the Reversal Memos and Year-End Memos to Plaintiff by
August 3, 2015.
Dated: Brooklyn, New York
July 27, 2015
Vera M. Scanlon
VERA M. SCANLON
United States Magistrate Judge
19
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?