Rosenfeld v. Lenich

Filing 98

MEMORANDUM & ORDER re: 75 Motion: For the foregoing reasons, the court AFFIRMS Magistrate Judge Peggy Kuo's August 16, 2018 Order denying Plaintiff's request to grant the Plaintiff one-sided access to the fruit of the wiretapping scheme at issue in this case. So Ordered by Judge Nicholas G. Garaufis on 2/1/2019. (Lee, Tiffeny)

D/F
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-X

STEPHANIE ROSENFELD,
Plaintiff,
MEMORANDUM & ORDER

-against-

17-CV-7299(NGG)
(PK)

TARA LENICH; CITY OF NEW YORK;
LU-SHAWN M.THOMPSON,AS
ADMINISTRATOR OF ESTATE OF

KENNETH P. THOMPSON;ERIC
GONZALEZ; WILLIAM SCHAEFER;BRIAN
DONAHUE;and JOHN/JANE DOES I-IO,
Defendant.
-X

NICHOLAS G. GARAUFIS,United States District Judge.

On August 16,2018, Magistrate Judge Peggy Kuo denied Plaintiffs request to grant the

Plaintiff but deny the Defendants access to the contents ofthe intercepted communications that
are the subject ofthis action (the "August 16 Order"). (Aug. 16,2018 Min. Entry.) Before the

court are Plaintiff's Objections to Judge Kuo's August 16 Order.^ (Objections to the August 16
Order("Obj.")(Dkt. 75).) For the reasons below,the court affirms the August 16 Order.
I.

BACKGROUND

On April 3,2017, Defendant Tara Lenich, a former Assistant District Attomey with the

Kings County District Attomey's Office("KCDA"),pleaded guilty to two counts ofillegal
interception ofcommunications occurring over two cellphones—one belonging to Plaintiff and

the other to NYPD Detective Jarrett Lemieux—^in violation of 18 U.S.C. §§ 251 l(l)(a),
251 l(4)(a), and 3551, et sea. (Am. Compl.("FAC")(Dkt. 11)If 84.) On December 14,2017,

'
Judge Kuo also denied Plaintiffs motion for reconsideration ofthe August 16 Order. (See Mot. for
Reconsideration(Dkt. 77); Sept. 7,2018 Order).
1

Plaintiff brought an action under the Electronic Communications Privacy Act("HOPA" or the
"Wiretap Act"), 18 U.S.C. §§ 2510 et seq and 2701 et seq.. 42 U.S.C. § 1983, and certain state
tort laws against Lenich and the City of New York, Lu-Shawn M. Thompson(as administrator of
the estate of Kenneth P. Thompson),Eric Gonzalez, William Schaefer, Brian Donohue,and

John/Jane Does 1-10("City Defendants"). (See Compl.(Dkt. 1); FAC

98-133.) Plaintiff

alleges that between approximately June 2015 and December 2016, Lenich used KCDA
resources to unlawfully intercept, record, and review electronic communicatios sent to and from
Plaintiffs and Detective Lemieux's private cell phone through fraudulent wiretap orders and
search warrants that she created. (FAC H 41-58.) Plaintiff seeks monetary relief. (Id. at 23.)
On April 27,2018, City Defendants requested a pre-motion conference for the purpose of
seeking leave to file a motion to dismiss. (See Letter Requesting Pre-Motion Conference (Dkt.
36).) The court granted this request, and on May 24, 2018,the parties appeared before the court

for a pre-motion conference. (May 25,2018 Min. Entry.) During the conference. Plaintiff
indicated her intention to seek production ofthe intercepted communications,in part to
determine the identities of other individuals with whom Plaintiff communicated, who might have

their own claims for violations ofthe Wiretap Act. (See Tr. ofPre-Motion Conference(Dkt. 762)at 7, 9-11.) The court ordered the parties to contact Judge Kuo to discuss the proper scope of
initial discovery. (May 25,2018 Min. Entry.)
On June 7,2018,the parties appeared before Judge Kuo for an initial conference. (June
8,2018 Min. Entry.) Plaintiff explained that she was seeking discovery into the identities of all

individuals who had reviewed and who still had access to her wiretapped communications. (Tr.

of June 7,2018 Initial Conference ("Initial Conference Tr.")(Dkt. 49)at 15:13.) Plaintiff also
sought an order disclosing, for attorneys' eyes only,"the contents ofthe communications

themselves." (Id. at 15:14-16:23.) Judge Kuo expressed concerns that turning over these

communications would "create a claim for the counter parties to those telephone conversations"
and sought to understand how the communication were currently being stored. (Id. at 16:3-7,
16:24-17:1.) City Defendants explained that the communications were "under seal, not to be
accessed by anyone" absent a court order. (Id at 21:7, 21-22.) Judge Kuo then ordered City

Defendants to file a Motion for Protective Order "detailing the scope ofthe wiretapped
communications in their possession and [] under seal, identifying anyone who has or had access
to these communications, the burdensomeness of production ofthe communications or

information related to them (e.g., phone numbers, volume, names, etc.), and any legal arguments
for non-production or delayed production ofthe communications or information related to
them." (June 8,2018 Min. Entry.)
To facilitate compliance with this order. City Defendants next sought an order
authorizing the KCDA and counsel for City Defendants to access "all files, recordings, and

documents related to the interception ofcommunications" at issue in the case. (Proposed Order
(Dkt. 42-1).) In response. Plaintiff argued that "only the attomeys who have appeared in this
case [should have] access to Plaintiffs unlawfully intercepted communications" and requested
that the court order anyone receiving or viewing her communications to keep them confidential.
(Letter in Opp'n to City Defendants' Proposed Order(Dkt. 43)at 2.) On June 14,2018,Judge

Kuo directed City Defendants to file a revised proposed order,"listing the names ofthe
individuals who will have access to the communications at issue"(the "Authorized Individuals").

(June 14,2018 Order.) City Defendants did so. (Letter with Revised Proposed Order(Dkt. 45).)
Plaintiffthen requested that the proposed order specify that the Authorized Individuals could not

view the contents of any communications intercepted from Plaintiffs cell phone. (Letter in

Response to Revised Proposed Order(Dkt.46) at 1-2.) Plaintiff reasoned that City Defendants
could determine the number ofcommunications, whom they were between, and how they were
being stored—and thus comply with Judge Kuo's June 7 order—^without viewing their contents.

(Id. at 2.) Counsel for all parties then requested a status conference to address the proposed
order. (Joint Letter re: Status Conference(Dkt. 47).)

A status conference was scheduled for June 26,2018. (June 21,2018 Order.) In advance

ofthe conference. Plaintiff submitted a letter "clarify[ing]" that she "object[ed] to any review of
the contents of her intercepted communications without either her individualized consent or a

Court finding that such review is necessary to comply -with the Court's June 7,2018 Order."

(Letter in Advance of June 26,2018 Status Conference (Dkt. 48)at 1.) Plaintiff also "renew[ed]
her request" to have "the full contents of her intercepted communications" tumed over to her,

noting that "[o]fcourse, any contents on which she seeks to rely specifically to assert a claim for
damages will be disclosed to Defendants when and if[Plaintiff] seeks damages based on the
contents of specific communications." (Id at 1-2.)

During the status conference on June 26,2018, Judge Kuo informed the parties that
discovery would proceed "in stages," beginning with the "metadata issue." (Tr. of June 26,2018
Status Conference (Dkt. 54) at 23:17-24:5.) To that end, she directed City Defendants to
determine how and where the communications were being stored, who has access to them, and
what would be needed to retrieve information about those communications without reading the
contents, if possible. (June 27,2018 Min. Entry.) Judge Kuo denied Plaintiffs "request for an
order to turn over all wiretapped communications to Plaintiff only ... at this time." fid.)
On July 6,2018, City Defendants filed a letter providing the court with information

regarding the KCDA's maintenance ofthe intercepted communications. (Letter re: the Court's

June 27,2018 Order(Dkt. 52).) In light ofthis letter, Judge Kuo ordered the parties to confer
and jointly propose a plan for disclosure ofthe wiretapped communications. (July 10,2018

Order.) On August 9,2018,the parties submitted a proposed order regarding the disclosure of

wiretapped communications along with a letter outlining the remaining disputes between the
parties. (Letter re: Joint Status Letter re: Disclosure of Communications(Dkt. 56)at 1.) One
such remaining dispute was whether Plaintiff should be granted one-sided access to the contents
of her communications. (Id. at 3.)

The parties appeared before Judge Kuo on August 15,2018 for a status conference. (See
Aug. 16,2018 Min. Entry.) Judge Kuo explained that she had taken "great pains" to determine
that the wiretap communications were "not still out there," but were instead sealed and being
held in a secure manner. (Tr. of August 15,2018 Status Conference("Aug. 15 Tr.")(Dkt. 74)at
28:19-25.) Plaintiffs counsel represented to Judge Kuo that the contents ofthe communications
were not necessarily relevant to the instant litigation:

With respect to the analogy you raised earher,the attomey-client privilege, I think
a distinction in that scenario is that communications can be discoverable by all sides
when they're necessary and relevant to the dispute. That's not the case here. The
content ofthese—^this case is not about the content ofthese communications. It's

not about what Stephanie Rosenfeld said to her mother in 2015 on the phone. It's
about how her [] communications got intercepted and what happened with those
interceptions.

(Aug. 15 Tr. at 26:19-27:4.) He added:"to the extent that they would be relevant at all the only
thing I think they would be relevant to is damages." (Id at 28:10-11.) Judge Kuo concluded that
"if what you're saying is the content is not important ultimately except for damages then I think
we should move forward with the case where nobody is looking at the content until damages
becomes at issue." (Id at 29:17-20.) Judge Kuo accordingly denied Plaintiffs request to grant
her exclusive access to the contents ofthe intercepted communications:

Plaintiff stated that the contents of the communications may only be relevant to
damages. The Court encouraged Plaintiff to determine whether that is, in fact, her
position. If so, then it may be possible to litigate liability without accessiug the
contents ofthe communications until an assessment of damages is necessary. The
Court reiterates that the contents of the communications may not be reviewed by
any ofthe parties at this time.
(Aug. 16,2018 Min. Entry.) Plaintiff now asks this court to set aside Judge Kuo's order and
enter a new order directing "City Defendants to return Plaintiffs communications to her, without
review by any Defendant or their counsel." (Obj. at 3.)
II.

LEGAL STANDARD

"A discovery ruling by a magistratejudge is a non-dispositive matter, and as such the
Court will only set aside an order 'that is clearly erroneous or is contrary to law.'" Shinkevich v.

Staten Island Univ.Hosp.. No.08-CV-1008(FB),2012 WL 4442621, at *1 (E.D.N.Y. Sept. 25,
2012)(quoting 28 U.S.C. § 636(b)(1)(A), and Fed. R. Civ. P. IKbS): see also Thomas E. Hoar.
Inc. V. Sara Lee Corp.. 900 F.2d 522,525(2d Cir. 1990)(finding that discovery rulings are

generally non-dispositive). "A magistrate's ruling is contrary to law if it fails to apply or
misapplies relevant statutes, case law, or rules of procedure, and is clearly erroneous ifthe
district court is left with the definite and firm conviction that a mistake has been committed."

Thai Lao Lignite (Thai.") Co. v. Gov't ofthe Lao People's Democratic Republic. 924 F. Supp. 2d
508, 512(S.D.N.Y. 2013)(alterations adopted)(internal citations and quotation marks omitted).
"This standard is 'highly deferential,' 'imposes a heavy burden on the objecting party,' and 'only
permits reversal where the magistrate judge abused his discretion.'" Milan v. Sprint Corp.. No.
16-CV-4451 (DRH),2018 WL 1665690, at *2(E.D.N.Y. Apr. 6,2018)(quoting Mitchell v.
Century 21 Rustic Realtv. 233 F. Supp. 2d 418,430(E.D.N.Y. 2002)).

m.

DISCUSSION

Plaintiff objects to Judge Kuo's order on three grounds. First, Judge Kuo "appeared to
erroneously adopt [City Defendants'] position that Plaintiffs private communications ceased to
be confidential because she brought this action." (Obj. at 2.) Second, contrary to Judge Kuo's
concerns. Defendants will not be disadvantaged by a one-sided disclosure because Plaintiff

would produce any relevant communications on which she intended to rely back to the
Defendants. (Id at 2-3.) Third, Judge Kuo's order "prevents Plaintifffrom receiving what is
rightfully hers." (Id at 3.) Thus,Plaintiff argues. Judge Kuo's order is clear error. (Id at 2.)

Defendant Lenich responds that Plaintiff provides "no authority to support her position
that the intercepted communications are 'rightfully hers.'" (Lenich Response in Opp'n to Obj.
("Lenich Opp'n")(Dkt. 76)at 1.) Lenich suggests that as a victim ofthe criminal wiretap

scheme. Plaintiff has other avenues besides civil discovery to seek the content ofthe wiretaps,
and that her status as a victim "does not entitle Plaintiffto special treatment under the Federal
Rules of Civil Procedure." (Id at 2.) City Defendants cite the Second Circuit's holding in

S.E.C. V. Raiaratnam. 622 F.3d 159(2d Cir. 2010),for the proposition that one-sided disclosure
is prohibited because "[pjlacing the parties on a level playing field ... is the very purpose for

which civil discovery exists."^ (City Def. Opp'n at 3.)
In Raiaratnam. the Second Circuit held that district courts must apply a balancing test to
determine whether disclosure ofthe fruits of a wiretap from one party to another in a civil

litigation is warranted. Raiaratnam.622 F.3d at 181. The Second Circuit explained that under

^ City Defendants also argue that Plaintiff's objections were procedurally improper because Plaintiff failed to serve a
notice of motion, a memorandum oflaw, and any necessary affidavits, as required by Local Rule 7.1(a).(City Def.
Response in Opp'n to Obj.("City Def. Opp'n")(Dkt. 80)at 1.) The court disagrees. As Plaintiff rightly observes.
Federal Rule of Civil Procedure 72(a)does not require an objecting party to make a formal motion, and Local Civil
Rule 7.1(a) only applies to the filing of motions.

such circumstances, the party seeking disclosure "clearly has an interest in access to the[]
wiretap conversations insofar as they create an informational imbalance prejudicing its

preparation for the civil trial." Id. at 184. This is true even ifthe disclosing party does not
intend to use such materials at trial, since "it would be nearly impossible to stop the attorneys

from,at the very least subconsciously, using information from these materials in preparation for
the civil trial." Id. However,the court cautioned,"a district court must balance the privacy

interests at stake against the right of access at issue in the case." Id. at 172. In order to avoid
any uimecessary infringement of privacy interests, the disclosure of wiretapped conversations
from one party to another must be limited to "relevant conversations." Id. at 187. Moreover,

where a wiretap is found to have been illegal, the balance tips towards nondisclosure. Id. at 185

("Ifthe wiretaps are found to have been unlawful, the privacy rights at issue would already have
been grievously infringed, and further dissemination ofconversations that had been illegally
intercepted would only compound the injury.").

Unlike in Raiaratnam. Judge Kuo was not asked to weigh the importance of"placing the

parties on a level playing field" against privacy interests. (Jd. at 182.) Instead, she was asked to
order the disclosure ofsealed communications—^which,in Plaintiffs words, are "not per se

relevant to this case"(Obj. at 2 n.l)—exclusively to one party,thereby creating an informational
imbalance and implicating the privacy rights ofthird parties. In light ofthe various concerns
raised by Plaintiffs request as well as Plaintiff's own contention that such communications
would be relevant, if at all, only to damages. Judge Kuo determined that the case should move
forward without disclosure ofthe contents ofthe conununications until at least the damages

phase.^ (Aug. 15 Tr. at 29:17-20.) The coiirt finds no clear error in Judge Kuo's order. The

^ To the extent that the Plaintiffsought these communications for reasons other than their relevance to the instant

action—^i.e.,"just because she wants [them]"(Aug. 15 Tr. at 30:17-18)—the court noted that Plaintiff has "certain
8

court notes, however, that the implications ofRaiaratnam for a situation in which the target of a

wiretap seeks one-sided disclosure ofsealed and illegally obtained, but potentially relevant,
communications are unclear, and should be given due consideration after full briefing if Judge
Kuo has occasion to revisit this question in the future.
With respect to Plaintiffs contention that Judge Kuo's order prevents her fi*om accessing
what is "rightfully hers"(Obj. at 3), Plaintiff points to no case law, and the court is not aware of
any, suggesting that Judge Kuo erred in this respect by refusing access to the contents ofthe

wiretap.
Accordingly,the court finds that Judge Kuo's August 16,2018 Order was not "clearly
erroneous" or "contrary to law" and declines to set it aside. See 28 U.S.C. § 636(b)(1)(A); Fed.
R. Civ. P. 72(a).
IV.

CONCLUSION

For the foregoing reasons, the court AFFIRMS Magistrate Judge Peggy Kuo's August 16,

2018 Order denying Plaintiffs request to grant the Plaintiff one-sided access to the fiiiit ofthe
wiretapping scheme at issue in this case.
SO ORDERED.

Dated: Brooklyn, New York
February J|_, 2019

s/Nicholas G. Garaufis

NICHOLAS G. GARAUflS
Uilited States District Judge

rights" as a victim of a crime and that she could potentially pursue the fruits ofthe wiretap in "a different action.
(Aug. 15 Tr. at 30:11-18.)