Tankleff v. The County of Suffolk et al

Filing 104

MEMORANDUM AND ORDER granting 78 Motion to Set Aside; granting 81 Motion to Amend/Correct/Supplement. For the foregoing reasons, the OAG's Objections are sustained and the Discovery Order is VACATED to the extent it compels the OAG to produce the Withheld Documents. So Ordered by Judge Joanna Seybert on 11/22/11. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
MARTIN TANKLEFF,
Plaintiff,

MEMORANDUM & ORDER
09-CV-1207(JS)(WDW)

-againstTHE COUNTY OF SUFFOLK, K. JAMES
McCREADY, NORMAN REIN, CHARLES
KOSCIUK, ROBERT DOYLE, JOHN MCELHONE,
JOHN DOE POLICE OFFICERS #1-10, RICHARD
ROE SUFFOLK EMPLOYEES #1-10,
Defendants.
---------------------------------------X
APPEARANCES:
For Plaintiff:
Barry C. Scheck, Esq.
Deborah L. Cornwall, Esq.
Emma Kate Freudenberger, Esq.
Neufeld Scheck & Brustin, LLP
99 Hudson Street, 8th Floor
New York, NY 10013
Bruce A. Barket, Esq.
Quadrino Schwartz
666 Old Country Road, 9th Floor
Garden City, NY 11530
Barry J. Pollack, Esq.
Miller & Chevalier Chartered
655 Fifteenth Street, NW Suite 900
Washington, DC 20005
For Defendants:

Richard T. Dunne, Esq.
Brian C. Mitchell, Esq.
Susan A. Flynn, Esq.
Suffolk County Department of Law
H. Lee Dennison Building
100 Veterans Memorial Highway
Hauppauge, NY 11788

For Nonparty
N.Y.S. Attorney
General:

Donald Nowve, Esq.
John M. Schwartz, Esq.
Office of the Attorney General
120 Broadway
New York, NY 10271

SEYBERT, District Judge:
Pending
Office

of

the

Magistrate

before

Attorney

Judge

the

Court

General’s

William

D.

are
(the

Wall’s

the

New

“OAG”)

order

York

State’s

Objections

compelling

it

to
to

produce certain documents that it argues are protected by the
attorney work product doctrine.

In his March 29, 2011 decision

(the “Discovery Order”), Judge Wall ruled, among other things,
that the documents in question were not work product because
they were not created in anticipation of litigation.

For the

following reasons, the OAG’s Objections are sustained and the
Discovery Order is vacated in part.
BACKGROUND
The Court presumes the reader’s familiarity with the
facts and posture of this case and only sets forth the facts
necessary to give context to the discussion that follows.

As is

relevant here, the New York State Appellate Division vacated
Martin

Tankleff’s

parents,

Seymour

(“Plaintiff”)
and

Arlene

convictions

Tankleff.

for

The

killing

Suffolk

his

County

District Attorney recused himself from further involvement in
the case, so then-Governor Eliot Spitzer appointed the OAG to
investigate the Tankleff murders and prosecute anyone that it
determined
Order

committed

Dated

Jan.

these

11,

crimes.

2008,

9

2

Eliot

N.Y.C.R.R.

Spitzer,
§

6.21.

Executive
The

OAG

investigated

the

case

and

ultimately

indictments pending against Plaintiff.

moved

to

dismiss

the

It has not prosecuted

anyone else for the Tankleff murders, and its investigation is
apparently closed.

(See Docket Entry 34-5, 1/15/10 Ltr. from

the OAG to Plaintiff’s counsel.)
In the course of this civil action, Plaintiff sought
documents from the OAG related to its investigation.

The OAG

resisted

several

producing

different

certain

privileges.

In

documents
his

by

Discovery

asserting
Order,

Judge

Wall

rejected many of the OAG’s arguments and ordered it to produce
all

of

the

disputed

documents

related to the grand jury.
Order

except

to

the

except

for

certain

materials

The OAG complied with the Discovery

extent

that

it

ordered

production

of

documents the OAG believes are protected by the attorney work
product

doctrine.

It

withheld

thirty-six

documents

(the

“Withheld Documents”) and filed these Objections.
The

Court

has

examined

the

Withheld

Documents

in

camera and agrees with the OAG that, to the extent the documents
are entitled to any type of work product protection, they are
properly considered “core” or “opinion,” as opposed to “fact,”
work product.

See In re Grand Jury Proceedings, 219 F.3d 175,

190 (2d Cir. 2000) (describing opinion work product as material
setting forth the “mental impressions, conclusions, opinions, or
legal

theories

of

an

attorney”);
3

see

also

FED.

R.

CIV.

P.

26(b)(3)(B).
DISCUSSION
The issue in this case is whether the OAG, a nonparty,
may invoke the attorney work product doctrine to avoid producing
the

Withheld

Documents.

In

the

course

of

resolving

this

question, the Court must decide whether Judge Wall’s Discovery
Order, in which he concluded that the documents were not created
in anticipation of litigation, was contrary to law.
will

address

that

issue

below,

but

it

first

The Court

turns

to

the

threshold question of whether the OAG, as a nonparty, may assert
the work product doctrine in this case.
I. The Common Law Work Product Doctrine
“The

attorney

work

product

privilege

protects

‘the

files and the mental impressions of an attorney . . . reflected,
of course, in interviews, statements, memoranda, correspondence,
briefs,

mental

impressions,

personal

beliefs,

and

countless

other tangible and intangible ways’ prepared in anticipation of
litigation.”

A. Michael's Piano, Inc. v. F.T.C., 18 F.3d 138,

146 (2d Cir. 1994) (quoting Hickman v. Taylor, 329 U.S. 495,
510-11, 67 S. Ct. 385, 393, 91 L. Ed. 451 (1947)).

The doctrine

creates “a ‘zone of privacy’ that allows an attorney to prepare
for

litigation

adversaries.’”

‘free

from

unnecessary

intrusion

by

his

Gonzalez v. City of N.Y., No. 08-CV-2699, 2009 WL

2253118, at *3 (E.D.N.Y. July 28, 2009) (quoting United States
4

v. Adlman, 134 F.3d 1194, 1196 (2d Cir. 1998)).

The doctrine is

partly codified by Federal Rule of Civil Procedure 26(b)(3), but
there is no dispute that the OAG, as a nonparty, may not invoke
Rule 26.

(Discovery Order 6.)
The OAG instead relies on the broader common law work

product

doctrine,

which

achieve

extends

the

to

three

nonparties

underlying

to

the

purposes

degree

necessary

to

of

the

doctrine.

See, e.g., Jean v. City of N.Y., No. 09-CV-0801, 2010

WL 148420, at *2 (E.D.N.Y. Jan. 12, 2010); cf. Abdell v. City of
N.Y., No. 05-CV-8453, 2006 WL 2664313, at *4 (S.D.N.Y. Sept. 14,
2006).

Work product protection is appropriate where disclosure

would “(1) alter attorney behavior, (2) reward sloth, or (3)
interfere with ongoing litigation.”

Haus v. City of New York,

No. 03-CV-4915, 2006 WL 3375395, at *3 (S.D.N.Y. Nov. 17, 2006)
(citing Abdell, 2006 WL 2664313, at *4).

Additionally, at least

one court in this Circuit has suggested that, given the high
degree of protection afforded “opinion” work product, nonparties
ought to be able to invoke the work product doctrine even where
protection
justified.

for
See

“fact”

work

Abdell,

product

2006

WL

would

2664313,

not
at

otherwise

*4-6;

see

be

also

Crosby v. City of N.Y., 269 F.R.D. 267, 278 (S.D.N.Y. 2010);
Jean, 2010 WL 148420, at *2.
the

work

concluded

product
that

the

doctrine
Withheld

Judge Wall did not decide whether
extends

to

Documents
5

the

OAG

because

he

were

not

created

in

anticipation

of

litigation

and

thus

not

eligible

for

work

product status in any event.
In this case, the OAG may invoke the common law work
product doctrine because non-disclosure would promote the first
and third objectives of the work product doctrine and because
the materials to be protected are squarely “core” work product.
Requiring disclosure could have a chilling effect on when and
how OAG attorneys commit their thoughts to paper.
2.)

(See NYAG Br.

Plaintiff argues that this concern is irrelevant because

disclosure in this case would not erode the “zone of privacy”
that shields a lawyer’s work from his adversary.

(Pl. Opp. 8.)

In other words, the doctrine should not apply because Plaintiff
and the OAG are not adversaries in this litigation.
disagrees

that

work

product

protection

is

only

The Court

available

to

parties with an adversarial relationship with the party seeking
disclosure, a point that is implicit in several decisions in
which

courts

nonparties.

have

extended

work

product

protection

to

See Jean, 2010 WL 148420, at *3 (extending work

product protection to district attorney’s office); Abdell, 2006
WL

2664313,

notations

at

*7

reflecting

impressions).

(permitting
assistant

district
district

attorney

to

attorneys’

redact
mental

Extending work product protection to the OAG is

also sensible in light of the doctrine’s third goal.

Although

the OAG does not anticipate prosecuting anyone for the Tankleff
6

murders,

there

exists

the

possibility

that

it

may

one

day

develop evidence to pursue a case against suspects other than
the

Plaintiff.

disrupt

that

Disclosure
eventual

of

the

Withheld

prosecution.

Documents

Further,

the

would

Court’s

decision is in accord with courts that have recognized that a
nonparty’s “core” work product may be protected even where its
“fact” work product is not.
(permitting

redactions

of

See Abdell, 2006 WL 2664313, at *7
notations

that

reflected

lawyers’

impressions despite finding that the work product doctrine did
not apply to district attorney’s fact work product).
II. In Anticipation of Litigation
Having

concluded

that

the

work

product

doctrine

is

available to the OAG, the next issue is whether Judge Wall’s
decision

that

the

withheld

documents

were

not

created

anticipation of litigation was contrary to law.

in

Judge Wall

found that because the OAG was tasked not only with prosecuting
but also with investigating the Tankleff murders, and because
its investigation eventually resulted in a motion to dismiss
Plaintiff’s indictments, the OAG’s documents were not created in
anticipation of litigation.

(Discovery Order at 7-8.)

The Court may disturb a Magistrate Judge’s ruling in a
non-dispositive matter only if it finds that the ruling was
“clearly erroneous or contrary to law.”

E.g., Aboeid v. Saudi

Arabian Airlines Corp., No. 10-CV-2518, 2011 WL 5117733, at *1
7

(E.D.N.Y. Sept. 6, 2011).

A ruling is “clearly erroneous” if

the Court, after considering all of the evidence before it, “is
left with the definite and firm conviction that a mistake has
been committed.”

Mobil Shipping & Transp. Co. v. Wonsild Liquid

Carriers Ltd., 190 F.3d 64, 67 (2d Cir. 1999) (quoting Anderson
v. Bessemer City, 470 U.S. 564, 574, 105 S. Ct. 1504, 84 L. Ed.
2d 518 (1985)).

Under the “contrary to law” standard, the Court

can reverse the decision “only if it finds that the magistrate
fail[ed] to apply or misapplie[d] relevant statutes, case law or
rules of procedure.”

Aboeid, 2011 WL 5117733, at *2 (citations

and quotation marks omitted).
The Court agrees with the OAG that, for the purposes
of

the

work

product

privilege,

the

Withheld

created “in anticipation of litigation.”
a

flexible

doctrine

is

approach

in

applicable,

Documents

“The courts have taken

determining

whether

the

asking

whether

litigation

not

were

work

product
was

a

certainty, but whether the document was created ‘with an eye
toward litigation.’”
47

(quoting

Hickman,

A. Michael's Piano, Inc., 18 F.3d at 146329

U.S.

at

511).

Although

the

mere

possibility of future litigation is insufficient to invoke the
privilege, Gucci Am., Inc. v. Guess?, Inc., 271 F.R.D. 58, 73
(S.D.N.Y. 2010), the party seeking protection need only show
that “in light of the nature of the document and the factual
situation in the particular case, the document can fairly be
8

said to have been prepared or obtained because of the prospect
of litigation.”

United States v. Adlman, 134 F.3d 1194, 1202

(2d Cir. 1998) [“Adlman II”] (quotation marks omitted) (emphasis
in original).

The Withheld Documents meet this test.

The materials prepared in connection with the OAG’s
investigation and potential prosecution of the Tankleffs’ killer
or

killers

were

made

“because

of

the

prospect”

of

further

prosecutions--namely, the potential re-trial of Plaintiff or the
trial of new suspects.

The executive order appointing the OAG

to the case--but for there would be no documents--explicitly
described the OAG’s prosecutorial function: the OAG was directed
to “investigate the alleged commission of any indictable offense
or offenses” in relation to the Tankleff murders and “prosecute
the person or persons believed to have committed” the crimes.
Eliot Spitzer, Executive Order Dated Jan. 11, 2008, 9 N.Y.C.R.R.
§ 6.21.
The

Court

is

not

persuaded

by

Plaintiff’s

argument

that the Withheld Documents are not work product because they
were made in the course of deciding whether to re-try Plaintiff,
not because it was going to re-try Plaintiff.
Courts

have

litigation”

generally

broadly,

interpreted

Complex

“in

Systems,

Inc.

(Pl. Opp. 5.)

anticipation
v.

ABN

AMRO

of
Bank

N.V., No. 08-CV-7497, 2011 WL 5126993, at *4 (S.D.N.Y. Oct. 26,
2011),

and

the

fine

line

Plaintiff
9

attempts

to

draw

is

not

supported by caselaw.
between

materials

Rather, courts speak of a distinction

prepared

in

anticipation

of

litigation

those “prepared in the ordinary course of business.”

and

E.g.,

Adlman II, 134 F.3d at 1202; Univ. Sports Publ’ns Co., Inc. v.
Playmakers Media Co., No. 09-CV-8206,

2011 WL 1143005, at *6

(S.D.N.Y. Mar. 21, 2011) (quoting Allied Irish Banks v. Bank of
Am., N.A., 240 F.R.D. 96, 106 (S.D.N.Y. 2007)).
circumstances

led

to

the

OAG’s

taking

over

Here, special
the

case;

its

documents were clearly not created in the ordinary course of its
business.

Moreover, the Second Circuit has said, albeit under

slightly

different

circumstances,

attorney

investigators

who

that

believe

materials

that

the

prepared

case

may

by

never

result in litigation are nevertheless protected work product.
In that case, A. Michael's Piano, Inc. v. F.T.C., the Second
Circuit considered whether documents prepared after a Federal
Trade

Commission

staff

attorney

recommended

that

an

investigation be closed fell within the work product exemption
to the Freedom of Information Act.
1994).

18 F.3d 138, 146-47 (2d Cir.

The court explained:
Here the FTC investigation was not closed at
the time the documents at issue were
created, and the fact that staff members may
have thought that litigation might not ever
occur does not take the documents out of the
scope of those materials exempt because they
were created in anticipation of litigation.
Instead, the reports and recommended action
with
respect
to
the
status
of
an
10

investigation submitted before any final
decision is made as to the course an
investigation qualify as documents prepared
in anticipation of litigation.

Id.

It follows then, that the OAG documents created before it

moved

to

dismiss

Plaintiff’s

indictments

qualify

for

work

product protection.
The cases cited in the Discovery Order do not help
Plaintiff’s cause.

In Gonzalez, the court determined that the

documents at issue were prepared after criminal charges had been
dismissed.

2009 WL 2253118, at *3.

Similarly, in Howell, the

document in question was a form prepared in connection with the
District Attorney’s decision not to prosecute.

As the court

noted, the document was prepared “precisely because there would
be

no

litigation

or

trial.”

2007

WL

2815738,

at

*1.

By

contrast, the Withheld Documents were prepared while the OAG was
still contemplating whether and how to prosecute Plaintiff and
before a final decision was made not to press its case forward.
Accordingly, they are eligible for work product protection.

See

A. Michael's Piano, Inc., 18 F.3d at 146-47.
III. Plaintiff Cannot Overcome Presumption Against Disclosure
The work product privilege is a qualified privilege
that may be overcome if the party seeking disclosure can, in the
case of “opinion” work product, make a highly persuasive showing
of need.

In re Grand Jury Proceedings, 219 F.3d 175, 192 (2d
11

Cir. 2000).

Some courts have described the protection afforded

“opinion” work product as “absolute” or “near absolute.”
2010 WL 148420, at *2.

Plaintiff has not overcome the strong

presumption against disclosure.
lenient

“substantial

Jean,

need”

Relying largely on the more

standard

(Pl.

Opp.

10),

Plaintiff

essentially argues that the Withheld Documents contain relevant
facts that Plaintiff cannot obtain elsewhere (id. at 10-11).
See, e.g., Jean, 2010 WL 148420, at *2 (noting the more lenient
“substantial need” standard).

But the OAG has already produced

its “fact” work product (OAG Reply 11), and Plaintiff has not
offered

a

persuasive

case

why

it

is

entitled

to

the

impressions, opinions, or legal theories of counsel.

mental
In re

Grand Jury Proceedings, 219 F.3d 175, 190 (2d Cir. 2000).
CONCLUSION
For the foregoing reasons, the OAG’s Objections are
sustained and the Discovery Order is VACATED to the extent it
compels the OAG to produce the Withheld Documents.
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

November
22 , 2011
Central Islip, New York

12