Anilao et al v. Spota et al
Filing
97
ORDER granting in part and denying in part 87 Motion to Compel. SEE ATTACHED ORDER for details. Ordered by Magistrate Judge A. Kathleen Tomlinson on 9/30/2015. (Ryan, Mary)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------------X
JULIET ANILAO, HARRIET AVILA, MARK
DELA CRUZ, CLAUDINE GAMAIO, ELMER
JACINTO, JENNIFER LAMPA, RIZZA
MAULION, JAMES MILLENA, THERESA
RAMOS, RANIER SICHON and
FELIX Q. VINLUAN,
MEMORANDUM
AND ORDER
Plaintiffs,
CV 10-32 (JFB) (AKT)
- against THOMAS J. SPOTA, III, Individually and as District
Attorney of Suffolk County, OFFICE OF THE
DISTRICT ATTORNEY OF SUFFOLK COUNTY,
LEONARD LATO, Individually and as an
Assistant District Attorney of Suffolk County,
COUNTY OF SUFFOLK, SENTOSA CARE, LLC,
AVALON GARDENS REHABILITATION AND
HEALTH CARE CENTER, PROMPT NURSING
EMPLOYMENT AGENCY, LLC., FRANCRIS
LUYUN, BENT PHILIPSON; BERISH
RUBINSTEN, SUSAN O’CONNOR, and
NANCY FITZGERALD,
:
Defendants.
--------------------------------------------------------------X
I.
PRELIMINARY STATEMENT
Plaintiffs Juliet Anilao, Harriet Avila, Mark Dela Cruz, Claudine Gamaio, Elmer Jacinto,
Jennifer Lampa, Rizza Maulion, James Millena, Theresa Ramos, and Ranier Sichon ( “the Nurse
Plaintiffs”), and Felix Q. Vinluan (collectively, “Plaintiffs”) bring this 42 U.S.C. § 1983 civil
rights action against Defendants Thomas J. Spota, III, individually and as District Attorney of
Suffolk County (“D.A. Spota” or “Spota”); the Office of the District Attorney of Suffolk County
(“the D.A.’s Office”); Leonard Lato, individually and as an Assistant District Attorney
1
(“A.D.A.”) of Suffolk County (“former A.D.A. Lato” or “Lato”); and the County of Suffolk
(collectively, the “County Defendants”), as well as against a number of private entities and
individuals associated with the Nurse Plaintiffs’ employment in the United States (“the Sentosa
Defendants”) (collectively with the County Defendants, “Defendants”). Plaintiffs allege claims
of false arrest, malicious prosecution, and § 1983 conspiracy against Defendants, as well as
violations of their constitutional rights arising out of, inter alia, the County Defendants’ alleged
investigatory misconduct during Plaintiffs’ criminal prosecution. See generally Amended
Complaint (“Am Compl.”) [DE 23].
Presently before the Court is the Nurse Plaintiffs’ letter motion to compel D.A. Spota and
former A.D.A. Lato to answer certain deposition questions which they refused to answer on the
basis of the attorney work-product privilege, the deliberative process privilege, and the attorneyclient privilege. See generally Pls.’ Mot. [DE 87]. The County Defendants oppose the motion.
See generally Defs.’ Opp’n [DE 90]. In response to the Court’s October 24, 2014 Electronic
Order, counsel for the Nurse Plaintiffs submitted the complete deposition transcripts to the Court
for in camera review. See Confidential Deposition Transcript of Defendant Leonard Lato (“Lato
Dep. Tr.”); Confidential Examination Before Trial of Defendant Thomas J. Spota, III (“Spota
Dep. Tr.”). The Court thereafter held oral argument on the motion to compel and reserved
decision. See January 28, 2015 Civil Conference Minute Order [DE 95]; Transcript of January
28, 2015 Oral Argument (“Oral Arg. Tr.”) [DE 96].
Based on the Court’s review of the disputed deposition questions, the arguments
advanced by counsel, and the applicable law, the motion to compel is GRANTED, in part, and
DENIED, in part, to the extent sort forth in this Memorandum and Order.
2
II.
BACKGROUND
A.
Allegations in the Amended Complaint
The Court assumes the parties’ familiarity with the facts alleged in the Amended
Complaint and described in substantial detail in Judge Bianco’s March 31, 2011 Memorandum
and Order granting, in part, and denying, in part, Defendants’ motions to dismiss (“March 31,
2011 Order”). See DE 31; see also Anilao v. Spota, 774 F. Supp. 2d 457 (E.D.N.Y. 2011). The
Court summarizes the relevant alleged facts to provide appropriate context for the rulings
contained in this Memorandum and Order.
The Nurse Plaintiffs are citizens of the Philippines and legal residents of the United
States. Am Compl. ¶ 1. According to the Amended Complaint, the Nurse Plaintiffs, who had
been recruited to work in the United States by and for certain Sentosa Defendants, were
displeased with their employment conditions upon arriving here and believed that the Sentosa
Defendants had breached the promises they had made during the Nurse Plaintiffs’ recruitment.
See id. ¶¶ 35-37, 42-43. When their complaints to the Sentosa Defendants failed to resolve these
alleged problems, the Nurse Plaintiffs sought the advice of Felix Vinluan (“Vinluan”), an
attorney, who advised them that their employment contracts had already been breached in
multiple respects and, accordingly, the Nurse Plaintiffs were not bound under those contracts to
continue their employment. Id. ¶¶ 46-47. The Nurse Plaintiffs thereafter resigned from their
nursing positions. Id. ¶ 48.
After the Nurse Plaintiffs resigned, the Sentosa Defendants allegedly took a series of
retaliatory actions. These actions included (1) commencing a state court litigation based on the
Nurse Plaintiffs’ alleged breach of their employment contracts; (2) seeking a preliminary
3
injunction against the Nurse Plaintiffs to enjoin them from speaking with other nurses about
resigning; (3) reporting the Nurse Plaintiffs to the New York State Education Department (the
“State Education Department”) which is responsible for licensing nurses and governing their
conduct; and (4) attempting to report the Nurse Plaintiffs to the Suffolk County Police
Department (“SCPD”). See id. ¶¶ 52-54, 59.
Each of these retaliatory actions ultimately failed, however. In particular, the SCPD
refused to take any action against Plaintiffs, the motion for a preliminary injunction was denied
in New York State Supreme Court, and the Education Department sent an email to Vinluan
stating that the Nurse Plaintiffs had been fully exonerated of any wrongdoing. Id. ¶¶ 55, 57, 59.
In particular, the Education Department determined that the nurses had not committed
abandonment and had not engaged in unprofessional or immoral conduct in connection with their
resignations. Id. ¶ 57.
Plaintiffs allege that, at that point, certain principals of the Sentosa Defendants and their
attorney arranged to have a private meeting with D.A. Spota. Id. ¶ 60. Plaintiffs assert that the
principals of Sentosa and their attorney had made substantial contributions to various politicians
and, as such, have “amassed political power and influence” which enable them to obtain
favorable actions from elected officials. Id. ¶¶ 61-62. According to Plaintiffs, the meeting
between the Sentosa Defendants, their attorney, and D.A. Spota had the effect of pressuring
Spota to file an indictment against plaintiffs that he would not otherwise have filed. Id. ¶ 64.
Specifically, plaintiffs claim that, as a result of the meeting, D.A. Spota assigned the case to
former A.D.A. Lato, the Chief of the D.A.’s Office Insurance Crimes Bureau, “for the purpose of
gathering evidence and securing an indictment.” Id. ¶ 70.
4
Around early November 2006, Lato interviewed Vinluan and assured him that he was not
a target of the investigation. Id. ¶ 71. Vinluan then provided Lato with “significant exculpatory
information,” including the Education Department’s email, the Supreme Court’s Order denying
the motion for a preliminary injunction against the Nurse Plaintiffs, and information regarding
the fact that none of the Nurse Plaintiffs had ceased working during a shift. Id. ¶ 72. Plaintiffs
allege that “[n]onetheless[,] Lato, with the consent and at the urging of Spota, presented the case
to a Grand Jury.” Id. Plaintiffs further claim that Lato and other unidentified investigators from
the D.A.’s Office interviewed the Nurse Plaintiffs and similarly informed them that they were
not the targets of a criminal investigation. Id. ¶ 73. Plaintiffs assert that, had they known they
were targets, they “would have chosen other courses of conduct, including not participating in
the interviews, or demanding to testify before the Grand Jury.” Id. ¶ 74.
Nearly one year after the Nurse Plaintiffs resigned, a Grand Jury in Supreme Court
Suffolk County returned an indictment against them and Vinluan. Id. ¶ 87. The indictment
charged the Nurse Plaintiffs and Vinluan with (i) conspiracy in the sixth degree, for allegedly
conspiring to challenge the welfare of a child and a physically disabled person;
(ii) solicitation in the fifth degree, for allegedly requesting and attempting to cause the nurses to
resign; (iii) endangering the welfare of a child; and (iv) endangering the welfare of a physically
disabled person. Id. ¶¶ 78-79. Plaintiffs moved to dismiss the indictment against them on the
grounds, inter alia, that the prosecution violated the First and Thirteenth Amendments to the
United States Constitution. Id. ¶ 94. On January 13, 2009, the Appellate Division, Second
Department issued a writ of prohibition against further prosecution of the indictment, finding that
the criminal prosecution “constitute[d] an impermissible infringement upon the constitutional
5
rights of these nurses and their attorney, and that the insurance of a writ of prohibition to halt
these prosecutions is the appropriate remedy in this matter.” Matter of Vinluan v. Doyle,
60 A.D.3d 237, 240, 873 N.Y.S.2d 72, 75 (2d Dep’t 2009), as amended (July 21, 2009); see
Am. Compl. ¶ 98. The Second Department determined that “[w]here, as here, the petitioners are
threatened with prosecution for crimes for which they cannot constitutionally be tried, the
potential harm to them is so great and the ordinary appellate process so inadequate to redress that
prohibition should lie.” Vinluan, 873 N.Y.S.2d at 83. On October 29, 2009, the indictment was
dismissed by the Supreme Court Suffolk County. Am Compl. ¶ 103.
Plaintiffs filed their Amended Complaint on July 29, 2010 alleging causes of action
pursuant to § 1983: (1) against the County Defendants for (i) violating Plaintiffs’ First,
Thirteenth, and Fourteenth Amendment rights in connection with the prosecution, and for (ii)
municipal liability under Monell, (2) against Spota for failure to supervise; (3) against the
County Defendants and the Sentosa Defendants for (i) conspiring to violate Plaintiffs’
constitutional rights, (ii) malicious prosecution, and (iii) false arrest; and (4) against the Sentosa
Defendants for conspiring to deprive plaintiffs of their civil rights. See Am. Compl. ¶ 107;
¶¶ 123-27; 134-72.
B.
The March 31, 2011 Order
The County Defendants and the Sentosa Defendants separately moved to dismiss the
Amended Complaint. See DE 14, 15, 25. On March 31, 2011, Judge Bianco issued an Order
granting, in part, and denying, in part, the Defendants’ motions. See Anilao, 774 F. Supp. 2d at
466. As to the County Defendants, the Court concluded:
(1) the individual County defendants are entitled to absolute
immunity for conduct taken in their role as advocates in connection
6
with the presentation of the case to the Grand Jury; (2) the
individual County defendants are not entitled to absolute immunity
for alleged misconduct during the investigation of plaintiffs, but
the Court cannot determine at the motion to dismiss stage, given
the allegations in the Amended Complaint, whether the individual
County defendants are entitled to qualified immunity for their
actions in the investigation phase; (3) plaintiffs have sufficiently
pled § 1983 claims against the individual County defendants for
alleged Due Process violations in the investigation phase; and (4)
Plaintiffs have sufficiently pled a claim for municipal liability
against the County of Suffolk.
Id.1
In determining whether the claims against the County Defendants should be dismissed on
the grounds of absolute immunity, Judge Bianco held that “to the extent that plaintiffs’ claims
are based upon the County defendants’ initiation of the prosecution against plaintiffs or their
conduct in front of the Grand Jury, the County defendants are absolutely immune from liability
on these claims.” Anilao, 774 F. Supp. 2d at 480-81. Judge Bianco noted that “this absolute
immunity protection shields the actions of both defendant Lato, who presented the case to the
Grand Jury, and defendant Spota, who acted as Lato’s supervisor regarding the initiation of the
prosecution and the presentation to the Grand Jury.” Id. at 481 n.17.
However, Judge Bianco declined to rule as a matter of law, at the motion to dismiss
stage, whether the County Defendants are absolutely immune from liability for their conduct in
1
As to the Sentosa Defendants, Judge Bianco concluded that: (1) Plaintiffs have
sufficiently alleged that they were acting under color of state law, and (2) Plaintiffs have
sufficiently pled claims for malicious prosecution and false arrest under both §1983 and state
law, as well as a § 1983 conspiracy claim. Anilao, 774 F. Supp. 2d at 466. However, Judge
Bianco dismissed, without prejudice, the claims against two individual Sentosa Defendants,
Susan O’Connor and Nancy Fitzgerald, based on (1) Plaintiffs’ failure to plead that the two
defendants were acting under color of state law, and (2) Plaintiffs’ failure to satisfy the elements
of the state-law malicious prosecution and false arrest claims against the two defendants. Id.
7
investigating Plaintiffs. Id. at 485. Noting that “plaintiffs’ claims are clearly premised upon an
allegation that the County defendants manufactured false evidence and testimony during their
investigation of plaintiff,” Judge Bianco determined that “plaintiffs have sufficiently pled
allegations that the County defendants violated plaintiffs’ constitutional right not to be deprived
of liberty as a result of the fabrication of evidence by a government officer acting in an
investigatory capacity . . . . ” Id. at 482 (quotation marks omitted). Moreover, Judge Bianco
found that, “insofar as plaintiffs have alleged that the D.A.’s Office was in charge of (and was
allegedly solely responsible for) the investigation of plaintiffs, plaintiffs’ claims are necessarily
predicated upon the defendant prosecutors’ involvement in the underlying fabrication of
evidence against plaintiffs pursuant to the County defendants’ illicit agreement with the Sentosa
defendants.” Id. at 484. Judge Bianco explained:
In other words, drawing all reasonable inferences in plaintiffs’
favor, plaintiffs’ claims here go beyond a mere allegation that the
County defendants conspired to present to the Grand Jury false
evidence that they played no role in gathering or fabricating.
Instead, reading the Amended Complaint as a whole, plaintiffs have
alleged that the prosecutors orchestrated the investigation of
plaintiffs after the police declined to get involved, and reached an
agreement with the Sentosa defendants to manufacture testimony
from the Sentosa defendants that the County defendants knew to be
false. . . . Accordingly, the Court disagrees with the County
defendants that plaintiffs have not alleged that any wrongdoing
occurred during the investigation of plaintiffs and, instead, finds that
plaintiffs have sufficiently alleged, for purposes of defendants'
motion to dismiss, that the deprivation of plaintiffs' due process
rights was caused by the County defendants' alleged investigatory
conduct. The County defendants are not entitled to absolute
immunity for such conduct.
Id. (footnote omitted).
8
Turning to the County Defendants’ alternative theory that they are entitled to qualified
immunity for any alleged investigatory misconduct, Judge Bianco held that “the Amended
Complaint does not provide a sufficient basis at this juncture for the Court to determine whether
defendants are entitled to qualified immunity.” Id. at 490. In making this determination, Judge
Bianco looked to the Plaintiffs’ allegations of investigatory misconduct against the County
Defendants, namely, that the County Defendants:
(1) prosecuted plaintiffs despite the fact that plaintiffs had not
committed a crime and that defendants knew or should have known
that plaintiffs could not constitutionally be prosecuted for their
conduct; (2) “agreed to do what was necessary to procure the
indictment, for the sole benefit of the Sentosa defendants” (Am.
Compl. ¶ 114); (3) maliciously prosecuted plaintiffs to punish them
for exercising their constitutional rights; and (4) fabricated evidence
that was ultimately used in the Grand Jury as a basis for plaintiffs'
indictment and, consequently, resulted in a deprivation of plaintiffs'
liberty. Moreover, plaintiffs allege that the County defendants were
aware of significant exculpatory evidence prior to plaintiffs’
indictment but that the County defendants nonetheless initiated an
investigation of plaintiffs and presented knowingly false evidence
to the Grand Jury. Specifically, plaintiffs allege that Vinluan
provided ADA Lato with evidence regarding the State Education
Department's decision exonerating plaintiffs of any wrongdoing,
Justice Bucaria's decision denying Sentosa's application for a
preliminary injunction due to a failure to prove a likelihood of
success on the merits, and information demonstrating that none of
the nurse plaintiffs had resigned during a shift. (Id. ¶ 72.) Further,
plaintiffs allege that the Suffolk County Police Department declined
to take any action against plaintiffs in response to a complaint from
defendant O'Connor because “in [the police's] stated opinion, no
crime had been committed.” (Id. ¶ 59.)
Id. at 492. Judge Bianco concluded that, “[a]lthough the County defendants dispute these
allegations, there is simply insufficient information at this early stage to determine whether the
conduct of the County defendants is protected by qualified immunity.” Id. Judge Bianco further
noted that, “[i]n particular, if plaintiffs prove their allegations that defendants Spota and Lato
9
falsified evidence during the investigation of plaintiffs and such falsification lead to the
deprivation of plaintiffs’ liberty in the form of an arrest, defendants would not be entitled to
qualified immunity.” Id.
C.
Former A.D.A. Lato’s Deposition
Former A.D.A. Lato was deposed on May 12, 2014 and May 29, 2014. During the
deposition, Lato’s counsel, Garrett W. Swenson, Esq. and counsel for the County Defendants
objected to the following questions on the grounds that Lato’s answers are protected by the
attorney work-product privilege and the attorney-client privilege:
What were you told [by Spota] that your duties or responsibilities
were to be with regard to the Avalon nurses case? Lato Dep. Tr. at
46:21-23.
Were you told why you were to report to him [Spota] on this [the
Avalon nurses case]? Id. at 47:24-25.
Initially was it your understanding that what you were looking at
were felonies or misdemeanors or you didn’t know? Id. at 50:1215.
Were you told by anyone that there were any politicians who were
interested in this case? Id. at 52:3-5.
Would you agree that this definition of nurse-patient relationship
should have been presented to the grand jury? Id. at 144:22-24.2
2
Prior to asking Lato this question, counsel for the Nurse Plaintiffs showed Lato a
document from his investigative file on Plaintiffs’ case. See Lato Dep. Tr. at 142:12-22. The
document was entered as an exhibit and counsel for the Nurse Plaintiffs’ read into the record the
following definition of the nurse-patient relationship: “A nurse-patient relationship begins when
the nurse accepts responsibility for providing nursing care based upon a written or oral report of
patient needs. A nurse-patient relationship ends when that responsibility has been transferred to
another nurse and a report of the patient needs has been communicated.” Id. at 143:17-23.
10
Additionally, counsel objected to the following questions solely on the grounds that they
are protected by the work-product privilege:
Did it concern you at all that the Department of Education has
exonerated the nurses and that the Suffolk County Police
Department has declined to take any action prior to you getting the
[Avalon nurses] case? Id. at 75:15-19.
Why did you tell him [Spota] [that there should be an indictment]?
Id. at 458:7.
Finally, Lato’s counsel objected to the following question without articulating specific
grounds for the objection:
Would [it] have been permissible under the criminal laws, in your
opinion, if instead of resigning if they [the Nurse Plaintiffs] had
gone on strike and not worked after the completion of their shifts?
Id. at 234:6-10.
D.
D.A. Spota’s Deposition
D.A. Spota’s deposition was held on August 14, 2014. Spota, too, was represented by
Garrett W. Swenson, Esq. Mr. Swenson objected to the following questions on the grounds that
D.A. Spota’s answers are protected by the attorney work-product privilege and the deliberative
process privilege, and he directed D.A. Spota not to answer:
Can you tell me what your discussion was with Mr. Lato about the
assignment of the [Avalon nurses] case? Spota Dep. Tr. at 62:1719.
What, if any, crimes do you believe were committed by the nurses?
Id. at 69:19-20.
What goes into a decision whether a misdemeanor case should be
presented to the grand jury? Id. at 72:5-7.
11
Did there come a time when there was any discussion about your
office appealing the Article 78 decision [in the Martin Tankleff
case]?3 Id. at 90:11-13.
Understanding that [Mr. Swenson is] going to direct the witness
not to answer, I am going to ask about the process that went into
determining whether to appeal or not to appeal [in Tankleff]? Id.
at 90:19-23.
I want to know whether the substance of the [Tankleff] decision
caused any concern regarding Mr. Lato’s conduct in this or other
cases and I would ask the same questions about the decision in the
[Mona] Kanciper case, the reversal and whether that caused any
concern and what [Spota’s] discussions were with Mr. Lato about
the decision in the Kanciper case? 4 Id. at 107:7-14.
Now in this particular instance, when the matter was handed over
to Mr. Lato, was Mr. Lato also instructed to look at any wrongful
conduct on behalf of the nursing home? Id. at 120:5-9.
Was Mr. Lato also there or instructed to look into Mr. Vinluan’s
conduct? Id. at 124:18-19.
3
This and other questions refer to the criminal prosecution of Martin Tankleff, who was
convicted in the County Court, Suffolk County of two counts of second-degree murder. Tankleff
filed a C.P.L. § 440 motion to set aside the verdict. See Lato Dep. Tr. at 25:3-9. Lato testified
during his deposition that Spota asked him to review and investigate the claims Tankleff raised
in the C.P.L. § 440 motion. See id. at 24:7-9; 25:12. The County Court denied Tankleff’s
motion, but the Appellate Division ultimately reversed and vacated Tankleff’s conviction. See
id. at 27:3-5; People v. Tankleff, 49 A.D.3d 160, 182-83, 848 N.Y.S.2d 286, 303 (2d Dep’t
2007). The D.A.’s Office declined to retry Tankleff. See Lato Dep. Tr. at 25:5-7. Tankleff
subsequently brought a § 1983 action (currently pending before Judge Seybert) against Suffolk
County and various individual defendants based on his alleged wrongful conviction. See
Tankleff v. County of Suffolk, et al., No. 09-cv-1207 (JS)(SIL). Neither Lato nor Spota are
named as defendants in Tankleff’s § 1983 case.
4
This and other deposition questions refer to the criminal prosecution of Mona Kanciper.
The Appellate Division reversed Kanciper’s conviction for endangering the welfare of a child on
the grounds that the conviction was not supported by legally sufficient evidence. People v.
Kanciper, 100 A.D.3d 778, 778-779, 954 N.Y.S.2d 146 (2d Dep’t 2012). Kanciper has since
filed a § 1983 action against Lato and Spota, among others, based on her alleged wrongful and
malicious prosecution in the state court action. That § 1983 action is currently pending before
Judge Azrack. See Kanciper v. Lato, et al., No. 13-cv-00871 (JMA)(SIL).
12
Did you ever specifically instruct [investigators] Mr.
Warkenthien or Mr. Burke to look into that [Vinluan’s
association with another recruitment agency]before Mr.
Lato was assigned? Id. at 125:16-18.
Additionally, counsel objected to the following questions solely on the grounds that D.A.
Spota’s answers are protected by the attorney work-product privilege:
Did that [the Department of Education finding that the Nurse
Plaintiffs committed no wrongdoing] affect your determination
whether a crime had been committed . . . ? Id. at 65:9-11.
Prior to Mr. Lato seeking an indictment, what, if any, discussions
did you with him about the case? Id. at 76:6-8.
Did there come a time when you considered the bringing of this
indictment a mistake? Id. at 88:10-12.
At any time prior to the bringing of this indictment, what, if any,
discussions did you have with Mr. Lato or another member of your
staff regarding the 13th Amendment of the United States
Constitution? Id. at 89:20-24.
Same question with regard to the 1st Amendment of the United
States Constitution. Id. at 90:6-8.
Did you have any occasion to review that decision, Tankleff, an
Appellate Division decision? Id. at 106:16-18.
So, what were the total factors that led you to believe that there
was probable cause that a crime was committed [in this case]? Id.
at 121:22-25.
With respect to the determination that you told us you made that it
appeared to be probable cause [in this case], probable cause of
what crime? Id. at 122:7-10.
Finally, counsel objected to the following questions solely on the grounds that the
answers are protected by the deliberative process privilege:
Is that normally within the scope of the job of a bureau chief to do
that [interview witnesses]? Id. at 73:25-74:1.
13
Did he [Lato] give a reason for his resignation? Id. at 91:20-21.
Did Mr. Lato’s resignation have anything to do with his handling
of this case? Id. at 92:8-9.
Is ethics one of the topics that they [new ADAs] are trained on?
Id. at 94:23-24.
Can you tell me the substance of these conversations [with others
in the D.A.’s Office, including supervisors, regarding Lato’s
conduct]? Id. at 102:11-12.
In regard to the Kanciper case that we have discussed, were you
aware of whether there were investigators assigned to work with
Mr. Lato on that case? Id. at 103:15-18.
The same question regarding the Tankleff case. Id. at 103:23-24.
III.
THE PARTIES’ CONTENTIONS
The Nurse Plaintiffs argue that none of the asserted privileges apply to the deposition
testimony sought to be elicited here. Pls.’ Mot. at 2. According to the Nurse Plaintiffs, the
investigation and prosecution of the underlying criminal case against them “was initiated by
politically powerful individuals and entities” (i.e., the Sentosa Defendants) in order to punish and
make an example of the Nurse Plaintiffs when they legally left from their employment due to
deplorable conditions. Id. Plaintiffs further contend that D.A. Spota failed to supervise former
A.D.A. Lato in the investigation and prosecution of the underlying action, allowing Lato to act in
a manner that violated Plaintiffs’ constitutional rights. Id. Moreover, Plaintiffs maintain that
“the only direct evidence of the genesis of this investigation and prosecution,” and how it was
conducted by the D.A.’s Office in general and by D.A. Spota specifically, “emanates from the
testimony of Mr. Spota and Mr. Lato.” Id. According to Plaintiffs, “there is no other source of
this evidence” and “answers to these questions will supply necessary evidence in Plaintiffs’ case
14
against all Defendants.” Id. Consequently, Plaintiffs argue that the County Defendants’
assertion of privilege should not be sustained, and that Spota and Lato should be compelled to
answer the disputed questions. Id.
The County Defendants oppose Plaintiffs’ motion to compel in its entirety. Defs.’ Opp’n
at 1. In the County Defendants’ view, each of the deposition questions at issue “call[s] for either
the mental impressions, conclusions, opinions, or legal theories” of Lato and Spota, or would
tend to show how the DA Office “decisions are made or its policies formulated.” Id. at 2. The
County Defendants assert that “this is the very kind of ‘intangible’ information that the work
product and deliberative process privileges were designed to protect.” Id. Moreover, the County
Defendants asserted during oral argument that Judge Bianco’s March 31, 2011 Order on the
motion to dismiss narrowed the scope of the remaining claims against the County Defendants,
and that the Nurse Plaintiffs should not be permitted to question Lato and Spota about matters
which have been dismissed from the case. See Oral Arg. Tr. at 10:11-22; 11:22-25.
IV.
DISCUSSION
A.
Scope of Judge Bianco’s March 31, 2011 Decision on the Motion to Dismiss
Before considering the deposition testimony at issue on this motion, the Court will first
address the County Defendants’ contention, raised for the first time during oral argument, that
Judge Bianco’s March 31, 2011 Order narrowed the scope of the remaining claims against the
County Defendants. See Oral Arg. Tr. at 10:11-22. Specifically, the County Defendants assert
that, although Judge Bianco declined to determine whether the County Defendants were entitled
to absolute immunity or qualified immunity for their allegedly improper investigatory conduct
and allowed those claims to proceed, he “narrowed” those claims to two discrete theories:
15
(1) that the County Defendants conspired with the Sentosa Defendants to bring the indictment
against Plaintiffs; and (2) that former A.D.A. Lato fabricated false evidence and testimony by the
Sentosa Defendants during his investigation of Plaintiffs. See id. 10:11-18. The County
Defendants therefore contend that the Nurse Plaintiffs are not entitled to question Lato and Spota
about their investigatory conduct preceding the presentation of Plaintiffs’ criminal case to the
Grand Jury unless it concerns whether the County Defendants conspired with the Sentosa
Defendants or whether Lato fabricated evidence. See id.
The Court disagrees with this interpretation of Judge Bianco’s March 31, 2011 Order.
For one, nothing in Judge Bianco’s decision expressly limits Plaintiffs’ allegations of
investigatory misconduct to the abovementioned two theories. The County Defendants correctly
point out that, in declining to decide whether the County Defendants were entitled to absolute
immunity for their investigatory conduct on the motion to dismiss, Judge Bianco confined his
analysis to Plaintiffs’ allegations that the County Defendants (1) “manufactured false evidence
and testimony during their investigation of plaintiffs,” and (2) “reached an agreement with the
Sentosa defendants to manufacture testimony from the Sentosa defendants that the County
defendants knew to be false.” Anilao, 774 F. Supp. 2d at 482, 484. However, the County
Defendants overlook the fact that Judge Bianco relied on a much broader set of allegations from
the Amended Complaint when he addressed the County Defendants’ alternative theory of
qualified immunity. Id. at 490. Specifically, Judge Bianco declined to decide the issue of
qualified immunity based on Plaintiffs’ allegations that the County Defendants: (1) prosecuted
them “despite the fact that plaintiffs had not committed a crime and that defendants knew or
should have known that plaintiffs could not constitutionally be prosecuted for their conduct;”
16
(2) “agreed to do what was necessary to procure the indictment, for the sole benefit of the
Sentosa defendants;” (3) “maliciously prosecuted plaintiffs to punish them for exercising their
constitutional rights;” (4) “fabricated evidence that was ultimately used in the Grand Jury as a
basis for plaintiffs’ indictment and, consequently, resulted in a deprivation of plaintiffs’ liberty;”
and (5) “were aware of significant exculpatory evidence prior to plaintiffs’ indictment but . . .
nonetheless initiated an investigation of plaintiffs and presented knowingly false evidence to the
Grand Jury.” Id. at 492 (internal quotation marks and citations omitted). Since Judge Bianco
expressly relied on these allegations when he declined to dismiss the Plaintiffs’ investigatory
misconduct claims based on qualified immunity, this Court finds that these allegations remain in
the case and present theories which Plaintiffs were entitled to explore during the depositions of
Lato and Spota.
In light of the foregoing circumstances, the Court concludes that Judge Bianco’s March
31, 2011 Order did not limit the scope of Plaintiffs’ claims of investigatory misconduct to the
two theories described by the County Defendants. However, the Court is mindful that Judge
Bianco did dismiss Plaintiffs’ allegations of prosecutorial misconduct, finding that “to the extent
that plaintiffs’ claims are based upon the County defendants’ initiation of the prosecution against
plaintiffs or their conduct in front of the Grand Jury, the County defendants are absolutely
immune from liability on these claims.” Anilao, 774 F. Supp. 2d at 480-81. The Nurse Plaintiffs
therefore have no basis to question Lato and Spota about these latter allegations.
17
B.
Application of the Privileges Asserted by Lato and Spota
The Court turns now to address the various privileges asserted by Lato and Spota during
their depositions, whether those privileges were properly invoked, and whether Lato and Spota
should be compelled to answer each of the disputed deposition questions.
1.
Attorney-Client Privilege
It well-settled that the attorney-client privilege applies only if all of the essential elements
of that privilege are met, including, inter alia, that “the asserted holder of the privilege is or
sought to become a client.” Go v. Rockefeller Univ., 280 F.R.D. 165, 173 (S.D.N.Y. 2012)
(collecting cases). “[T]he burden is on a party claiming the protection of a privilege to establish
those facts that are the essential elements of the privileged relationship.” von Bulow by
Auersperg v. von Bulow, 811 F.2d 136, 144 (2d Cir. 1987) (internal quotation marks omitted).
“Thus, the party seeking to invoke the privilege must establish all elements of the privilege.”
Go, 280 F.R.D. at 173.
The County Defendants have failed to meet their burden of showing that the attorneyclient privilege applies to the specific questions at issue here which were posed to former A.D.A
Lato at his deposition. As the Nurse Plaintiffs’ point out in their motion, Lato is “a public
prosecutor” who “do[es] not have a client,” nor could he be considered the client-holder of the
attorney-client privilege. Pls. Mot. at 3. Significantly, the County Defendants did not advance
any arguments, either in their opposition or during oral argument, in support of upholding the
attorney-client privilege as to these questions. Accordingly, the Court finds that the attorneyclient privilege is inapplicable and was improperly invoked during Lato’s deposition.
18
2.
Attorney-Work Product Privilege
a.
Legal Standard
The attorney-work product privilege “provides qualified protection for materials prepared
by or at the behest of counsel in anticipation of litigation or for trial.’” In re Grand Jury
Subpoena Dated July 6, 2005, 510 F.3d 180, 183 (2d Cir. 2007) (quoting In re Grand Jury
Subpoenas Dated Mar. 19, 2002 & Aug. 2, 2002, 318 F.3d 379, 383 (2d Cir. 2003)). The source
of the doctrine is Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947), in which
the United States Supreme Court held that notes taken by the defendant’s attorney concerning
witness interviews were protected from discovery by the plaintiff. Id. at 510. In Hickman, the
court reasoned “it is essential that a lawyer work with a certain degree of privacy, free from
unnecessary intrusion by opposing parties and their counsel,” and that “[p]roper preparation of a
client’s case demands that [a lawyer] assemble information, sift what he considers to be the
relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue
and needless interference.” Id. at 510-511. Hickman further states that a lawyer’s “work is
reflected . . . in interviews, statements, memoranda, correspondence, briefs, mental impressions,
personal beliefs, and countless other tangible and intangible ways,” and that such “work
product,” when prepared “with an eye toward litigation,” should not be available to opposing
counsel “on mere demand.” Id. at 511.
Since Hickman, the work product doctrine has been “codified in part in Rule 26(b)(3) of
the Federal Rules of Civil Procedure.” In re Grand Jury Subpoenas, 318 F.3d at 383. Rule
26(b)(3) states, in pertinent part:
(A) Documents and Tangible Things. Ordinarily, a party may not
discover documents and tangible things that are prepared in
19
anticipation of litigation or for trial by or for another party or its
representative . . . . But, subject to Rule 26(b)(4), those materials
may be discovered if: (i) they are otherwise discoverable . . . ; and
(ii) the party shows that it has substantial need for the materials to
prepare its case and cannot, without undue hardship, obtain their
substantial equivalent by other means.
(B) Protection Against Disclosure. If the court orders discovery of
those materials, it must protect against disclosure of the mental
impressions, conclusions, opinions, or legal theories of a party's
attorney or other legal representative concerning the litigation.
Fed. R. Civ. P. 26(b)(3).
By its terms, “Rule 26(b)(3) protects only ‘documents and tangible things.’” Abdell v.
City of New York, No. 05 CIV. 8453, 2006 WL 2664313, at *3 (S.D.N.Y. Sept. 14, 2006). Thus,
the Rule does not apply to the “intangible” discovery such as the deposition questions and
answers at issue here. See id. (collecting cases holding that Rule 26(b)(3) only applies to
tangible rather than “intangible” discovery).
The Court’s inquiry does not end there, however, “because the work product doctrine as
articulated in Hickman . . . is broader than Rule 26(b)(3).” Id. (citing e.g. In re Grand Jury
Subpoenas, 318 F.3d at 383); see Crosby v. City of New York, 269 F.R.D. 267, 277 (S.D.N.Y.
2010); Haus v. City of New York, No. 03-CV-4915, 2006 WL 3375395, at *3 (S.D.N.Y. Nov. 17,
2006) (“The inapplicability of Rule 26(b)(3) does not preclude granting similar immunity under
the common-law work-product doctrine.”). Where, as here, the work-product privilege is
asserted to protect the disclosure of intangible discovery, such as deposition testimony, courts
look to the common law doctrine outlined in Hickman and its progeny in deciding whether to
compel disclosure. Abdell, 2006 WL 2664313, at *3 (collecting cases).
20
“The purposes underlying the doctrine, gleaned from Hickman . . . , include protecting an
attorney’s ability to formulate legal theories and prepare cases, preventing opponents from ‘freeloading’ off their adversaries’ work, and preventing interference with ongoing litigation.” Jean
v. City of New York, No. CV-09-801, 2010 WL 148420, at *2 (E.D.N.Y. Jan. 12, 2010); see
Crosby, 269 F.R.D. at 277; Abdell, 2006 WL 2664313, at *4. Moreover, intangible work
product will fall within the scope of the work product doctrine only if “in light of the nature of
the [intangible work product] and the factual situation in the particular case, the [work product]
can fairly be 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) (internal quotation marks and
emphasis omitted). The party asserting the attorney-work product privilege bears the “heavy
burden of establishing its applicability.” In re Grand Jury Subpoena Dated July 6, 2005, 510 F.
3d at 183.
“Of course even where work product protection applies, the protection is not absolute.
Disclosure of work product may be ordered if the party seeking it can demonstrate substantial
need for the information and an inability to obtain the information, or a substantial equivalent of
it, by other means without undue hardship.” Jean, 2010 WL 148420, at *2 (citing In re Grand
Jury Proceedings, 219 F.3d 175, 190–91 (2d Cir. 2000); Abdell, 2006 WL 2664313 at *6–7)).
Such a showing is sufficient to compel the disclosure of “factual work product,” which is
“tangible work product that includes facts but not the lawyer’s mental impressions.” Crosby,
269 F.R.D. at 277 (quoting Black’s Law Dictionary 1746 (9th ed. 2009)); see Jean, 2010 WL
148420, at *2. However, greater protections are afforded to “core work product” (also called
“opinion work product”), “which includes the mental impressions, conclusions, opinions, or
21
legal theories of an attorney.’” Crosby, 269 F.R.D. at 277 (quoting Abdell, 2006 WL 2664313 at
*6); see Jean, 2010 WL 148420, at *2. The Second Circuit has held that, “at a minimum[,] such
material is to be protected unless a highly persuasive showing [of need] is made.” In re Grand
Jury Proceedings, 219 F.3d at 190–91 (quoting Adlman, 134 F.3d at 1204). Moreover, the party
asserting the privilege to protect opinion work product “must show ‘a real, rather than
speculative, concern’ that the work product will reveal counsel’s thought processes ‘in relation to
pending or anticipated litigation.’” In re Grand Jury Subpoena, 510 F.3d at 183 (quoting In re
Grand Jury Subpoenas, 318 F.3d at 386).
b.
Analysis as to Lato’s Deposition Questions
Former A.D.A. Lato was directed not to answer the following deposition questions based
on attorney-work product privilege:
(1) What were you told [by Spota] what your duties or
responsibilities were to be with regard to the Avalon nurses
case? Lato Dep. Tr. at 46:21-23.
(2) Were you told why you were to report to him [Spota] on
this [the Avalon nurses case]? Id. at 47:24-25.
(3) Initially was it your understanding that what you were
looking at were felonies or misdemeanors or you didn’t
know? Id. at 50:12-15.
(4) Were you told by anyone that there were any politicians
who were interested in this case? Id. at 52:3-5.
(5) Did it concern you at all that the Department of Education
has exonerated the nurses and that the Suffolk County
Police Department has declined to take any action prior to
you getting the [Avalon nurses] case? Id. at 75:15-19.
(6) Would you agree that this definition of nurse-patient
relationship should have been presented to the grand jury?
Id. at 144:22-24.
22
(7) Why did you tell him [Spota] [that there should be an
indictment]? Id. at 458:7.
In light of the parties’ arguments and the applicable case law, the Court makes the
following rulings. Questions (1), (2), and (4) seek factual information, not legal theories,
strategies, or mental impressions which may be protected by the attorney work-product privilege.
The Court understands the County Defendants’ view, discussed at length during oral argument,
that any questions which concern Lato’s preparation for Plaintiffs’ prosecution necessarily
“reveal[] the legal process at the D.A.’s office” and therefore should be protected by the attorney
work-product privilege. Oral Arg. Tr. 15:16. However, the Court simply does not agree that the
factual information sought by these three questions – two of which required merely a “yes” or
“no” answer – reveal legal processes and theories which warrant protection under the privilege.
Accordingly, Plaintiffs’ motion to compel is granted as to Questions (1), (2), and (4) and Mr.
Lato will be required to answer these questions.
As to Question (3), the Court finds that the issue is moot because Lato actually answered
the question when one looks at the context of the testimony:
Q.
What was your understanding about what it was that you
were going to be looking into, what kind of conduct?
Mr. Swenson: Same objections.
The Witness: I think I can answer this without there being
a problem with privilege.
A.
Just whether there was any criminality.
Q.
By whom?
A.
By the nurses, for want of a better term. Again, when I was
first given this I had never heard of Avalon Gardens, I didn’t know
anything about it.
23
Q.
Were you told that – by anyone that a bunch of nurses had
resigned for Avalon Gardens?
Mr. Swenson:
Same objections.
Ms. O’Donnell:
You can answer.
A.
Probably. I don’t know whether it was initially Mr. Spota,
Walter Warkenthein, or both. I was given some background on
what I’m supposed to be looking at.
....
Q.
Initially, was it your understanding that what you would be
looking at were felonies or misdemeanors or you didn’t know?
[Objection by Mr. Swenson]
....
Ms. O’Donnell:
Can you answer the question?
A.
The way you framed it, it can’t be answered. I can answer
it in my own words.
Q.
Would you, please?
A.
It was just to look at whether there was anything criminal
here. I was not told whether there were potential felonies or
potential misdemeanors, violations, et cetera.
Lato Dep. Tr. at 49:5-50:3; 50:12-15; 51:18-52:2.
Regarding Questions (5), (6), and (7), these questions seek Lato’s mental impressions,
conclusions, and opinions regarding his investigation of Plaintiffs’ case and his decision to bring
an indictment. Lato’s answers to these questions therefore fall within the ambit of “opinion work
product.” Crosby, 269 F.R.D. at 277. As discussed, the Court is required to shield opinion work
product – as distinct from fact work product – from disclosure absent a highly persuasive
24
showing of need made by the Nurse Plaintiffs. See In re Grand Jury Proceedings, 219 F.3d at
190–91.
The Court concludes that with regard to Questions (5) and (7), the Nurse Plaintiffs have
met this heightened showing of need. Judge Bianco specifically stated in his March 31, 2011
Order that the County Defendants are not, at this time, protected by qualified immunity (or
absolute immunity) for Plaintiffs’ allegations that, as relevant here, (1) the County Defendants
“prosecuted plaintiffs despite the fact that plaintiffs had not committed a crime and that
defendants knew or should have known that plaintiffs could not constitutionally be prosecuted
for their conduct” and (2) the County Defendants “were aware of significant exculpatory
evidence prior to plaintiffs’ indictment,” including “the State Education Department’s decision
exonerating plaintiffs of any wrongdoing,” but that the County Defendants “nonetheless initiated
an investigation of plaintiffs and presented knowingly false evidence to the Grand Jury.” Anilao,
774 F. Supp. 2d at 492. Questions (5) and (7) go to the heart of these allegations. See Tri-State
Hosp. Supply Corp. v. United States, No. CIV.A. 00-1463, 2005 WL 3447890, at *6 (D.D.C.
Dec. 16, 2005) (holding that “opinion work product may be discoverable when it goes to the
heart of the issues in the litigation.”) (citing Sec. and Exch. Comm’n v. Nat’l Student Mktg.
Corp., 1974 WL 415, at *3-4 (D.D.C. 1974) (when counsel’s activities are at issue in an action,
there is cause for production of documents that deal with such activities though they are opinion
work product)). Because Questions (5) and (7) may reveal information which is central to
Plaintiffs’ allegations, the Court finds that the Nurse Plaintiffs have a sufficient need to discover
that information. The Court further notes that, although the County Defendants have provided
Plaintiffs with copies of the complete and unredacted D.A.’s Office files – including internal
25
memoranda between the D.A.’s Office investigators and Lato, see Defs.’ Opp’n at 2 – the Nurse
Plaintiffs have represented there was nothing in those files which addresses the allegations set
forth above, see Oral Arg. Tr. 8:1-6. Accordingly, Plaintiffs’ motion to compel is granted as to
Questions (5) and (7), and Mr. Lato is directed to answer these questions.
However, the Nurse Plaintiffs have not met the heightened standard for compelling
production of the opinion work product sought by Question (6). As discussed, Judge Bianco
held that Lato is absolutely immune from Plaintiffs’ claims arising out of his “conduct in front of
the Grand Jury.” Anilao, 774 F. Supp. 2d at 480, 480 n.17. In the Court’s view, Question (6)
attempts to explore Lato’s conduct before the Grand Jury by implying that he erred in failing to
present a particular definition of “nurse-patient relationship” to the Grand Jurors. The Nurse
Plaintiffs also have not shown how this question relates to the allegations of investigatory
misconduct which Judge Bianco concluded remain in the case. See id. at 492. Accordingly, the
Nurse Plaintiffs’ motion to compel is denied as to Question (6).
Finally, as noted, Attorney Swenson did not articulate any grounds for his objection to
the following question:
Would [it] have been permissible under the criminal laws, in your
opinion, if instead of resigning if they [the Nurse Plaintiffs] had
gone on strike and not worked after the completion of their shifts?
Lato Dep. Tr. at 234:6-10.
The Court finds that, although this question seeks Lato’s opinion, it does not implicate the
attorney work-product privilege. Moreover, by failing to articulate a basis for the objection, the
County Defendants have not met their “heavy burden” of showing that the privilege applies.
Accordingly, the Nurse Plaintiffs’ motion to compel is granted as to this question and Lato is
directed to answer it.
26
c.
Analysis of Spota’s Deposition Questions
Spota declined to answer the following deposition questions based on attorney workproduct privilege (as well as the deliberative process privileges for some questions):
(1) Can you tell me what your discussion was with Mr. Lato
about the assignment of the [Avalon nurses] case? Spota
Dep. Tr. at 62:17-19.
(2) Did that [the Department of Education found that the Nurse
Plaintiffs committed no wrongdoing] affect your
determination whether a crime had been committed . . . ?
Id. at 65:9-11.
(3) What, if any, crimes do you believe were committed by the
nurses? Id. at 69:19-20.
(4) What goes into a decision whether a misdemeanor case
should be presented to the grand jury? Id. at 72:5-7.
(5) Prior to Mr. Lato seeking an indictment, what, if any,
discussions did you have with him about the case? Id. at
76:6-8.
(6) Did there come a time when there was any discussion about
your office appealing the Article 78 decision [in Tankleff]?
Id. at 90:11-13.
(7) Did there come a time when you considered the bringing of
this indictment a mistake? Id. at 88:10-12.
(8) At any time prior to the bringing of this indictment, what, if
any, discussions did you have with Mr. Lato or another
member of your staff regarding the 13th Amendment of the
United States Constitution? Id. at 89:20-24.
(9) Same question with regard to the 1st Amendment of the
United States Constitution. Id. at 90:6-8.
(10) Did you have any occasion to review that decision,
Tankleff, an Appellate Division decision? Id. at 106:16-18.
27
(11) Understanding that [Mr. Swenson is] going to direct the
witness not to answer, I am going to ask about the process
that went into determining whether to appeal or not to
appeal [in Tankleff]? Id. at 90:19-23.
(12) I want to know whether the substance of the [Tankleff]
decision caused any concern regarding Mr. Lato’s conduct
in this or other cases and I would ask the same questions
about the decision in the Kanciper case, the reversal and
whether that caused any concern and what [Spota’s]
discussions were with Mr. Lato about the decision in the
Kanciper case? Id. at 107:7-14.
(13) Now in this particular instance, when the matter was
handed over to Mr. Lato, was Mr. Lato also instructed to
look at any wrongful conduct on behalf of the nursing
home? Id. at 120:5-9.
(14) So, what were the total factors that led you to believe that
there was probable cause that a crime was committed [in
this case]? Id. at 121:22-25.
(15) With respect to the determination that you told us you
made that it appeared to be probable cause [in this case],
probable cause of what crime? Id. at 122:7-10.
(16) Was Mr. Lato also there or instructed to look into Mr.
Vinluan’s conduct? Id. at 124:18-19.
(17) Did you ever specifically instruct [investigators] Mr.
Warkenthien or Mr. Burke to look into that [Vinluan’s
association with another recruitment agency] before Mr.
Lato was assigned? Id. at 125:16-18.
With regard to Question (1), the court finds that the issue raised here is moot. There is no
basis to compel D.A. Spota to answer this question because he has already done so. After
Plaintiffs’ counsel asked Question (1), Mr. Swenson immediately objected on grounds of
deliberative process privilege and attorney work-product privilege and directed Spota not to
28
answer. See Spota Dep. Tr. at 62:20-63:2. At that point, the following exchange took place
between counsel for the parties:
[Mr. Swenson:] If you want to know what factual
information was discussed with Mr. Lato, I am not so sure that the
work product privilege applies, but beyond that, it is clearly work
product.
Q.
Without waiving my objection to your objection, can you
tell me what factual information was discussed with Mr. Lato?
Id. at 63:3-10. Spota responded with various examples over the course of a full page of
testimony. Id. at 63-64. Therefore, Plaintiffs’ counsel obtained exactly what she was entitled to
– the facts recited by D.A. Spota. The Nurse Plaintiffs’ motion as to this question is therefore
moot.
Read in context, Spota’s response to Question (2) is not protected by attorney workproduct privilege. Spota acknowledged that he was not only aware of the State Education
Department’s investigation, but he was able to describe what had been related to him about the
investigation, how the matter had been reviewed up the line, and that the decision maker had
determined that there was no abandonment by the Nurse Plaintiffs. Id. at 64-65. Asking the
question whether the State Education Department’s finding affected D.A. Spota’s opinion
whether a crime had been committed called for a simple “yes” or “no” answer – one that did not
ask for the opinion itself, but only whether Spota’s opinion was affected by the State Education
Department’s findings. Therefore, the question and answer are not protected by the attorney
work-product privilege. Mr. Spota will be required to answer that question.
Likewise, Question (3) is not protected by the attorney work-product privilege. The
Court directs attention to the actual questioning:
29
Q.
What, if any, commitments did you make to Mr.
Fensterman [Sentosa’s attorney] regarding what you were
-A.
That we would be fair in our investigation.
Q.
What, if any, crimes did you believe were committed by the
nurses?
Mr. Swenson: Objection. Privileged, attorney work
product. I respectfully direct the witness not to answer.
Q.
Do you know if any of the crimes committed by the nurses
or potential crimes were felonies as opposed to misdemeanors?
Mr. Swenson: Same objection.
Id. at 69:14-70:4. The question posed here calls for a fact-based response, and, as such, is not
privileged.
Many of the other assertions of privilege here are unwarranted for the same or similar
reasons. In addition, a number of them go directly Plaintiffs’ Monell claim (e.g., Questions (4),
(11), (12) and (14). As for Questions (6), (10), (13), (14), (15), (16) and (17), these questions
seek factual information and the attorney work-product privilege is therefore inapplicable. As
discussed previously with respect to Mr. Lato’s deposition questions, the Court declines to shield
the factual information sought by these questions – most of which require a “yes” or “no” answer
– based on the County Defendants’ belief that the information will somehow reveal the general
“legal process” employed by the D.A.’s Office concerning its decision to prosecute a case.
However, the Court finds also that Questions (8) and (9) are overbroad in that they seek
information about discussions Spota had with Lato and other A.D.A.s “[a]t any time prior to the
indictment.” Spota Dep. Tr. at 89:20-24. Accordingly, the Nurse Plaintiffs’ motion to compel is
30
granted as to Questions (6), (10), (13), (14), (15), (16) and (17), and D.A. Spota is directed to
answer those questions. The Court will address whether the deliberative process privilege
applies as to all of those questions in the next section.
As for Question (4), the Court finds that the County Defendants have not met their
burden of showing that the general question “[w]hat goes into a decision whether a misdemeanor
case should be presented to the Grand Jury?” is protected by the attorney work-product privilege.
Spota Dep. Tr. at 72:5-7. This question does not seek Spota’s opinion about whether Plaintiffs
should have been charged with misdemeanor crimes nor does it even reference Plaintiffs’
prosecution. See generally Adlman, 134 F.3d at 1202 (intangible work product will only fall
within the scope of the work product doctrine only if it “can fairly be said to have been prepared
or obtained because of the prospect of litigation.”). Accordingly, the attorney work-product
privilege does not apply. As noted, this question has some relevance to the Monell claim
asserted here.
The Court further finds that Questions (11) and (12) do not implicate the attorney workproduct privilege. Question (11) asks about the “process” that went into the decision of the
D.A.’s Office whether to take an appeal in the Tankleff case. Spota Dep. Tr. at 90:19-23. It does
not demand that Spota divulge any work product regarding that case. Question (12) inquires
whether the Tankleff and Kanciper decisions caused Spota “any concern” about Lato’s conduct
in this and other cases, as well as what discussions Spota had with Lato about the Appellate
Division’s decision in Kanciper. Id. at 107:7-14. Notwithstanding the compound nature of the
question, Spota’s opinion of Lato’s conduct in the wake of the Tankleff and Kanciper decision is
not protected by the attorney work-product privilege because that opinion does not go to any
31
“legal theories” behind those cases – nor was his opinion of Lato “prepared” as part of that
litigation.” Adlman, 134 F.3d at 1202. The question is also relevant to the asserted Monell
claim. Whether the deliberative process privilege applies to Questions (11) and (12) is discussed
below.
As for Questions (5) and (7), the Court finds that these questions implicate the attorney
work-product privilege. The issue then becomes whether the Nurse Plaintiffs have made a
sufficient showing to overcome that privilege.
Because Question (5) is so broadly worded, the Court cannot be sure that this question is
squarely aimed at the County Defendants’ investigatory conduct rather than their “initiation of
the prosecution against plaintiffs,” which Judge Bianco determined is privileged. Anilao, 774 F.
Supp. 2d at 480. The Court therefore concludes that the Nurse Plaintiffs’ have not met their
burden of overcoming the attorney work-product privilege as to this question. Accordingly, the
Nurse Plaintiffs’ motion to compel is denied as to Question (5).
However, Questions (7) seeks information which is central to the Nurse Plaintiffs’
allegations that, inter alia, (1) the County Defendants “prosecuted plaintiffs despite the fact that
plaintiffs had not committed a crime and that defendants knew or should have known that
plaintiffs could not constitutionally be prosecuted for their conduct” and (2) the County
Defendants “were aware of significant exculpatory evidence prior to plaintiffs’ indictment,”
including “the State Education Department’s decision exonerating plaintiffs of any wrongdoing,”
but that the County Defendants “nonetheless initiated an investigation of plaintiffs and presented
knowingly false evidence to the Grand Jury.” Anilao, 774 F. Supp. 2d at 492. The Court
therefore finds that the Nurse Plaintiffs have met the heightened showing of need to compel
32
Spota’s testimony in response to this question. See Tri-State Hosp., 2005 WL 3447890, at *6.
Accordingly, Plaintiffs’ motion to compel is granted as to Question (7), and D.A. Spota will be
required to answer the question.
3.
Deliberative Process Privilege
a.
Legal Standard
The deliberative process privilege “covers documents reflecting advisory opinions,
recommendations, and deliberations that are part of a process by which Government decisions
and policies are formulated.” Dep’t of the Interior and Bureau of Indian Affairs v. Klamath
Water Users Protective Ass’n, 532 U.S. 1, 8 (2001). The privilege is “designed to promote the
quality of agency decisions by preserving and encouraging candid discussion between officials.
It is based on ‘the obvious realization that officials will not communicate candidly among
themselves if each remark is a potential item of discovery and front page news.’” Nat’l Council
of La Raza v. Dep’t of Justice, 411 F.3d 350, 356 (2d Cir. 2005) (quoting Klamath, 532 U.S. at
8-9); see A. Michael’s Piano, Inc. v. FTC, 18 F.3d 138, 147 (2d Cir. 1994). It follows, therefore,
that “the deliberative process privilege may only be claimed ‘by the head of the agency which
has control over the material, after personal consideration of the allegedly privileged nature of
the information.’” Conte v. Cnty. of Nassau, No. CV 06-4746, 2009 WL 1362784, at *5
(E.D.N.Y. May 15, 2009) (quoting Rao v. N.Y. City Health and Hosp. Corp., No. 89 Civ. 2700,
1993 WL 465342, at *1 (S.D.N.Y. Nov. 8, 1993)); see Burbar v. Inc. Vill. of Garden City, 303
F.R.D. 9, 14 n.2 (E.D.N.Y. 2014); In re Methyl Tertiary Butyl Ether (MTBE) Products Liab.
Litig., 643 F. Supp. 2d 439, 443 (S.D.N.Y. 2009).
33
The deliberative process privilege “applies to depositions of government employees as
well as discovery requests for documents.” E.E.O.C. v. Venator Grp., No. 99 CIV 4758, 2000
WL 1059033, at *2 (S.D.N.Y. Mar. 27, 2000); In re World Trade Center Disaster Site Litig., No.
21 MC 100 et al., 2009 WL 4722250, at *3 (S.D.N.Y. Dec. 9, 2009) (holding that testimony was
protected by deliberative process privilege); ACORN v. County of Nassau, No. 05–CV–2301,
2009 WL 2923435, at *4 n. 3 (refusing to distinguish between privilege as applied to documents
and testimony); New York City Managerial Employee Ass’n v. Dinkins, 807 F. Supp. 955, 957
(S.D.N.Y. 1992) (noting that “the purpose of the privilege is to ensure that the quality of
government decisions is not compromised by subjecting all government discussion to public
scrutiny” and holding that “the disputed deposition questions are protected”); see also E. End
Ventures, LLC v. Inc. Vill. of Sag Harbor, No. CV 09-3967, 2011 WL 6337708, at *2 (E.D.N.Y.
Dec. 19, 2011) (noting that legislative privilege and deliberative process privilege are
functionally the same, and addressing whether the legislative privilege was properly invoked as
to 12 deposition questions); Ingles v. City of New York, No. 01 CIV. 8279, 2004 WL 2274653, at
*1 (S.D.N.Y. Oct. 8, 2004) (denying the plaintiff’s motion to compel discovery of documents
and deposition testimony relating to the New York City Department of Correction’s issuance of a
revised use of force policy directive on the grounds that “the requested discovery is protected by
the deliberative process privilege”).
“The party seeking to invoke the deliberative process privilege bears the burden of
demonstrating two requirements: (1) the document [or testimony] is ‘predecisional’ and (2) it is
‘deliberative.’” Conte, 2009 WL 1362784, at *4 (quoting Tigue v. United States, 312 F.3d 70,
76 (2d Cir. 2002)); see Nat’l Council of La Raza, 411 F.3d at 356. Material “is predecisional
34
when it is prepared in order to assist an agency decisionmaker in arriving at his decision.” Tigue,
312 F.3d at 80 (quoting Grand Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473, 482 (2d Cir. 2000)).
“Accordingly, ‘the privilege protects recommendations, draft documents, proposals, suggestions,
and other subjective documents which reflect the personal opinions of the writer rather than the
policy of the agency.’” Conte, 2009 WL 1362784, at *4 (quoting Nat’l Congress for Puerto
Rican Rights v. City of New York, 194 F.R.D. 88, 92 (S.D.N.Y. 2000); see Tigue, 312 F.3d at 80.
Material is considered “deliberative” where it is “actually related to the process by which
policies are formulated.” Nat’l Council of La Raza, 411 F.3d at 356 (internal quotation marks
and alterations omitted); see Hopkins v. HUD, 929 F.2d 81, 84-85 (2d Cir. 1991). In other
words, “an agency document must be ‘indicative of the agency’s thought processes.’” Burbar,
303 F.R.D. at 13 (quoting Local 3, Int’l Broth. of Elec. Workers, AFL-CIO v. N.L.R.B., 845 F.2d
1177, 1179 (1988)). The privilege does not apply to material that is “purely factual and not
reflective of the agency’s deliberative process.” Id.; see Schomburg v. New York City Police
Dep’t, 298 F.R.D. 138, 144 (S.D.N.Y. 2014); MacNamara v. City of New York, 249 F.R.D. 70,
78 (S.D.N.Y. 2008) (quoting Grand Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473, 482 (2d Cir.
1999)).
Notably, the deliberative process privilege is a qualified privilege. Natural Resources
Defense Council, Inc. v. Fox, No. 94-CV-8424, 1998 WL 158671, at *5 (S.D.N.Y. Apr. 6, 1998)
(citing In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997)). Once the privilege is established,
the court must balance the interests supporting and opposing the disclosure. Mr. and Mrs. “B” v.
Bd. of Educ. of Syosset Cent. Sch. Dist., 35 F. Supp. 2d 224, 228 (E.D.N.Y. 1998). In
determining whether to apply the qualified privilege, courts weigh the following five factors:
35
(I) the relevance of the evidence sought to be protected;
(II) the availability of other evidence; (III) the
>seriousness= of the litigation and the issues involved;
(IV) the role of government in the litigation; and (V) the
possibility of future timidity by government employees
who will be forced to recognize that their secrets are
violable.
Id. at 229 (quoting In re Franklin Nat’l. Bank Secs. Litig., 478 F. Supp. 577, 582 (E.D.N.Y.
1979)). “In balancing these interests, foremost is the interest of the litigants, and ultimately of
society, in accurate judicial fact finding.” Id. at 229 (internal quotations and alteration omitted).
The privilege, however, may be inapplicable where the deliberations are among the
central issues in the case. Conte, 2009 WL 13624784, at *5; Ebbert v. Nassau County, No. 055445, 2007 WL 674725, at *11 (E.D.N.Y. Mar. 5, 2007); Mr. and Mrs. “B,” 35 F. Supp. 2d 224
at 230; see also ACORN v. County of Nassau, No. CV 05-2301, 2008 WL 708551, at *4
(E.D.N.Y. Mar. 14, 2008) (“When the decision making process is itself at issue, particularly in a
civil rights action, the deliberative process privilege and other privileges designed to shield that
process from public scrutiny may not be raised as a bar against disclosure of relevant
information; it must yield to the overriding public interest in challenging discrimination.’”)
(citing Torres v. City Univ. of New York, No. 90 Civ. 2278, 1992 WL 380561, at *8 (S.D.N.Y.
Dec. 3, 1992)); Children First Found., Inc. v. Martinez, No. 04-0927, 2007 WL 4344915, at *7
(N.D.N.Y. Dec. 10, 2007) (holding that the privilege only protects the government’s deliberative
process from inquiry if it is collateral to the litigation); Azon v. LIRR, No. 00 CIV 6031, 2001
WL 1658219, at *3 (S.D.N.Y. Dec. 26, 2001) (“[W]hen the subject of the litigation . . . is the
very nature of the decision-making process, the privilege should not foreclose the production of
critical information.”). Government information is “protected from discovery so that the public
36
will benefit from more effective government; when the public’s interest in effective government
would be furthered by disclosure, the justification for the privilege is attenuated. Thus, [when
the information] sought may shed light on alleged government malfeasance, the privilege is
denied.” In re Franklin Nat’l Bank Secs. Litig., 478 F. Supp. at 582. As noted in Children First
Foundation, the “historical and overwhelming consensus and body of law within the Second
Circuit is that when the decision-making process itself is the subject of the litigation, the
deliberative process privilege cannot be a bar to discovery” and the privilege “evaporates.” 2007
WL 4344915, at *7 (collecting cases and holding that privilege was inapplicable where plaintiff
alleged that government defendants acted in an arbitrary manner in rendering a policy decision).
b.
Analysis of Spota’s Deposition Questions
Spota invoked the deliberative process privilege in response to the following questions,
some of which overlap with the previously stated questions:
(1) What, if any, crimes do you believe were committed by the
nurses? Spota Dep. Tr. at 69:19-20.
(2) What goes into a decision whether a misdemeanor case
should be presented to the grand jury? Id. at 72:5-7.
(3) Is that normally within the scope of the job of a bureau
chief to do that [interview witnesses]? Id. at 73:25-74:1.
(4) Did there come a time when there was any discussion about
your office appealing the Article 78 decision [in Tankleff]?
Id. at 90:11-13.
(5) Understanding that [Mr. Swenson is] going to direct the
witness not to answer, I am going to ask about the process
that went into determining whether to appeal or not to
appeal [in Tankleff]? Id. at 90:19-23.
(6) Did he [Lato] give a reason for his resignation? Id. at
91:20-21.
37
(7) Did Mr. Lato’s resignation have anything to do with his
handling of this case? Id. at 92:8-9.
(8) Is ethics one of the topics that they [new ADAs] are trained
on? Id. at 94:23-24.
(9) Can you tell me the substance of these conversations
[with others in the D.A.’s Office, including supervisors,
regarding Lato’s conduct]? Id. at 102:11-12.
(10) In regard to the Kanciper case that we have discussed,
were you aware of whether there were investigators
assigned to work with Mr. Lato on that case? Id. at
103:15-18.
(11) The same question regarding the Tankleff case. Id. at
103:23-24.
(12) I want to know whether the substance of the [Tankleff]
decision caused any concern regarding Mr. Lato’s conduct
in this or other cases and I would ask the same questions
about the decision in the Kanciper case, the reversal and
whether that caused any concern and what [Spota’s]
discussions were with Mr. Lato about the decision in the
Kanciper case? Id. at 107:7-14.
(13) Now in this particular instance, when the matter was
handed over to Mr. Lato, was Mr. Lato also instructed to
look at any wrongful conduct on behalf of the nursing
home? Id. at 120:5-9.
(14) Was Mr. Lato also there or instructed to look into Mr.
Vinluan’s conduct? Id. at 124:18-19.
(15) Did you ever specifically instruct [investigators] Mr.
Warkenthien or Mr. Burke to look into that [Vinluan’s
association with another recruitment agency] before Mr.
Lato was assigned? Id. at 125:16-18.
In light of the parties’ arguments and the applicable law, the Court concludes that the
deliberative process privilege is inapplicable to the majority of these questions. First and
foremost, these questions go to the essence of the claims raised in this case, namely, the decision
38
making process involved in the determination to prosecute the Plaintiffs. Moreover, the Court
disagrees with the County Defendants, as it did with regard to with the attorney work-product
privilege, that the deliberative process privilege is intended to shield from disclosure any
information which reflects the inner workings of the D.A.’s Office and the choices made by D.A.
Spota as the head of that agency. “The deliberative process privilege does not provide a blanket
basis upon which to withhold [material] that an agency has created during its decision-making
process . . . Indeed, if that were the case, the deliberative process privilege would provide an
exemption from the discovery rules for decision-making agencies generally-and that, of course,
is not the law.” Auto. Club of New York, Inc. v. Port Auth. of New York & New Jersey, No. 11
CIV. 6746, 2014 WL 2518959, at *4 (S.D.N.Y. June 4, 2014), aff’d sub nom. 2015 WL 3404111
(S.D.N.Y. May 27, 2015) (internal quotation marks and citation omitted).
To that end, the Court concludes that deliberative process privilege was improperly
invoked in response to Questions (3), (4), (6), (7), (8), (10), (11), (13), (14) and (15). The
Plaintiffs’ claims as to the violation of their First, Thirteenth and Fourteenth Amendment rights
in connection with their prosecution, their assertions of the related municipal liability under
Monell, the conspiracy to violate their constitutional rights, and their malicious prosecution and
false arrest claims all place in issue the deliberative process of the County Defendants in
prosecuting the Plaintiffs here. See Conte, 2009 WL 13624784, at *5; see also MacNamara,
249 F.R.D. at 78 (holding that material “is not ‘deliberative’ where it concerns ‘purely factual’
information regarding, for example, investigative matters or factual observations” (quoting
Grand Cent. P’Ship, 166 F.3d at 482)).
39
The same is true of Questions (1), (2), (9) and (12). Although Question (1) seeks Spota’s
opinion about what crimes he believes the Nurse Plaintiffs’ committed, Spota Dep. Tr. at 69:1920, the County Defendants have not demonstrated that his response would necessarily “bear on
the formulation or exercise of policy-oriented judgment.” MacNamara, 249 F.R.D. at 78
(quoting Tigue, 312 F.3d at 80) (internal quotation marks omitted). Similarly, Question (2)
generally asks Spota to describe “what goes into a decision whether a misdemeanor case should
be presented to the grand jury[.]” Spota Dep. Tr. at 72:5-7. The Court finds that Spota’s
response to this general question would, at most, reveal information that is “merely peripheral to
actual policy formation,” not his deliberation on a particular policy or decision itself.
MacNamara, 249 F.R.D. at 78 (quoting Tigue, 312 F.3d at 80) (internal quotation marks
omitted). As to Questions (9)5 and (12), the Court appreciates that D.A. Spota may be loath to
reveal the information called for by these questions – i.e., the substance of his conversations with
others in the D.A.’s Office about Lato’s conduct as a district attorney, his conversations with
Lato about the decisions in Tankleff and Kanciper, and whether those decisions caused him to be
concerned about Lato’s conduct. Spota Dep. Tr. at 102:11-12; 107:7-14. However, “‘materials
are not to be withheld on the basis of the deliberative process privilege simply because the
agency deems them confidential and would prefer not to disclose them.’” Auto. Club of New
York, 2014 WL 2518959, at *4 (quoting Toney–Dick v. Doar, 12 Civ. 9162, 2013 WL 5549921,
at *2 (S.D.N.Y. Oct. 3, 2013)). Moreover, this information is relevant to Plaintiffs’ Monell
claim. The Court has no basis to conclude, on this record, that Spota’s responses to Questions
5
The Court notes that this question is also phrased (perhaps unartfully) as calling for a
“yes” or “no” response.
40
(9) and (12) would reveal anything “deliberative” in nature. Accordingly, the Nurse Plaintiffs’
motion to compel is granted as to Questions (1), (2), (3), (4), (6), (7), (8), (9), (10), (11), (12),
(13), (14) and (15), and D.A. Spota will be required to answer these questions.
The only question to which the deliberative process privilege arguably applies is
Question (5), which asks D.A. Spota to describe the “process that went into determining whether
to appeal or not to appeal” in the Tankleff case. Spota Dep. Tr. at 90:19-23. The Court finds that
Spota’s testimony on this issue is both pre-decisional and deliberative. Moreover, the balance of
factors tips in favor of applying the privilege to prevent disclosure of this testimony. See Mr.
and Mrs. “B,” 35 F. Supp. 2d at 229. Ultimately, the testimony sought here has lesser relevance
to Plaintiffs’ case. The Nurse Plaintiffs’ assert that Spota’s decisions regarding the Tankleff case
are relevant to their claims that he failed to properly supervise Lato during the underlying
prosecution. While that argument may establish relevance, unlike the instant case, Lato did not
present the Tankleff case to the Grand Jury; rather, according to Lato’s deposition testimony, his
role in Tankleff was confined to reviewing and investigating the claims raised in the postconviction motion. Lato Dep. Tr. at 25:3-4. The Court further notes that the Nurse Plaintiffs’
need for the information does not outweigh Spota’s interest in keeping secret the deliberative
process behind the decision of the DA Office not to appeal in Tankleff. Finally, Spota’s decision
whether to appeal in Tankleff is not a “central issue” in this case which would possibly render the
privilege inapplicable. See Conte, 2009 WL 13624784, at *5. Accordingly, the Nurse Plaintiffs’
motion to compel is denied as to Question (5).
41
V.
CONCLUSION
For the foregoing reasons, the Nurse Plaintiffs’ motion to compel is GRANTED, in part,
and DENIED, in part, to the extent set forth in this Memorandum and Order. The parties are to
complete the re-opened depositions of Lato and Spota, if they elect to do so, by November 30,
2015. This case is set down for an in-person conference on December 4, 2015 at 11 a.m.
SO ORDERED.
Dated: Central Islip, New York
September 30, 2015
/s/ A. Kathleen Tomlinson
A. KATHLEEN TOMLINSON
U.S. Magistrate Judge
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