Doe v. Zucker et al

Filing 228

DECISION AND ORDER that Defendant's motion to stay the Orders of November 19, 2020, and June 11, 2021 (Dkt. No. 225 ) is DENIED. Signed by Chief Judge Glenn T. Suddaby on 7/20/2021. (sal)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
JOHN DOE,
Plaintiff,
1:17-CV-1005
(GTS/CFH)

v.
HOWARD ZUCKER, M.D., in his official capacity as
Commissioner of Health of the State of New York,
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

O’CONNELL & ARONOWITZ, P.C.
Counsel for Plaintiff
54 State Street, 9th Floor
Albany, NY 12207-2501

JEFFREY J. SHERRIN, ESQ.
MICHAEL HAWRYLCHAK, ESQ.

CONSTANTINE CANNON
Counsel for Defendant
335 Madison Avenue, 9th Floor
New York, NY 10017-4611

ROBERT LOUIS BEGLEITER, ESQ.
GARY MALONE, ESQ.
HARRISON McAVOY, ESQ.
MARGEAUX POUEYMIROU, ESQ.
MATTHEW J. KOENIG, ESQ.
NOELLE M. YASSO, ESQ.

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this action against Howard Zucker in his official capacity
as the Commissioner of Health of the State of New York (“Defendant”), is Defendant’s motion
to stay the Orders of November 19, 2020, and June 11, 2021, that require Defendant to disclose
to Plaintiff copies of three documents, pending Defendant’s appeal from those Orders. (Dkt. No.
225.) For the reasons stated below, the Court denies Defendant’s motion.
I.

RELEVANT BACKGROUND

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A.

Relevant Procedural History

On May 7, 2020, Plaintiff requested a telephone conference to resolve outstanding issues
regarding whether certain discovery documents were protected by privilege. (Dkt. Nos. 170,
171.) On May 27, 2020, U.S. Magistrate Judge Christian F. Hummel held a discovery hearing,
in which he agreed to do an in camera inspection of the disputed documents and ordered
supplemental briefing on that issue. (Text Minute Entry filed May 27, 2020.) On November 19,
2020, Magistrate Judge Hummel issued a Decision and Order in which he found certain
documents to be covered by privilege and others to not be covered by privilege, and in which he
ordered Defendant to produce the non-privileged documents within ten days of that Decision and
Order. (Dkt. No. 195.) On November 30, 2020, Defendant requested a stay of the order to
disclose the documents pending the filing of a motion for reconsideration,1 which motion he
filed on December 3, 2020, related to three specific documents that had been found to not be
covered by attorney-client privilege. (Dkt. No. 198, 201.) On June 11, 2021, Magistrate Judge
Hummel granted in part and denied in part Defendant’s motion for reconsideration; he clarified
his previous Decision and Order but declined to change his ultimate finding that the three
documents were not covered by attorney-client privilege. (Dkt. No. 215.)
On June 25, 2021, Defendant filed an appeal from Magistrate Judge Hummel’s two
Decision and Orders (“the Orders”). (Dkt. No. 224.) He filed the current motion to stay pending
appeal on July 2, 2021. (Dkt. No. 225.)
B.

The Parties’ Briefing on Defendant’s Motion
1.

Defendant’s Memorandum of Law

1

The request for a stay was granted on November 20, 2020. (Dkt. No. 198 [Text
Order filed Nov. 30, 2020].)
2

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Generally, in his motion, Defendant argues that the Court should stay Magistrate Judge
Hummel’s Orders to disclose the three relevant documents pending the outcome of his appeal
from those Decision and Orders. (Dkt. No. 225, Attach. 1 [Def.’s Mem. of Law].) More
specifically, Defendant asserts the following four arguments: (1) he has shown that he is likely to
succeed on the merits of his appeal (or that there are at least serious questions going to the
merits) because Magistrate Judge Hummel misapplied the relevant Second Circuit law in finding
those documents were not protected by attorney-client privilege; (2) he has shown that he will
suffer irreparable harm if a stay is not granted because having to disclose the disputed documents
will essentially render his appeal moot and prevent him from having any redress if he is
successful on his appeal; (3) a stay would not injure Plaintiff because the deposition at which
Plaintiff wishes to use the relevant documents can be held in abeyance pending the outcome of
the appeal, and the deadline for dispositive motions in this case has already been held in
abeyance pending the outcome of his appeal; and (4) the public interest is served by granting a
stay because there is a public interest in ensuring that attorneys and clients can freely consult to
ensure the state complies with its legal obligations, and allowing disclosure here would be liable
to have a chilling effect on communications between government attorneys and government
employees. (Id.)
2.

Plaintiff’s Opposition Memorandum of Law

Generally, in its opposition memorandum of law, Plaintiff argues that a stay pending
appeal is not warranted. (Dkt. No. 226 [Pl.’s Opp’n Mem. of Law].) More specifically, Plaintiff
asserts the following five arguments: (1) Defendant is unlikely to succeed on the merits of his
appeal because Magistrate Judge Hummel correctly found that the communications at issue were
related to policy and did not have a predominant purpose to render or solicit legal advice, and the
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mere fact that policies must be in compliance with the law does not transform all
communications about policy into legal communications; (2) Defendant will not be irreparably
harmed because (a) there is a protective order already in this case that would prevent Plaintiff
from disseminating the documents any more than required, and (b) any injury suffered can be
remedied after-the-fact by precluding those documents if they are found on appeal to be
privileged; (3) Plaintiff will suffer a substantial injury if a stay is granted because he must
complete the deposition of Dr. Gesten on or before September 3, 2021, pursuant to the order of
the state court where a related case is pending, and he will not have the opportunity to depose Dr.
Gesten about any information in the relevant documents if a stay is issued and the appeal is not
decided before that deadline; (4) the public interest will be served by denying a stay because
there is a public interest in government transparency, there would be very little real danger of a
chilling effect from production, and the documents will be used only for limited (rather than
widespread) purposes; and (5) the balance of these factors does not weigh in favor of granting a
stay pending appeal. (Id.)
II.

APPLICABLE LEGAL STANDARD
In deciding whether to grant a stay of an order or proceeding pending appeal, courts

consider four factors: (1) “whether the stay applicant has made a strong showing that he is likely
to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3)
whether issuance of the stay will substantially injure the other parties interested in the
proceedings; and (4) where the public interest lies.” United States v. Grote, 961 F.3d 105, 12223 (2d Cir. 2020). The Second Circuit evaluates these factors on a sliding scale, finding that
“[t]he necessary ‘level’ or ‘degree’ of possibility of success will vary according to the court’s
assessment of the other stay factors.” Thapa v. Gonzales, 460 F.3d 323, 334 (2d Cir. 2006).
4

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“The probability of success that must be demonstrated is inversely proportional to the amount of
irreparable injury plaintiff[] will suffer absent the stay. Simply stated, more of one excuses less
of the other.” Mohammed v. Reno, 309 F.3d 95, 101 (2d Cir. 2002).
A stay is not a matter of right but an exercise of judicial discretion that depends on the
circumstances of the particular case. Niken v. Holder, 556 U.S. 418, 433 (2009). “The party
requesting a stay bears the burden of showing that the circumstances justify an exercise of that
discretion.” Niken, 556 U.S. at 433-34.
III.

ANALYSIS
After careful consideration of whether Defendant is entitled to a stay of Magistrate Judge

Hummel’s Orders pending appeal, the Court answers this question in the negative for the reasons
stated in Plaintiff’s memorandum of law. (Dkt. No. 226 [Pl.’s Mem. of Law].) To those
reasons, the Court adds the following analysis.
A.

Likelihood of Success on the Merits

In asserting a likelihood of success on the merits, Defendant argues primarily that
Magistrate Judge Hummel’s finding is clearly contrary to Second Circuit precedent, specifically,
In re Erie County, 473 F.3d 413, 417 (2d Cir. 2007). (Dkt. No. 225, Attach. 1, at 10-14 [Def.’s
Mem. of Law].)
In In re County of Erie, the Second Circuit found that, “[i]n civil suits between private
litigants and government agencies, the attorney-client privilege protects most confidential
communications between government counsel and their clients that are made for the purpose of
obtaining or providing legal assistance.” In re Cnty. Of Erie, 473 F.3d at 418. “Fundamentally,
legal advice involves the interpretation and application of legal principle to guide future conduct
or to assess past conduct[;] . . . It requires a lawyer to rely on legal education and experience to
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inform judgment.” In re Erie County, 473 F.3d at 419. The Second Circuit also found that the
question is “whether the predominant purpose of the communication is to render or solicit legal
advice.” In re Erie County, 473 F.3d at 420. “When a lawyer has been asked to assess
compliance with a legal obligation, the lawyer’s recommendation of a policy that complies (or
better complies) with the legal obligation—or that advocates and promotes compliance, or
oversees implementation of compliance measure—is legal advice.” In re Erie County, 473 F.3d
at 422. The Second Circuit found, however, that this privilege is to be construed “narrowly
because it renders relevant information undiscoverable; we apply it ‘only where necessary to
achieve its purpose.’” In re Erie County, 473 F.3d at 418 (quoting Fisher v. United States, 425
U.S. 391, 403 [1976]).
Here, the Court finds that Defendant has not shown a likelihood of success on the merits
of his appeal. Defendant’s argument appears to be the attorney-client privilege applies to any
conversation by governmental personnel regarding an attorney’s recommendation of a policy to
comply with a legal obligation where the attorney has requested assistance in formulating or
implementing that policy. (Dkt. No. 225, Attach. 1, at 12-13 [Def.’s Mem. of Law].) However,
Defendant fails to cite any legal precedent to support his assertion that an attorney’s request for
non-attorneys to perform work or prepare documents that will facilitate their recommendations
being put into practice also constitutes legal advice or assistance. (See Dkt. No. 224, Attach. 1
[stating that “the Order is contrary to law in holding that communications initiated by attorneys
for the purpose of seeking assistance in developing policies to meet legal obligations are not
privileged if those policies also involved matters other than meeting legal obligations,” but
failing to cite any such law].) As Defendant himself emphasizes, the Second Circuit stated in In
re Erie County that a “lawyer’s recommendation of a policy” is what is considered legal advice;
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the Second Circuit says nothing, however, about whether an attorney’s request for assistance by
non-attorneys to conduct the practical work to implement the attorney’s policy recommendation,
or the communications by non-attorneys regarding fulfilling such a request by the attorney in a
way that does not seek legal advice from that attorney or address the legal issues involved, is
also covered by the privilege. In re Erie County, 473 F.3d at 422.
Here, none of the three documents were either (a) the government attorney’s policy or
legal or related recommendations, or (b) responses or discussions by non-attorneys that sought or
requested legal advice or assistance. Rather, they consist essentially of communicating
deadlines, requesting certain individuals to review documents for approval or to formulate
documents according to pre-determined criteria, or discussions about the practical logistics of
completing such tasks. Additionally, the Court is not persuaded, on this review at least, that
Defendant has shown that Magistrate Judge Hummel misunderstood or misapplied the relevant
law that Defendant highlights, particularly In re Erie County. Because Defendant’s arguments
on this motion do not indicate that he is likely to succeed on the merits of his appeal, the Court
finds that this factor weighs against granting a stay.
B.

Irreparable Harm

Defendant has not demonstrated that he will suffer irreparable harm if he is required to
disclose the relevant three documents before appeal. Contrary to Defendant’s argument,
disclosure would not moot Defendant’s appeal of Magistrate Judge Hummel’s Orders or
effectively deprive him of his right to appeal. If any of the three documents were found to be
covered by the attorney-client privilege on appeal, the disclosure of any privileged information
could be remedied through multiple avenues, including (a) redaction of the portions of the
documents that contain privileged information for use on substantive motions or at trial, or (b) an
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order that Plaintiff is not permitted to use those documents on substantive motions or at trial.
See In re Erie County, 473 F.3d 413, 417 (2d Cir. 2007) (finding that, even where a motion to
stay pending appeal was denied and documents alleged to be privileged were already disclosed
to the other party, the dispute was not moot because there was still relief available, such as
blocking the privileged material from use at further discovery and at trial).
In making this finding, the Court does not consider the issue in a vacuum, but rather
based on a consideration of the content of the documents themselves. Indeed, the majority of the
content of these three documents relate to simply providing practical directions related to work
tasks and deadlines or to scheduling meetings or conversations. In short, the Court sees nothing
in the three documents that, if found to be protected by attorney-client privilege on appeal, could
not be addressed through precluding Plaintiff from using that evidence (or any fruits of that
evidence, such as deposition testimony elicited from those documents) on its dispositive motions
or at trial. Indeed, Magistrate Judge Hummel has held the deadlines for dispositive motions in
abeyance pending the resolution of the dispute over these documents. (Text Minute Entry filed
June 25, 2021.) There is therefore no danger that Plaintiff will be able to use these documents
for the purpose of obtaining a dispositive finding before the appeal is resolved. As a result, the
Court finds that this factor weighs against granting a stay.
C.

Substantial Injury to Interested Parties

Defendant has also failed to show that Plaintiff will not be substantially injured if a stay
is granted. Although Defendant argues that the parties have agreed to hold the deposition of Dr.
Gesten in a related state court case (which deposition can be used in the instant litigation
pursuant to an agreement by the parties) in abeyance pending the outcome of the dispute over
these documents, Plaintiff’s attorney’s declaration indicates that the Kings County court
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informed the parties on March 31, 2021, that September 3, 2021, was “as far out as the parties
could reasonably expect to set the deadline [for that deposition] and still obtain court approval.”
(Dkt. No. 226, Attach. 1, at ¶¶ 4-5, 8 [Hawrylchak Decl.].)
Pursuant to the Court-ordered deadlines, the briefing on Defendant’s appeal of
Magistrate Judge Hummel’s Orders is set to close on July 23, 2021. (Dkt. No. 224 [noting that
response was due by July 16, 2021, and reply is due by July 23, 2021].) That means there is a
little more than one month between when that appeal is fully briefed and ready for the Court’s
consideration and when the deposition of Dr. Gesten must be completed per the deadline
imposed by the Kings County court. Although this Court always strives to conduct its business
in a timely manner, there is simply no guarantee that a decision on Defendant’s appeal would be
issued before September 3, 2021. In the case where the Court issues a stay and a decision is not
issued before that date, Plaintiff will have lost his ability to question Dr. Gesten on matters
brought up by the content of the relevant documents should the Court ultimately affirm
Magistrate Judge Hummel’s findings on appeal. As a result, the Court finds that this factor
weighs against granting a stay (albeit weakly given that the harm remains dependent on when
this Court issues a decision on the appeal and is not guaranteed to occur).
D.

Public Interest

As to whether the public interest warrants the issuance of a stay, the Court finds that this
factor is essentially neutral. As the parties argue, although there is a public interest in having
government officials freely consult with attorneys for legal advice when developing policies to
ensure they comply with the law, there is also a public interest in transparency in government
decision-making. Contrary to Defendant’s arguments, there is no indication that disclosure of
the specific documents at issue here would produce any kind of significant chilling effect on
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government officials’ willingness to seek advice from attorneys, or on government attorneys’
willingness to provide candid legal advice. As a result, the Court finds that this factor does not
tilt the balance one way or the other.
ACCORDINGLY, it is
ORDERED that Defendant’s motion to stay the Orders of November 19, 2020, and June
11, 2021 (Dkt. No. 225) is DENIED.
Date: July 20, 2021
Syracuse, New York

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