In re McRay, Richardson, Santana, Wise and Salaam Litigation

Filing 176

MEMORANDUM AND OPINION re: 160 MOTION for Reconsideration of the Court's November 22, 2011 Opinion and Order filed by Linda Fairstein, Tim Clements, Former New York City Police department Manhattan Chief of Detectives Rosenthal, New Yor k City Police Department, The City of New York, Thomas McCabe, City Police commissioner raymond Kelly, Bill Kelly, Former New York City Police Department Chief of Patrol Borough Manhattan North Selvaggi, Robert Nugent, New York City Police Detectives Ramon Rosario, Carlos Gonzalez, Harry Hildebrandt, Michael Sheehan, John Hartigan, Thomas McKenna, Humberto Arroyo, Scott Jaffer, John O'Sullivan, John Taglioni, B, Elizabeth Lederer, Bruno Francisci. For the reasons set forth above, Defendants' Motion for Reconsideration is GRANTED, in part, and DENIED, in part. (Signed by Magistrate Judge Ronald L. Ellis on 4/26/2012) (mro)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

IN RE MCRAY, RICHARI)SON, SANTANA, WISE,
AND SALAAM LITIGATION

USDC SDNY :::
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. DOCUrvffiNT
EL[-:Tl~ONICALLY FILED
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OPINION AND
ORDER
03 Civ. 9685 (DAB) (RLE)

RONALD L. ELLIS, United States Magistrate Judge:
I. INTRODUCTION

The above-captioned Plaintiffs and their families filed suit against the City of New York,
and various current and former employees of the New York City Police Department ("NYPD")
and the New York County District Attorney's Office ("DANY"), alleging a number of federal
and state causes of action connected to the arrest, investigation, and conviction of Plaintiffs for
the attack on the Central Park Jogger on April 19, 1989. (See Am. Compl., Doc. 47.) Pending
before the Court is Defendants' Motion for Reconsideration of the Court's November 22, 2011
Opinion and Order granting Plaintiffs' Motion to Compel "production of all documents created
by Marin-Jordan in connection with her involvement in the Armstrong Commission." (See
Opinion and Order ("Order"), Nov. 22, 2011, Doc. No. 153 at 13; Def. Mem. of Law in Supp. of
Mot. for Recons. ("Defs. Mot."), Doc. No. 160.) Defendants contend that (1) the Court's Order
to produce "all" documents prepared by Marin-Jordan was too broad; (2) specific documents by
Marin-Jordan that the Court found were subject to disc10sure were in fact privileged attorney
work product; and (3) the Court's basis for compelling disclosure of draft versions of the
Armstrong Report should be amended. (ld.)
For the reasons set forth below, Defendants' Motion is GRANTED, in part, and
DENIED, in part.

II. BACKGROUND
The Court assumes general familiarity with the events that gave rise to this litigation, and
only reiterates the facts relevant to the Motion for Reconsideration. On July 19,2011, after
nearly a year of document exchanges and several privilege logs, Plaintiffs moved to compel
Defendants to produce certain withheld documents. (Order at 2-3.) Of the several thousand
documents at issue, Defendants submitted to the Court approximately 2000 documents for in
camera review. (Id. at 3.) The specific documents relating to Special Counsel to the Deputy

Commissioner for Legal Matters at the New York City Police Department Ruby Marin-lordan
that were submitted for in camera review are as follows: (1) three drafts of the Armstrong report,
which contain Marin-lordan's edits and notes regarding certain inclusion or exclusion of facts
(See NYC017488-NYC017573, NYC018441- NYC 018483.) ; (2) a typed draft ofa response to

Assistant District Attorney ("ADA") Nancy Ryan's December 5,2002 affirmation, annotated
with Marin-lordan's handwritten notes (See NYC018431 - NYC018432.); and (3) a document
containing ADA Ryan's affirmation, with Marin-lordan's handwritten notes reflecting her
thoughts on various statements contained in the affirmation (See NYC018484 - NYC18541.)
The Court issued an Order on November 22, 2011, ruling, inter alia, that documents
prepared by Ruby Marin-lordan in relation to the Armstrong Report were not protected by the
work product doctrine or by attorney-client privilege. The Court compelled production of "all
documents created by Marin-Jordan in connection with her involvement in the Armstrong
Commission." (Order at 11-13.)
Following the Court's Order, Defendants submitted a Motion for Reconsideration on
December 15,2011, and attached an ex parte declaration from Marin-lordan as an Exhibit.

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(Defs. Mot., Ex. A) Plaintiffs responded on January 4,2012, and Defendants replied on January
11,2012. Plaintiffs filed

a brief sur-reply on January 17,2012. (Doc. Nos. 165, 168.)
III. DISCUSSION

A. Legal Standard for Reconsideration
The standard for a motion for reconsideration under Local Rule 6.3 and Federal Rule of
Civil Procedure 59(e) is a strict one. See Schrader v. CSX Tramp., Inc., 70 F.3d 255,257 (2d Cir.
1995). The party must be able to "point to controlling decisions or data that the court
overlooked-matters, in other words, that might reasonably be expected to alter the conclusion
reached by the court." Id. A motion for reconsideration "is not a substitute for appeal," A/orales
v. Quintiles Transnat'l Corp., 25 F. Supp. 2d 369, 372 (S.D.N.Y. 1998), and is generally only
granted on three grounds: "(1) an intervening change of controlling law, (2) the availability of
new evidence, or (3) the need to correct a clear error or prevent manifest injustice." Virgin Atl.

Airways, Ltd. v. Nat? Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992).
B. Application to Marin-Jordan's Documents
1. Defendants invoke an overly broad interpretation not warranted by the Opinion.
The Court ordered the production "of all documents created by Marin-Jordan in
connection with her involvement in the Armstrong Commission," (Doc. No. 13.) Defendants
contend that, "if interpreted expansively," the Court's ruling "would eviscerate the work product
and attorney-client privileges" for "any agency counsel" connected with this case. (Defs. Mot. at
4.) The key phrase here is "if interpreted expansively." The ruling only addressed Marin­
Jordan's work "in connection with the Armstrong Commission." To be sure, finding an
appropriate phrase that would convey the appropriate limitation presents somewhat of a problem.
Defendants' expansive interpretation, however, ignores the fact that the ruling with respect to the
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Armstrong Report and Marin-Jordan's participation in it, occurs after the Court discussed
specific elements ofthe work product doctrine (e.g.,

anticipation of litigation) and the attorney

client privilege (e.g., confidentiality), elements found lacking with regard to the Armstrong
Report. This does not mean that documents that refer to or comment on the Armstrong Report
cannot be privileged. It means that they cannot be designated as privileged because they are
connected to the Report.
In contrast to their position with respect to the Armstrong Report, Defendants maintain
that Marin-Jordan's notes should be provided only to the extent they are "relevant to Plaintiffs'
intentional infliction of emotional distress claims against Commissioner Kelly." (Defs. Mot. at
4.) Defendants assert that "the Court [did not] intend for defendants to be forced to disclose
documents that are unrelated to plaintiffs' intentional infliction of emotional distress claims."
(Defs. Mot. at 5.) Defendants argue that they do not need to submit "all" documents created by
Marin-Jordan when the documents do not relate to the intentional infliction of emotional distress
claims made by Plaintiffs. This position misinterprets the Court's Order. While the court found
the documents relevant to Plaintiffs' intentional infliction of emotional distress claims, the Court
did not state that it would be the only basis to disclose documents, and certainly did not articulate
a limit to Federal Rule of Civil Procedure Rule 26's liberal standard. Accordingly, the Order is
not limited to documents related to the intentional infliction of emotional distress claims by
Plaintiffs.
The Defendants' Motion for Reconsideration of the Court's ruling as to documents
prepared by Marin-Jordan in connection with her involvement in the Armstrong Commission is
DENIED.

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2. Information provided to the Court indicates that specific documents created by
A'larin-Jordan are privileged.
Uetendants seek reconsideration of the disclosure of specific documents that were
provided for in camera review to the Court, which are (1) Marin-Jordan's typed draft of a
response to ADA Ryan's affirmation with her notes; and (2) Marin-Jordan's handwritten notes
annotating ADA Ryan's affirmation. (Defs. Mot. at 7.) Based on the additional information
provided to the Court, the Court finds that these documents are not within the scope of the
Court's Order to produce because they were created in anticipation oflitigation, and are work
product. Documents with Bates Stamp Nos. NYC018431 - NYC018432, and NYC018484­
NYC018541 are not to be produced, and Defendants' Motion for Reconsideration as to these
specific documents is GRANTED.

3. Drafts ofthe Armstrong Report were not found discoverable simply because the
contents ofthe drafts were part ofthe final report.
Defendants ask the Court to amend its ruling regarding the disclosure of draft versions of
the Armstrong Report containing Marin-Jordan' s notes. Based on documents and information
submitted for in camera review, the Court stated that it "faiJ[ ed] to see how any of hte notes
relate to legal advice, given the purpose of, and ultimate pUblication of, the Armstrong Report."
(Order at 13.) They assert that the Court improperly based its ruling on the fact that the
Armstrong Report was publicly available and claim that the Court found "that the privileged
nature of an entire document is dependent upon whether some of the information it contains later
becomes public." (Defs. Mot. at 11.) This statement is incorrect and mis-characterizes the
Court's opinion. With respect to work product, the Court held that the Report was not privileged
because "the documents at issue were not created in anticipation oflitigation or trial, but were
rather generated in connection with a public report relating to a matter of public concern."

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(Order at 12.)
With respect to the attorney-client privilege,

the Court found that the submitted

documents did not "reflect any legal advice." (Order at 13.) The opinion does allude to the
fact that the Report was "ultimately" published, this was never given as the reason for the
finding. (Id.) While Defendants at several points in their Motion express concern about what the
Court appeared to have said, they should be cautioned that if the Court intended to make the
sweeping holding that because a document was later published, any and all documents generated
in connection with that document would be discoverable, they would not have to guess at the
Court's intent. Similarly, the suggestion that the Court may have conflated the deliberative
process privilege analysis with that required for work product or attorney client privilege is
unsupported by the Opinion. The Opinion articulates the factors considered by the Court for
analysis of both work product and attorney client protection. In neither section does the Opinion
indicate that one of the criteria is whether any matter is ultimately adopted or made public.
Defendants have not provided a sufficient basis under FRCP 59(e)'s strict standard for
reconsideration to amend the Court's ruling or its rationale as to the Armstrong Report. They
have not submitted any intervening change of law, new evidence, or how the Court's ruling
would lead to clear error or manifest injustice in this case. Accordingly, Defendants' Motion for
Reconsideration as to amending its ruling regarding the Armstrong Report drafts is DENIED.

IV. CONCLUSION

For the reasons set forth above, Defendants' Motion for Reconsideration is GRANTED,
in part, and DENIED, in part.

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SO ORDERED this 26th day of April 2012
New York, New York

The Honorable Ronald L. Ellis
United States Magistrate Judge

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